Customer Reviews

The Philosophy of Law: A Very Short Introduction (Very Short Introductions)

5 star:		(2)
4 star:		(3)
3 star:		(1)
2 star:		(1)
1 star:		(0)

 

 

This book was my first introduction to the "Very Short Introduction" series of inexpensive paperbacks published by Oxford University Press. The nice thing is that these books measure about 7 X 4.5 inches, so they make the perfect "plane" books, but yet are produced to the strict standards of OUP. I was just amazed at how much solid analysis is contained in the 107 pages of text in this volume, not to mention the "references" section, bibliography, and complete index. The author, who is emeritus at the University of Hong Kong, has essentially boiled down his comprehensive "Understanding Jurisprudence" volume (OUP, 2005, 350 pages) into this concise survey. There are also 15 illustrations and several boxed pages where a particular point is examined in a minute analysis.

The book is divided into 6 chapters. The topics are Natural Law (Hobbes, Locke, Rousseau, Finnis and Fuller); Legal Positivism (Hart, Bentham, Austin, Kelsen, Raz); Law as Interpretation (devoted to Dworkin); Rights and Justice (Hohfeld, Posner, Rawls); Law and Society (Durkheim, Weber, Marx, Habermas, Foucault); and Critical Legal Theory (CLS, Unger, Lacan, Derrida, feminist legal theory, critical race theory). This is a lot to cover in a full-sized volume, but amazingly there is much solid analysis and discussion built into this small paperback. It is the perfect device for those wanting to refresh their familiarity with the jurisprudential field; it also serves as an effective and skillfully-written introduction for those new to the topic. There are many additional interesting titles in this Oxford series that I plan to explore--what a great idea!

Based on wonderful books like Jonathan Culler's "Very Short Introduction to Literary Theory," I had come to expect more from the series. This book is poorly written, full of muddy, half-developed thought, and even contains several typos.

The book is organized as a more or less chronological presentation of major schools of legal philosophy (from natural law and positivism through critical legal studies), with the major thinkers in each school usually receiving their own brief sections. Unfortunately, these sections tend to consist largely of scattershot presentations of various doctrines asserted by the thinker. Little attempt is made to string the doctrines together into developed thoughts, or to suggest what problem the thinker hoped to solve by setting forth his or her doctrines, much less to locate the doctrines in a larger intellectual history.

I found that if I was already familiar with the thinker being discussed, the book's presentation often contained subtly misleading phrasing; and if I was not familiar with the thinker, I came away still unclear about why the thinker had bothered to assert the various, vague statements about the law that had been summarily presented. One premise of the Very Short Introduction books is that it's not impossible to say something worthwhile about the significance of a philosopher's contribution to legal theory in even a single paragraph. But doing so requires work. It requires synthesizing the philosopher's claims and locating them in some context, not just throwing out a few vaguely connected, undeveloped doctrines. Those interested in getting a first impression of the philosophy of law would be better off visiting the Wikipedia pages of a few legal philosophers than buying this book.

Some specifics:

This is the kind of book that offers a passage like the following -- "Raz actually postulates a stronger version of the 'social thesis' (the 'sources thesis') as the essence of legal positivism" -- and then fails to define the "sources thesis." The thesis is evidently important enough to be mentioned three times in two pages, but is never defined.

If you're like me, and you like your theses to be stated, you might find this book frustrating.

Another characteristically frustrating passage: "Since Kelsen argues that the effectiveness of the whole legal order is a necessary condition of its validity of every norm within it,..." I can't even tell what went wrong in that sentence: is it a typo? Bad grammar? Unclear thought?

(For more straightforward typos or grammar errors, see p. 37 ["by reference to three elements; efficacy, institutional character, and sources"], p. 55 ["Can I not have a duty without you (or anyone else) having a right that I should perform it."], etc.)

The author also offers gratuitous, unsupported praise or scorn for various thinkers, such as the following throwaway remark about Critical Legal Studies: "Yet the possibilities of transforming the law seem frequently to be diluted by the destructive, even nihilistic, tendencies of some of the more dogmatic adherents of CLS." Really? Thanks for the tip! (No identification of these adherents is offered, nor any clarification of the sense in which they are "nihilistic," nor any clarification of how their nihilism might dilute the possibility of transforming law.)

Finally, the book contains a glaring omission that is apparently typical of philosophers of law who were trained in England. It makes no mention of the thought of (the German) Friedrich Carl von Savigny, and instead presents many of Savigny's central ideas as though they were invented by (the English) John Austin, who in fact got the ideas directly from Savigny.

The philosophy of law is one of the few fields of philosophy that have remained legitimate in the sense that practical questions and contemplations are not eschewed. Too often philosophical debate wanders into conceptual hallways that could best be described as mazes, but one cannot get to their centers even with keeping one hand on the wall. One gets forever lost in the entanglement of concepts, with nothing ever settled, and if an idea is deemed to be practical it follows that it must be uninteresting or illegitimate.

But legal reasoning is a requirement for human well being, and then the question arises as to what system of concepts best encapsulates it. Many questions arise when contemplating proper philosophical frameworks for legal contemplation, and many of these are answered in this book, written of course for those readers who need a quick introduction to the subject matter. No reader would expect an in-depth discussion of the philosophy of law from this book, but there is enough in it to enable readers to investigate specialized topics of interest.

The author begins the book by stating that the philosophy of law is "rarely an abstract, impractical pursuit", and he explains the (weak) demarcation between "descriptive" and "normative" legal theory. Because of its place in history, the author discusses the doctrine of natural law first, and this discussion sheds considerable light on why many modern conservatives are committed to this philosophy of law: it seems to make legitimate the social hierarchies that these conservatives insist we respect.

The doctrine of legal positivism is then discussed, and in this regard the most interesting (and disconcerting) discussion is the "pure theory of law" of Hans Kelsen. The Kelsen theory is interesting since legal norms in this conception are all relational: any one particular norm must be justified or authorized by another norm, giving in the end a large hierarchy of norms with a "basic norm" sitting on top of the hierarchy and representing a completely formal or hypothetical construct. One should not view it as arbitrary though, since its selection is based on whether or not the legal order is "effective". The author does not really elaborate on this notion, but the open-ended nature of his discussion motivates the reader to investigate this doctrine in more detail through outside reading.

If read in the light of current controversies in the interpretation of legal statutes by the United States Supreme Court, probably the most interesting discussion in the book concerns the legal philosophy of Ronald Dworkin. Dworkin himself is very critical of recent decisions that have been made by the Supreme Court in the last two years, but his criticisms in this regard are not brought out in this book. What is discussed is a conception of the law that seems "extralegal" in that it views legal contexts as being intertwined with moral and political ones. This makes legal reasoning more than just an application of rules, and forces the judge to consider the consequences that his edicts will have on the community.

Because it is still in its infancy as a legal philosophy, considerations of jurisprudence brought about by discoveries in neuroscience are not discussed in this book. Called by some the "neuroscience of law" this branch of jurisprudence will probably not be taken seriously by the majority of legal philosophers for some time to come. This reviewer recommends the book by Brent Garland for those who want to supplement the reading of this book by considering what is at the present time very exciting developments in both neuroscience and legal philosophy.

The Very Short Introduction... series has several advantages over other series that serve the same function of providing an introduction to a subject matter. The main advantage is physical size. Mr. Clark refers to it as the perfect "plane" book. That's true. But even better, it is a true pocket book. They fit easily into the back of one's jeans waiting for the odd moment to be pulled out and used. They can usually be easily read in a couple of hours.

But that format has limitations. I find that the VSI volumes that are devoted to a single thinker are much more useful than the ones that cover a broad subject matter. (It inspires me to a bad pun. "A very short intro to a very big subject" is almost Oxfordmoronic. O, never mind.)

At best, when dealing with a subject matter as opposed to an individual thinker the VSIs are concise intros. But sometimes, as with the VSI to The Philosophy of Law the treatment seems shallow. Wacks is very good on some of his thinkers: Rawls, Dworkin, Hart, Weber, and Habermas are all fairly well done. Some of the others are not as well handled- I found his treatment of Locke, Marx, Foucault to be cursory at best. It felt like a survey of a survey.

So take it for what it is. This volume is a very quick overview of a lot of thinkers (see Mr. Clark's review for a good listing). Some of these thinkers are important enough to deserve their own volume in the series (Locke, Marx, and Habermas). Others like Rawls and Dworkin deserve such treatment. Prof. Wacks has provided us with a quick and cheap way to orient ourselves to future reading in this field. I just cannot help but feel that he could have done better. That if he had taken the time to flesh out his presentation for another fifty or so pages that it would have been a much more useful member of the VSI family.

This book is a great way of summarizing the most important points of books like Hans Kelsen's Pure Theory of law making studying a lot easier and a lot more effective. I recommend this book to any first year law students who can't understand, or don't have the time to read long and difficult books.

This book does little to improve the reputation of jurisprudence as boring and far removed from the practical concerns of lawyers (and even, at least in the US, from those of many law professors). Certainly one can learn things from it, but it won't be a particularly pleasant experience.

The author (RW) mentions in his introduction that even "sensationalist criminal trials ... that have become regular television fare encapsulate features of the law that characteristically agitate legal philosophers" (@xiii-xiv). He would have done better to have illustrated the issues that agitate legal philosophers with exactly such real-life cases -- for example by organizing the book according to those agitating issues. Instead, most of the book is organized according to a much more ivory-tower principle, namely a tour of schools of philosophy (natural law, positivism, Dworkin's thought, and then brisk catalogs of a variety of sociological and "critical" approaches); even the one chapter ostensibly organized on the basis of issues ("Rights and Justice") amounts to the same sort of sequential shlep (utilitarianism, law & economics, Rawls) .

Aside from the inclusion of a few photographs and two text boxes (illustrating consequentialism and the Coase theorem), little effort seems to have been made to make this book vivid or appealing to a general reader without a law education, notwithstanding that a few may have soldiered through it. The discussion is dry and humorless. The fact that it mentions many authors isn't necessarily a virtue. The last two chapters offer short, for the most part puzzling descriptions of various schools of thought (although RW does spend a little more effort critiquing the Marxist approach). The sections on Derrida, Foucault and Lacan are too compressed to have been useful, and could have been omitted or lumped together in exchange for more elaboration elsewhere. No attempt is made to provide a bigger picture at the conclusion of any chapter, nor is there even the briefest of conclusions for the book as a whole. The book peters out like a stream disappearing into sand: its last words are a 1-sentence description of an "offshoot" of critical race theory. There are plenty of other books in the VSI series that are fatter than this one, so lack of space doesn't seem like an adequate excuse for this lack of synthesis.

My suspicion is that RW's having written a huge textbook on the field may have constrained his imagination to produce sort of a mini- or outline version, instead of starting from an entirely different, more user-friendly conception (more selective, more "applied"). This book isn't up to the standards of the VSIs on, say, ethics, democracy, or ideology (just to cite examples from philosophy). I read the book as preparation for teaching upper-level undergraduates in law & politics next semester; despite the pertinence of the topic and the convenient length, the odds are very low I'll recommend it as a supplemental text.

A concise jurisprudential introduction. Well worth a read for anyone new to the subject or studying jurisprudence in college. If it could have another title it would be Jurisprudence for dummies. For more in depth reading purchase the main text by the same eminent writer.