When we ask what and why is law, and inquire into the nature of law, we are in the area of the philosophy of law and legal theory. It is the zone where philosophy and morality, epistemology and jurisprudence converge. This makes it seem complex, as it is, but any good guide (and this is an excellent one, above all for the student lawyer and anyone engaged in cross‐disciplinary study) should make these things clear. Golding (Professor of Philosophy and Law at Duke University, and author of Philosophy of Law (Golding, 1975)) and Edmundson (Professor of Law and Philosophy at Georgia University, and author of An Introduction to Rights, (Edmundson, 2004)) are sure‐footed guides, contributing perceptive chapters respectively on responsibility and privacy. The paperback makes an excellent present for the student's backpack, and the hardback a welcome addition to the reference library shelf.
The editors have coordinated 23 contributions from well‐recognised scholars in the field, and organised material in five thematic groups – contending schools of thought, doctrinal domains and their philosophical foundations, perennial topics, continental perspectives, and methodological concerns. What is really good about this work is the mix of historiographic knowledge (they all know what is happening in the subject and are constructively critical about trends without settling old scores) and applied philosophical analysis to and in the law. Murphy (Natural Law and Practical Rationality (Murphy, 2001)) opens up natural law, Bix (Jurisprudence: Theory and Context (Bix, 2004)) builds on Dworkin and Finnis in an analysis of legal positivism, and Leiter (Objectivity in Law and Morals (Leiter, 2001)) gives an insight into (American) legal realism. Other “schools of thought” include economic rationality (how does law fit to self‐interest and welfarism?), critical theory (a Gramscian critique), and feminism (difference, dominance, domesticity, and denial). Each one provides the kind of analysis, and applied philosophical and theoretical perspective, that both informs and, for the student, acts as a model for ways of thinking and arguing.
Legal domains like criminal and tort and contract law are particularly thoughtful and thought‐provoking. A good reference library will find the book frequently used where assignments ask students to examine the underlying philosophy and theory in such domains. Husak (Drugs and Rights (Husak, 1992)) asks what ought to be criminalized, whether different standards of law should apply to intentional and inadvertent offences, and how blame and guilt take law into moral and ethical areas. Tort and contract imply obligation and liability, and duty and restitution pose philosophical and social choices, complex when they concern commons like the sea and the air we breathe. These are two more excellent chapters by Zipursky and by Posner, who's Law and Social Norms (Posner, 2000) is widely known. The guide then moves on to topics like legal and moral obligation (The Quality of Freedom (Kramer, 2003)), rights and the contractarian approach to punishment (a lively essay by Finkelstein), responsibility (Waldron) and privacy (Edmundson). With their analysis of morally binding obligations, choice theory, individual and societal rights, virtue ethics and decisional privacy, there is a wealth of incisive and topical debate at a level accessible to the student and useful for the lecturer in the field. Every chapter has a well‐selected list of further reading.
These are connected up to society and the state by two chapters on legislation and constitutionalism which, along with the earlier economic analysis and other comparative strands later about human rights and the good society, confirm how many are the crossovers between law and morality on the one hand and economics and politics on the other, when we look at law this way. Two late chapters identify wider perspectives than what might be called the Anglo‐American paradigm by looking at “the continent”, highlighting similarities and differences, and suggesting that globalisation both encourages us to be more international and to ask whether law, and the philosophy and theory of law, can be global. Perhaps, because it is global, law can best be examined that way. Finally there are chapters on methodological issues like objectivity and what it is to have a theory of the law, which add to two earlier discussions about legal evidence and legal reasoning. Anyone looking for systematic coverage of both comparative law of this kind or pure methodology will need to move on elsewhere, although the frameworks here are useful and perceptive as starting points. Convincing, lively, coherent, applied, unpretentious, even though within a predominantly western paradigm, this guide is real value for money. It is a guide not just to facts and ideas but also to method; in addition it will serve as a portal for collection managers to a wide range of must‐haves for the library.
