PHIL 348 Lecture Notes - Lecture 7: Sui Generis, Procedural Justice, Procedural Law
27 Jan 2017
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Challenges to the separation thesis (addressed by hart and fuller, responds to hart) 1) in some cases, law is not settled; in these cases, moral considerations that are used to resolved and settle the law are part of law; hence the separation thesis fails. Indeterminacies lead moral consideration to come into play. Stolen vehicles may not taken across state borders"; a stolen plane is taken over a. Whitely v. chapel: defendant convicted by a magistrate for using the name of dead persons for voting. It was an offence to personate any person entitled to vote. " on appeal the conviction was overturned because a dead person is not entitled to vote. The examples give priority to letter over spirit of the law; consistent with positivism. Critics argue that priority should be given to the underlying spirit or moral purpose of the law: if so, laws have moral content and the separation thesis fails.
