Friday, April 02, 2010

Must Read Legal Theory Books

Brian Tamanaha

Lots of folks on blogs are sharing their list of most important books. I'll pass on that because I doubt there is any interest in or value to my personal list (Old Yeller anyone?). Instead, here is my list of five must read legal theory books:

The Concept of Law, H.L.A. Hart. The only contemporary legal theory book that theorists will still be reading a century from now.

Knowledge and Politics, Roberto M. Unger. A brilliant account of the dilemmas of liberalism. Closing words: "Speak, God."

The Human Measure: Social Thought in the Western Legal Tradition, Donald R. Kelley. The best book most legal theorists have never read--a stunning display of knowledge.

Playing by the Rules, Fred Schauer. Unsurpassed analysis of legal rules.

History of American Law, Lawrence M. Friedman. Legal theory uninformed by an awareness of history is apt to be empty or wrong. This is the best single primer on American legal history.

Honorable Mention: Natural Law and Natural Rights, John Finnis. Best text on natural law. Fundamental Principles of the Sociology of Law, Eugen Ehrlich. A hundred years old, yet remarkably modern and lively. Jurisprudence: Theory and Context, Brian Bix. Can't beat this book if you are looking for a survey of jurisprudence.

[Type the rest of your post here.]


I have read some of Lawrence M. Friedman's works, including his discussion of twentieth century law and "Law in America: A Short History," and find him a fine resource for both the lawyer and the layperson interested in the subject matter.

The only contemporary legal theory book that theorists will still be reading a century from now.

Yeah, I hate those long books too.

Got anything for the layman?

Steve--that's funny! You got me.

jpk. A non-theorist, and even non-lawyer, should consider two books. Sword & Scales: An Exploration of the Relationship Between Law and Politics, by Martin Loughlin, is exceptionally well written and very sophisticated. Loughlin is a British academic, so the book has an English bent that might not resonate with American readers, but it is a terrific combination of political and legal theory.

Another book you might consider is my On the Rule of Law: History, Politics, Theory. I wrote it for non-lawyer readers, laying out most of the core themes that occupy legal theorists.

If you want to read a study of developments in legal theory during much of the last century, try Edward A. Purcell's The Crisis of Democratic Theory: Scientific Natruralism & the Problem of Value (Lexington: Univ. of Kentucky Press, 1973). This is intellectual history---or rather, intellectual legal history---at its best. No one does it better than Purcell.



I enthusiastically second your comments about Purcell and about this book in particular. It is a superb intellectual history of legal thought in the first half of the century (Purcell ends his account at the post-war period.)


Brian, I don't mean to rain on your parade, so to speak, but I have long felt that law is overtheorized. There is a lot of legal theory that does very little to inform the creation and use of law.

I'm not a jurisprudence expert by any means, but I did get a philosophy degree as an undergraduate and I am a lawyer. I still love philosophy, but it's not much fun unless it is informative in some way.

In any case, legal theory always seems to me like debating how many angels can dance on the head of a pin. That is to say it's largely useless.

So, other than to employ very smart people as professors, what is the point of legal theory?

one could argue that what Reece said is true because what Brian and dah said is true, kinda. the conflict is between legal positivism and natural law theory. Brian is a positivist. Therefore, the moral content of the law is of secondary importance, or is not part of the law scientifically speaking. This idea of the separation of law and "morality" is quite old, but it became dominant in the Enlightenment (and still is). Natural law people tend to see positivists as making much ado about something that is obvious but incomplete; therefore it looks like counting angels on the head of a pin. I wouldn't say positivism is a waste(r) of time, but would argue that it is much more interesting to study the relationship between the two kinds of law, "law" and morality, loi and droit, lex and ius. The problem with positivism is obscured by the fact there is only one word for law in English whereas in most other languages, including Arabic and Chinese, there are 2 words for it, one referring to the positive law and one referring to the "moral" context [of the positive law]. Once the problem with translating the word law is recognized, positivism as a comprehensive theory of law becomes untenable. Anyway, I think Finnis is much more interesting than Hart. The idea of positive science that arose in the 18th century, in both "natural" science and law, has yet to overcome its Aristotelian context, although that aim is implicit in the term "science" [positivism, the analytic school]as it is used now. And now Aristotle is resurfacing in many ways, because the mismatch between the empirical world and positivist science (including law) is becoming more and more undeniable. One could even argue that the subject of one of Brian's books, instrumentalization of the law, is exacerbated by "science" because science focuses attention on the positive law (lex) and not the moral context of the law (ius). If the two ideas of the law were more closely linked, instrumentalization might be more difficult on the ground, and its solutions would be more acceptable. The main problem with instrumentalization begins in the international sphere where it is much more difficult to describe the law as positive law; international law looks much more like morality (ius). That means positivism is even more problematic (less descriptive) when looking at international law. and so on. the unending tension between natural law and positivism will not end, but for those of you wanting to understand the law, i would certainly say a serious consideration of the Aristotelian arguments of Finnis is in order.

Thanks for this. I will start with your book on the rule of law.

(political scientist)

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