On the philosophy of lawPDF电子书下载

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1.BRIEF INTRODUCTION 1

What is the Philosophy of Law 3

2.ON LEGAL POSITIVISMS 7

The Nature of Law: Two Perspectives 9

Classical Legal Positivism: Austin’s Command Theory of Law 11

From Commands to Rules: Introducing Hart’s Legal Positivism 16

Hart’s Initial Criticisms of Austin 19

Hart on Sovereigns and Rules 23

The Nature of Rules and Rule-following 26

Law as a System of Rules 29

The Rule of Recognition 31

Hart on Law and Morality 35

Inclusive and Exclusive Positivism 38

3.ON NATURAL LAW THEORIES 44

Legal Positivism and Natural Law: Common and Contested Ground 44

Thomas Aquinas and Classical Natural Law Theory 46

Is an Unjust Law A Law at All? 49

The Strong Reading 49

The Weak Reading 51

Arguments for the Necessary Connection Claimed by the Weak Reading 53

Finnis’s Argument 53

Fuller’s Argument 55

The Inner Morality of Law 57

Dworkin’s Third Way 60

Dworkin’s Criticisms of Hart’s Model of Rules 61

Law as Integrity 68

Difficulties with Dworkin 78

4.ON LEGAL REALISM AND ITS PROGENY 82

Langdell and Legal Formalism 83

Legal Realism 84

The Realists’ Indeterminacy Thesis 86

The Predictive Theory of Law 90

The Crits 92

Their Indeterminacy Theses 93

Law and Economics 98

Economic Efficiency 99

The Descriptive Thesis 104

The Normative Thesis 105

Feminist Jurisprudence 107

5.ON CONSTITUTIONALISM, DEMOCRACY, AND JUDICIAL REVIEW 112

What is a Constitution? 117

What is Constitutional Democracy? 121

Is Judicial Review Necessary to Constitutional Democracy? 124

Is Judicial Review Consistent With Constitutional Democracy? 127

Proceduralist Defenses 128

Substantive Defenses 135

Stuck With the Status Quo? 142

Interpreting the Constitution 145

A Final Thought 149

6.ON PUNISHMENT 151

Surveying the Problem 151

Punishment and Crime: Definitions and Basic Concepts 154

A Brief Historical Sketch 158

Pure Instrumentalist Theories 160

Side-constrained Instrumentalist Theories 166

Pure Retributivist Theories 170

Communicative Theories of Punishment 179

The Abolitionist Challenge 182

7.ON INTERNATIONAL LAW 185

What is International Law? 186

Who Does International Law Govern? 188

What Are the Sources of International Law? 190

How Is International Law Enforced? 195

Is International Law Really Law? 200

What Ought International Law Look Like? 206

International Law and Politics 208

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