Law and Legal Theory in England and America

Law and Legal Theory in England and America

Law and Legal Theory in England and America

Law and Legal Theory in England and America

Synopsis

Richard Posner is famous throughout the legal world for his pioneering and controversial espousal of the belief that the study of law cannot be divorced from the study of economics. Here, in this volume of essays based upon his Clarendon Lectures, he explores the relationship between the legal systems of the UK and USA. The essays range widely over themes which will be familiar to many students and teachers of law: in the first essay he compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (HLA Hart) and one American (Ronald Dworkin). His controversial conclusion that trying to define "law" is futile, distracting and illustrative of the impoverishment of traditional legal theory will fascinate students of legal theory. In the second essay he examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely - torts and contracts. Here he argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law - if they were, in other words, a little more like American judges. In the third essay he examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from his analysis challenge traditional orthodoxy. His concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided. In this short and highly readable work readers will find much that will delight, stimulate, and challenge them. It is a book to be read by all students and scholars of law.

Excerpt

If someone said to you, 'Time is an incredibly important and fundamental feature of the universe and human life, and therefore it is very important that we define it', you would be nonplussed. Time is very important, fundamental, the pervasive medium of action, and so on. But only the sort of person who wants to square the circle supposes that it either can be or needs to be defined. As St. Augustine put it, we know perfectly well what 'time' means--until we try to define it.

I react the same way to efforts to define 'law'. When I was a student at the Harvard Law School in its halcyon days, never did a professor ask the students in a class that I was in to define 'law'. There was a course in jurisprudence, where the question must have been raised, but relatively few students took the course and I was not one of them. When I teach jurisprudence I ask the students at the outset of the course to define 'law', and the definitions they offer are easily shown to be completely inadequate. But just as with 'time', though unable to define 'law' the students have no trouble using the word correctly, any more than I did before I became reflective in these matters, any more than other judges, and practicing lawyers, do.

In some settings it is feasible and even necessary to define 'law', for example, as we shall shortly see, where the word appears in a statute. Or if the question is, how many law courses should a law student be required to take in order to graduate, the word 'law' in the term 'law courses' is readily definable. What these examples have in common is that they concern the meaning of the word 'law' in a specific context or use. The . . .

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