A Companion to Philosophy of Law and Legal Theory

The articles in this new edition of A Companion to Philosophy of Law and Legal Theory have been updated throughout, and the addition of ten new articles ensures that the volume continues to offer the most up-to-date coverage of current thinking in legal philosophy.

• Represents the definitive handbook of philosophy of law and contemporary legal theory, invaluable to anyone with an interest in legal philosophy
• Now features ten entirely new articles, covering the areas of risk, regulatory theory, methodology, overcriminalization, intention, coercion, unjust enrichment, the rule of law, law and society, and Kantian legal philosophy
• Essays are written by an international team of leading scholars

List of Contributors xi

Preface xiv

Introduction 1

Part I: Areas of Law 7

1 Property Law 9
Jeremy Waldron

2 Contract 29
Peter Benson

3 Tort Law 64
Stephen R. Perry

4 Criminal Law 90
Leo Katz

5 Public International Law 103
Philip Bobbitt

6 Constitutional Law and Religion 119
Perry Dane

7 Constitutional Law and Interpretation 132
Philip Bobbitt

8 Constitutional Law and Privacy 145
Anita L. Allen

9 Constitutional Law and Equality 160
Maimon Schwarzschild

10 Evidence 177
John Jackson and Sean Doran

11 Interpretation of Statutes 188
William N. Eskridge, Jr.

12 Confl ict of Laws 197
Perry Dane

Part II: Contemporary Schools and Perspectives 209

13 Natural Law Theory 211
Brian Bix

14 Legal Positivism 228
Jules L. Coleman and Brian Leiter

15 American Legal Realism 249
Brian Leiter

16 Critical Legal Studies 267
Guyora Binder

17 Postrealism and Legal Process 279
Neil Duxbury

18 Feminist Jurisprudence 290
Patricia Smith

19 Law and Economics 299
Jon Hanson, Kathleen Hanson, and Melissa Hart

20 Legal Formalism 327
Ernest J. Weinrib

21 German Legal Philosophy and Theory in the Nineteenth and Twentieth Centuries 339
Alexander Somek

22 Marxist Theory of Law 350
Alan Hunt

23 Deconstruction 361
Jack M. Balkin

24 Law and Society 368
Brian Z. Tamanaha

25 Postmodernism 381
Dennis Patterson

26 Kantian Legal Philosophy 392
Arthur Ripstein

27 Legal Pragmatism 406
Richard Warner

Part III: Topics and Disciplines 415

28 Law and Its Normativity 417
Roger A. Shiner

29 Law and Literature 446
Thomas Morawetz

30 The Duty to Obey the Law 457
M. B. E. Smith

31 Legal Enforcement of Morality 467
Kent Greenawalt

32 Indeterminacy 479
Lawrence B. Solum

33 Precedent 493
Larry Alexander

34 Punishment and Responsibility 504
George P. Fletcher

35 Loyalty 513
George P. Fletcher

36 Coherence 521
Ken Kress

37 The Welfare State 539
Sanford Levinson

38 Legal Scholarship 548
Edward L. Rubin

39 Authority of Law 559
Vincent A. Wellman

40 Analogical Reasoning 571
Jefferson White

41 Risk 578
John Oberdiek

42 Regulatory Theory 590
Matthew D. Adler

43 Methodology 607
Andrew Halpin

44 Overcriminalization 621
Douglas Husak

45 Intention 632
Kimberly Kessler Ferzan

46 Coercion 642
Grant Lamond

47 Unjust Enrichment 654
Ernest J. Weinrib

48 The Ideal of the Rule of Law 666
Andrei Marmor

Index 675

"This is an outstanding collection of essays on the most important, fundamental concepts of law and legal theory.... Recommended for any undergraduate student in this area or for any thinking person who wants to know more about the law and its reasons for being." (M/C Reviews, February 2011)

Dennis Patterson is Professor of Philosophy of Law and Legal Theory at the European University Institute in Florence, Italy, and is Board of Governors Professor of Law at Rutgers University School of Law (Camden, NJ). He is also Professor of Jurisprudence and International Trade at Swansea University, Wales. He has written widely in the philosophy of law and international trade law. His books include Law and Truth (1996), Mind, Meaning and Law (2008), and most recently The New Global Trading Order (2008) with Ari Afilalo. The second edition of this outstanding Companion provides an unparalleled survey of philosophy of law and legal theory for students and specialists alike. Written by an international assembly of leading scholars, the articles have been revised throughout, and the addition of ten entirely new essays ensures that the volume continues to offer the most up-to-date coverage of current thinking in legal philosophy.

Articles new to this edition cover the areas of risk, regulatory theory, methodology, overcriminalization, intention, coercion, unjust enrichment, the rule of law, law and society, and Kantian legal philosophy. Together, the essays provide an in-depth introduction to philosophical and legal theory, and a critical overview of the basic theoretical concepts, theories, topics, philosophical issues, and themes that now feature in the law school and undergraduate legal studies curricula.

"Anyone interested in what philosophical issues underlie the major domains of law, what aims and assumptions animate the major movements of contemporary legal theory, what issues of legal controversy are today uppermost and why, would do well to adopt this work as a companion, indeed a guide. Its 48 crisp, focused, and argumentative chapters make for lively companionship, and their authoritative outlines of and contributions to major fields make them reliable guides. It is a rich and accomplished collection."
—Martin Krygier, The University of New South Wales