Jurisprudence: The Philosophy And Method Of The Law

JURISPRUDENCE The Philosophy and Method of the Law JURISPRUDENCE THE PHILOSOPHY AND METHOD OF THE LAW Revised, Edition Edgar Bodenheimer H A R V A R D U N I V E R S I T Y PRESS Cambridge, Massachusetts London, England © Copyright 1962, 1974 by the President and Fellows of Harvard College All rights reserved Fourth Printing, 1981 Library of Congress Catalog Card number 74-77182 ISBN 0-674-49001-0 Printed in the United Stares of America PREFACE to the Revised Edition Twelve years have passed since the publication of the 1962 edition of this textbook. During this time there have occurred significant developments in analytic jurisprudence and in the legal philosophy of values which have received recognition in additions to the historical part of this volume. The second and central part of this book, dealing with the nature and functions of law, has been largely rewritten. More extensive consideration than in the previous edition has been given in particular to the psychological roots of the law, the conceptual scope and substantive components of the notion of justice, and the criteria for validity of the law. Less comprehensive were the revisions in the third part of the book, concerned with problems of legal method. The section on legal logic was replaced by a more differentiated analysis of the modes of legal reasoning, which in turn made necessary a reappraisal of the role of value judgments in the adjudicatory process. Throughout this revised edition, reference has been made to important books and articles in the field which have appeared since the publication of the 1962 edition. Davis, California June 1974 Edgar Bodenheimer PREFACE to the 1962 Edition My early work (Jurisprudence, 1940) which forms the nucleus for parts of the present volume, stated as its purpose "to give aid to the student of law and politics who is interested in the general aspects of the law as an instrument of social policy." The purpose of the present book remains essentially the same, although large portions of the material have been completely rewritten and the scope of coverage has been substantially enlarged. Attention has here been given to a number of jurisprudential problems which were not mentioned in the early work, and an entirely new part, entitled "The Sources and Techniques of the Law," has been included. This last part of the book is addressed primarily, but by no means exclusively, to law students and members of the legal profession interested in the methodology of the law and in the characteristic features and instrumentalities of the adjudicatory process. The historical materials dealing with the development of jurisprudential thought, which were dispersed through the 1940 volume, have been concentrated in the first part of the present book and have been reorganized along essentially chronological lines. The reader will soon discover that this histo