Problems at the Roots of Law: Essays in Legal and Political Theory

Problems at the Roots of Law: Essays in Legal and Political Theory

Problems at the Roots of Law: Essays in Legal and Political Theory

Problems at the Roots of Law: Essays in Legal and Political Theory

Synopsis

Feinberg is one of the leading philosophers of law of the last forty years. This volume collects recent articles, both published and unpublished, on what he terms "basic questions" about the law, particularly in regard to the relationship to morality. Accessibly and elegantly written, this volume's audience will reflect the diverse nature of Feinberg's own interests: scholars in philosophy of law, legal theory, and ethical and moral theory.

Excerpt

This fourth collection of my essays, like its predecessors, has sufficient unity to be construed as a book and not merely as a collection of independent articles. What these essays have in common is a genuinely philosophical concern with basic questions. the first chapter, for example, on judicial interpretation, deals with what might be called the “Nuremberg problem. ” Was the punishment of the Nazi war criminals a departure from law or the use of an implicit norm within the laws of all nations, “a law of nature”? the primary example in my essay of the conflicting positions on this issue is the American fugitive slave cases in the decades preceding the Civil War. Surely no question in the philosophy of law is more fundamental than whether valid law can give the right of ownership of a person to another.

The essays that follow this one turn from the nature of law to the nature of individual responsibility. the second chapter in this collection examines the relation between law and morality, just as the opening chapter does, but in this case the emphasis is on one particular concept, that of a right. Here I defend the very idea of moral rights against the theory that only institutionally conferred rights really count as rights. the view that I prefer is that even when a person has a legal right to this or that, such a right is not necessarily preemptive. It can make clear sense to maintain, for example, that certain classes of persons can have a right to certain classes of goods even though such rights are not recognized by the normal right-conferring agencies.

The next essay (chapter 3) examines critically some conflicting analyses of criminal entrapment. When government agents arrange the circumstances so that a person freely chooses to do a criminal act that he would otherwise not have done, are not the police “creating the crime” that ensues, and are they not therefore the true instigators of the crime? Is it conceptually possible for one person to cause another person to act voluntarily? Finally, what moral . . .

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