Friedmann Legal Theory Pdf Download
Joseph Zyiuahndy
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Description
For the present edition, the book has once again been subjected to substantial revisions. The major additions are in the introductory part which seeks to define the place of legal theory. The important discussions that since the publication of the last edition have taken place with regard to the structure of the legal order, and the revival of the discussions on the relation of law and morality that was provoked by the decision of the House of Lords in the "Ladies directories" case form some of the background for a new chapter (chapter 3) which discusses the concept of law in its relation to the structure of a legal system and the minimum "morality"of a legal order. At the same time, this chapter surveys the principal ethical theories in their relation to legal philosophy. No contemporary jurist can ignore the impact of modern scientific thought on legal theory, as on the social sciences in general. The new chapter (chapter 4) on"Science and Legal Theory" is a very tentative attempt to discuss some of the relevant problems. Lack of professional qualifications in the field of science would have prevented me from presenting these thoughts, had I not had the inestimable benefit of having the chapter checked by my friend and colleague Professor Ernest Nagel, of Columbia and Rockefeller Universities.
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Contents
Part 1 - Introductory Reflections
Part 2 - A Critical Survey of Legal Theories
Section 1. Natural Law and the Search for Absolute Values
Section 2. Philosophical Idealism and the Problem of Justice
Section 3. The Impact of Social Development on Legal Theory
Section 4. Positivism and Legal Theory
Section 5. Utilitarianism, the Jurisprudence of Interests and the New Legal Idealism
Section 6. A Critique of the Search for Absolute Legal Values
Part 3 - Legal Theory and Contemporary Problems
Section 1. Legal Theory of Modern Political Movements
Section 2. Legal Theory, Public Policy and Legal Evolution
Section 3. Legal Theory and International Society
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Author Details
W. Friedmann, LL.D.(London), DR. JUR.(Berlin), LL.M.(Melbourne), Of the Middle Temple, Barrister-at-Law, Professor of International Law and Director of International, Legal Research, Columbia University
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Established in 1888 by a gift from Henry M. Phillips's sister to be used as an award for the best essay of real merit on the science and philosophy of jurisprudence. From 1986 to 1997, this award in jurisprudence recognized the most important publication in the field within a five-year period. In 1999, the criteria for the prize were raised to recognize outstanding lifetime contributions to the field of jurisprudence and the important publications, which illustrate that accomplishment. The first award using the current criteria was presented in 2000.
2022
Catharine A. MacKinnon "in recognition of her intellectual and political leadership in international law, constitutional law, political and legal theory, and jurisprudence[...]"
2013
Laurence H. Tribe."In recognition of his contributions to understanding the United States Constitution and the role of the Supreme Court in its interpretation."
2005
Frank I. Michelman. "In recognition of his intellectual leadership in Constitutional Law and Property Law, including in particular his profound research and writing demonstrating the interplay between our own constitutional culture and that of other democratic countries similarly engaged in the pursuit of equal opportunity for all."
2002
Bruce A. Ackerman. "In recognition of his intellectual leadership in Constitutional Law, History, and Political Theory, including in particular his profound research and writing demonstrating the interplay between enduring values and continuing transformations that reflect the will of The People in our Constitutional system."
2000
Louis Henkin. "In recognition of his lifetime of scholarly research and writing to demonstrate that international human rights are more than noble aspirations to be enforced in the court of public opinion and are definable legal rights to be enforced in national and international tribunals."
1921
Quincy Wright for "The Control of the Foreign Relations of the United States; The Relative Rights, Duties and Responsibilities of the President, of the Senate and the House, and of the Judiciary, in Theory and Practice."
C. What legal theory is (and, the subsidiary issue: Where does legal theorycomes from?)
In the following analysis, phrases in double quotation marksare actual student observations. Fuller summaries of student responsesareappendicised.
*Law Faculty, Griffith University. The authors thank Carol Bond, Marlene LeBrun and the anonymous referees for their comments andadvice, and the studentinterviewees for sharing their time and reflections. A preliminary form of thispaper was presented to the1995 ALTA Conference, and it embodies work done aspart of the Graduate Certificate of Higher Education program at the GriffithInstituteof Higher Education.
1996. [1996] LegEdRev 2; (1996) 7 Legal Educ Rev31.
A second set of projects draws on resources from the philosophy oflanguage, philosophy of action, and moral and political philosophy toaddress debates within contract law. Questions about the nature ofmeaning and interpretation, intentionality, freedom in contract, anddistributive justice drive contemporary legal debates concerningcontract formation, interpretation, and enforcement. Philosophicalwork on these topics has attracted significant commentary which servesas the focus of the second part of this entry.
This first part examines general theories of contract that takecentral features of the common law as their explanatory startingpoint. The range of possible contract law regimes is, of course, vast,and there is a risk of overgeneralization. Still, since manyexchange-regimes share basic features, it is not an unreasonableexpectation that the principles extracted from a sophisticated andwell-functioning body of contract law might aid in our understandingof contract law as such, at least where the law functions to regulateeconomic life in modern market orders.
Shiffrin and others take departures from promissory morality to bereasons for law reform. However, given that theoretical work in thisarea proceeds on the assumption that the normativity of contract lawis worth engaging with on its own terms, there is reason for desiringa theory that is not too revisionary. While the contract-as-promisetheory is explanatorily powerful and morally appealing, its adequacyin the final analysis turns on whether it can plausibly explain awaythe tensions it perceives in contract law, a question that remainsvery much unsettled.
Broken promises typically impose tangible burdens on the promisee inthe form of costs (including opportunity costs) incurred in relianceon a promise or in the form of disappointed expectations. If thesecosts can be classified as harms, then promissory representationsimplicate the duty not to harm. In other words,
[A warranty is] an assurance by one party to a contract of theexistence of a fact upon which the other party may rely. It isintended precisely to relieve the promisee of any duty to ascertainthe fact for himself; it amounts to a promise to indemnify thepromisee for any loss if the fact warranted proves untrue, forobviously the promisor cannot control what is already in the past.(Metropolitan Coal Co. v. Howard 1946)
When parties exchange promises as part of a bargain, they usuallystand to gain from mutual performance, but in the absence of acommitment mechanism, each has an incentive to defect; and, since theparties can foresee the defections, they might fail to invest in andor enter into mutually beneficial bargains. The law preventsself-interest from getting in the way of mutual advantage byenabling
individuals to bind themselves to a future course of conduct, to makeit easier for others to arrange their lives in reliance on [a]promise. (Craswell 1989: 496; see generally Goetz & Scott 1980;cf. Atiyah 1979)
The second part of this entry explores questions in the philosophy oflanguage (on meaning and interpretation), philosophy of action (themetaphysics of intention), and moral and political philosophy (freedomand distributive justice) as they arise in contract law. 2.1 discusses work that brings tools from the philosophy of language tobear on questions of contract interpretation. 2.2 examines the concept of freedom in contract through the lens ofestablished doctrine and philosophical work on autonomy. 2.3 explores how the pairing of orthodox contract theory with moderndoctrine generates a puzzle about the nature of contractual intent.Finally, 2.4 considers questions of distributive justice raised by privateexchange.
chips away at the foundation of our legal system. By givingcredence to the idea that words are inadequate to expressconcepts, [contextualism] undermines the basic principle thatlanguage provides a meaningful constraint on public and privateconduct. (Trident Center v. Connecticut General Life Ins. Co.1988)
If words had absolute and constant references, it might be possible todiscover the contractual intention in the words themselves and in themanner in which they were arranged. Words, however, do not haveabsolute and constant references. A word is a symbol of thought buthas no arbitrary fixed meaning like a symbol of algebra or chemistry.(Pacific Gas & Electric Co. v. G.W. Thomas Drayage &Rigging Co. 1968)
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