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Very Short Introductions #147
ปรัชญากฎหมาย: ความรู้ฉบับพกพา
ปรัชญากฎหมาย: ความรู้ฉบับพกพา โดย เรย์มอนด์ แวคส์ ศาสตราจารย์เกียรติคุณด้านกฎหมายและนิติปรัชญาแห่งมหาวิทยาลัยฮ่องกง จะพาคุณสำรวจปรัชญา มโนทัศน์ ทฤษฎี ตลอดจนชุดความเชื่อที่เป็นรากฐานของกฎหมายแต่ละยุคสมัย ทั้งอรรถประโยชน์นิยม ปฏิฐานนิยม สตรีนิยม และทฤษฎีหลังสมัยใหม่ พร้อมทั้งเปิดมุมมองให้เห็นกฎหมายในหลายมิติผ่านทรรศนะของบรรดานักคิดผู้ร่วมกำหนดภูมิทัศน์ของปรัชญากฎหมาย ตั้งแต่ผู้รับใช้ศาสนาอย่างนักบุญอะไควนัส นักปรัชญาการเมืองอย่างรุสโซ ไปจนถึง โรนัลด์ ดวอร์คิน นักวิชาการผู้เลื่องชื่อในแวดวงนิติศึกษา
หนังสืออ่านสนุกและเข้าใจง่ายเล่มนี้จะช่วยขยายพรมแดนความเข้าใจในปรัชญาซึ่งแฝงอยู่เบื้องหลังกฎหมาย ทั้งยังเผยให้เห็นว่าแม้กฎหมายจะสัมพันธ์กับเรื่องนามธรรมอย่างสิทธิหรือความยุติธรรม แต่ก็ใกล้ชิดกับชีวิตคนเรามากกว่าที่คิด เช่น สิทธิสตรี การเหยียดเชื้อชาติ หรือประเด็นสิ่งแวดล้อม
หนังสืออ่านสนุกและเข้าใจง่ายเล่มนี้จะช่วยขยายพรมแดนความเข้าใจในปรัชญาซึ่งแฝงอยู่เบื้องหลังกฎหมาย ทั้งยังเผยให้เห็นว่าแม้กฎหมายจะสัมพันธ์กับเรื่องนามธรรมอย่างสิทธิหรือความยุติธรรม แต่ก็ใกล้ชิดกับชีวิตคนเรามากกว่าที่คิด เช่น สิทธิสตรี การเหยียดเชื้อชาติ หรือประเด็นสิ่งแวดล้อม
240 pages, Paperback
Published April 1, 2021
193 people are currently reading
1680 people want to read
About the author
Raymond Wacks
40 books18 followersRaymond Wacks is Emeritus Professor of Law and Legal Theory at the University of Hong Kong, where he was Head of the Department of Law from 1986 to 1993. He was previously Professor of Public Law and Head of the Department of Public Law at the University of Natal in Durban. He has lived in Italy since taking early retirement in 2002.
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Displaying 1 - 30 of 88 reviews
November 16, 2015
The progression of ideas is coherent (though minimal in content) and allows the reader to move in known paths even as exposure to legal theory and jurisprudence is gradually increased. Close parallels with sociology and philosophy pretty much dictates this, but still, well executed. All in all, a good introductory work.
February 24, 2022
“Philosophy of Law” is a very precise introduction to law and legal theories. It begins with a discussion of the nature of law and proceeds with the debate between two major directions of legal thinking: naturalism and positivism. It then touches upon issues of rights and justice. The author introduces the most prominent thinkers of each direction with a brief analysis of the theories, concepts, and positions of those thinkers. Two separate chapters are dedicated to the issues of law and society and critical legal theory with the emphasis on the former.
It is a very good start for those who are interested in legal issues as the book is written in a very clear and understandable language. Moreover, it provides a list of useful sources for further reading.
It is a very good start for those who are interested in legal issues as the book is written in a very clear and understandable language. Moreover, it provides a list of useful sources for further reading.
June 15, 2015
Unfortunately, this book is useless. The brevity associated with the Oxford Introduction series doesn’t work well when the intention is to give an introduction to such a large subject. Wacks leaves aside a lot of very important thinkers and gives only a very brief, unsatisfying and misleading account of many others, the ones who get a more detailed and adequate explanation being of Anglo – American tradition.
Anyway, I understand well enough some of the theories presented to see that some of Wacks’ explanations are really misleading and confuse. I wouldn’t rely on him if I wanted to learn something new.
Anyway, I understand well enough some of the theories presented to see that some of Wacks’ explanations are really misleading and confuse. I wouldn’t rely on him if I wanted to learn something new.
August 21, 2021
Disappointing to me. Rather than a general introduction to the philosophy of law, it was more like a hodgepodge of various writings about the law and capsule biographies. Also lots of “x-ism fought against y-ism but was eventually followed by z-ism.” I would have rather had good coherent explanations of the main currents of the topic rather than lots of difficult to grasp quotes from various writers.
These Oxford “Very Short Introduction” titles vary wildly in quality. It’s great there are so many of them by such a wide variety of experts, but I wish they were more consistently approachable by members of the general public.
These Oxford “Very Short Introduction” titles vary wildly in quality. It’s great there are so many of them by such a wide variety of experts, but I wish they were more consistently approachable by members of the general public.
December 1, 2022
poorly written imo
May 29, 2020
Amacı kısa bir giriş olsa da, bana kalırsa fazla kısaydı. Daldan dala atlıyor izlenimi verdi, özellikle de son bölümleri öyleydi.
October 21, 2017
سلسله کتاب های مختصر و مفید از انتشارات دانشگاه آکسفورد را به طور کلی می پسندم. کتاب فلسفه حقوق را اما به جای نشر ماهی و پیش از آن که این انتشارات اقدام به ترجمه سلسله مورد نظر کند، دو نفر با دو ناشر در ایران ترجمه کردند. یکی از آن ها همین خانم فاطمه آبیار است. دکتر رحمت الهی که خود نظارت بر این ترجمه را بر عهده داشته است، می گوید ترجمه آبیار روان و خوش فهم است. با این حال اما من قبول ندارم و ترجمه انصاری را بیش تر می پسندم. «فلسفه حقوق» یک بیان تاریخی از مبانی نظری این دانش و نیز تحلیلی کوتاه و مختصر از آن ها است.
February 14, 2020
I liked the chapters where I had some previous understanding about the concepts. The ones which were completely alien to me were a bit difficult to grasp.
However it does a great job in encompassing a large number of theories and scholars.
However it does a great job in encompassing a large number of theories and scholars.
July 9, 2013
A short introduction to the philosophy of law written from a Western (especially English and American) perspective.
November 11, 2024
One reasonably approaches any entry in the “Very Short Introduction” series with two basic assumptions. First, that it will be little more than a survey of its particular subject, giving the reader a “lay of the land” from which they can further explore any aspect that particularly interested them. Implicit here is the promise that the survey book will be fairly comprehensive; one cannot know all the paths available if half of the map is missing. And second, that it will be written in simple enough language to be understandable to the novice approaching the subject for the first time, without unduly sacrificing accuracy and a certain level of precision.
Wacks’ contribution to the series, “Philosophy of Law,” is notably deficient in both respects. It is primarily concerned with Anglo-American legal theory, with a smattering of Continental philosophy toward the end. This emphasis is certainly understandable given the global influence of this tradition (for better or worse) via colonialism and higher education; but the complete absence of any other perspectives is still unfortunate. And the lopsided character of his focus is not just geographical but theoretical as well: entire chapters are given over to discussions of positivist and natural law, while newer and complex approaches like postmodern and feminist theories are lumped together in the same chapter and given only a few pages each. Again, this emphasis is understandable given the dominant influence of the former traditions in actual legal practice today, but one wishes that a little more balance had been made so as not to overly simplify and distort the description of the latter.
Which brings us to the second major deficiency of the book: the highly abstract and sometimes misleading discussions of the legal philosophies treated here. To some extent this is unavoidable given the inherently abstract nature of the subject itself. And I am by no means an expert or even particularly familiar with every single one of the philosophers treated here. But my close knowledge of some and relative lack of knowledge on others puts me in a decent position, I think, to evaluate his overall endeavor. The philosophers I knew more about (eg Marx) were presented in such overgeneralized terms that even I had a hard time following his discussion at times, while many of the specific conclusions he derived struck me as inaccurate or at least highly questionable. As for the philosophers I knew little about (eg Dworkin) the treatment was so abstract that I either couldn’t really follow the argument at all, or it struck me as so simplistic as to make me wonder what the big deal was. I suspect this is more due to a deficiency in the description rather than to any inherent defect in the philosophies themselves.
I don’t want to be unduly harsh; I have a great deal of sympathy for the difficulty of summarizing such a complicated topic in a short and accessible manner. I do think this book retains some value as a very quick introduction so long as one approaches it knowing of its shortcomings. And the bibliography and “Further Reading” section is very useful as a potential study guide.
Wacks’ contribution to the series, “Philosophy of Law,” is notably deficient in both respects. It is primarily concerned with Anglo-American legal theory, with a smattering of Continental philosophy toward the end. This emphasis is certainly understandable given the global influence of this tradition (for better or worse) via colonialism and higher education; but the complete absence of any other perspectives is still unfortunate. And the lopsided character of his focus is not just geographical but theoretical as well: entire chapters are given over to discussions of positivist and natural law, while newer and complex approaches like postmodern and feminist theories are lumped together in the same chapter and given only a few pages each. Again, this emphasis is understandable given the dominant influence of the former traditions in actual legal practice today, but one wishes that a little more balance had been made so as not to overly simplify and distort the description of the latter.
Which brings us to the second major deficiency of the book: the highly abstract and sometimes misleading discussions of the legal philosophies treated here. To some extent this is unavoidable given the inherently abstract nature of the subject itself. And I am by no means an expert or even particularly familiar with every single one of the philosophers treated here. But my close knowledge of some and relative lack of knowledge on others puts me in a decent position, I think, to evaluate his overall endeavor. The philosophers I knew more about (eg Marx) were presented in such overgeneralized terms that even I had a hard time following his discussion at times, while many of the specific conclusions he derived struck me as inaccurate or at least highly questionable. As for the philosophers I knew little about (eg Dworkin) the treatment was so abstract that I either couldn’t really follow the argument at all, or it struck me as so simplistic as to make me wonder what the big deal was. I suspect this is more due to a deficiency in the description rather than to any inherent defect in the philosophies themselves.
I don’t want to be unduly harsh; I have a great deal of sympathy for the difficulty of summarizing such a complicated topic in a short and accessible manner. I do think this book retains some value as a very quick introduction so long as one approaches it knowing of its shortcomings. And the bibliography and “Further Reading” section is very useful as a potential study guide.
October 3, 2020
“โลกเรานี้ยังเต็มไปด้วยความยากลำบากและไม่เท่าเทียม และคงเป็นเช่นนี้มาแต่ไหนแต่ไรแล้ว ในยามที่ต้องเผชิญความชั่วร้ายและความอยุติธรรม ก็ไม่ยากอะไรที่คนเราจะเผลอไผล หยิบใช้คำอธิบายอันตื้นเขินและโวหารคลุมเครือมาพิจารณา ว่ากฎหมายนั้นมีธรรมชาติที่แท้และบทบาทหน้าที่อย่างไรกันแน่ ทั้งที่จริงแล้ว ความกระจ่างชัดจากการวิเคราะห์และการไตร่ตรองเชิงนิติศาสตร์อย่างละเอียดลออเพื่อให้เข้าใจถึงธรรมชาติรากฐานของกฎหมาย ความยุติธรรม และความหมายของมโนทัศน์ทางกฏหมายนั้นเป็นเรื่องที่ขาดเสียมิได้ ทฤษฎีกฎหมายจึงมีบทบาทสำคัญที่จะช่วยให้เรานิยามและปกป้องบรรดาคุณค่าและอุดมคติต่าง ๆ ที่ทำให้ชีวิตของคนเราดำเนินต่อไปบนครรลองที่ยังยืน”
——
หนังสือพาเราไปสำรวจแนวคิดของกฏหมายประเภทต่าง ๆ
เหตุผลเบื้องหลังที่ทำให้กฏหมายนั้นกำเนิดขึ้นและคงอยู่ และการพัฒนาในเวลาต่อมาไปเป็นรากฐานของทฤษฎีต่าง ๆ
เนื้อหาโดยสังเขป
กฏหมายธรรมชาติ
ปฏิฐานนิยมทางกฏหมาย
สิทธิและความยุติธรรม
กฏหมายกับสังคม
ทฤษฎีกฎหมายแนววิพากษ์
—-
อ่านแล้วก็ได้ขบคิดตาม
แปลลื่นไหล อ่านไม่สะดุด
เขียนสำนวนวิชาการที่ใช้ภาษาเข้าใจง่าย //เล่มนี้เป็นตัวอย่างนึงเลยว่า วิชาการ ทางการ ง่ายต่อการเข้าใจ ~ สามอย่างนี้มันไปด้วยกันได้
สรุปคร่าว ๆ
แต่ทุกบรรทัดก็แน่นมาก เนื้อเน้น ๆ กระชับ ได้ใจความ ไม่มีส่วนไร้สาระ
สมกับชื่อซีรีส์หนังสือ a very short introduction
—
อ่านสนุกดี
รู้สึกว่ามันไม่มี magic bullet หรือ one that fits all ทุกอย่างมีสิ่งที่เหมาะสมของมัน
หลักการก็เช่นกัน ไม่มีคำตอบตายตัว
เพราะชีวิตมันซับซ้อน
——
หนังสือพาเราไปสำรวจแนวคิดของกฏหมายประเภทต่าง ๆ
เหตุผลเบื้องหลังที่ทำให้กฏหมายนั้นกำเนิดขึ้นและคงอยู่ และการพัฒนาในเวลาต่อมาไปเป็นรากฐานของทฤษฎีต่าง ๆ
เนื้อหาโดยสังเขป
กฏหมายธรรมชาติ
ปฏิฐานนิยมทางกฏหมาย
สิทธิและความยุติธรรม
กฏหมายกับสังคม
ทฤษฎีกฎหมายแนววิพากษ์
—-
อ่านแล้วก็ได้ขบคิดตาม
แปลลื่นไหล อ่านไม่สะดุด
เขียนสำนวนวิชาการที่ใช้ภาษาเข้าใจง่าย //เล่มนี้เป็นตัวอย่างนึงเลยว่า วิชาการ ทางการ ง่ายต่อการเข้าใจ ~ สามอย่างนี้มันไปด้วยกันได้
สรุปคร่าว ๆ
แต่ทุกบรรทัดก็แน่นมาก เนื้อเน้น ๆ กระชับ ได้ใจความ ไม่มีส่วนไร้สาระ
สมกับชื่อซีรีส์หนังสือ a very short introduction
—
อ่านสนุกดี
รู้สึกว่ามันไม่มี magic bullet หรือ one that fits all ทุกอย่างมีสิ่งที่เหมาะสมของมัน
หลักการก็เช่นกัน ไม่มีคำตอบตายตัว
เพราะชีวิตมันซับซ้อน
February 26, 2021
Oikein hyvä joskin hyvinkin tekstikirjamainen johdatus oikeusfilosofiaan.
Oikeusfilosofia on kiinnostanut itseä jo pidempään ja tämä kirja tarjosi nyt vihdoin tilaisuuden kastaa varpaansa juridiikan tunturipuroon. Sain tästä mitä halusinkin eli lähtötiedot oikeusfilosofian keskeisistä koulukunnista ja kysymyksistä. Erityisesti kirjan alku on erinomainen.
Kirja on kirjoitettu siihen klassiseen oppikirjatyyliin, että ensin esitellään ns. klassisia koulukuntia, sitten sosiologisia lähestymistapoja ja lopuksi vaarallista kriittistä kamaa. Luku oikeussosiologiasta oli ehkä vähän vanhanaikainen kun käsiteltävät sosiologit olivat Durkheim ja Weber, mutta onhan klassikoilla ansionsa. Kriittistä settiä käsittelevä luku oli lukuunottamatta feministisen oikeusfilosofian käsittelyä vähän dadaa. Yhdessä kohtaa esimerkiksi täysin yllättäen esitellään Lacanin ajatuksia peilivaiheesta, mutta niitä ei liitetä mihinkään. Ylipäätänsä huomasi, että Wacks ei nyt selvästi ole ihan kotonaan postmodernismin kanssa ja sen kritisointikin oli vähän olkiukkotasoa.
Mutta siis hei kuitenkin oikein hyvä johdanto. Tämän pohjalta on hyvä lukea joku vähän kattavampi teos aiheesta.
Oikeusfilosofia on kiinnostanut itseä jo pidempään ja tämä kirja tarjosi nyt vihdoin tilaisuuden kastaa varpaansa juridiikan tunturipuroon. Sain tästä mitä halusinkin eli lähtötiedot oikeusfilosofian keskeisistä koulukunnista ja kysymyksistä. Erityisesti kirjan alku on erinomainen.
Kirja on kirjoitettu siihen klassiseen oppikirjatyyliin, että ensin esitellään ns. klassisia koulukuntia, sitten sosiologisia lähestymistapoja ja lopuksi vaarallista kriittistä kamaa. Luku oikeussosiologiasta oli ehkä vähän vanhanaikainen kun käsiteltävät sosiologit olivat Durkheim ja Weber, mutta onhan klassikoilla ansionsa. Kriittistä settiä käsittelevä luku oli lukuunottamatta feministisen oikeusfilosofian käsittelyä vähän dadaa. Yhdessä kohtaa esimerkiksi täysin yllättäen esitellään Lacanin ajatuksia peilivaiheesta, mutta niitä ei liitetä mihinkään. Ylipäätänsä huomasi, että Wacks ei nyt selvästi ole ihan kotonaan postmodernismin kanssa ja sen kritisointikin oli vähän olkiukkotasoa.
Mutta siis hei kuitenkin oikein hyvä johdanto. Tämän pohjalta on hyvä lukea joku vähän kattavampi teos aiheesta.
September 25, 2024
This was ok, not great, was hoping for some general insights into the inner workings of the law and there's definitely some of that, but the narative strays a lot; one thing that stood out; in particular the degree to which the law is steeped deep in philosophy (ethics, ontology, epistemology) was quite the surprise.
August 6, 2025
Como breve introducción está bien, me sirve para tener una vista rápida de las principales posturas y continuar indagando.
Read
May 11, 2023Bruce did not slay with this one
December 11, 2021
I was under the impression that the VSI series is aimed at the layperson, but this volume assumes the reader has a fair grasp of a lot of niche topics - at one point the author references Hegel's Dialectics as if it's common knowledge! The book is still a good read for whetting your appetite when it comes to jurisprudence, but I think it is a little too advanced for its own good.
June 2, 2025
Notes
Descriptive legal theory explains what the law is, why, its consequences. Normative is concerned with what it ought to be. Descriptive can be doctrinal (answer questions through some underlying theory like freedom of expression), explanatory (marxist descriptive theory explains law as interests of ruling class), and consequential (economic analysis of law seeks costs of law). Normative on the other hand concerned with moral/political theories.
Natural law - Cicero’s philosophy of true law being right reason n agreement with Nature, universal application, eternal, unchanging. Discoverably by reason.
Aquinas’ christian doctrine of law - 4 categories, eternal (known only to god), natural law (discoverable by reason), divine law (scriptural), human (supported by reason, enacted for good outcomes). A law that conflicts with natural law loses its power of moral binding.
Grotius (Hugo de Groot)’s secularization of natural law - would be the same even without existence of god.
American/French revolutions justified through principles of natural law.
Hobbe’s social contract - surrending natural freedom for protection, undermines legitimacy of revolutions against governments. Propensity towards disagreement because of competition (limited resources), distrust and glory (reputation of power). To escape the horror of the state of nature, peace is the first law of nature. The second law is that we divest certain rights for peace. Third law is for this contract to be maintained, by a political sovereign.
Locke - before the social contract, life was paradise, except for protection of property - by mixing his labor with material objects, he acquires the right to the thing he has made.
Hume against natural law - just because something is, doesn’t mean it ought to be.
Lon Fuller’s inner morality of law - 8 failures of a king: a. No rules b. Rules not known c. retroactive outlawing d. Incomprehensible e. Contradictory f. Impossible g. Everchanging h. Bad administration of rules
John Finnis revival of Aquinas to get principles of natural law - 7 basic forms of human flourishing: 1. Life 2. Knowledge 3. Play 4. Aesthetic experience 5. Sociality 6. Practical reasonableness 7. Religion. 9 basic requirements of practical reasonableness: active pursuit of goods, coherent plan of life, clear values, clear people preferences, detachment and commitment, relevant consequences, respect for value in each act, common good, conscience.
Legal positivism of Bentham and John Austin - law as command. Deny connection between law and morals. From positum, laid down, or posited. No independent existence from human enactment. Needs to be distinction between ought and is.
HLA Hart - father of modern legal positivism: law as a social phenomena with minimum content of natural law arising from human condition: vulnerability, equality (even the strongest must sleep), limited altruism, limited resources, limited understanding and will.
Obligation rules impose duty - either moral or legal. Legal can be primary (proscribe temptations like theft, violence), secondary (change, adjudication, and recognition). Recognition is the criteria by which the validity of rules is decided.
Hans Kelsen’s law as monopolization of force. For a norm to be valid, it is authorized by another norm and that in turn by another - until you reach a point of no return, the Grundnorm - which is a hypothesis, and taken to be true without enquiry. Kelsen has been cited in various revolutionary govts like Pakistan, Uganda, Rhodesia, where revolution rejects the existing Grundnorm.
Joseph Raz - conformity to rule of law reduces abuse of power, but this is a negative-virtue: since risk of arbitrary power is created by the law itself.
Ronald Dworkin against positivist view of judges using discretion when no statute applies - says law contains a solution to every problem. In addition to rules, laws include principles - so murderer with air-tight will cannot inherit because principle of no person profiting from his wrong. Individual rights are compromised if a case depends on the judge’s opinion, which can subordinate my rights to the community. Analysis of political morality has 3 ingredients - justice (individual rights + collective goals), fairness (all equal), and procedural due process.
Wesley Hohfeld’s 4 ways to say X has right to do R: 1. Another person Y has a duty to allow R; 2. X has privilege to do R if he chooses 3. X has power to do R 4. X has immunity from others Y when it comes to R
Criminal law imposes duties on me (drive properly) without any corresponding right to another specific person. Similarly teacher has duty to teach without students having any correlated rights.
Aristotles justice of treating equals equally and unequals unequally in proportion to their inequality - corrective justice (right a wrong) vs distributive justice (mete out just deserts).
Justinian’s Corpus Juris Civilisis - Justice is the constant wish to give people what they deserve. Precepts of the law are to live honestly, not injure others, give everyone his due.
Themis, goddess of justice, holds sword of power, scales of neutrality.
Modern justice focuses on fair distribution of burdens and benefits of social life.
Utilitarian justice is maximiation of happiness. Bentham - individually we strive to get pleasure and avoid pain, so society also must be structured to realize this objective.
Economic analysis of law - society maximizes wealth when its resources are distributed in such a way that sum of everyone’s transactions is maximized.
A change is Kaldor-Hicks efficient if the increase in value to those who gain exceeds the losses to those who lose.
Rawls justice as fairness - principles that free, rational persons wanting to maximize their interests would accept in an initial position of equality - these fundamental terms of association define all future agreements. In veil of ignorance, gain G is function of your own decisions D and circumstances C. So maximin is done on the matrix of D(1,2,3) v C(1,2,3). Difference principle - the worst anyone can be is ‘least advantaged’.
Various social primary goods - rights, liberties, powers, opportunities, income, wealth, self-respect - are more likely attained in a society that protects liberty first before equality.
Durkheim’s work on what keeps society together: as they become more secular and individualstic, law goes from punishment to compensation. But punishment still serves social solidarity - mechanical solidarity (homogenous, simple collectivist societies) vs organic solidarity (law reflects individualism, division of labor). Crime is an integral part of healthy societies - offends common conscience: punishment is the passionate reaction of graduated intensity that society exercises.
Max Weber’s highest stage of rationality integration of all analytically derived legal propositions to constitute a logically clear, internally consistent, gapless system. Law is fundamentally related to economic factors. Formal law provides the necessary predictability for capitalism, entrepreneurship.
3 types of legitimacy of domination - traditional (age-old rules), charismatic (devotion to a leader), legal-rational
Marx makes law subservient to economy, either through crude materialism (law reflects the ecnoomic base) or class instrumentalism (law is expression of the will of the dominant class). He distinguishes between rights of citizens (political rights in common with others, exercised through involvement) vs rights of man (private rights exercised in isolation, withdrawal from society).
Reification - process under which social relations assume the form of relations between things. Result of alienation of workers from result, social form of labor appears as a property of a thing.
Foucault sees human body from 18th century onwards subjected to microphysics of power through institutions of hospitals, factories, schools and prisons.
Critical legal theory contests the universal rational foundation of law that gives it its spurious legitimacy. Can never be independent from politics and morality.
Father of American Realism (law-in-action, not fixated with concepts like commands, rules etc) Oliver Wendell Holmes says common law not some brooding voice in the sky but the articulate voice of some quasi-sovereign. Look at the law from the position of the bad man. True science of law establishes its postulates on accurately measured social desires and not tradition.
Karl Llewelyn - law is an engine with purposes, not values in itself. Institution of law. An institution is an organized activity bult around a cluster of jobs.
Applying Marx and Freud, CLS sees in the law hegemonic consciousness - social order maintained by system of beliefs regarded as ‘common sense’.
Society has 4 beliefs - 1. Law is a system which can supply answer to all behavior; 2. Special form of legal reasoning exists 3. Legal doctrine is a coherent view of relation between persons 4. People internalize norms or are coerced, so social action reflects norms generated by the system. – CLS challenges all 4. 1. Principle of indeterminacy; 2. No autonomous lega l reasoning (anti-formalism);3. No single coherent view of human relations (contradiction); 4. Even if consensus, no reason to regard law as decisive (marginality).
Lacan - unconscious is structured like a language. The language of the unconscious is the arbiter of all experience. Justice is a fantasy. A harmonious community is unattainable.
Saussure differentiates between langue (deep structure of linguistics) and parole (speech acts). ‘Dog’ does not correspond to the animal, but emerges from difference with cog, bog etc. Derrida - So meaning is deferred. Stability only by deconstructing language meaning of one signifier includes meaning of another within it.
Descriptive legal theory explains what the law is, why, its consequences. Normative is concerned with what it ought to be. Descriptive can be doctrinal (answer questions through some underlying theory like freedom of expression), explanatory (marxist descriptive theory explains law as interests of ruling class), and consequential (economic analysis of law seeks costs of law). Normative on the other hand concerned with moral/political theories.
Natural law - Cicero’s philosophy of true law being right reason n agreement with Nature, universal application, eternal, unchanging. Discoverably by reason.
Aquinas’ christian doctrine of law - 4 categories, eternal (known only to god), natural law (discoverable by reason), divine law (scriptural), human (supported by reason, enacted for good outcomes). A law that conflicts with natural law loses its power of moral binding.
Grotius (Hugo de Groot)’s secularization of natural law - would be the same even without existence of god.
American/French revolutions justified through principles of natural law.
Hobbe’s social contract - surrending natural freedom for protection, undermines legitimacy of revolutions against governments. Propensity towards disagreement because of competition (limited resources), distrust and glory (reputation of power). To escape the horror of the state of nature, peace is the first law of nature. The second law is that we divest certain rights for peace. Third law is for this contract to be maintained, by a political sovereign.
Locke - before the social contract, life was paradise, except for protection of property - by mixing his labor with material objects, he acquires the right to the thing he has made.
Hume against natural law - just because something is, doesn’t mean it ought to be.
Lon Fuller’s inner morality of law - 8 failures of a king: a. No rules b. Rules not known c. retroactive outlawing d. Incomprehensible e. Contradictory f. Impossible g. Everchanging h. Bad administration of rules
John Finnis revival of Aquinas to get principles of natural law - 7 basic forms of human flourishing: 1. Life 2. Knowledge 3. Play 4. Aesthetic experience 5. Sociality 6. Practical reasonableness 7. Religion. 9 basic requirements of practical reasonableness: active pursuit of goods, coherent plan of life, clear values, clear people preferences, detachment and commitment, relevant consequences, respect for value in each act, common good, conscience.
Legal positivism of Bentham and John Austin - law as command. Deny connection between law and morals. From positum, laid down, or posited. No independent existence from human enactment. Needs to be distinction between ought and is.
HLA Hart - father of modern legal positivism: law as a social phenomena with minimum content of natural law arising from human condition: vulnerability, equality (even the strongest must sleep), limited altruism, limited resources, limited understanding and will.
Obligation rules impose duty - either moral or legal. Legal can be primary (proscribe temptations like theft, violence), secondary (change, adjudication, and recognition). Recognition is the criteria by which the validity of rules is decided.
Hans Kelsen’s law as monopolization of force. For a norm to be valid, it is authorized by another norm and that in turn by another - until you reach a point of no return, the Grundnorm - which is a hypothesis, and taken to be true without enquiry. Kelsen has been cited in various revolutionary govts like Pakistan, Uganda, Rhodesia, where revolution rejects the existing Grundnorm.
Joseph Raz - conformity to rule of law reduces abuse of power, but this is a negative-virtue: since risk of arbitrary power is created by the law itself.
Ronald Dworkin against positivist view of judges using discretion when no statute applies - says law contains a solution to every problem. In addition to rules, laws include principles - so murderer with air-tight will cannot inherit because principle of no person profiting from his wrong. Individual rights are compromised if a case depends on the judge’s opinion, which can subordinate my rights to the community. Analysis of political morality has 3 ingredients - justice (individual rights + collective goals), fairness (all equal), and procedural due process.
Wesley Hohfeld’s 4 ways to say X has right to do R: 1. Another person Y has a duty to allow R; 2. X has privilege to do R if he chooses 3. X has power to do R 4. X has immunity from others Y when it comes to R
Criminal law imposes duties on me (drive properly) without any corresponding right to another specific person. Similarly teacher has duty to teach without students having any correlated rights.
Aristotles justice of treating equals equally and unequals unequally in proportion to their inequality - corrective justice (right a wrong) vs distributive justice (mete out just deserts).
Justinian’s Corpus Juris Civilisis - Justice is the constant wish to give people what they deserve. Precepts of the law are to live honestly, not injure others, give everyone his due.
Themis, goddess of justice, holds sword of power, scales of neutrality.
Modern justice focuses on fair distribution of burdens and benefits of social life.
Utilitarian justice is maximiation of happiness. Bentham - individually we strive to get pleasure and avoid pain, so society also must be structured to realize this objective.
Economic analysis of law - society maximizes wealth when its resources are distributed in such a way that sum of everyone’s transactions is maximized.
A change is Kaldor-Hicks efficient if the increase in value to those who gain exceeds the losses to those who lose.
Rawls justice as fairness - principles that free, rational persons wanting to maximize their interests would accept in an initial position of equality - these fundamental terms of association define all future agreements. In veil of ignorance, gain G is function of your own decisions D and circumstances C. So maximin is done on the matrix of D(1,2,3) v C(1,2,3). Difference principle - the worst anyone can be is ‘least advantaged’.
Various social primary goods - rights, liberties, powers, opportunities, income, wealth, self-respect - are more likely attained in a society that protects liberty first before equality.
Durkheim’s work on what keeps society together: as they become more secular and individualstic, law goes from punishment to compensation. But punishment still serves social solidarity - mechanical solidarity (homogenous, simple collectivist societies) vs organic solidarity (law reflects individualism, division of labor). Crime is an integral part of healthy societies - offends common conscience: punishment is the passionate reaction of graduated intensity that society exercises.
Max Weber’s highest stage of rationality integration of all analytically derived legal propositions to constitute a logically clear, internally consistent, gapless system. Law is fundamentally related to economic factors. Formal law provides the necessary predictability for capitalism, entrepreneurship.
3 types of legitimacy of domination - traditional (age-old rules), charismatic (devotion to a leader), legal-rational
Marx makes law subservient to economy, either through crude materialism (law reflects the ecnoomic base) or class instrumentalism (law is expression of the will of the dominant class). He distinguishes between rights of citizens (political rights in common with others, exercised through involvement) vs rights of man (private rights exercised in isolation, withdrawal from society).
Reification - process under which social relations assume the form of relations between things. Result of alienation of workers from result, social form of labor appears as a property of a thing.
Foucault sees human body from 18th century onwards subjected to microphysics of power through institutions of hospitals, factories, schools and prisons.
Critical legal theory contests the universal rational foundation of law that gives it its spurious legitimacy. Can never be independent from politics and morality.
Father of American Realism (law-in-action, not fixated with concepts like commands, rules etc) Oliver Wendell Holmes says common law not some brooding voice in the sky but the articulate voice of some quasi-sovereign. Look at the law from the position of the bad man. True science of law establishes its postulates on accurately measured social desires and not tradition.
Karl Llewelyn - law is an engine with purposes, not values in itself. Institution of law. An institution is an organized activity bult around a cluster of jobs.
Applying Marx and Freud, CLS sees in the law hegemonic consciousness - social order maintained by system of beliefs regarded as ‘common sense’.
Society has 4 beliefs - 1. Law is a system which can supply answer to all behavior; 2. Special form of legal reasoning exists 3. Legal doctrine is a coherent view of relation between persons 4. People internalize norms or are coerced, so social action reflects norms generated by the system. – CLS challenges all 4. 1. Principle of indeterminacy; 2. No autonomous lega l reasoning (anti-formalism);3. No single coherent view of human relations (contradiction); 4. Even if consensus, no reason to regard law as decisive (marginality).
Lacan - unconscious is structured like a language. The language of the unconscious is the arbiter of all experience. Justice is a fantasy. A harmonious community is unattainable.
Saussure differentiates between langue (deep structure of linguistics) and parole (speech acts). ‘Dog’ does not correspond to the animal, but emerges from difference with cog, bog etc. Derrida - So meaning is deferred. Stability only by deconstructing language meaning of one signifier includes meaning of another within it.
February 21, 2020
Wack’s The Philosophy of Law is inexpensive, short (150 pages), and remarkably comprehensive. It’s already in its second edition, fairly rare for books in this series. A sign, perhaps, that it is being used as an introductory text by those who teach students about law.
The first three chapters explore some basic questions about legal theory. What is law? Is law based on universal moral values? Or is law simply man-made proclamations backed by force? How is law related to justice? This exploration is accomplished by looking at the development of natural law theory, human rights, and a detailed analysis of legal positivism. An entire chapter is also dedicated to the American legal theorist Ronald Dworkin. The concept of law in these chapters Wacks describes in terms of “rules, concepts, principles, and other constructs employed by courts and lawyers.” The next three chapters, in contrast, evaluate law and legal theory “by reference to the social conditions in which they function”, i.e., a kind of sociology of law approach to the subject.
Wacks is clearly at his best in the first three chapters, in my opinion. In the final three he appears, to “bite off more than he can chew” and his analysis is sometimes quite flawed, as I will discuss in a moment.
As noted, the book covers an extremely wide range of theorists and schools of thought in relation to the philosophy of law. Philosophers and social theorists discussed in the book include: Aristotle, Aquinas, Hobbes, Locke, Rousseau, JS Mill, Durkheim, Weber, Marx, Habermas, Gramsci, Lukacs, Rawls, Foucault, Lacan, Derrida, and a few others! Of course the book includes discussions of the following legal philosophers/theorists: Lon Fuller, John Finnis, Jeremy Bentham, John Austin, HLA Hart, Hans Kelsey, Joseph Raz, Scott Shapiro, Ronald Dworkin, Wesley Hohfeld, Richard Posner, Axel Hagerstrom, Alf Ross, Karl Olivecrona, AV Lundstedt, Oliver Wendell Holmes, Brian Leiter, Karl Llewelyn, Jerome Frank, Roberto Unger, Catharine MacKinnon, Francis Olsen, Carol Smart, Christine Littleton, Drucilla Cornell, Julia Kristeva, Katherine Bartlett, Carol Gillian, Patricia Williams. It seems almost silly of me to feel disappointed because Wacks did not include any reference to the very influential legal philosopher Martha Nussbaum!
Such a comprehensive approach is perhaps the book’s greatest strength and its most serious weakness. While the numerous thumb-nail sketches provided by Wacks do help to better situate his topic within the broader world of scholarship, the result is often descriptions of positions or schools of thought that are overly simplistic, even patronizing.
A few examples will suffice. In his review of feminist legal theory he claims that all such work is “overtly polemical” and that a “central theme” of this school of thought is “the phallocentrism” of society. After spending only two paragraphs on Lacan and one page on the work of Derrida, Wacks feels capable of concluding “it is hard to see how Lacanian psychoanalysis or Derrida’s deconstruction advances our comprehension of legal ideas.” In relation to his overview of what he calls “critical legal studies” (i.e., left-wing approaches to the study of law and society), Wacks concludes that all such approaches “have little utility in our quest to comprehend the nature of law.” He even claims that this school of thought is “destructive, nihilistic” and “dogmatic.”
While his comments on many social theorists are unreasonably biased and poorly supported by evidence, his book includes a lucid and comprehensive critique of utilitarian ideas that some students will find useful. As well, his overview of the key ideas of John Rawls is one of the best I’ve read.
Overall, this book is probably a good teaching aid in the study of the philosophy of law. The sometimes very compressed comments about specific theorists or schools could be usefully unpacked by a teacher in a classroom setting. And, some of the superficial or patronizing statements made by Wacks could be challenged.
The first three chapters explore some basic questions about legal theory. What is law? Is law based on universal moral values? Or is law simply man-made proclamations backed by force? How is law related to justice? This exploration is accomplished by looking at the development of natural law theory, human rights, and a detailed analysis of legal positivism. An entire chapter is also dedicated to the American legal theorist Ronald Dworkin. The concept of law in these chapters Wacks describes in terms of “rules, concepts, principles, and other constructs employed by courts and lawyers.” The next three chapters, in contrast, evaluate law and legal theory “by reference to the social conditions in which they function”, i.e., a kind of sociology of law approach to the subject.
Wacks is clearly at his best in the first three chapters, in my opinion. In the final three he appears, to “bite off more than he can chew” and his analysis is sometimes quite flawed, as I will discuss in a moment.
As noted, the book covers an extremely wide range of theorists and schools of thought in relation to the philosophy of law. Philosophers and social theorists discussed in the book include: Aristotle, Aquinas, Hobbes, Locke, Rousseau, JS Mill, Durkheim, Weber, Marx, Habermas, Gramsci, Lukacs, Rawls, Foucault, Lacan, Derrida, and a few others! Of course the book includes discussions of the following legal philosophers/theorists: Lon Fuller, John Finnis, Jeremy Bentham, John Austin, HLA Hart, Hans Kelsey, Joseph Raz, Scott Shapiro, Ronald Dworkin, Wesley Hohfeld, Richard Posner, Axel Hagerstrom, Alf Ross, Karl Olivecrona, AV Lundstedt, Oliver Wendell Holmes, Brian Leiter, Karl Llewelyn, Jerome Frank, Roberto Unger, Catharine MacKinnon, Francis Olsen, Carol Smart, Christine Littleton, Drucilla Cornell, Julia Kristeva, Katherine Bartlett, Carol Gillian, Patricia Williams. It seems almost silly of me to feel disappointed because Wacks did not include any reference to the very influential legal philosopher Martha Nussbaum!
Such a comprehensive approach is perhaps the book’s greatest strength and its most serious weakness. While the numerous thumb-nail sketches provided by Wacks do help to better situate his topic within the broader world of scholarship, the result is often descriptions of positions or schools of thought that are overly simplistic, even patronizing.
A few examples will suffice. In his review of feminist legal theory he claims that all such work is “overtly polemical” and that a “central theme” of this school of thought is “the phallocentrism” of society. After spending only two paragraphs on Lacan and one page on the work of Derrida, Wacks feels capable of concluding “it is hard to see how Lacanian psychoanalysis or Derrida’s deconstruction advances our comprehension of legal ideas.” In relation to his overview of what he calls “critical legal studies” (i.e., left-wing approaches to the study of law and society), Wacks concludes that all such approaches “have little utility in our quest to comprehend the nature of law.” He even claims that this school of thought is “destructive, nihilistic” and “dogmatic.”
While his comments on many social theorists are unreasonably biased and poorly supported by evidence, his book includes a lucid and comprehensive critique of utilitarian ideas that some students will find useful. As well, his overview of the key ideas of John Rawls is one of the best I’ve read.
Overall, this book is probably a good teaching aid in the study of the philosophy of law. The sometimes very compressed comments about specific theorists or schools could be usefully unpacked by a teacher in a classroom setting. And, some of the superficial or patronizing statements made by Wacks could be challenged.
August 16, 2023
It seems to me that, by and large, laws are necessary because humans do not have an innate capacity for self regulation. Similarly we do not, by and large, do a particularly good job of inculcating value systems or decision-making processes which would preclude the necessity of having laws and the corollary framework of corrective/punitive actions towards those who violate the proscribed behavioral guidelines.
Would that we could have an education system that includes philosophy at an early age. And if not, would that we could have discussions about law that were predicated upon terms of theory and root causes related to other aspects of society rather than just addressing behavioral end-actions.
This book is not for scholars or philosophers but kudos to the author for not writing it “for dummies”.
Would that we could have an education system that includes philosophy at an early age. And if not, would that we could have discussions about law that were predicated upon terms of theory and root causes related to other aspects of society rather than just addressing behavioral end-actions.
This book is not for scholars or philosophers but kudos to the author for not writing it “for dummies”.
Read
May 9, 2016Her ne kadar kitabın tanıtım yazısında hukuk uygulayıcılarına ve hukukçu olmayanlara için hukuk felsefesini tanıtım amacı güttüğü söylense de bence hukukçu olmayan, bu konularda kulak dolgunluğu da olmayan birinin bu kitapta kaybolabileceğini söyleyebilirim.
Kitap altı bölümden oluşmakta:
- Doğal Hukuk
- Hukuki Pozitivizm
- Yorum Olarak Hukuk
- Haklar ve Adalet
- Hukuk ve Toplum
- Eleştirel Hukuk Kuramı
Akademik bir amaç gütmeksizin kitabın yazıldığı da belirtilmiş, ki okurken bu amacın olmadığını da görmek mümkün. Ben, özelliklere sonlara doğru, ara ara ne neydi, neden bahsediyorduk diye durup düşündüm. Yine de hukukçu olmayan birine bile hitap etme özelliği olduğu söyleniyorsa bence daha açıklayıcı ve daha sistematik bir anlatım tarzının kullanılması çok daha iyi olurdu. Bunun yanı sıra her ne kadar bunun "kısa bir giriş" kitabı olduğunun bilincinde olsam da biraz fazla "kısa" geldi bana. Bana göre önemli olan bazı konular fazlaca yüzeysel geldi. Ayrıca hukuk felsefesi açısından önemli olan bazı okullara yer verilmemiş. Buna ek olarak sanırım bu türlü metinleri orijinal dillerinden okumak daha doğru bir tercih; çünkü zaman zaman günlük dilde farklı bir anlamda kullanılan kelime akademik yazında bambaşka bir anlamda kullanılıyor ve çevirmenler motomot çeviri yapayım derken ortaya pek de anlamı olmayan bir cümle çıkıveriyor. Zaman zaman acaba orijinal metindeki cümle nasıldı diye düşünmeden duramadım ben de, belirtmek zorundayım bunu da.
Kitap altı bölümden oluşmakta:
- Doğal Hukuk
- Hukuki Pozitivizm
- Yorum Olarak Hukuk
- Haklar ve Adalet
- Hukuk ve Toplum
- Eleştirel Hukuk Kuramı
Akademik bir amaç gütmeksizin kitabın yazıldığı da belirtilmiş, ki okurken bu amacın olmadığını da görmek mümkün. Ben, özelliklere sonlara doğru, ara ara ne neydi, neden bahsediyorduk diye durup düşündüm. Yine de hukukçu olmayan birine bile hitap etme özelliği olduğu söyleniyorsa bence daha açıklayıcı ve daha sistematik bir anlatım tarzının kullanılması çok daha iyi olurdu. Bunun yanı sıra her ne kadar bunun "kısa bir giriş" kitabı olduğunun bilincinde olsam da biraz fazla "kısa" geldi bana. Bana göre önemli olan bazı konular fazlaca yüzeysel geldi. Ayrıca hukuk felsefesi açısından önemli olan bazı okullara yer verilmemiş. Buna ek olarak sanırım bu türlü metinleri orijinal dillerinden okumak daha doğru bir tercih; çünkü zaman zaman günlük dilde farklı bir anlamda kullanılan kelime akademik yazında bambaşka bir anlamda kullanılıyor ve çevirmenler motomot çeviri yapayım derken ortaya pek de anlamı olmayan bir cümle çıkıveriyor. Zaman zaman acaba orijinal metindeki cümle nasıldı diye düşünmeden duramadım ben de, belirtmek zorundayım bunu da.
December 21, 2023
This is a solid introduction to legal philosophy that achieves the author's stated goal: to provide a very basic overview of the history, theories, and figures that have characterized the field since its inception. While I wasn't personally extremely compelled by the book, it serves a useful purpose and I could definitely see it being highly engaging to someone with the requisite interests in philosophy.
I thought most of Raymond Wacks's descriptions and biographies were well-done. His summaries of natural law and legal positivism were great, and he provides an accessible introduction to philosophers like Rawls or Foucault. Perhaps the best part about this book is its explanation of how complex these topics are -- it purports to provide no solutions or heuristics, but merely lays out the plethora of questions and prospective answers to those questions.
I did find the book's sections on postmodernist theory and critical legal studies to be a little simplistic, perhaps just because these movements have changed so much in the last several years. Otherwise, I thought the long procession of biographical entries on various positivist scholars to be a little dry.
On the whole though, this is an effective introduction to an important and complex area of study. Anyone interested in learning about legal philosophy would definitely do well to start with this book.
I thought most of Raymond Wacks's descriptions and biographies were well-done. His summaries of natural law and legal positivism were great, and he provides an accessible introduction to philosophers like Rawls or Foucault. Perhaps the best part about this book is its explanation of how complex these topics are -- it purports to provide no solutions or heuristics, but merely lays out the plethora of questions and prospective answers to those questions.
I did find the book's sections on postmodernist theory and critical legal studies to be a little simplistic, perhaps just because these movements have changed so much in the last several years. Otherwise, I thought the long procession of biographical entries on various positivist scholars to be a little dry.
On the whole though, this is an effective introduction to an important and complex area of study. Anyone interested in learning about legal philosophy would definitely do well to start with this book.
March 22, 2020
Look I wanted to write about insurers and Coronavirus. I wanted to make a point about insurance policies drawing on a broader context than legal reductionism. And then I realised I was butchering a topic I didn't even know anything about. This was a cool intro and convinced me not to let my ideas see the light of day. Much to learn.
______________________________________________
Notes
Early legal philosophy focused on the idea of natural law. Mainly linked to that given by God (e.g Aquinas) but he accepted some natural law is not only divide, but can be uncovered by reason. The ascent of rationality crystalised in legal positivism that focused on law as a self-contained system of rational rules (e.g Bentham wanting a fully rational, civil law like tradition). Then this was worn away by Dworkin who emphasised abstract principles and the uncovering of common law over time. Abstract rights were at the heart of this--as opposed to rules of the form "if X then Y". Others argued WHAT IS THE LAW, some say its norms, some say its linked to ascent and subjective experience of the governed, some emphasise its universality. Finally, rights revolution follows three waves: first the negative rights (I have a right not o have speech supressed) associated wiht classical liberalism, then second wave focused on access to education, healthcare, clean water etc and then finally the more "collective rights" to an environment, risk free area etc. JUSTICE all about individuals being treated equally in a fair way (people get their dues)---symbolised as Themis clutching sword and scales.
utilitarianism and econ of law both emphasise societal welfare via aggregated preferences of society--law and econ assumes an initial distribution of wealth without probing how just THAT is, from which everything is about the "efficient outcome" e.g Coase says assigning property rights guarantees social welfare, regardless of how they are assigned. Rawls rejects utilitarianism (what is right = what is good) and emphasises "primary socials good" (like self-respect and all that good stuff)--> what is right precedes the question of what is good. Stresses distinguishing between "people’s genuine judgements about justice and their subjective, self-interested intuition" --> suggest people choose the difference principle over a society designed so all have access to affluent opportunities (everyone wants to MAX their opportunities even if they get the MIN position within society).
Then chapter on law and society that goes over pol phil (Durkheim, Weber, Marx etc) --> Weber says English law is highly formalistic (despite not reaching systematic-ness of Roman law), serves interests of city (due to proximity), lawyers resemble guilds who remember precedent and draft contracts to prevent future litigation creating close relationship with clients and this capitalistic legal order is obv held up by legal-rationality. Marx and engy say law part of super-structure of capitalism and therefore an instrument of class rule (u absolute lemon Karl don't even believe in HR, do ya?), Foucault of course follows along and says law is POWER and all that (well yeah obviously Hobbes coulda told you that pal) and they propell a whole school of critical legal studies saying law is neither neutral nor objective.
______________________________________________
Notes
Early legal philosophy focused on the idea of natural law. Mainly linked to that given by God (e.g Aquinas) but he accepted some natural law is not only divide, but can be uncovered by reason. The ascent of rationality crystalised in legal positivism that focused on law as a self-contained system of rational rules (e.g Bentham wanting a fully rational, civil law like tradition). Then this was worn away by Dworkin who emphasised abstract principles and the uncovering of common law over time. Abstract rights were at the heart of this--as opposed to rules of the form "if X then Y". Others argued WHAT IS THE LAW, some say its norms, some say its linked to ascent and subjective experience of the governed, some emphasise its universality. Finally, rights revolution follows three waves: first the negative rights (I have a right not o have speech supressed) associated wiht classical liberalism, then second wave focused on access to education, healthcare, clean water etc and then finally the more "collective rights" to an environment, risk free area etc. JUSTICE all about individuals being treated equally in a fair way (people get their dues)---symbolised as Themis clutching sword and scales.
utilitarianism and econ of law both emphasise societal welfare via aggregated preferences of society--law and econ assumes an initial distribution of wealth without probing how just THAT is, from which everything is about the "efficient outcome" e.g Coase says assigning property rights guarantees social welfare, regardless of how they are assigned. Rawls rejects utilitarianism (what is right = what is good) and emphasises "primary socials good" (like self-respect and all that good stuff)--> what is right precedes the question of what is good. Stresses distinguishing between "people’s genuine judgements about justice and their subjective, self-interested intuition" --> suggest people choose the difference principle over a society designed so all have access to affluent opportunities (everyone wants to MAX their opportunities even if they get the MIN position within society).
Then chapter on law and society that goes over pol phil (Durkheim, Weber, Marx etc) --> Weber says English law is highly formalistic (despite not reaching systematic-ness of Roman law), serves interests of city (due to proximity), lawyers resemble guilds who remember precedent and draft contracts to prevent future litigation creating close relationship with clients and this capitalistic legal order is obv held up by legal-rationality. Marx and engy say law part of super-structure of capitalism and therefore an instrument of class rule (u absolute lemon Karl don't even believe in HR, do ya?), Foucault of course follows along and says law is POWER and all that (well yeah obviously Hobbes coulda told you that pal) and they propell a whole school of critical legal studies saying law is neither neutral nor objective.
January 28, 2020
Judging by its first third (I have not yet read more of the text and I may not do so), this book is very disappointing. For, sad to say, it is rather horribly muddy: it contains many non-sequiturs and it is persistently imprecise. The book seems superficial too (even for a text of its short size). Now: since the book takes the form of a survey, the result of the foregoing flaws is as follows. The reader is left with a smorgasbord of jurisprudential views that she has been given little help to evaluate or even to understand. Nor even is there proper paragraphing, though that is a fault shared by (all?) other books in the series. (Mostly though the books in the series are better than this one.) It is hard to write a good book, so I do not mean especially to castigate the author; and perhaps I exaggerate the book's flaws; but I cannot recommend this work.
Page 53 can illustrate the muddiness at issue. Text on that page equivocates between the two meanings (well, the proper meaning and the degenerate meaning) of 'refute'. Two of the points presented (rehearsed) on the page are pretty much incomprehensible. The page says there are two main theories of rights and then starts a section presenting . . well, what? A third theory? An instance of one of the other two theories? And these rights - in either section - are they moral rights or are they legal rights? (The chapter in question made that distinction on p. 52 but by 53 it seems to have forgotten it.)
I have advanced degrees in philosophy and I teach philosophy; so I do know what I am talking about, by the way.
Page 53 can illustrate the muddiness at issue. Text on that page equivocates between the two meanings (well, the proper meaning and the degenerate meaning) of 'refute'. Two of the points presented (rehearsed) on the page are pretty much incomprehensible. The page says there are two main theories of rights and then starts a section presenting . . well, what? A third theory? An instance of one of the other two theories? And these rights - in either section - are they moral rights or are they legal rights? (The chapter in question made that distinction on p. 52 but by 53 it seems to have forgotten it.)
I have advanced degrees in philosophy and I teach philosophy; so I do know what I am talking about, by the way.
February 6, 2023
Книгата не ми хареса, беше скучна и изпускаща основно нещо. Но пък не авторът е виновен, ако това е с което съвременната философия на правото се занимава той е направил добра работа в тва да я синтезира.
Беше разбираемо и гладко.
Книга за правото, която не спомената теория на игрите от икономиката или самата книга е зле или полето има нужда от ъбдейт.
Правото се опитва да намери оптималната стратегия за игра и да я стимулира. Тва е. Няма нужда да вярваш в Бог за да видиш че тва е така, макар, че не знам как някой учил теория на игрите може постепенно да не повярва в Бог или поне да не осъзнае, че пророците от работещите религии правят точно това - търсят/описва оптималната стратегия за игра при която всички печелят, без да е за сметка на губенето на някой.
Иначе споренето за методите е абсурдно, при все че най-важното е резултатите.
Поредно доказателство, че свртхспециашизацивта в полетата все повече ги отделя от реалнодтта, а да не говорим последните фемонистически "развития" тотално къса връзката с реалността, защото жените не са мъже, и повечето жени опитвайки се да са мъже се представят изключително посредствено, ако не и направо зле.
Добих общо представа, бих преслушал The law book на DK да видя друг мейнстрийм поглед към правото, но кат цяло хора дет не са отваряли книга по теория на игрите да говорят за право е обречена кауза.
Ще дъвчат някакви марксически и фемонистически дъвки без връзка с реалността.
Беше разбираемо и гладко.
Книга за правото, която не спомената теория на игрите от икономиката или самата книга е зле или полето има нужда от ъбдейт.
Правото се опитва да намери оптималната стратегия за игра и да я стимулира. Тва е. Няма нужда да вярваш в Бог за да видиш че тва е така, макар, че не знам как някой учил теория на игрите може постепенно да не повярва в Бог или поне да не осъзнае, че пророците от работещите религии правят точно това - търсят/описва оптималната стратегия за игра при която всички печелят, без да е за сметка на губенето на някой.
Иначе споренето за методите е абсурдно, при все че най-важното е резултатите.
Поредно доказателство, че свртхспециашизацивта в полетата все повече ги отделя от реалнодтта, а да не говорим последните фемонистически "развития" тотално къса връзката с реалността, защото жените не са мъже, и повечето жени опитвайки се да са мъже се представят изключително посредствено, ако не и направо зле.
Добих общо представа, бих преслушал The law book на DK да видя друг мейнстрийм поглед към правото, но кат цяло хора дет не са отваряли книга по теория на игрите да говорят за право е обречена кауза.
Ще дъвчат някакви марксически и фемонистически дъвки без връзка с реалността.
October 10, 2025
The book “The Philosophy of Law” explores the origins and nature of law, particularly in the United States and Europe. It focuses on Western philosophy and a Western perspective of law, which limits its global viewpoint. While this may be understandable given its scope, the author’s unapproachable and inaccessible approach is completely inexcusable. The book was written for fellow philosophers or academics, making it difficult for laypersons interested in the law and the philosophical underpinnings of jurisprudence to understand the material. I spent four weeks reading it, which could have been completed much faster if the content had been presented in a more accessible manner for a general audience. The author seemed to be trying to showcase his academic prowess, but by failing to simplify the ideas, he demonstrated just the opposite—a lack of mastery of the subject. Usually brilliant individuals, including some of my best professors, can apply the “razor,” reducing complex concepts to simple terms without losing their content or semantics. They comprehend the material and can communicate it clearly and concisely. I gave this book a 3-star rating, not for the writing or the contextualization of the subject matter, but for the breadth of the survey and its comprehensive bibliography.
November 29, 2020
Denna bok är skriven av en lärd och entusiastisk författare. Mitt problem är att deras entusiasm är för en ideologi som jag menar är förfelad, och som tyvärr präglar stora delar av texten.
Boken är en översyn av amerikansk rättstradition och rättsfilosofi, med betoning på den skola som Rawls tillhörde. Den förutsätter att det finns en koppling mellan ekonomisk styrka och värdighet, och att värdighet inte är kopplat till något annat. Jag har svårt att se att detta är en självklar koppling, och det är en förenkling av vad Rawls skrev, som i och för sig kan förklara många av de svårigheter USA har hamnat i.
Jag är glad över att ha läst den, för dess första halva sammanfattar verkligen de amerikanska traditionerna bättre än något annat jag läst, men jag kan inte rekommendera boken, för någon som inte behöver den av dessa anledningar.
Den enda anledningen till att jag läst boken är att jag laddade ned den som gratispdf för att hjälpa en kollega; har jag gjort det känner jag att jag borde kunna diskutera den också. Jag betvivlar att kollegan hade speciellt mycket hjälp av den.
Boken är en översyn av amerikansk rättstradition och rättsfilosofi, med betoning på den skola som Rawls tillhörde. Den förutsätter att det finns en koppling mellan ekonomisk styrka och värdighet, och att värdighet inte är kopplat till något annat. Jag har svårt att se att detta är en självklar koppling, och det är en förenkling av vad Rawls skrev, som i och för sig kan förklara många av de svårigheter USA har hamnat i.
Jag är glad över att ha läst den, för dess första halva sammanfattar verkligen de amerikanska traditionerna bättre än något annat jag läst, men jag kan inte rekommendera boken, för någon som inte behöver den av dessa anledningar.
Den enda anledningen till att jag läst boken är att jag laddade ned den som gratispdf för att hjälpa en kollega; har jag gjort det känner jag att jag borde kunna diskutera den också. Jag betvivlar att kollegan hade speciellt mycket hjälp av den.
June 26, 2025
I’ve come away from this book with the impression that the history of the philosophy of law (in the West, as is the unstated premise here) involves a lot of people failing to distinguish between ought and is and unwittingly wasting their ink on rhetorical battles over how the term “law” is defined. Somewhat surprisingly to me, the starting point of all this is a view of law quite distant from the conventional notion that laypeople have of it. To me, and I would think most people, “law” means basically something like “what will you get arrested or sued for in a given jurisdiction.” Apparently, philosophers of law often take the word “law” to refer to something more like the Platonic ideal of a good, just, proper legal system.
Unfortunately I found this book rather poorly written, and thus unclear and hard to follow. It jumps straight into natural law theory without providing essentially any broader contextualization, does a poor job of organizing its presentation of information on how the various ideas and thinkers relate to one another, and is often unclear at the level of diction and sentences.
Unfortunately I found this book rather poorly written, and thus unclear and hard to follow. It jumps straight into natural law theory without providing essentially any broader contextualization, does a poor job of organizing its presentation of information on how the various ideas and thinkers relate to one another, and is often unclear at the level of diction and sentences.
May 7, 2023
While this does not seek to be a comprehensive review (more of an 'initial impression'), I think that the omission of Hegel's Philosophy of Right ('right' meaning 'rechts' or 'law' in German) and Carl Schmitt is egregious and ultimately irresponsible. I think that if this book were to receive an updated third edition, it should include these two thinkers' jurisprudence (or philosophy of law). Both are much more acclaimed in terms of legacy than Ronald Dworkin (and it seems that Dworkinian philosophy of law and its magnitude are greatly exaggerated). Only the Realists come close to describing the law 'as it is'; devoid of personal motives. However, by coddling to liberalism, they themselves fall short. Critical Race Theorist and Feminist accounts of law only equate to 'ressentiment' in the Nietzschean sense.
But seriously, why is Ronald Dworkin's philosophy of law so important? What sui generis or new ideal does he proffer?
But seriously, why is Ronald Dworkin's philosophy of law so important? What sui generis or new ideal does he proffer?
November 19, 2018
I started reading this book not knowing too much about philosophy of law, and I think I know more now, but I'm not sure that I won't forget it all in the coming days. I think that Wacks wrote quite well and the topics were mostly fairly interesting. I am slightly concerned that he wasn't giving a totally accurate explanation of some of what he was discussing, but that sort of rigour may just be a necessary sacrifice in such a short book. (I have this concern due to some slightly misleading comments he said about a utilitarian understanding of rights.) Overall, a pretty quick, painless, and (possibly) educational read.
January 15, 2019
Raymond Wacks' Philosophy of Law: A Very Short Introduction is an exceptionally lucid overview of the origins and critical debates behind legal tradition. What sets this book apart is how it conveys a greater narrative of legal philosophy that both evolves and transforms as the reader is confronted with new approaches of understanding the law. Unlike Wacks' other book in the same series, Law: A Very Short Introduction, Philosophy of Law: A Very Short Introduction is often engaging and straightforward. My only criticism is the book's limited detail - an obvious consequence of the series' format.
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