University of Chicago Press

Review
Author(s): David A. J. Richards
Review by: David A. J. Richards
Source: Ethics, Vol. 99, No. 3 (Apr., 1989), pp. 648-650
Published by: University of Chicago Press
Stable URL: http://www.jstor.org/stable/2380878
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648

Ethics

April 1989

but shorn of its Heideggerian-phenomenological framework. This move assists

Brien in his project of critiquing distortions due to failure to grasp levels of
abstraction and concomitant failure to appreciate the centrality of the concrete
universal. Brien views the category of being-in-the-world as pervasively implicit
in Marx and as his most abstract category. He interprets Marxist humanism
precisely as the empirical description and explanation of the microstructuresthe concrete internal relations-of the ways in which being-in-the-world is concretized in social life. Investigation of internal relations discloses the concrete
universals extant at any given time. Being-in-the-world, freedom-as-transcendence,
also grounds the deep, concrete, existential needs which are the human species'
essence.
Marx, Reason, and the Art of Freedomis an extremely important work because
it is an attempt to integrate feminism fully into Marxist-humanist theory and
because it stretches to the limits the traditional view of socialist humanism. As a
result, some of the deep philosophical problems of that view emerge.
Brien offers as a fundamental ethical principle a Marxist-humanist critical
appropriation of Kant's categorical imperative: "So act that the particular mode
of being-in-the-world in terms of which you act can become universal" (p. 131).
Once attained, being-in-the-world as concrete universal, as actual socialist society,
makes possible the fulfillment of human potential as aesthetic self-realization.
Will there then no longer be ethical dilemmas facing individuals and the species?
It seems to me that a full exposition of Marxist humanism requires a richer
discussion of the relation between the aesthetic and the ethical dimensions of
human existence.
Another problem is Brien's struggle to do justice to Marx's conception of
the relation between subjectivity and nature while at the same time repudiating
metaphysical materialism and subjective idealism. But if Marxist ontology is
neither of these, nor an ahistorical Kantianism, nor a Hegelian objective idealism,
nor a Heideggerian-phenomenological one, what kind of ontology is it? Unless
this question is answered, Marx cannot be shown to have been the "philosopherscientist" to whom Brien dedicated his book; rather, Marxism will have to be
categorized with those theoretical constructions, like Freudianism, which are
antiphilosophical. The alternative is, it seems to me, to show, with Paci, that the
philosophical home of Marxist humanism is Husserlian phenomenology.
Marx, Reason, and theArt of Freedomis essential reading for all those interested
in feminism and Marxist humanism.
MARILYN NISSIM-SABAT

Lewis University

Katz, Leo. Bad Acts and Guilty Minds: Conundrums of the Criminal Law.
Chicago: University of Chicago Press, 1987. Pp. xii+343. $45.00 (cloth); $14.95
(paper).
The substantive criminal law is one of the main jurisprudential and philosophical
subjects in the curriculum of the American law school. Its basic concepts, for
example, include central topics in philosophical psychology, for example, intention,
action, motive, and the like. And the essential issues of criminal liability, including

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Book Reviews

649

the scope, grounds, and terms of criminalization, turn on larger normative arguments drawn from general political, legal, and moral philosophy, for example,
the theory of justice and the public good. It is, for this reason, unsurprising that
the best minds in legal philosophy (e.g., H. L. A. Hart) have often made pathbreaking contributions to both the understanding and pedagogy of substantive
criminal law in American law schools. For example, H. L. A. Hart's Punishment
and Responsibility:Essays in the Philosophyof Law (New York: Oxford University
Press, 1968) not only permanently clarified basic conceptual and normative issues
in substantive criminal law but also, concurrently, established the framework of
analysis used in the leading casebook for teaching substantive criminal law in
American law schools (see Sanford H. Kadish, Stephen J. Schulhofer, and Monrad
G. Paulsen, CriminalLaw and Its Processes,4th ed. [Boston: Little, Brown & Co.,
1983]). For this reason, the substantive criminal law affords a kind of model for
the interdisciplinary study of law and philosophy. The philosophical analysis is
not legally marginal but essential to the clearer understanding of criminal law
and liability; and the legal analysis of philosophical questions is not second-rate
philosophy but the matrix for the deeper understanding of the philosophical
issues.
The style of our age is one of excessive overspecialization that hermetically
seals off fields of inquiry like law and philosophy from the interdisciplinary
inquiry so fruitful for both, and we need not only cutting edge creative work
that demonstrates such fertilities but also work that makes available such inquiry
to a general audience interested in the issues common to law and philosophy.
Leo Katz's Bad Acts and GuiltyMinds admirably meets this latter need. It is a lucid
and well-written introduction to such interdisciplinary inquiry that might profitably
be used in law schools for introductory courses in criminal law and jurisprudence
and specialized courses in topics in moral and political philosophy in law. Katz
has a thorough grounding in the law and sees the philosophical issues very much
from the perspective of an academic lawyer concerned to engage law students
with a more probing level of analysis than the customary superficialities of legal
education; and law teachers may, for this reason, find the book an especially
attractive addition to their courses (e.g., the basic course in substantive criminal
law), including, as it does, not only acute philosophical analysis but also many
clarifying comparisons drawn from comparative law.
Katz has less developed views on the issues of moral and political philosophy
that would interest most philosophers in the study of criminal law. The contrast
between deontological and teleological moral and political theories is barely discussed, let alone comparisons among retributive, utilitarian, and mixed theories
of criminal justice. Katz notably omits, for example, any discussion of the role
of the harm principle as a constraint on the scope of criminalization, a topic that
Joel Feinberg's multivolume The Moral Limitsof the CriminalLaw has brought very
much to stage center of philosophical interest in criminal law and justice (Joel
Feinberg, Harm to Others [New York: Oxford University Press, 1984], Offenseto
Others[New York: Oxford University Press, 1985], Harm to Self [New York: Oxford University Press, 1986], Harmless Wrongdoing[New York: Oxford University
Press, 1988]). For this reason, philosophers might find Katz's book of much less
utility in general, introductory courses, though certainly useful in upper-level
courses and seminars in the more specialized topics with which Katz is largely
preoccupied. These topics include the analysis of the necessity defense, acts,
omissions, mental culpability, causation, complicity, and the like. Philosophers

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650

Ethics

April 1989

might, for example, find Katz's discussion of causation in the law (chap. 4) a
useful focus for more general philosophical inquiry into the concept of causation.
DAVID A.

J.

RICHARDS

New YorkUniversitySchool of Law

Twining, William, ed. Legal Theoryand CommonLaw.

New York: Basil Blackwell Press, 1986. Pp. viii+267. $45.00 (cloth).
It is no disparagement of the essays in this collaborative volume to say that the
book's focus is a bit parochial to be of great interest to general readers in philosophy
and social science. The contributors are British law teachers, and the impulse
behind the collection is their concern for broadening the "doctrinal" or "blackletter" British teaching tradition to take more account of theory. Throughout
the book there are intelligent observations on that interest, including exposition
of the complexity of the concept "legal theory" and intellectual history of the
orthodox pedagogic and scholarly tradition. (The most concentrated attention
to these matters is in the essays by William Twining and David Sugarman respectively.) As usual with collaborations, however, the contributors have interpreted
their commissions diversely. The essays, most of which are apportioned among
the standard fields of law, are a mixture of general reflection on different veins
of legal theory and actual theorizing on a variety of topics.
Only one essay is about the common law in a strict sense (or either of two
strict senses, the ius non scriptum or simply the centuries-old law of the king's
courts) as opposed to English law as conventionally formulated and taught in
recent times. While the other contributions are new, this one is reprinted with
some revision from 1973: Brian Simpson's "The Common Law and Legal Theory."
Simpson's article, which deserves the status of a classic, can be read as having
drastically conservative or else drastically radical implications (the author leaves
the reader to draw them out). In reply to the theoretical question, What is the
common law? Simpson says it is the customary practice of a continuous professional
elite, from which it is vain to expect the intellectual coherence and warrantability
that legal theory aspires to. A conservative accepting Simpson's argument and
favoring the common law's survival "because it works" should probably advocate
a ban on professorial theorizing and for that matter the abolition of academic
law (which by common-law standards is "but of yesterday" -only about a century
old). A radical might conclude from signs Simpson points to, in which the very
force and prestige of theory among intelligent lawyers can be included, that the
common law has had its day and should yield to a code system. The last laugh
would go to the greatest of English legal theorists, Bentham.
The other essays seem to me uneven as individual pieces. Some get into
more portentous tracts of "high theory" than the format of the volume will permit
to be adequately developed. (For example, Richard Tur's attempt at a synthesis
of natural law and positivism is too much tail for his nominal dog, criminal law.)
On the other hand Hugh Collins, in "Contract and Legal Theory," brings off a
very neat bit of theorizing in the form of an argument that the liberal foundations
of classical contract law cannot be squared with any of the competing answers
to the basic question, Why should contracts be enforced? Mary Stokes, taking
"theory" in a low-key sense, provides a straightforward and informative account

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