PHILOSOPHICAL PROBLEMS IN THE LAW, Second Edition by David M. Adams. Belmont, CA: Wadsworth Publishing Co., 1996. 588 pp. Paper.

Reviewed by Bruce E. Altschuler, Department of Political Science, State University of New York, Oswego.
 

Although Sir Edward Coke may have believed that "the common law itself is nothing else but reason," it hardly seems that way either to students in our introductory law classes or most of those of us who teach them. David Adams' text is aimed primarily at students in undergraduate philosophy of law or jurisprudence courses but the wide range of articles it includes, covering the nature of law and legal reasoning, liberty, equality, criminal law and torts, make it a possible supplementary text for other introductory law courses as well.

Adams identifies the diversity of disciplines prelaw students come from, their unfamiliarity with philosophy, and the "drab, technical vocabulary" of the usual primary sources -- judicial opinions and commentaries about them -- as the obstacles any text needs to overcome. His hope is to set abstract topics within a context of contemporary controversies, thus motivating students to care about and engage with the law and legal texts. Each chapter begins with an illustrative case or issue and ends with a set of problems for the student to think about. Chapters are divided by topics into sections, each consisting of cases and articles with contrasting viewpoints and ending with study questions. For example, the chapter on tort law includes sections on the aims of tort, causation and liability, and acts, omissions, and the duty to rescue.

Clearly, this is difficult material for undergraduates, especially those without experience in reading such densely reasoned work. Adams seeks to help by providing several introductory pages at the beginning of each section laying out the context in which the selections belong as well as summarizing the content of each. These explanations cover most of the main points clearly and include numerous well chosen examples. Even with this assistance, however, instructors will still need to do a great deal of explaining before expecting students to jump into the controversies. For example, Adams precedes Martin Luther King's "Letter from Birmingham Jail" with a paragraph relating King's appeals to a higher law as justification for civil disobedience to Aquinas' espousal of natural law which Adams had explained in the previous two pages. Given the fact that many students have only limited knowledge of the civil rights struggles of the 1950s and 1960s, additional discussion of the path which led King to jail and the nature of his disagreement with the clergymen he was addressing would also have been helpful. On the other hand, it does seem a bit unfair to ask an author to make up for American society's failure to learn its own history. How much a text can and should explain and how much to leave to the instructor and his/her students is a problem beyond the scope of a mere book review.

Although the text includes judicial opinions, it is not a casebook. Most cases are presented at the ends of the chapters to stimulate discussion. An additional 20 or so are mixed in with the far larger number of essays as part of the overall debate. This format lends itself well to class discussions or even more formal debates to encourage student participation. Another possibility would be to select a few of the more provocative cases presented at the ends of chapters for moot court presentations.

Adams is successful in choosing topics that should stimulate debate. Most of those in the chapters on liberty and equality are standbys such as affirmative action and restricting hate speech or pornography. The chapter on criminal law mixes perennials like capital punishment and the insanity defense with more recently developed issues such as battered women's syndrome. It also presents abstract debates such as the purpose of punishment and the definition of crime and criminal liability. A good teacher should be able to relate the abstract to the specific, showing how our positions on specific issues are often determined by our beliefs, often not consciously evaluated, on these apparently abstract questions.

The essays are well chosen. Many will be familiar but quite a few, such as Harry Subin's "The Criminal Lawyer's `Different Mission': Reflections on the `Right' to Present a False Case," were to me new and provocative.

As with any collection, one can quarrel with some of the selections and the book's organization. Beginning the book with international law (focusing on the Nuremberg Trials) adds to student difficulty rather than easing it. The dissimilarity between domestic and international law making, the lack of student knowledge of the historical circumstances of Nuremberg, and the range of additional complicating issues (the meaning of treaties, the defense of following orders, ex post facto laws, and concepts of just and unjust wars) may confuse and discourage students. The main issue presented by this chapter, the basis of law and legal reasoning, is difficult enough without such complications.

The rest of the opening chapter does a better job. Perhaps the next, "Classical Theories of Law," would be a better starting point. Using H.L.A. Hart, Martin Luther King and others, it concentrates on the debate between positivism and natural law. Somewhat surprisingly, utilitarianism is discussed at length while social contract theories are omitted entirely. A selection from Locke or Rawls would be a useful addition. Adams then presents what he terms modern theories, focusing on the case method and the legal realist critique of it. The chapter continues with the later challenges of critical legal studies and feminism, after which it presents philosophies of constitutional interpretation. The debate over the right to privacy, using Griswold v. Connecticut and Bowers v. Hardwick as well as essays by Robert Bork and John Arthur, serves to make the abstract debate over interpretation more accessible. The cases for reflection are East German border guards killing those who attempted to escape to the west, Riggs v. Palmer, the 1825 case of the slave ship Antelope, and a Lon Fuller hypothetical about prosecuting informers from an overthrown dictatorship. Given the focus on the right to privacy, the omission of right to die cases is surprising.

As indicated above the remaining chapters are similarly organized although more concrete in their controversies. One failure is the lack of connections made between the chapters. For example, the section on equality in Chapter III discusses gender issues yet does not refer back to the material on feminist jurisprudence in the opening chapter. I also wondered why there is a chapter on tort law but none on the other major parts of civil law such as contracts or property. Considering the nearly 600 page length of the book, perhaps space limitations precluded this but, whatever the reason, the author should include a pedagogical justification for his decision.

How useful PHILOSOPHICAL PROBLEMS IN THE LAW will be for introductory courses is likely to depend on how many of the topics it uses are covered in a particular course and how amenable the instructor is to Adams' approach. Because the essays and cases are edited, a large number are included. The book is long enough that using only about half could still make its adoption worthwhile.