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6B - Legal Positivism in the 20th Century Hart and Dyzenhaus.docx

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Legal Studies
LS 101
Susan Brophy

Unit II: Key Theories in Legal Studies Week 6B October 17, 2013 th Session 9: Legal Positivsm in the 20 Century – Hart and Dyzenhaus Background “On April, 30 1957, the English legal philosopher H.L.A.H art gave the Oliver Wendell Holmes lecture at Harvard Law School. His topic, he later wrote, ‘was, and was intended to be, provocative.’ Hart called his lecture ‘Positivism and the Separation of Law and Morals,’ and his central point was that there is no necessary connection between law and morality.”  Dyzenhaus was one of the participating professors  Debate continues into 20 century  On what grounds can somebody disobey an immoral law?  Protections against an “’uncommanded commander”? o Fear of too much discretionary power o Rule of law  Can a legal positivist believe that law has a basic connection to morality? o What is the nature of this connection?  Can you put a check on an uncomanded commander and still be a legal positivist? Hart Biography  1907-1992, born in England  Barrister – highest level in the English legal system  Worked for M15 during WWII  Early influences by Austin and Bentham  Major book: The Concept of Law (1961)  Developed analytical jurisprudence Claims  There is not much of a great divide in Natural Law o Offers 2 weak “concessions’ to Natural Law  1 concession weak because of its historical circumstance nd  2 concession weak because it is procedural, not substantive o Draws on Bentham’s Utilitarinism –  what law is v. what law ought to be  in examining “what law is” we find basic connection to morality o still keeps law/morality separate Unit II: Key Theories in Legal Studies Week 6B October 17, 2013  still a “check” on command theory of law  Hart’s 2 concessions o First Concession - Some laws (i.e. against murder, theft) overlap with morality  Historical circumstance o Second Concession – at procedural level, law is not morally neutral  Natural procedural justice  Treat “like cases alike”  “This is justice in the administration of the law, not justice of the law”  Makes these concessions as he recognizes Austin’s command theory of law goes too far – threatens the rule of law  His concession addresses his recognition AND argues there is no necessary link between law and morality  Thinks Natural law theory goes too far by suggesting o “that human beings are equally devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival” (p.623) o “and these *aims+ dictate a further necessary co
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