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Legal Theory
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Augustine: The City of God against the Pagans (Cambridge Texts in the History of Political Thought)Augustine: The City of God against the Pagans (Cambridge Texts in the History of Political Thought) by Augustine
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Augustine is most widely associated with the notion that 'a law that is not just is no law at all'. The natural law greats include: Plato, Aristotle, Cicero, Augustine, Aquinas, and Blackstone.
Treatise on LawTreatise on Law by Aquinas, Saint Thomas
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For Aquinas, positive law derives its validity from natural law. Positive law does not emmanate from natural law. To know moral right from wrong, one must know the demands of practical reasonableness - not what accords with human nature.
Blackstone's Commentaries on the Laws of England: Four books in 2 volumesBlackstone's Commentaries on the Laws of England: Four books in 2 volumes by William Blackstone
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Here, B posits a comprehensive view of English law. Legal standards which conflict with natural law are not valid. Valid laws derive their authority and force from natural law.
FREE SEA, THE (Natural Law Paper)FREE SEA, THE (Natural Law Paper) by HUGO GROTIUS
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Using a natural law thesis, Grotius, 16-17th c., held the sea was international territory and all nations were entitled to use it. For G, natural law is the view that things by their nature are good or bad. Moral laws apply to the individual and the state equally. Considered the founding father of international law.
Pufendorf: On the Duty of Man and Citizen according to Natural Law (Cambridge Texts in the History of Political Thought)Pufendorf: On the Duty of Man and Citizen according to Natural Law (Cambridge Texts in the History of Political Thought) by Samuel Pufendorf
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Pufendorf's natural law treatise grounds law's normative features on individuals. Further, for P, justice refers only to a part of morality. Pufendorf & Grotius provided the intellectual foundation for 19-20c. codifications.
Austin: The Province of Jurisprudence Determined (Cambridge Texts in the History of Political Thought)Austin: The Province of Jurisprudence Determined (Cambridge Texts in the History of Political Thought) by John Austin
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Austin's command theory of law holds valid law is general orders, backed by threats of force, issued by an authority (or one who is generally obeyed). Austin is the target of HLA Hart, who sought to displace command theory but retain a positivist orientation.
Pure Theory of LawPure Theory of Law by Hans Kelsen
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Kelsen takes a strict separation approach - law neither intersects with morality nor politics. He posits an ROR which is internal to the law itself - the grundnorm. The grundnorm is the first rule in a legal system which details how legal authority gets started. For Kelsen, interpretation is an application of judicial legislation - hence, an application of politics to law.
The Concept of Law (Clarendon Law Series)The Concept of Law (Clarendon Law Series) by H. L. A. Hart
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The centerpiece of Anglo-American Analytic jurisprudence since publication. Hart's framework is used by both Legal Positivists and Natural Law theorists.
Hart's Postscript: Essays on the Postscript to The Concept of LawHart's Postscript: Essays on the Postscript to The Concept of Law
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A collection of valuable essays which add perspective to Hart's postscript - an unpublished essay at the time of Hart's death which address's Dworkin's critique.
The Morality of Law: Revised Edition (The Storrs Lectures Series)The Morality of Law: Revised Edition (The Storrs Lectures Series) by Lon L. Fuller
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Using Hart's framework, Fuller argues eight moral criteria must be fulfilled for law to be considered valid. Generally speaking, since publication, Fuller's argument has been effectively incorporated into legal positivism. This has been possible b/c the criteria themselves are internal to law itself and technical in nature. Fuller's view may be understood as a procedural conception of NL.
Natural Law and Natural Rights (Clarendon Law Series)Natural Law and Natural Rights (Clarendon Law Series) by John Finnis
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Using Hart's framework, Finnis argues practical reason narrows the scope of legitimate sources for determining valid law. Practical reason replaces Hart's internal view among legal professional (judges and lawyers). So long as a set of seven basic goods is fulfilled to a minimum threshold, law may be considered valid.
Law's EmpireLaw's Empire by Ronald Dworkin
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In Law's Empire, Dworkin posits the idea of constructive interpretation as a preferred alternative to what he terms sematic theories. This is Dworkin's first systematic, book length thesis on legal theory.
A Matter of PrincipleA Matter of Principle by Ronald Dworkin
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This is a collection of several essays which form in part the background of Dworkin's Law as Integrity (Law's Empire). A crisp critique of the Law and Economics view is found in Section 4.
Taking Rights SeriouslyTaking Rights Seriously by Ronald Dworkin
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Dworkin's side of the first round of the Hart-Dworkin debate is found in "The Model of Rules I".
The Authority of LawThe Authority of Law by Joseph Raz
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Raz's Sources Thesis was first posited in The Authority of Law. Raz is the lead proponent of 'exclusive legal positivism'. ELP holds if law is a social fact then law can only be made via positive action through a rule which decides who makes law (e.g. it's impossible to include morality in ROR). Moral principles may become law so long as they are introduced via legitimate forms of lawmaking.
Ethics in the Public Domain: Essays in the Morality of Law and PoliticsEthics in the Public Domain: Essays in the Morality of Law and Politics by Joseph Raz
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Raz's Sources Thesis is reprinted here. Contra Fuller, Raz argues Fuller's eight procedural principles are not moral principles but rather technical as they merely make the law into a more effective instrument.
Interpretation and Legal TheoryInterpretation and Legal Theory by Andrei Marmor
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Marmor is an exclusive legal positivist. Other ELPs include: Raz, Shapiro, and Gardner. Marmor defends an intentionalist conception of statutory interpretation.
Markets, Morals, and the LawMarkets, Morals, and the Law by Jules Coleman
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Jules Coleman is one of the leading figures in inclusive legal positivism. ILP holds it's possible for some legal systems to be constituted w/o humans having the final say as to what is law - morality has the final say.
Risks and Wrongs (Cambridge Studies in Philosophy and Law)Risks and Wrongs (Cambridge Studies in Philosophy and Law) by Jules L. Coleman
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Coleman is a well-known analytic philosopher - especially on tort law and economic analysis of law.
Inclusive Legal PositivismInclusive Legal Positivism by W. J. Waluchow
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In addition to Waluchow, other ILPs include: Coleman, Hart, Soper, and Lyons.
The Bramble Bush: The Classic Lectures on the Law and Law SchoolThe Bramble Bush: The Classic Lectures on the Law and Law School by Karl N Llewellyn
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Llewellyn is a notable legal realist (along with Roscoe Pound, Felix Cohen, and Jerome Frank). A key theme of realists is instrumentalism - legal rules should be interpreted in light of their purposes. If application of the black letter law undermines its purpose, then the rule should be interpreted so as not to apply. On LR, law is reduced to a hodge podge of variables.
A Critique of Adjudication [fin de siècle]A Critique of Adjudication [fin de siècle] by Duncan Kennedy
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Kennedy is 'a' if not 'the' leading, contemporary legal realist associated with CLS. On CLS, law is reduced to politics.
Knowledge and PoliticsKnowledge and Politics by Roberto Unger
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Unger's work provided the discourse for follow-on CLS movement. Unger's early work was closely tied to CLS.
Doing What Comes Naturally:  Change, Rhetoric, and the Practice of Theory in Literary and Legal StudiesDoing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies by Stanley Fish
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Against Dworkin, Fish argues interpretation depends on interpretive communities. In other words, text does not pose a constraint on interpretation - interpretation is socially and historically contingent. Dworkin's first stage of interpretation may be understood as a response to Fish, Gadamer, and Habermas.
Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought)Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) by Jurgen Habermas
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Here, Habermas argues Rawls's original Theory of Justice is typical of 1960s welfare liberalism in the US.
Economic Analysis of LawEconomic Analysis of Law by Richard A. Posner
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For Posner, common law judges (should) decide so as to maximize aggregate wealth. It is not clear, however, why wealth maximization is the proper social value. Though other outcomes may obtain as a result of wealth maximization w/o appropriate institutions/culture, there is no guarantee they will.
Contract as PromiseContract as Promise by Charles Fried
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Relying on Kant, Fried argues promising is a convention which creates a moral obligation on the parties b/c it is the expression of the willingness to be bound. Breaking a promise uses the other as a means. Fried's account may be understood as a defense of expectation interest.
DEATH OF CONTRACT: SECOND EDITIONDEATH OF CONTRACT: SECOND EDITION by GRANT GILMORE
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In this treatise, Gilmore argues contract law is collapsing into tort. This suggests courts must rely on principles when conceptualizing and ruling on the concept of harm (e.g. ex ante restoration or ex post fulfillment).
The Idea of Private LawThe Idea of Private Law by Ernest J. Weinrib
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Weinrib posits an ethical account of private law. For Weinrib & others, private contractual relations are excluded from justice considerations.
Essays on Contract (Clarendon Paperbacks)Essays on Contract (Clarendon Paperbacks) by P. S. Atiyah
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Atiyah posits a formidable defense of reliance interest in contract. Promisory based accounts are misplaced on A's view because breaches w/o reliance do not cause harm. Ex ante restoration, therefore is the proper measure.
The Structure of Liberty: Justice and the Rule of LawThe Structure of Liberty: Justice and the Rule of Law by Randy E. Barnett
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RB is a committed originalist - like Scalia, RB takes originalism to mean 'original meaning' rather than intent. The idea is discretion is dangerous and/or infringes upon the goal of democratic self-governance. RB takes his view to be embedded in the Constitution - a principal source for his libertarian-inspired jurisprudence.
From Apology to Utopia: The Structure of International Legal ArgumentFrom Apology to Utopia: The Structure of International Legal Argument by Martti Koskenniemi
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Koskenniemi's CLS inspired work proffers a skeptical view of treaty interpretation.
Law and DisagreementLaw and Disagreement by Jeremy Waldron
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Waldron is hostile to judicial review in general and intentionalist statutory interpretation in particular. Waldron's views are grounded on disagreement as a norm indicative of the political and legislative authority.