Philosophy of Law: A Very Short Introduction

Citation

Wacks, R. (2014). Philosophy of Law: A Very Short Introduction (2nd ed.). Oxford University Press.

Chapter Summary

The second edition is a pocket-sized book of about 150 pages: an introduction, six chapters of roughly 15 to 25 pages each, a two-page epilogue, references and a guide to further reading. Raymond Wacks is Emeritus Professor of Law and Legal Theory and the author of a longer textbook, Understanding Jurisprudence, as well as other Very Short Introductions on law and privacy. The publisher describes the book as an analysis of the nature and purpose of the legal system and of the practice of courts, lawyers and judges, set against the wider questions of justice, rights and morality. The revised edition adds material on legal realism, changes the approach to the analysis of law and legal theory, and updates the treatment of historical and anthropological jurisprudence. Names and terms that recur through the book include Aquinas, Hobbes, Bentham, Austin, Kelsen, H. L. A. Hart, Joseph Raz, John Finnis, John Rawls, Ronald Dworkin, Weber and Marx, along with the rule of recognition, the basic norm, the social contract, justice as fairness, feminism and postmodern thought.

Introduction

A short opening that sets out why the concept of law matters, from issues such as racism and abortion to human rights and war, and what legal philosophy asks about it.

Chapter 1: Natural law

The first chapter takes up the oldest of the traditions the book surveys: the idea that law is connected to moral principles accessible to reason, the tradition associated with Aquinas and, in a modern version, with Finnis, both among the book's recurring names.

Chapter 2: Legal positivism

The second tradition holds that what law is can be identified apart from what it ought to be. Among the book's recurring terms are the vocabulary of the classic positivist accounts: commands, the sovereign and sanctions, Kelsen's basic norm, and Hart's secondary rules and rule of recognition.

Chapter 3: Dworkin: the moral integrity of law

A whole chapter is given to Ronald Dworkin's challenge to positivism, under a title that identifies his central idea: that law has a moral integrity, so that deciding what the law requires involves interpretation and principle. In the first edition, this chapter was titled "Law as interpretation".

Chapter 4: Rights and justice

The longest chapter turns from the nature of law to its ends: theories of rights and of justice. The publisher's endorsement mentions rights theory and utilitarianism among the book's topics, and justice as fairness is among its recurring terms.

Chapter 5: Law and society

Here the focus shifts from philosophical analysis to law as a social phenomenon; the publisher's endorsement lists the sociology of law among the book's topics, and Weber and Marx are among its recurring names.

Chapter 6: Critical legal theory

The last main chapter covers approaches that criticise law and legal theory from outside the mainstream; the endorsement names critical legal studies and law and economics, and the book's recurring terms include feminism, Marxism and postmodern thought.

Chapter 7: Understanding law: a very short epilogue

A two-page conclusion that draws the threads together.

Key Concepts

Chapters 1–3: What law is

• Natural law: the view that law is bound up with moral principles knowable by reason.
• Legal positivism: the view that law's existence and content are matters of social fact, separable from its merits.
• Rule of recognition and basic norm: two positivist ideas about what makes a rule part of a legal system.
• Law as integrity: Dworkin's claim that legal reasoning is interpretive and morally engaged.

Chapters 4–6: What law is for, and its critics

• Rights and justice: theories of what individuals are owed and how a just society is organised.
• Sociology of law: the study of law as a social institution.
• Critical legal theory: approaches, including critical legal studies and feminist and postmodern thought, that question law's claims to neutrality.

Critical Analysis

Strengths

• Coverage in very little space. In six chapters the book reaches natural law, positivism, Dworkin, rights and justice, law and society and critical theory, the spread of a typical jurisprudence syllabus. William MacNeil of Griffith Law School, quoted by the publisher, praises its economy of expression, saying it compromises neither subtlety nor nuance.
• Organised by tradition. The chapter plan follows the main schools rather than individual thinkers, apart from the chapter on Dworkin, which gives the reader a map before the detailed course arrives.
• Revised for the second edition. The new material on legal realism and the updated historical and anthropological jurisprudence extend the book beyond the analytical debates.
• A route onward. References and a further reading list close the book, so it can serve as a starting point for essays.

Limitations

• Very short by design. About 130 pages of text for the whole of legal philosophy means that each school receives a sketch; the book cannot replace a jurisprudence textbook or the primary texts.
• Uneven allocation. Dworkin has a chapter of his own, while the many other theorists share chapters; readers whose course centres on, for example, Hart or Fuller will need more.
• Edition date. The second edition dates from 2014, so more recent work in legal philosophy is not covered.

Where It Fits in the Course

This is the shortest overview on the jurisprudence list and is best read first. Simmonds and Neoh's Central Issues in Jurisprudence is a fuller student introduction organised around three questions (justice, law and rights), which explains and comments on Rawls, Nozick, Finnis, Hart, Dworkin and Fuller; Wacks gives the map, and Simmonds the argument in detail. Lon Fuller's The Case of the Speluncean Explorers dramatises competing judicial philosophies in a single fictional case and works well as an exercise after Chapters 1–3. Nicola Lacey's biography of H. L. A. Hart, A Life of H.L.A. Hart, gives the personal and intellectual background of the leading figure in the positivism debate.

The other books on the list take particular questions further. The animal rights books (Tom Regan's The Case for Animal Rights and Defending Animal Rights, and the Singer and Regan anthology Animal Rights and Human Obligations) extend the discussion of rights in Chapter 4 to non-human animals. Abdullahi Ahmed An-Na'im's The Compatibility Dialectic addresses the coexistence of Islamic law and state law, a question about the relation between law, religion and morality that the natural law and positivism chapters prepare for.

How to Use This Book

The book suits first-year law students before a jurisprudence or legal theory course, students of philosophy, politics or sociology curious about legal theory, and general readers. No background in law or philosophy is needed.

A practical plan:

• Before the course: read the book straight through in two or three sittings, noting for each chapter the main question and the thinkers named.
• During the course: reread the relevant chapter before each block of lectures, Chapters 1–3 before the classes on the nature of law, Chapter 4 before justice and rights, Chapters 5–6 before sociological and critical approaches.
• For essays: use the further reading list and references to move to the primary texts and a fuller textbook; do not cite the book as the main authority for a theorist's position.
• For revision: reread the epilogue and the chapter you know least well, and sketch from memory how the approaches of the six chapters relate to one another.