Arguing about Law or Marketing

Arguing About Law: An Introduction to Legal Philosophy

Author: Andrew Altman

Using the rule of law as its main theme, this text shows how abstract questions and concepts of legal philosophy are connected to concrete legal, political, and social issues. The text addresses several modern controversies and challenges students to consider both sides of an argument, using sound, reasoned thinking.

J.D. Droddy

Andrew Altman has put together a fine primer on the philosophical arguments that arise in discussions about what law is and what it should be. This is a book that would be quite useful as either an introduction or review of the subject. One might look upon it as the READERS DIGEST version of a comprehensive legal philosophy text. It is at once elementary and sophisticated. The reader is not assumed to have a legal background; some very elementary concepts are explained in clear, concise language. This material paves the road for more sophisticated and esoteric arguments set forth by some of the great legal theorists and philosophers. In reading the book, I am reminded of a scene from the play FIDDLER ON THE ROOF in which Tevye is trying to make a decision. "One the one hand …," he says; "but, on the other hand …" He goes back and forth, from one hand to the other for quite some time. That is what Altman does. He describes arguments, counter-arguments and counter-counter-arguments among legal theorist and philosophers until the reader can be quite certain that most views have been represented. He reports the views of well over 50 philosophers, legal theorist, jurists, economists, and various other "ists" that may be relevant to debates about the law. They include such notables of the past as Plato, Aquinas, Augustine, Locke, Hobbes, Blackstone, Kant, Madison, and Bentham, as well as more recent theorists, including Bork, Dworkin, Hart, Easterbrook, Posner, and Duncan Kennedy. Throughout it all, Altman does little more than hint at his own views. For the most part, the reader is left to decide for himself or herself which of the arguments found in the literature is the best. The book has eight chapters, which might be divided into two parts (although the author did not expressly do that). Chapters One and Two address legal-philosophical questions in broad terms, discussing the nature of law and morality generally. Because they are the most important (and to the general reader the most interesting) of the chapters, I shall summarize them in some detail below. The remaining chapters focus on more specific categories — constitutional interpretation, private law, criminal law, law and economics, feminism, and the critical legal studies movement. Depending on one's interests and objectives, this book can be usefully read one of three ways: (1) in its entirety; (2) just the first two chapters; or (3) the first two chapters plus one or more particular chapters from the remainder of the book. The second alternative would provide a nice overview of the general issues. The third alternative may appeal to one who wants to focus on the debate in a particular area. Chapter One lays the foundation for the entire book. Altman announces in the Introduction to the book that the idea of the rule of law is the "central organizing concept" of the work. In Chapter One, he first tells us what he means by "the rule of law." This is followed by arguments as to why we need the rule of law. Finally, some problems with the rule of law are discussed. Altman explains "rule of law" in terms of five principles. The first four of these principles can be reduced to the core idea that the rule of law means that government must not act in an arbitrary manner. This is the essence of constitutional government, he notes. Altman's fifth principle applies not to government directly, but to the people. More precisely, it applies to the people in a democracy, whom Altman labels "the sovereign people". Hence, his fifth principle is: "the sovereign people must act within the requirements of legality." By that he means that not only are the people in their individual capacities subject to the law, but the people in their collective capacity as "the holders of ultimate political authority" must also exercise that authority within the rules laid out by the law. To argue otherwise, Altman suggests, "would be tantamount to arguing that democratic government is above the law, which would clearly contradict the fundamental principle of constitutional government." Why do we need the rule of law? Altman suggests that it is needed to "prevent corruption, restrain vengeance, and protect individual liberty." To justify that conclusion, he calls upon Plato, Aeschylus, Hobbes, Austin, Kant, Montesquieu, and Madison — all in the space of ten pages. In doing so, he provides an excellent overview of the work of these theorists. Although preventing corruption, restraining vengeance, and protecting individual liberty are worthy goals that may be advanced through the rule of law, in practice the rule of law is not without problems. One of these problems is the tension between substantive justice and legal justice. "Substantive justice" refers to treating persons "in the ways that they deserve." But, "legal justice" means to treat them in the ways the law requires under the circumstances. Thus, someone who commits a murder which can be proven only with evidence seized illegally by the police may go free under the rule of law. In such a case, he or she would receive legal justice but not substantive justice. In the Chapter Two, Altman explicates various theories related to the age-old Natural Law vs. Positive Law debate. He identifies three versions of Natural-Law theory: (1) the "traditional" version of Thomas Aquinas; (2) the "fidelity" version of Lon Fuller; and (3) the "interpretive" version of Ronald Dworkin. The author attributes to Aquinas a belief that "rules of positive law that conflict with principles of natural law are invalid" and, therefore, carry no legal authority. In describing Fuller's "fidelity" version of natural law, Altman says it holds that "a moral reason always exists to obey the rules of any system of positive law"; however, "[i]n the case of any given rule of positive law, that reason may be outweighed by weightier moral reasons for disobeying the law." Finally, of Dworkin's version Altman says that, rather than claiming that a legal rule must be consistent with natural law to be legally valid, "it claims that the positive law cannot be properly interpreted and applied without the introduction of moral judgments." The author's assessment of each of these natural-law theories indicates a generous degree of skepticism on his part. But, the positive-law theories fare little better. Here he describes and assesses the works of John Austin and H.L.A. Hart. In Austin's view, as seen by Altman, legal validity and moral validity are two separate questions. What makes a law legally valid is the fact that it is issued by the sovereign. Sovereignty, however, is a question of power. One is obligated to follow the law because failure to do so will result in sanctions. The author describes Hart as a critic of Austin, believing that Hart's view of positive law would not distinguish government from a gunman. When the gunman says "your money or your life," one may comply to avoid a sanction, but that doesn't make the gunman's demand a law. One might be "obliged" to comply, but not "obligated". The obligation concept is explained in terms of "the idea of a rule." A rule exists when people generally (1) act in a certain way and (2) regard deviations from that way of acting as something to be criticized. Given Altman's skepticism regarding all three natural-law theories, one might expect him to be more amenable to one or both the positive-law theories. He acknowledges the clarity with which Austin's theory "explains, distinguishes, and relates the various concepts he uses in analyzing the phenomenon of law," but nonetheless asserts that "the direct arguments [Austin] makes against traditional natural law theory are unpersuasive as they stand." As for Hart, Altman says, "[His] problem is that he never clearly explains why the existence of a legal obligation depends not simply on whose power is imposing but on how the power is being exercised." Chapters Three through Five focus on particular issue areas that are defined by the type of law under discussion (constitutional, private, or criminal). Chapter Three covers the most important of the debates over constitutional interpretation, including the principle of judicial review. The reader is told of the views of Madison, Hamilton, Jefferson, Ely, Ackerman, Argresto, Bork, and Dworkin. In Chapter Four, issues of public policy and legal philosophy that arise in a private-law context (torts, contracts, and property) are discussed. Here arguments from traditionalist and legal realists are set forth and compared. Prominent theorists whose work is discussed include Ames, Feinberg, Lord Macaulay, and Epstein. Criminal law is the topic of Chapter Five. The chapter includes a wide variety of topics, including three approaches to a philosophy of punishment: Bentham's utilitarian approach, the retributive approach (Davis), and the therapeutic model (Menninger). The reader is also exposed to debates on such topics as the type of behavior that should be subject to criminal liability and the moral limits of criminal law. Chapters Six through Eight focus on issue areas that are defined by various approaches to study and application of law (law & economics, feminism, critical legal studies). Concepts and theories from Pareto to Posner are explained and debated in Chapter Six, which deals with issues of law and economics. Chapter Seven, Feminism and the Law, sets out many of the debates among feminists. It does this well; however, there is one glaring omission from the chapter — the views of those who oppose all or most of the feminist philosophies. The role of patriarchy in our society and the scope of the government's power to use the law to advance or protect the interests of women are discussed from the standpoint of liberal feminists, radical feminists, progressive feminists, and conservative feminists, with most of the ink going to liberal and radical feminism. Specific issues debated include privacy, abortion rights, male-female differences, and pornography. With the eighth and final chapter, Critical Legal Studies, Altman comes full circle — back to the questions of the nature and value of law that were addressed in Chapter One. This time, however, the arguments of the "crits," proponents of the Critical Legal Studies (CLS) movement, are the focus of attention. The author traces the CLS movement from its roots, the Legal Realism movement that arose in the early part of the twentieth century. The historical account serves as a vehicle for introducing the arguments that have been occurring for quite some time over such issues as the nature and role of legal reasoning and stare decisis in court decisions. Once the reader is brought to the present, the modern debate is pitted as "Mainstream" (represented largely by Ronald Dworkin) vs. "Crits." Altmandoes another good job of using the "ping-pong" (back and forth) technique to describe the arguments and counter-arguments of the protagonists. The bottom line on this book is that it is worth reading for anyone needing an introduction or review in the area of legal philosophy. It would make an excellent primary or supplemental text in courses dealing with a variety of subjects, such as legal philosophy, judicial process, constitutional interpretation, or jurisprudence.

Table of Contents:

Introduction. 1. THE RULE OF LAW. Impeachment and the Rule of Law. Arbitrary Government and the Rule of Law. Corruption. Vengeance. Liberty and Prosperity. Hobbes and Austin: The Sovereign as Above the Law. The Crooked Timber of Humanity. Substantive v. Legal Justice. The Independent Counsel Controversy. Political Trials. The Impeachment Trial. 2. LAW AND MORALITY. Judgment at Nuremberg. Natural Law Theory: Overview. Traditional Natural Law Theory: Background. Aquinas's Theory of Law. Assessing Aquinas. Fuller and Fidelity to Law. Dworkin's Interpretive Theory. Legal Positivism: Overview. Austin's Theory of Law. Hart: Law as Primary and Secondary Rules. Summary: Natural Law and Positivism. 3. THE CONSTITUTION. Popular Government and the Rule of Law. The "Troublesome" Provisions. The Supreme Court and Judicial Review. Judicial Review and the Rule of Law. Judicial Review and Democracy. Constitutional Interpretation: Implicit Rights? Framer's Intent. Original Understanding. Dworkin and the Constitution. Criticisms of Dworkin. High Crimes and Misdemeanors. Summary. 4. PRIVATE LAW: TORTS, CONTRACTS, AND PROPERTY. The Functions of Private Law. The Traditional Public-Private Distinction. Criticisms of the Public-Private Distinction. The Traditional Contract-Tort Distinction. Criticisms of the Contract-Tort Distinction. Defenses of the Contract-Tort Distinction. Assessing Traditionalism. Subjective and Objective Approaches in Tort Law. The Duty to Aid. Summary. 5. CRIMINAL LAW. Torts and Crimes. A Utilitarian Approach. A Retributivist Approach. The Therapeutic Model. Amount of Punishment. Mens Rea v. Strict Liability. The Limits of Criminal Law: The Public-PrivateDistinction. Summary. 6. LAW AND ECONOMICS. The Economic Analysis of Law. Economic Rationality. Economic Efficiency. The Efficiency of the Common Law. The Coase Theorem. An Efficiency Explanation of the Common Law. The Scientific Status of Law and Economics. The Evaluation of Law: Should Law Maximize Wealth? Political Disagreement in Law and Economics. Is Efficiency a Neutral Value? The Value of Efficiency. 7. FEMINISM AND THE LAW. Feminism v. the Traditional View of Women. Types of Feminism. The Question of Patriarchy. The Question of Privacy: A Radical View. Abortion Rights: Beyond Privacy to Liberty. Abortion Rights: A Liberal View. Abortion Rights: The Liberal or Radical Approach? The Difference Debate. Pornography: Free Speech and Women's Rights. Pornography on Trial: American Booksellers v. Hudnut. Patriarchy Revisited. Conclusion. 8. RACE AND THE LAW. Race in America. Affirmative Action in Education. Race and Crime. Discrimination and Disparate Impact. Summary. 9. CRITICAL LEGAL STUDIES. The Crits: An Introduction. Legal Reasoning: A Mainstream Account. Legal Reasoning: The Attack Begins. Legal Reasoning: The Crits Attack. Law, Liberty, and Liberalism. The Mainstream v. The Crits. Conclusion. Index.

Interesting book: Financial Institutions and Markets or When Movements Matter

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Author: Dhruv Grewal

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