Philosophy Of Law: An Introduction To Jurisprudence

by Jeffrie G. Murphy

In this revised edition, two distinguished philosophers have extended and strengthened the most authoritative text available on the philosophy of law and jurisprudence. While retaining their comprehensive coverage of classical and modern theory, Murphy and Coleman have added new discussions of the Critical Legal Studies movement and feminist jurisprudence, and they have strengthened their treatment of natural law theory, criminalization, and the law of torts. The chapter on law and economics remains the best short introduction to that difficult, controversial, and influential topic.Students will appreciate the careful organization and clear presentation of complicated issues as well as the emphasis on the relevance of both law and legal theory to contemporary society.

Genres: Philosophy, Law

260 pages, Paperback

First published December 1, 1989

Reviews

[Sean Richardson · Rating 5 out of 5]

I read chapters 1 (on the nature of law), 2 (on law and moral theory), and 5 (on the economic analysis of law). I would recommend all three of these chapters for people interested in law and philosophy.

Chapter 1 covers the metaphysics of law, investigating the "nature of law," i.e., what essentially characterizes law in contradistinction to, say, etiquette. A closely related (or perhaps identical) topic discussed here concerns the "grounds of law," i.e., what sort of non-legal facts explain or determine legal facts. The primary debate here is between "positivists," who argue that legal facts are determined solely by social facts, and "anti-positivists," who argue that legal facts are not determined solely by social facts, but also by moral facts. Murphy (the author of chapters 1 and 2) does a good job explaining this debate, highlighting the substantive import of the metaphysics of law: how we understand the nature of law affects how we understand its relationship to morality, its proper interpretation, and the nature of legal obligation. The discussion of "classical natural law theory" (of the sort advanced by Aquinas) appears to be a bit uncharitable compared to other sources I've read. However, Murphy's discussion of Austin, Hart, and Dworkin was very clear and helped prepare me to dive into primary sources such as Hart's The Concept of Law.

Chapter 2 covers some basics of moral theory, as well as its relationship to law. Murphy distinguishes between different forms of justification for legal rules, taking as a case study elements of the First Amendment. Some rules may be justified intrinsically, as they serve to promote or preserve something good for its own sake. For instance, the protection of free speech for individuals may be justified intrinsically, as it functions to promote or preserve a kind of independence that constitutes part of a valuable human life. On the other hand, some rules may be justified only instrumentally, as they serve to promote or preserve something good only for its effects. The freedom of the press, for instance, may be justified only instrumentally, not intrinsically. It does not seem that freedom for the press (above and beyond the freedoms of its individuals) is good for its own sake, but rather is good only for its ability to limit the government from overstepping its bounds. Overall, this is a decent introduction to the intersection between law and moral theory. Some parts may seem a bit elementary if you have taken a class in moral theory, but the case studies are very instructive.

Chapter 5 (written by Coleman) covers the economic analysis of law (also known as the "law and economics" approach). The economic analysis of law uses conceptual tools and methodologies drawn from microeconomic theory to understand and evaluate law. Thus, the framework has both descriptive and normative elements, which need not go together. Descriptively, the economic analysis of law involves assessing the economic consequences of legal rules. To the lawyer-economist, legal punishments and damages look like prices, and microeconomic theory provides a toolkit for determining the effects of prices on behavior. Normatively, the economic analysis of law involves evaluating legal rules according to their economic consequences. In other words, the lawyer-economist searches for the set of legal rules that produces the best economic outcomes. The relevant criteria here include the notions of Pareto Efficiency, or Pareto Optimality (which involves no one being able to be made better off without others being made worse off), and Kaldor-Hicks Efficiency, or Potential Pareto Efficiency (which involves wealth-maximization, such that everyone could be made better off, given redistribution). Coleman does an excellent job of conveying these concepts, highlighting both what they are and what they are not. The chapter surveys how we can apply the descriptive side of the economic analysis of law to diverse areas ranging from nuisance law to the law of accidents to contract law. Turning to the normative component of the economic analysis of law, Coleman examines common objections to the justifiability of wealth-maximization, finding them lacking. In turn, he presents some of his own objections, which I found more compelling. In my mind, this was the best chapter of the book. The economic analysis of law has transformed American law, and this is an excellent introduction to understanding this transformative and controversial approach.

[Phillip · Rating 5 out of 5]

Students will appreciate the careful organisation and clear presentation of complicated issues as well as the emphasis on the relevance of both law and legal theory to contemporary society. Highly recommended!

[Ari · Rating 4 out of 5]

Philosophy of law tries to understand law, as distinct from ethics and politics. I thought this book was a good overview of the topic, both accessible and interesting. Murphy's sections (the first three) are distinctly better written than Coleman's, which may have as much to do with the topics as with the material.