Class Notes (836,517)
Canada (509,851)
Philosophy (1,521)
PHL271H1 (102)
Lecture

Law & Morality 271.docx

18 Pages
119 Views
Unlock Document

Department
Philosophy
Course
PHL271H1
Professor
Jacob Weinrib
Semester
Winter

Description
Intro & The Problem of Unjust Law 1/7/2013 7:14:00 AM Intro:  How is a legal system possible?  In order to have authority, the philosopher would argue that there would have to be some pre-determined rule to authorize someone to exercise legal power, but there is no such rule  To use force, your authority only extends as far as your force does  Might doesn‟t make right, doesn‟t answer the philosopher‟s question  Just because a person has coercive power/force this doesn‟t create a rule as to why they have authority  They simply then have the power to force a person to do something  Might establishes that another person can compel a person to act a certain way  Authority involves placing a person under obligation  Both morality and law suggest that one shouldn‟t murder  But it is questionable that law could command things of us that morality might ask  Kant would argue that there is a norm that makes a legal system possible, and an obligation desirable  For a legal system to be possible one can appeal to an ultimate authority i.e. God, or appealing to an ultimate norm  via morality, or not looking at morality at all January 9: Gustav Radbruch –  Radbruch was a law professor  Wanted to develop ideas to explain how a legal system could be organized  Felt responsibility for what went on in own society, Germany  Known as liberal and pacifist, concerned w/human rights  Fights in front lines of first world war, felt it was a social right  Wanted a say in what happened in Germany after the war  Joins social democratic party after the war with decimated economy  Communists vs. Nazis at this time, common street fights at this time  Stood between street fighting groups  Social democratic party sat in the middle  Radbruch tried to abolish death penalty  Was dismissed from job as university professor for having previously spoken out against Nazi power  Also banned from libraries b/c Nazis had power of who could access info & have important jobs  Star professors went abroad to England, US; Radbruch went into internal exile remaining in Germany but refused to participate in wrong-doings  Wrote much on what was wrong with Nazism before his death & what it would be like for Germany to have a “right” legal system outside of Nazism  Positivism – tries to explain what law is without appealing to any idea of morality o Radbruch‟s Lawlessness rejects positivism o Is positivism able to identify what law is? Radbruch would reply not o Positivist view is that a law is a law and this has no connection to morality o Incapable of establishing validity of statutes o A view saying something is a law if enacted, person who enacted it has power to enforce it o Law here is limited by the enforcer‟s power o Law can have any content whatsoever b/c no moral restriction on what can be law; only limit is what the sovereign/ruler can enforce o Dangerous b/c sovereign could make bad laws, as law you are compelled to obey it o Radbruch argues if anything could have stopped the Holocaust or the second world war it‟s lawyers having an opinion against it o His claim is that there is something fundamental about the nature of law that positivism cannot account for o Statutes: laws that a sovereign/ruler enacts using their legal power o By positivism, there is no innate validity of statutes/laws made here o Different conceptions of validity – acceptability, norms o There‟s a kind of validity that positivism can‟t account for o Its missing an obligation to follow the law o Law can generate an obligation to obey o Under positivist law a person may be forced to do something, but you can‟t explain an actual obligation to do so o Positivism tells you something about the world: if you don‟t do x, you will be punished o It doesn‟t tell you why there is an obligation o How can you derive a legal ought from fact o What theory of law for what it means to be valid will affect what there is an obligation to do o The way you conceive of law affects the way you conceive of legal validity January 16: Hart - Separation of Law and Morals –  Radbruch indicated 2 main problems w/positivism [a theory trying to account of what law is w/o appealing to moral concepts]  Positivist can‟t identify what it means for something to be a valid law  Nothing can be a valid law for Radbruch if it disagrees w/suprastatitory law  Second: positivism is a dangerous theory where citizens may end up doing morally unjust things b/c no validity of laws  Hart will disagree saying that positivism isn‟t dangerous, but the best theory H.L.A. Hart –  Permanently on the edge of a nervous breakdown; Jewish descent  Wants to be figure worthy of history, also felt like he doesn‟t belong in society  Much anti-Semitism in British society  Goes to Oxford, becomes a lawyer, works with British military intelligence during WWII Positivism Claims –  Basic positivist claim: theory insists on separating 2 basic questions that other theories blur: Separation Thesis  John Austin “Is „X‟ a law?” “Is this particular norm moral?”  Positivist argues that these are two distinct questions  Something can be both a law and can be moral  Something could not be a law, and not moral  Something could be a law but not moral  Something could be moral, but not law  Still doesn‟t answer how a positivist identify laws  Hart will argue that law can be identified by its pedigree; whether it was enacted in accordance w/the appropriate rule for enacting a law in a given society What Positivism Doesn‟t Claim –  Doesn‟t deny that morality has influenced law or vice versa  Also doesn‟t deny that moral principles could be introduced into a legal system  As a general matter something doesn‟t have to be moral to be law  Some legal systems may enact moral requirements as standards for what can be law  This is only a law for what can be law within a given society Confusion of Competing Theories –  Positivism argues that all who don‟t endorse separation thesis is confused  Bentham & Austin developed legal positivism  Both argued that b/c something violates morality doesn‟t make it not law & also just b/c something is morally desirable doesn‟t make it law  Two classes of confusion:  Anarchism: if something is immoral/unjust, it cannot be law.  Quietism: If something is law, it cannot be moral or unjust.  Hart thinks both positions are confused b/c they fail to separate what law is from what is moral  Neither can recognize that an existing law could be unjust  Hart thinks these are morally deficient  Anarchism is a problem b/c it suggests that if any law is slightly unjust, we are under no obligation to follow it  This then leads to the view that you don‟t have to obey anything  Taking a quietist thesis you commit to the view that just b/c something is law, and enacted in accordance w/enacting standards then it is just  Hart wants an theory that explains obligation to obey law, and also allows criticism of existing laws  Wants a middle path between anarchism and quietism A Progressive Theory –  Endorsing separation thesis that was essential for reformer movement  Reformers wanted precision of what was and was not law  Take a given law: ask is it a law (enacted through appropriate procedure)? Is this law a moral law? If answer is no, what would be a moral law? The answer to this and its proposal be enacted as law.  Not just assuming that what is moral is law, but make better laws  Positivism says take morality for whatever you could imagine morality to be; making no appeal to controversial moral claims  Positivist reformers were able to identify laws, if they were moral, and invalidate unjust laws and enact moral laws Objections To Legal Positivism –  1. Affirms the command theory  2. A formalist view of adjudication  3. Leads to extreme injustice o Radbruch‟s view was positivism was dangerous leading to injustice b/c it viewed law in abstraction from moral terms so lawyers would apply law in unjust terms o Hart replies that positivism doesn‟t lead to injustice, and that Radbruch is confused o We have 2 questions when confronted w/Nazi laws that Radbruch refers to; is it a valid law? Were these laws moral? o Hart answers yes they were enacted validly but no they were not moral o So these laws were not moral, so don‟t follow them; anarchism? Attack on Radbruch –  Radbruch says not a law b/c not suprastatutory law, Hart replies this is nonsensical disagreement of vocabulary  Can‟t be case positivism leads to injustice b/c in our society we benefited w/better gender laws ect  Radbruch argues positivism compatible with any view of morality so you can couple it with Nazism view of morality  Hart argues that Radbruch is arguing disputable philosophy Monday, January 21: Positivism & Hart Continued –  Hart identifies positivism with the separation theory as the heart of positivism, every positivism theory agrees with this  To know whether something is law you ask not whether it is moral, but whether it was enacted rightfully under appropriate social procedure  All laws positive laws; meaning all laws exhaust the concept of law  Anything that is law is law because it was enacted through those procedures; therefore all laws are positive laws  Laws not valid because they are moral  Non-positivists are opposition holding that though there is positive law, but that the idea of law is not exhausted by the idea of positive or enacted law  One of these thinkers is of course Radbruch  Law implies legal obligation if it has been enacted through via acceptable procedures  Hart tries to rehabilitate positivism in his article  Radbruch trying to end positivism in Germany Three Objections To Positivism:  1. Affirms command theory o What is the command theory? A theory developed by Austin, hero of Hart o Separation thesis, Analytical Clarity (speaking plainly for all to understand), and Command Theory are the 3 theses comprising positivism o Command Theory - Law is the expression of a wish that another person do something or abstain from doing something coupled with a punishment for doing the opposite, and this wish is issued by a sovereign who is habitually obeyed but does not habitually obey others, and issued in general terms. o 3 Reasons for Rejecting the Command Theory: o 1. Doesn‟t fit modern democratic societies. o In democratic society everyone is a citizen each giving commands to others through their representative o All have the power to exercise regular public rights, so there is no one who is commanded and not a commander o All are bound by rules and create the rules by which they are bound o 2. Not all laws are commands imposed by the sovereign. o Doesn‟t seem there is any un-commanded commander b/c even they are bound by some sort of constitution o Other aspects of a legal system seeming much less like commands; agreements where citizens give each other & themselves new rights and duties o Command theory can‟t account for something as basic as the contract o 3. Law is not the gunman writ large, and legal order is surely not to be thus simply identified with compulsion. o Command theory is missing something; it is missing legal duty o Law isn‟t simply obligation or forced o Command theory reduces the idea of law to compulsion, to what somebody forces you to do; but force does not create obligation o How can we conceive of legal obligations?  2. It is formalism. o Formalism - view that law involves mechanical application of rules to facts. o Formalism says applying legal rule to facts of a concrete case is simply like applying a formula to a math equation; Hart disagrees with this o This b/c not all rules completely determine how they are to apply to instances (ex. No vehicles in the park) o A “core case of a rule” is where there is no dispute to a way in which a rule applies o A penumbral case is where the application of a rule is in question o Problem isn‟t that the rule is vague, but that terms require definition o Rules indeterminate because laws by their nature are general o Laws try to provide general standards of conduct o Hart argues he isn‟t a formalist b/c he acknowledges that penumbral cases exist where the rule is unclear & judge is faced with incomplete law o Hart says that judges are making law by appealing to different conceptions of social society to decide how the rule applies to a case at hand o Hart wants to show that none of these actually undermine separation thesis o Whether judge appeals to an aggressive or appealing social policy in their new law, the judge is still making law  3. Leads to extreme injustice  When Hart confronted by Nazi law he sees simple solution  Just b/c something is a law doesn‟t mean that you have to follow it  Believes he can use separation thesis to explain legal obligation  Non-positivist i.e. Radbruch says that not everything can be a law, but IF something is a law, one must conform to it  Hart however believes just about anything can be a law, but just b/c it is law, if you ask it is moral, you are not required to conform to it  Nothing about command theory threatens separation thesis for Hart The Minimum Morality of a Legal System:  Particular laws need to be valid not moral  Does a legal system as a whole have any necessary relation to morality?  Radbruch and others of course say yes; purpose of law is to serve justice  Hart is going to say there is no necessary relationship between morality and the validity of a particular law  But there is relation between a legal system as a whole and morality  Due to certain human characteristics/vulnerabilities  B/c human beings are the way they are, there may exist some laws that overlap with morality  Not to be though anything deep about law, but about humans b/c we have vulnerable qualities  If we were like crabs, none of these laws would actually be required  Law involves general rules; b/c of this law requires a principle of procedural justice treating like rules in a like manner Wednesday, January 23: Hart, The Concept of Law – The Pre-Legal World of Primary Rules –  Primary rules are concerned with the actions that individuals must do or must not do  Rules indicating the ways in which we should act in respect to one another  Problem of Uncertainty: no authoritative proc
More Less

Related notes for PHL271H1

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit