Jurisprudence

by Suri Ratnapala

Overview

Jurisprudence is about the nature of law and justice. It embraces studies and theories from a range of disciplines such as history, sociology, political science, philosophy, psychology and even economics. Why do people obey the law? How does law serve society? What is law's relation to morality? What is the nature of rights?

This book introduces and critically discusses the major traditions of jurisprudence. Writing in a lucid and accessible style, Suri Ratnapala considers a wide range of views, bringing conceptual clarity to the debates at hand.

From Plato and Aristotle to the medieval scholastics, from Enlightenment thinkers to postmodernists and economic analysts of law, this important volume examines the great philosophical debates and gives insight into the central questions concerning law and justice.

Product Details

ISBN-13:	9780511698835
Publisher:	Cambridge University Press
Publication date:	11/17/2010
Sold by:	Barnes & Noble
Format:	eBook
File size:	957 KB

About the Author

Professor Anura Surindra (Suri) Ratnapala is Professor of Public Law at the T C Beirne School of Law, University of Queensland. He teaches constitutional law, jurisprudence and constitutional political economy; fields in which he has published extensively. He has the degrees of LLB (Colombo); LLM (Macquarie) and PhD (Qld). He is a member of the Australian Academy of Law.

Table of Contents

Acknowledgements xi

List of figures xiii

1 Introduction 1

Rewards of jurisprudence 2

Jurisprudence 3

The arrangement of the contents of this book 9

Old debates and new frontiers 17

Part 1 Law As It Is

2 British Legal Positivism 21

Positivism and logical positivism 22

Thomas Hobbes and Leviathan 28

Jeremy Bentham: law and the principle of utility 30

John Austin's command theory of law 36

Herbert Hart's new beginning: the burial of the command concept of law 48

British positivism's contribution to jurisprudence 56

3 Germanic Legal Positivism: Hans Kelsen's Quest for the Pure Theory of Law 58

From empiricism to transcendental idealism 59

From transcendental idealism to the pure theory of law 61

Distinguishing legal and moral norms 65

Validity and the basic norm 67

Logical unity of the legal order and determining whether a norm belongs to the legal order 71

Legitimacy and revolution 75

International law 84

An evaluation of the pure theory of law 89

4 Realism in Legal Theory 93

Legal formalism and legal positivism 94

American realism 96

Scandinavian realism 109

Part 2 Law and Morality

5 Natural Law Tradition in Jurisprudence 119

Law of nature, natural right and natural law 120

Two great questions in natural law theory 122

Fusion of law and morals in early societies 123

Natural law thinking in Greek philosophy 125

Reception of natural law in Rome 133

Christian natural law 136

Theological beginnings of a secular natural law 143

Rise of secular natural law: natural rights and social contract 146

John Finnis' restatement of classical natural law 151

The enduring legacy of natural law theory 159

6Separation of Law and Morality 161

Lon Fuller on the morality of law 161

Ronald Dworkin and the integrity of law 173

Part 3 Social Dimensions of Law

7 Sociological Jurisprudence and Sociology of Law 185

Sociology, sociology of law and sociological jurisprudence 186

Society and class struggle: the sociology of Karl Marx 189

Max Weber and the rationalisation of the law 192

Law and social solidarity: É Durkheim's legal sociology 197

The living law: the legal sociology of Eugen Ehrlich 203

Roscoe Pound and law as social engineering 207

The achievements of the sociological tradition 210

8 Radical Jurisprudence: Challenges to Liberal Legal Theory 212

Liberalism and liberal legal theory 212

Challenge of the critical legal studies (CLS) movement 217

Postmodernist challenge 223

Feminist jurisprudence 233

Challenges to liberal jurisprudence: concluding thoughts 239

9 Economic Analysis of Law 242

Background and basic concepts 243

Transaction costs and the law 247

Efficiency of the common law hypothesis 256

Public choice theory: the economics of legislation 261

Efficiency, wealth maximisation and justice 264

10 Evolutionary Jurisprudence 267

Introduction 267

Argument from design versus the principle of the accumulation of design 269

The common law beginnings and the Darwinians before Darwin 271

Eighteenth century evolutionism compared with the German historical approach 277

The Austrian school and spontaneous order 277

Scientific explanations 279

Role of purposive action in legal evolution: the contribution of institutional theory 280

Pathways of legal evolution: the lessons from new institutionalism 287

Normative implications 289

Part 4 Rights and Justice

11 Fundamental Legal Conceptions: the Building Blocks of Legal Norms 295

Bentham and the classification of legal mandates 296

Hohfeld's analysis of jural relations: the exposition of fundamental legal conceptions 300

Connecting the two 'boxes' in Hohfeld's system 310

Some logical puzzles in Hohfeld's system 311

Value of Hohfeld's system 316

12 Justice 318

Justice according to law and justice of the law 319

Justice as virtue 320

Legal justice 329

Distributive justice as social justice 333

Justice as fairness: Rawls' theory of justice 336

Entititlement theory of justice: Nozick's response to Rawls 343

Evolutionary theory of justice 349

References 358

Index 366

Editorial Reviews

"Professor Ratnapala's book … [provides] … an accessible overview of the various schools of thought, and of their place in the history of ideas, while also identifying, with a respectfully light touch, the deficiencies in the effort of each school to explain what it is that the courts are doing and why they are doing it. Professor Ratnapala's wide-ranging survey provides a comprehensive study of all the schools of jurisprudence, while at the same time avoiding the temptation to accord some of these schools only a superficial treatment. It will be a useful book for students and for practising lawyers interested in knowing what the students are banging on about. Hopefully, that means all of us. Speaking for myself again, I particularly appreciated the gentle but effective discussion of the place of the school of critical legal studies in the jurisprudential firmament."
--Hon. Justice Patrick Keane, Court of Appeal, Supreme Court of Queensland

From the Publisher