Law Commons^™

Of Literature, Politics, And Crime, Francis A. Allen

Michigan Law Review

A Review of Seductions of Crime: Moral and Sensual Attractions in Doing Evil

Women, Status, And Power, Anne Griffiths

Cornell International Law Journal

No abstract provided.

Natural Law And Justice, Heidi Li Feldman

Michigan Law Review

A Review of Natural Law and Justice by Lloyd L. Weinreb

Making Sense Of Modern Jurisprudence: The Paradox Of Positivism And The Challenge For Natural Law, Philip E. Soper

Articles

Karl Llewellyn once said, referring to Roscoe Pound's work m jurisprudence, that it was difficult to tell on what level the writing proceeded: sometimes it seemed to be little more than bedtime stones for a tired bar; at other tunes it appeared to be on the level of the after-dinner speech or a thought provoking essay, neither of which were quite the "considered and buttressed scholarly discussion" that one expected to find. Llewellyn's complaint serves as a warning, though a somewhat ambiguous one, to those who give lectures on jurisprudence.

On the one hand, I do not plan to present …

Dworkin's Domain, Philip E. Soper

Reviews

No one has done more in the last twenty years to revitalize debates about how judges should and do decide cases than Ronald Dworkin. At the same time, no one has been more equivocal than Dworkin in explaining how a theory of adjudication bears on the dispute within legal theory about the connection between law and morality. This fine book continues both traditions.

Jurisprudence: A Descriptive And Normative Analysis Of Law, Christopher P. Portman

Michigan Law Review

A Review of Jurisprudence: A Descriptive and Normative Analysis of Law by Anthony D'Amato

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …

The Connection Between Law And Morality: Comments On Dworkin, David B. Lyons

Faculty Scholarship

Our discussions yesterday seemed haunted by a contrast--never quite formulated--between Natural Law and Legal Positivism. The standard interpretation turns on the idea of a "necessary connection" between law and morality. Positivism has often been understood to hold, and Natural Law to deny, that there can be unjust laws.

Jurisprudence As Narrative: An Aesthetic Analysis Of Modern Legal Theory, Robin West

Georgetown Law Faculty Publications and Other Works

Recent legal scholarship has engaged in a growing dialogue tying literary criticism to jurisprudence. In this article, Professor Robin West adds her voice by advocating the reading of legal theory as a form of narrative. Drawing from Northrop Frye's “Anatomy of Criticism,” Professor West first details four literary myths that combine contrasting world visions and narrative methods. She then applies Frye's categories to Anglo-American jurisprudential traditions and employs aesthetic principles to analyze influential legal theorists within these traditions. Finally, Professor West argues that recognizing the aesthetic dimension of legal debate frees us to realize our moral ideals.

On 'Positivism' And 'Legal Rational Authority', John M. Finnis

Journal Articles

This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.

Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute, Philip Soper

Book Chapters

Confronted with standards beyond those obvious in purpose and rule, the positivist, says Dworkin, has two choices. He must either claim that such standards are only discretionary and hence not legally binding, or he may concede their binding status and argue that he identifies them as legal standards through reference, in some more complex way, to his theoretical master test.

There is, however, a third possibility. The positivist might admit that some standards bind judges but explain that they play a role in the legal system sufficiently different from that of ordinary rules and principles to justify excluding them from …

Legal Theory And The Problem Of Definition, Philip E. Soper

Reviews

Natural Law and Natural Rights is a refreshingly direct book about some decidedly difficult matters. It is also a book that refuses to do homage to the complexity of its subject by limiting the topics covered. Here is virtually a mini-treatise in moral philosophy, with illuminating discussions on the whole range of human value and on a good part of the related range of metaethics, legal theory, political theory, and the problems of methodology in the descriptive social sciences.

What 'Counts' As Law?, Anthony D'Amato

Faculty Working Papers

A reader of jurisprudence might conclude that only philosophers raise the question whether international law may be said to exist or is really law. But in terms of frequency, the question is probably raised more often by governments and states that are not trying to be philosophical. The increasing attention being paid to the need for, and the procedures for, objective validation of rules of international law in a burgeoning literature of international law evidences the seriousness of the problem, the responsibility of scholars for careful scholarship in this area of legal theory, and ultimately the good possibility of generally …

Book Reviews, Kevin M. Clark Reviewer, Charles A. White, Jr. Lieutenant Colonel

Vanderbilt Journal of Transnational Law

LEGAL REASONING AND LEGAL THEORY

Philosophers have always questioned the nature of rationality. The history of philosophy appears to many as an ongoing struggle between dogmatism and scepticism, between those who defend the broad scope of reason and those who assert its strict limitation. Concern for the nature of reason has thus become almost synonymous with philosophy. In the past few decades, however, the nature of this concern has changed in a fundamental manner, giving rise to inquiry into the interrelation between different modes of rationality.

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MILITARY OBEDIENCE

Two major characteristics, the concepts of command responsibility and obedience to …

Ideology And History, David F. Forte

Law Faculty Articles and Essays

I do not dispute the philosophical validity of the theory of natural rights. Indeed, I support much, if not most, of the principles embodied in that theory. What I wish to discuss is that to which Dr. Vieira claims to have limited his discussion, viz., the belief that history, specifically American constitutional history, provides a sufficient base to support a natural rights theory. His attempt to find historical support is an instructive example of how ideology can distort the data of history and cause it to be portrayed in a strange and unreal light. Beyond that, Vieira's historical method also …

Friedrich: The Philosophy Of Law In Historical Perspective, Edgar Bodenheimer

Michigan Law Review

A Review of The Philosophy of Law in Historical Perspective. By C. J. Friedrich.

Recent Books, Michigan Law Review

Michigan Law Review

This department undertakes to note or review briefly current books on law and matters closely related thereto.

Clovis Bevilaqua And The Brazilian Civil Code, Anyda Marchant

Michigan Law Review

Clovis Bevilaqua is a monument in the history of Brazilian law. His death on July 26, 1944, closed the door on an epoch. When he began his career in the eighties, Brazilian law, with the exception of the commercial code, was uncoordinated and outmoded. Now. Brazil is in a period of very active work on the recodification of its laws and their adaptation to the needs of modern life. Not all of this change is the work of one man, but Bevilaqua was the principal lingering representative, among the lawyers, of the intellectual movement that accompanied the setting up of …