The Problematics of Moral and Legal Theory

The Problematics of Moral and Legal Theory

Author: Richard A. Posner

Publisher: Harvard University Press

Published: 2009-06-01

Total Pages: 338

ISBN-13: 9780674042230

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Ambitious legal thinkers have become mesmerized by moral philosophy, believing that great figures in the philosophical tradition hold the keys to understanding and improving law and justice and even to resolving the most contentious issues of constitutional law. They are wrong, contends Richard Posner in this book. Posner characterizes the current preoccupation with moral and constitutional theory as the latest form of legal mystification--an evasion of the real need of American law, which is for a greater understanding of the social, economic, and political facts out of which great legal controversies arise. In pursuit of that understanding, Posner advocates a rebuilding of the law on the pragmatic basis of open-minded and systematic empirical inquiry and the rejection of cant and nostalgia--the true professionalism foreseen by Oliver Wendell Holmes a century ago. A bracing book that pulls no punches and leaves no pieties unpunctured or sacred cows unkicked, The Problematics of Moral and Legal Theory offers a sweeping tour of the current scene in legal studies--and a hopeful prospect for its future.


An Affair of State

An Affair of State

Author: Richard A. Posner

Publisher: Harvard University Press

Published: 2009-07-01

Total Pages: 290

ISBN-13: 0674042328

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President Bill Clinton’s year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict. In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran–Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner’s experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton’s impeachment ordeal.


Reasoning in Ethics and Law

Reasoning in Ethics and Law

Author: A. W. Musschenga

Publisher: Routledge

Published: 1999

Total Pages: 232

ISBN-13:

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Legal and moral reasoning share much methodology, and they address similar problems. This volume charts two shared problems: the relation between theory, principles and particular judgments; and the role of facts and factual assertions in normative settings. The relation between 'theory' and 'practice' and between 'principle' and 'particular judgment' has become the subject of much debate in moral philosophy. In the ongoing debate, some moral philosophers refer to legal philosophy for a support of their views on the primacy of 'practice' over 'theory'. According to them, legal philosophy should have a more balanced view in that relation. In the contributions to Part One this claim is critically analysed. The role of the facts is underestimated in discussions on legal reasoning and legal theory, as well as moral reasoning and ethical theory. Factual statements enter into moral and legal discussions not only because they link the conclusion with a rule. They also play a role as background assumptions in supporting a theory. Its focus on the role of facts in normative reasoning makes this book of special interest to scholars of legal and moral argumentation.


Philosophy of Law: A Very Short Introduction

Philosophy of Law: A Very Short Introduction

Author: Raymond Wacks

Publisher: OUP Oxford

Published: 2014-02-27

Total Pages: 197

ISBN-13: 0191510645

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The concept of law lies at the heart of our social and political life. Legal philosophy, or jurisprudence, explores the notion of law and its role in society, illuminating its meaning and its relation to the universal questions of justice, rights, and morality. In this Very Short Introduction Raymond Wacks analyses the nature and purpose of the legal system, and the practice by courts, lawyers, and judges. Wacks reveals the intriguing and challenging nature of legal philosophy with clarity and enthusiasm, providing an enlightening guide to the central questions of legal theory. In this revised edition Wacks makes a number of updates including new material on legal realism, changes to the approach to the analysis of law and legal theory, and updates to historical and anthropological jurisprudence. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable.


Moral Pluralism and Legal Neutrality

Moral Pluralism and Legal Neutrality

Author: Wojciech Sadurski

Publisher: Springer Science & Business Media

Published: 1989-12-31

Total Pages: 238

ISBN-13: 9780792305651

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lt is a commonplace that law and morality intersect and interpenetrate in all the areas of legal decision-making; that in order to make sense of constitutional, statutory or common-law questions, judges and other legal decision-makers must first resolve certain philosophical issues which include moral judgments of right and wrang_ This is particularly evident with regard to constitutional interpretation, especially when constitutions give a mandate for the protection of the substantive norms and values entrenched as constitutional rights. In these Situations, as a leading contemporary legal philosopher observed, the "Constitution fuses legal and moral issues, by making the validity of a law depend on an answer to complex moral 1 problems". But the need for substantive value elucidation is not confined, of course, only to constitutional interpretation under Bills of Rights. This, however, immediately raises a dilemma stemming from the moral diversity and pluralism of modern liberal societies. How can law remain sensitive to this pluralism and yet provide clear answers to the problems which call for a legal resolution? Sharply conflicting values in modern societies clash in the debates over the death penalty, abortion, homosexuality, separation of state and religion, the scope of the freedom of the press, or affirmative action. lt would often be difficult to discern a broader consensus within which these clashes of values operate, unless this consensus were described in such vague terms as to render it practically meaningless.


Law, Institution and Legal Politics

Law, Institution and Legal Politics

Author: Ota Weinberger

Publisher: Springer Science & Business Media

Published: 2012-12-06

Total Pages: 289

ISBN-13: 9401134588

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It gives me great pleasure to offer this foreword to the present work of my admired friend and respected colleague Ota Weinberger. Apart from the essays of his which were published in our joint work An Institutional Theory of Law: New Approaches to Legal Positivism in 1986, relatively little of Wein berger's work is available in English. This is the more to be regretted, since his is work of particular interest to jurists of the English-speaking world both in view of its origins and in respect of its content As to its origins, Weinberger war reared as a student of the Pure Theory of Law, a theory which in its Kelsenian form has aroused very great interest and has had considerable influence among anglophoone scholars -perhaps even more than in the Germanic countries. Less well known is the fact that the Pure Theory itself divided into two schools, that of Vienna and that of Brno. It was in the Brno school of Frantisek Weyr that Weinberger's legal theory found its early formation, and perhaps from that early influence one can trace his continuing insistence on the dual character of legal norms -both as genuinely normative and yet at the same time having real social existence.