DeepDyve eBooks - A Treatise of Legal Philosophy and General Jurisprudence

Postema, Gerald J.

Pages: 3 –42

[In 1957, during his extended visit at the Harvard Law School, H.L.A. Hart delivered his Holmes lecture, later published under the title Positivism and the Separation of Law and Morals, in which he sketched a profile of his landmark theory of law. As a listener might have expected, Hart opened...

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Justice Holmes: A New Path for American Jurisprudence

Postema, Gerald J.

Pages: 43 –77

[In 1897 a prominent Boston lawyer and judge of the Massachusetts Supreme Judicial Court—soon to begin a brilliant career as Justice of the United States Supreme Court—addressed Boston University law students. In this address, he stated his themes in such fresh and provocative language that later...

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Realism and Reaction

Postema, Gerald J.

Pages: 81 –139

[At the end of World War I, life in America returned to normal, but the mood, at least in some law schools, was not entirely pacific. A small group of upstart law professors at Columbia Law School (among them Walter Wheeler Cook, Underhill Moore, Herman Oliphant, Hessel Yntema, William O....

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Implicit Law and Principles of Legality

Postema, Gerald J.

Pages: 141 –180

[In 1940, Lon Fuller (1940, 2) wrote that the fundamental task of legal philosophy is to give effective and meaningful direction to the application of human energies in the law. However, he added ruefully, judged by this standard, the preceding quarter century had not been a fruitful one. Despite...

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Economic Jurisprudence

Postema, Gerald J.

Pages: 181 –211

[Reflection on the relationship between law and economics has been a staple of English-speaking jurisprudential thought since the middle of the eighteenth century. Scottish enlightenment philosophers established that a nation’s economy and its legal system are intimately related. Adam Smith...

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Critical Jurisprudence and the Rule of Law

Postema, Gerald J.

Pages: 213 –258

[The 1960s and 1970s in the United States and in Europe were decades of political activism in which liberal, progressive, and radical movements formed loose coalitions to challenge racism, sexism, and increasing state militarism. In the U.S., the civil rights movement was perhaps the catalyst,...

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Hart’s Critical Positivism

Postema, Gerald J.

Pages: 261 –340

[At the end of chapter 1 we found ourselves on the eve of Hart’s inaugural lecture in 1952. In mid-century, British jurisprudence was in a very different state from its counterpart across the Atlantic. For several decades American jurisprudence had struggled with vigorous challenges posed by...

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Positivism Extended: Institutions, Sources, Authority, and Law

Postema, Gerald J.

Pages: 341 –399

[At mid-century, Hart set out a distinctively positivist general theory of law. Following the lead of Bentham, as he read him, Hart saw himself first of all as an “expositor” of law in general, not its censor. He offered, in the fashion of the time, a philosophical analysis of “the concept of...

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Positivism Challenged: Interpretation, Integrity, and Law

Postema, Gerald J.

Pages: 401 –456

[Sometimes jurisprudence mimics the physical world, each new theory provoking an opposite and sometimes equally powerful theory. This is not an iron law, perhaps, but the claim is borne out by developments in Anglo-American jurisprudence the last quarter of the twentieth century. Hart’s powerful...

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The Incorporation Debate

Postema, Gerald J.

Pages: 457 –482

[In the final act of Shakespeare’s Measure for Measure, charges of corruption are brought against Angelo, deputy of the Duke of Vienna, who ruled the town in the Duke’s (feigned) absence. Immediately upon his return, the Duke orders a trial with Angelo as judge: “Come, cousin Angelo/In this I...

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A Treatise of Legal Philosophy and General Jurisprudence

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A Treatise of Legal Philosophy and General Jurisprudence

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