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  3. Cambridge Studies in Philosophy and Law

This series reflects and fosters the most original research currently taking place in the study of law and legal theory by publishing the most adventurous monographs in the field as well as rigorously edited collections of essays. It is a specific aim of the series to traverse the boundaries between disciplines and to form bridges between traditional studies of law and many other areas of the human sciences. Books in the series will be of interest not only to philosophers and legal theorists but also to political scientists, sociologists, economists, psychologists and criminologists.

  • General Editors: Gerald Postema, University of North Carolina, Chapel Hill
  • Advisory Editors: Jules Coleman, Yale Law School, Antony Duff, University of Stirling, David Lyons, Boston University, Neil MacCormick, University of Edinburgh, Stephen R. Munzer, University of California, Los Angeles Law School, Philip Pettit, Princeton University, New Jersey , Joseph Raz, University of Oxford, Jeremy Waldron, Columbia Law School

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33 results in Cambridge Studies in Philosophy and Law

Page 1 of 2

Common Law Theory
  • Douglas E. Edlin
  • Published online:
    17 September 2009
    Print publication:
    22 October 2007
  • In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world.

Legal Ethics and Human Dignity
  • David Luban
  • Published online:
    22 September 2009
    Print publication:
    13 September 2007
  • David Luban is one of the world's leading scholars of legal ethics. In this collection of his most significant papers he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legal ethics that focuses on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law.

A Common Law Theory of Judicial Review
  • The Living Tree
  • W. J. Waluchow
  • Published online:
    09 July 2009
    Print publication:
    25 December 2006
  • In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.

Truth, Error, and Criminal Law
  • An Essay in Legal Epistemology
  • Larry Laudan
  • Published online:
    05 June 2012
    Print publication:
    05 June 2006
  • Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial.

Natural Law in Jurisprudence and Politics
  • Mark C. Murphy
  • Published online:
    10 March 2010
    Print publication:
    13 March 2006
  • Natural law is a perennial though poorly represented and understood issue in political philosophy and the philosophy of law. In this 2006 book, Mark C. Murphy argues that the central thesis of natural law jurisprudence - that law is backed by decisive reasons for compliance - sets the agenda for natural law political philosophy, demonstrating how law gains its binding force by way of the common good of the political community. Murphy's work ranges over the central questions of natural law jurisprudence and political philosophy, including the formulation and defense of the natural law jurisprudential thesis, the nature of the common good, the connection between the promotion of the common good and requirement of obedience to law, and the justification of punishment.

Punishment, Compensation, and Law
  • A Theory of Enforceability
  • Mark R. Reiff
  • Published online:
    15 August 2009
    Print publication:
    11 July 2005
  • This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations.

Is There a Right of Freedom of Expression?
  • Larry Alexander
  • Published online:
    07 January 2010
    Print publication:
    30 May 2005
  • In this provocative book, Alexander offers a sceptical appraisal of the claim that freedom of expression is a human right. He examines the various contexts in which a right to freedom of expression might be asserted and concludes that such a right cannot be supported in any of these contexts. He argues that some legal protection of freedom of expression is surely valuable, though the form such protection will take will vary with historical and cultural circumstances and is not a matter of human right. Written in a clear and accessible style, this book will appeal to students and professionals in political philosophy, law, political science, and human rights.

Crimes against Humanity
  • A Normative Account
  • Larry May
  • Published online:
    23 November 2009
    Print publication:
    01 November 2004
  • This book was the first booklength treatment of the philosophical foundations of international criminal law. The focus is on the moral, legal, and political questions that arise when individuals who commit collective crimes, such as crimes against humanity, are held accountable by international criminal tribunals. These tribunals challenge one of the most sacred prerogatives of states - sovereignty - and breaches to this sovereignty can be justified in limited circumstances, following what the author calls a minimalist account of the justification of international prosecution. Written in a clear and accessible style, this book should appeal to anyone with an interest in international law, political philosophy, international relations, and human rights theory.

Norms in a Wired World
  • Steven A. Hetcher
  • Published online:
    05 June 2012
    Print publication:
    22 March 2004
  • Social order is regulated from above by the law but its foundation is built on norms and customs, informal social practices that enable people to make meaningful and productive uses of their time and resources. Despite the importance of these practices in keeping the social fabric together, very little of the jurisprudential literature has focused on a discussion of these norms and customs. In Social Norms in a Wired World Steven Hetcher argues that the traditional conception of norms as rule-like linguistic entities is erroneous. Instead, norms must be understood as patterns of rationally governed behaviour maintained in groups by acts of conformity. Using informal game theory in the analysis of norms and customs, Hetcher applies his theory of norms to tort law and Internet privacy laws. This book will appeal to students and professionals in law, philosophy, and political and social theory.

Consent to Sexual Relations
  • Alan Wertheimer
  • Published online:
    04 March 2010
    Print publication:
    18 September 2003
  • When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that 'no' means 'no'. This book suggests that the difficult question is whether 'yes' means 'yes'.

Beyond Comparison
  • Sex and Discrimination
  • Timothy Macklem
  • Published online:
    05 June 2012
    Print publication:
    02 June 2003
  • In Beyond Comparison: Sex and Discrimination Timothy Macklem addresses foundational issues in the long-running debate in legal, political and social theory about the nature of gender discrimination. He takes the highly original and controversial view that the heart of discrimination lies not in the unfavorable comparisons with the treatment and opportunities that men enjoy but rather in a denial of resources and opportunities that women need to lead successful and meaningful lives as women. Therefore, to understand what women need we must first understand what it is to be a woman. By displaying an impressive command of the feminist literature as well as intellectual rigor, this work promises to be a milestone in the debate about gender equality and will interest students and professionals in the areas of legal theory and gender studies.

The Ethics of Deference
  • Learning from Law's Morals
  • Philip Soper
  • Published online:
    18 December 2009
    Print publication:
    24 October 2002
  • Do citizens have an obligation to obey the law? This book differs from standard approaches by shifting from the language of obedience (orders) to that of deference (normative judgments). The popular view that law claims authority but does not have it is here reversed on both counts: law does not claim authority but has it. Though the focus is on political obligation, the author approaches that issue indirectly by first developing a more general account of when deference is due to the view of others. Two standard practices that political theorists often consider in exploring the question of political obligation - fair-play and promise-keeping - can themselves be seen as examples of a duty of deference. In this respect the book defends a more general theory of ethics whose scope extends beyond the question of political obligation to questions of duty in the case of law, promises, fair play and friendship.

Philosophy and the Law of Torts
  • Edited by Gerald J. Postema
  • Published online:
    01 July 2009
    Print publication:
    19 November 2001
  • When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law.

The Moral Conditions of Economic Efficiency
  • Walter J. Schultz
  • Published online:
    23 November 2009
    Print publication:
    18 June 2001
  • In the late eighteenth century, Adam Smith significantly shaped the modern world by claiming that when people individually pursue their own interests, they are together led towards achieving the common good. But can a population of selfish people achieve the economic common good in the absence of moral constraints on their behavior? If not, then what are the moral conditions of market interaction which lead to economically efficient outcomes of trade? Answers to these questions profoundly affect basic concepts and principles of economic theory, legal theory, moral philosophy, political theory, and even judicial decisions at the appellate level. Walter Schultz illustrates the deficiencies of theories which purport to show that markets alone can provide the basis for efficiency. He demonstrates that efficient outcomes of market interaction cannot be achieved without moral normative constraints and then goes on to specify a set of normative conditions which make these positive outcomes possible.

The Theory of Contract Law
  • New Essays
  • Edited by Peter Benson
  • Published online:
    05 October 2009
    Print publication:
    05 February 2001
  • Although the law of contract is largely settled, there appears to be no widely-accepted comprehensive theory of its main principles and doctrines or of its normative basis. Contract law theory raises issues concerning the relation between law and morality, the role and the importance of rights, the connection between justice and economics, and the distinction between private and public law. This collection of six full-length essays, written by some of the most eminent scholars in the field, explores the general theory of contract law from a variety of theoretical perspectives. The volume addresses a wide range of issues, both methodological and substantive, in the theory and practice of contract law. While the essays build upon past theoretical contributions, they also attempt to take contract theory further and suggest promising ways to develop theory of contract law.

Complicity
  • Ethics and Law for a Collective Age
  • Christopher Kutz
  • Published online:
    18 March 2010
    Print publication:
    09 October 2000
  • We live in a morally flawed world. Our lives are complicated by what other people do, and by the harms that flow from our social, economic and political institutions. Our relations as individuals to these collective harms constitute the domain of complicity. This book examines the relationship between collective responsibility and individual guilt. It presents a rigorous philosophical account of the nature of our relations to the social groups in which we participate, and uses that account in a discussion of contemporary moral theory. Christopher Kutz shows that the two prevailing theories of moral philosophy, Kantianism and consequentialism, both have difficulties resolving problems of complicity. He then argues for a richer theory of accountability in which any real understanding of collective action not only allows but demands individual responsibility.

The Jurisprudential Foundations of Corporate and Commercial Law
  • Edited by Jody S. Kraus, Steven D. Walt
  • Published online:
    22 September 2009
    Print publication:
    02 October 2000
  • This collection, first published in 2000, brings together essays by some of the most prominent scholars currently writing in commercial law theory. The essays address the foundations of efficiency analysis as the dominant theoretical paradigm in contemporary corporate and commercial law scholarship. Some of the questions addressed in the volume are: What are the historical roots of efficiency analysis in contract, sales, and corporate law? Is moral theory irrelevant to efficiency analysis in these areas; if relevant, are morality and efficiency compatible? Even if efficiency is otherwise reasonable as a normative goal in corporate and commercial law, does the complexity of efficiency make it practical to administer in adjudication? What is the best way of pursuing efficiency in corporate and commercial law? The volume reflects the most exciting work being done in contemporary legal theory. It will be of interest to professionals and students in law and philosophy of law.

Objectivity in Law and Morals
  • Edited by Brian Leiter
  • Published online:
    06 October 2009
    Print publication:
    02 October 2000
  • The seven original essays included in this volume from 2000, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there is a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This volume considers the intersection between objectivity in ethics and objectivity in law. It presents a survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication.

The Path of the Law and its Influence
  • The Legacy of Oliver Wendell Holmes, Jr
  • Edited by Steven J. Burton
  • Published online:
    22 October 2009
    Print publication:
    18 May 2000
  • Oliver Wendell Holmes, Jr. (1841–1935) is, arguably, the most important American jurist of the twentieth century, and his essay The Path of the Law, first published in 1898, is the seminal work in American legal theory. In it, Holmes detailed his radical break with legal formalism and created the foundation for the leading contemporary schools of American legal thought. He was the dominant source of inspiration for the school of legal realism, and his insistence on a practical approach to law and legal analysis laid the basis for the realists' later concentration upon the pragmatic and empirical aspects of law and legal procedures. This volume brings together some of the most distinguished legal scholars from the United States and Canada to examine competing understandings of The Path of the Law and its implications for contemporary American jurisprudence. For the reader's convenience, the essay is republished in an Appendix.

Moral Combat
  • The Dilemma of Legal Perspectivalism
  • Heidi Hurd
  • Published online:
    05 November 2011
    Print publication:
    28 March 1999
  • This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law.

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