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PHL271H5 (3)

Jan 30.doc

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Luke Gelinas

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PHL271 Jan 30 th Hart’s Positivism 1. The Separation Thesis - law and morality need not coincide - immoral laws are still laws 2. Legal Legitimacy What counts as a valid law? - a rule counts as a valid law when it meets certain conditions imposed by a valid legal system What counts as a valid legal system? primitive society  society characterized by law - must contain rules that most people abide by if the community is to persist - ex. don’t kill/steal/cheat - the primary rules of obligation – Hart 3 Problems with Society Held Together by Primary Rules 1. primary rules of obligation subject to uncertainty a. what should be on the list b. how are they supposed to be interpreted c. ex. what counts as stealing or cheating – under what conditions is violence permitted – what counts as a binding contract 2. rules are static a. no official way to add or detract from the rules in changing circumstances 3. ineffectively enforced a. no recognized authority to judge if rules are broken, or what the punishment is - Hart argues that we can fix these problems by adding secondary rules: rules that are meant to govern how we enforce the rules 1. Rule of Recognition (uncertainty) a. specifies the features that a rule must have to be an official primary rule of the obligation to society 2. Rules of Change (static nature) a. Rules for introducing new primary rules of obligation 3. Rules Empowering Adjudication and Sanctioning (inefficiency) a. Invest judges with power to try cases and hand out punishments for breaking primary rules - Hart claims that the existence of secondary rules moves us much closer to a judicial system but 2 more conditions need to be met Further Conditions… 1. primary rules of obligations must generally be obeyed by members of the community a. but you can obey a law without thinking that it is a right law b. people may obey to avoid punishment, without believing in it i. the only way you can keep people in line is by punishment 2. officials (not necessarily citizens – judges, politicians, etc.) must accept and respect secondary rules as correct standards of legislative and judicial behaviour - if we were no longer susceptible to physical harm, would we still need a law against violence? Dworkin, Law’s Ambitions for Itself - rehabilitating 3 metaphors - 1. Law works itself pure - 2. There is a higher law, within and yet beyond positive law, toward which
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