Brian Bix

Ratio Juris is making available the English translation of a debate between Joseph Raz, Robert Alexy, and Eugenio Bulygin that had been previously published by Marcial Pons in Spanish in 2007. The debates focus on Raz's distinctive view of conceptual analysis and his argument that it is central to theories about the nature of law. The exchanges with Alexy and Bulygin focus on how open and “parochial” our concepts, including our concept of law, really are, and the connections between legal theory and legal practice.

This chapter explores many of the issues relating to consent in contract law. The chapter proceeds as follows. Part I offers an overview of the nature of consent, before considering in general terms the elements of consent in contract law. Part II reviews the way that questions of consent are dealt with in Anglo-American contract law doctrine. Part III considers how recent principles and practices have raised new consent-related problems, and what the response has been from legislatures and courts. Finally, Part IV samples theories of contract law that focus on consent, before concluding.

Premarital agreements have always been controversial, and the change to much greater enforceability has not much changed their reception. Many of the criticisms premarital agreements evoke seem connected to the concerns Hanoch Dagan and Avihay Dorfman raise in their book, Relational Justice. That book’s emphasis on our obligation of relational justice to those with whom we interact and transact goes a long way to explaining many of the current doctrinal constraints on premarital agreements. One question this article investigates is whether significantly one-sided substantive terms in such agreements might nonetheless be consistent with both relational justice and general family law policy.

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach.

The articles in this collection cover a wide range of approaches to law and legal theory, including Analytical Jurisprudence, Legal Realism, Law and Economics, Critical Legal Studies, Feminism, and Critical Race Theory. The essays consider foundational questions regarding the objectivity of law, the nature of rules, the relationship of law and morality and the philosophical foundations of the common law, and offer critical inquiries into whether law systematically fails women and racial minorities. The contributors, who include some of the best-known names in legal theory from the United States, Britain, Canada, and Israel, are responsible for some of the most important and challenging work in legal theory today. A central focus of the essays in this work is the contribution of the well-known philosopher Jules Coleman to the various topics which are covered by the contributors.

Wil Waluchow was (and is) one of the most significant figures in the “intramural” debate between inclusive and exclusive legal positivism, as well as a prominent figure in many other areas of legal and moral theory. This chapter will consider his contributions to the inclusive-exclusive debate, focusing primarily on one aspect of the debate: whether inclusive legal positivism succeeds in offering a distinctive vision of the nature of law. In the debate with exclusive legal positivism, inclusive legal positivism seems to have an advantage in the area of fit. For example, unlike exclusive legal positivism, inclusive legal positivism has no difficulty in accounting for constitutional judicial review or common law judicial legislation. However, the potential challenge to the inclusive approach is whether this greater fit with our legal practice (and the way we speak within and about our legal practice) is purchased at the cost of diminished significance. The concern is that inclusive legal positivism presents us with a theory of law which tells us very little about law. Throughout his writings, and particularly in his most recent works, Waluchow has responded to the charge of “no distinctive view of law.” This chapter summarizes and evaluates this part of Waluchow’s defense of inclusive legal positivism.

Jurisprudence: Theory and Context is aimed at students new to the study of legal philosophy, while also offering new ideas and perspectives for established scholars. The text explains the often complex and difficult ideas in jurisprudence clearly, while avoiding distortion or oversimplification. As well as introducing the reader to the fundamental themes in legal philosophy, the book also describes and comments critically on the writing of the foremost legal theorists. The new ninth edition contains new material on nearly every page, with significantly updated references and suggested further readings which reflect the most recent scholarship.

Jurisprudence is aimed at students new to the study of legal philosophy, also offering new ideas and perspectives that will be of interest to established scholars. The author seeks to explain the often complex and difficult ideas in Jurisprudence clearly, but in a way that avoids distortion of the ideas through over-simplification. As well as introducing the reader to the fundamental themes in legal philosophy, it also describes and comments critically on the writing of the foremost legal theorists. "To every topic Brian Bix brings a sharp and discerning intelligence, pointing out weakness as well as strengths in the various approaches. For an overview of jurisprudence that is insightful as well as clear, critical but also generous in its assessments, one can't do better than this book." -- Robert W. Gordon, Stanford Law School, on the second edition.