14. Feminist theory

While orthodox legal theory has purported to be gender-blind, it often neglects or in some instances even ignores the position of women. This silence has been criticized by feminist theorists who have placed discrimination against, and the subordination of, women firmly on the jurisprudential agenda. It is a development that has had an enormous impact on legal education. It extends also to almost every branch of the law and legal system. This chapter examines the key elements of feminist legal theory, including the following: the origins of feminism; and legal feminisms (liberal feminism, radical feminism, postmodern feminism, and difference feminism).

13. Critical legal theory

All critical legal theorists share a deep cynicism about many of the important questions of legal theory. Fundamentally they reject many of the assumptions of both the legal and political order: for example, the free market, ‘meta-narratives’, and male or racial domination. This chapter first discusses the development of critical legal studies and then turns to postmodern legal theory, considering the views of Jacques Lacan, Jacques Derrida, Michel Foucault, and Jürgen Habermas. It then goes on to outlines the principal claims of critical race theory (CRT). It also considers the relationships between CRT and feminist theory and CRT and postmodernism.

15. Jurisprudence understood?

This chapter presents some final thoughts from the author. It suggests that readers may understand the nature of law, and thus jurisprudence, by answering the following questions: What, after studying the many theories discussed in this book, do you believe law is? Can law be analytically severed from morality? Does law have a purpose? If so, what might that purpose be? Can law secure greater justice for all who share our troubled planet? Can greater analytical clarity improve not only our understanding of the concept of law, but also, and as importantly, enhance the prospects of a more just world? Is this the raison d’être of theorizing about law?

10. Rights

One of the most important, complex, and controversial concepts in legal theory is that of a ‘right’. Apart from the analytical discussion, there is an inevitable debate concerning the difference between what constitutes a right, on the one hand, and what rights individuals or groups actually have or should have, on the other. This distinction between analytical and normative jurisprudence recurs throughout the literature. This chapter explores the concept of rights, various theories and types of rights (including human and animal rights), and concludes with a brief exercise in ‘applied jurisprudence’ that demonstrates how ostensibly competing approaches to a central democratic right are played out.

8. Historical and anthropological jurisprudence

This chapter, which discusses the development of historical and anthropological jurisprudence, first identifies the characteristics that distinguish the Western legal tradition from other systems. It then discusses the German Romantic Movement, which found its most powerful spokesman in the jurist, Friedrich Karl von Savigny; its foremost champion in England was Sir Henry Maine. Maine exercised a significant influence over what has come to be called anthropological jurisprudence or legal anthropology, an approach to law that developed in the twentieth century and which was recognized as essential to an understanding of law by the American realist judge Oliver Wendell Holmes Jr.

3. Classical legal positivism

This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s. A number of key concepts analysed by both of these theorists are examined and compared, including their definitions of law, commands, sovereignty, and sanctions.

12. Why punish?

The subject of the punishment of offenders always excites controversy. Some will argue that the law is too soft. Others believe that it is excessively harsh. This chapter examines how the exercise of punishment (in pursuit of the enforcement of the criminal law) might be validated. Futher it examines the various theories that have been advanced by penologists, law reformers, and philosophers to justify or explain its rationale. These theories include the idea of retributivism, consequentialism, restorative justice, and denunciation. Each of these theories makes an attempt to defend the use of state coercion in order to achieve certain objectives.

7. Law and social theory

A sociological account of law argues that in order to understand and explain the concept of law we need to adopt a sociological analysis based on the actual social circumstances in which the law and legal ideas are shaped and applied. This approach typically makes three related claims: that we cannot correctly comprehend the meaning of law except as a ‘social phenomenon’, that the study of legal concepts offers an incomplete explanation of ‘law in action’, and that law is only one form of social control. This chapter examines how these claims are developed in the theories of Roscoe Pound, Eugen Ehrlich, Émile Durkheim, Max Weber, Karl Marx, Michel Foucault, and Jürgen Habermas.

2. Natural law and morality

This chapter discusses a number of issues, including the following: classical natural law theory; natural law in political philosophy, including the approaches of Hobbes, Locke, and Rousseau; the decline of natural law theory and the influence of Hume; the revival of natural law theory especially in the period after the Second World War; John Finnis’s classical natural law theory; hard and soft natural law; moral realism; law and morality and the Hart–Fuller, and Hart–Devlin debates. Controversial issues are addressed in the consideration of questions relating to abortion and euthanasia, and the chapter ends with a case study on judicial morality.

11. Why obey the law?

Is there a moral duty to obey the law? Do we, in other words, have a moral obligation to comply with legal rules solely because they are legal rules? This question is particularly demanding when we are faced with laws that are obviously unjust or unfair, or those laws that make irrational or unreasonable demands on us. This subject has long vexed legal and moral philosophers; this chapter examines what possible reasons there are for obeying the law. The moral basis of obedience may spring from one or more of the following four principal sources: fair play, consent, the common good, and gratitude. Each is briefly discussed.