Prof. Bill Long 11/7/05
Using the Internet to Focus Your Interests
The purpose of the next two essays is to help you approach the subject of modern (since WWII) jurisprudence not through my listing central "doctrines" or methods of any particular scholar but through inviting you to do your own work of discovery. These worksheets will form the basis for Internet research in class on 11/8 and can be used profitably after class, too.
In this paragraph I will lay out my method of proceeding and then turn you loose on names and reference works. Below are three types of materials: (1) general reference guides; (2) names and some books, articles or important facts you should know concerning significant individuals who are working on jurisprudential/philosophy of law themes today or who influenced modern developments; and (3) some additional books that explore themes of interest to legal theorists. What I would like you do to is to take one entry from two of the categories and explore those entries in depth for 45 minutes. Thus, if you click on one of the reference books, you should comb through the table of contents and learn who is doing what on which subject. You may then desire to pursue that person more specifically by doing a Google search on him/her, probably including the topic are of the chapter or section of the reference book. If you choose an individual, try to learn as much about the person's work as you can in the time given. Do not only do an Internet search on the person, but also do a Westlaw Journals and Law Reviews search to see both what s/he has written and how many people are quoting him/her. Finally, if you choose one of the books from part (3), look closely at reviews or overviews of the book so that you can understand better how modern writers "divide" the field.
(1) Reference Materials
As I mentioned in the first class, there is no agreed-upon method of how jurisprudence is to be taught today. I think the proliferation of the reference books below is an indication that someone somewhere is trying to come up with a "standard" approach to the field. Here are five books. Check one of them out thoroughly.
1. A Companion to Philosophy of Law and Legal Theory, ed. by Dennis Patterson (1999). Amazon.com has a nice feature which allows you to click on the Table of Contents, so that you can see who is writing on which jurisprudential area. Then, you can follow the thread by doing a search on that person and area and see how the field, as well as the person's work, opens to you.
2. Philosophy of Law and Legal Theory: An Anthology, ed. by Dennis Patterson (Blackwell's, 2003).
3. The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. by Martin P. Golding. For example, on this one, I decided myself to look at the last chapter, Joseph Raz's article on whether there is a theory of law. I decided to do an Internet search on "Joseph Raz" and "theory of law," and I came up with Prof. Brian Leiter's proposed table of contents for a jurisprudence text he wants to put together. Then, I spent a few minutes going through Leiter's table of contents, and I could go much further, of course. So, way leads to way, as Robert Frost would say.
4. The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. by Jules Coleman. Although there are many areas of overlap between this and other books, this handbook marches you through major areas of the law school curriculum (property, contract, criminal law, torts) and had articles on "Philosophy of X" for each one.
(2) Significant Individuals
The list here is necessarily incomplete (for who can say who is and who is not a jurisprude). In addition, in this section I list individuals who are no longer living if they cast a logn shadow over our age. But I do not go back to people who lived AND had all their major contributions in the 19th century (such as Nietzsche) or earlier centuries (Locke, Hobbes, Rousseau, Aquinas, etc.). No doubt many of the following thinkers are indebted to these long-dead thinkers, but I wanted to bring to your attention more contemporary thinkers. Sometimes I just give their names--you can select one to examine. They are in no particular order.
1. HLA Hart (1907-1992). Probably the most significant jurisprudential thinker of the 20th century, with the possible exception of Dworkin. He was English and stood in the positivist tradition of Bentham, some of whose works he edited for the Bentham project. The Concept of Law is arguably his most significant work.
2. Ronald Dworkin (1931- ). He teaches still at NYU and Oxford, and we will look at some of his contributions on the next class (Nov. 10). Any consideration of Dworkin would begin with Taking Rights Seriously (1978) and Law's Empire (1986). He is among the most frequently cited scholars in law review articles, too. He is no relation to the feminist legal scholar Andrea Dworkin.
3. Richard Rorty (1931- ) is one of the more significant postmodern philosophers today. Legal philsophers and others find his work stimulating. Indebted to the triad of Wittgenstein, Sartre and Heiddeger, he seeks to bring the continental tradition of philosophy to the American scene. He is treated in Litowitz's Postmodern Philosophy and Law.
4. Michel Foucault (1924-84) is, by many accounts, the most significant philosopher of the 20th century. He was trained historically, however, and many of his works have legal themes, such as his work on punishment. Much of his work is surprisingly accessible.
5. Jacques Derrida (1930-2004) was the "godfather" of deconstruction, a French literary critical movement that is behind much of Feldman's treatment of "postmodernism" which you read for last week.
6. Hans Kelsen (1882-1973) was a very significant jurisprudential thinker of the last generation. He was Austrian and was confronted in his younger days (after WWI) with drafting a new constitution for a country after the breakup of the Austro-Hungarian Empire. He was strongly indebted to Kant in his philosophy but also was shaped by the British positivists.
7. Joseph Raz, author of six books since his debut with The Authority of Law (Oxford UP) in 1979, won several awards for The Morality of Freedom (1986).
8. Lon Fuller (1902-78) wrote his classic book The Morality of Law in 1964. We read his legal hypothetical "The Case of the Speluncean Explorers" in the first week of class. He was Roscoe Pound's successor in teaching Jurisprudence at Harvard Law School, and never was fully comfortable with the "hard" positivism of the analytic philosophers and disciples of Jeremy Bentham. The "Hart/Fuller" debate in 1958 was one of the two most signficant jurisprudential moments in 20th century America (the other being the Pound/Llewellyn flap in the 1931 issues of HLR).
9. Thomas Kuhn (1922-96) is significant not specifically for the study of law but for intellectual history. His 1962 book, The Structure of Scientific Revolutions, became a symbol of the transition between modernism and postmodernism (Patterson notes him in his article for the first day of the class) by arguing that scientific change was not a strictly rational process.
10. John Finnis (1940- ) is an Australian, and a professor of law at Oxford and the University of Notre Dame. He has been concerned to revive the study of natural law in the philosophy of law. His most significant work is Natural Law and Natural Rights. His work has received much notice because it is a direct attack on the work of HLA Hart and analytic tradition in British philosophy.
The next essay gives more names and books.
Copyright © 2004-2007 William R. Long