LWSO 203 Lecture Notes - H. L. A. Hart, Feminist Legal Theory, Volksgeist

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What is law?
Key concept: What is law and how can law be defined?
Law is internalized (deeply imbedded in us)
We obey the law because we have internalized the norms and agree with them
Set out the normative standards in society. Standards of behaviour are also set in other
norms (social norms, family norms, morality)
Relevant to government - Through the law, citizens need to hold the government
accountable for their actions (through laws)
Basic definition: Law is a body of requirements and prescriptions that apply to human behaviour
A discipline that sets standards against which behaviour can be evaluated
Norms also set standards of behaviour, but law is different in the sense that it
General features of law:
(i) Prescribe certain behaviour (tells you what you can/can’t do)
(ii) Predict behaviours
(iii) Regular
(iv) General (apply to society as a whole; ORDERS are specific)
(v) Created and enforced by the state (an authority that has the right to punish you if
you fail to comply)
Internalization aspect– it is right to follow the law because we believe is right
Externalization aspect– enforcement by an outside source if one fails to comply
What is the difference between laws and other forms of rules and the difference between law and
morality?
Legal Theories
Key concept: Different legal theories provide different explanations for the existence and
authority of law as well as for the nature of law
1) Natural Law Theory Law is Morality
Law is morality
Key concepts:
Moral universalism – As part of the natural world, Universal Moral
Truths exist (principles of morality that have always applied to everyone
and will continue to apply until the end of time)
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i. Humans did not make up these truths; they are simply a part of
the world
Law and morality are connected such that moral validity is a necessary
condition of legal validity (in accordance with universal moral principles)
– its power and authority comes from moral principles
Key people: Greeks, Christians and Morn all believed universal moral truths come from a
variety of sources:
Greeks - Believed moral principles existed in the world independently of
humans (justice/morality) and that humans could discover these universal
truths through reason; they are a part of the natural world (floating
around).
Christians (St. Thomas Aquinas + St. Augustine: Universal moral truths
come from God, and are revealed to us through divine revalation or
through rational thought. Morphed to Christian Divine Law Theory (God
has written upon the universe, morality)
Defined NLT
Modern (John Locke, Hobbes, American Constitution and Canadian
Charter of Rights and Freedoms). As human beings we have inalienable
human rights that give rise to UMT. The idea of certain/unalienable rights
simply because we are people embedded right into the American
Constitution and Canadian Charter of Rights and Freedoms.
Problems: How do we determine Universal Moral Truths?
Are Universal Moral Truths actually possible?
How do we figure out what those moral truths are?
Even if we do think about them, we would all come to different answers
Universal Moral Truths are general/vague/broad and they mean different
things to different people
Moral Relativism – what is right and wrong changes depending on the
situation, time, place, culture, etc.
2) Legal Positivism
Law is Rules made by a Sovereign
Question of whether law exists is a separate question from whether its in accordance with
moral principles
The legitimacy of law comes from its matter of creation
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Document Summary

Standards of behaviour are also set in other norms (social norms, family norms, morality: relevant to government - through the law, citizens need to hold the government accountable for their actions (through laws) General features of law: (i) (ii) (iii) (iv) (v) Prescribe certain behaviour (tells you what you can/can"t do) General (apply to society as a whole; orders are specific) Created and enforced by the state (an authority that has the right to punish you if you fail to comply) Internalization aspect it is right to follow the law because we believe is right: externalization aspect enforcement by an outside source if one fails to comply. Key concept: different legal theories provide different explanations for the existence and authority of law as well as for the nature of law: natural law theory. Key concepts: moral universalism as part of the natural world, universal moral. Its power and authority comes from moral principles.

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