Class Notes (807,038)
Canada (492,560)
Philosophy (1,512)
PHL271H1 (102)

Positivism - Hart.docx

4 Pages
Unlock Document

University of Toronto St. George
Jacob Weinrib

HLA Hart Positivism and the Separation of Law and Morals (1958) Positivism  tries to define what law is without appealing to moral concepts of any kind Radbruch’s critique of positivism 1) positivism cant account or the validity of law 2) positivism is a morally dangerous doctrine – legal professions cant distinguish good/bad laws Hart – in favor of positivism – positivism is the only way to define law, in fact from a moral standpoint it is best if we are all legal positivists  Who was HLA hart? o 1970 Born in a Jewish family in London – experienced discrimination o lived a conflicting life, both wanted to change society but felt like he did not feel he was apart of society o 1929 Graduates from Oxford – was not as well off as most people at oxford o 1932-1940 Works as a successful lawyer o 1940 Works with British Military Intelligence during WWII o 1945 Begins teaching philosophy at Oxford o 1952 becomes Professor of jurisprudence at Oxford  What positivism does and does not claim o Positivism is a theory that insists on the separation of 2 basic questions  Is X a law?  Is X moral? o Separation Thesis  “the existence of law is one thing; its merit or demerit is another” – John Austin o Therefore there can be 4 combination: X is a law and moral, X is a law and not moral, X is not a law and not moral, or X is not a law and moral (moral act but not yet enacted into law) o Law – determined by its pedigree, was the law enacted according to rules for enacting law in that specific society o What positivism doesn’t claim  1) Positivism does not deny that morality has influenced law or that law has influenced morality 2) Nor does positivism deny that moral principles might be introduced into a legal system – it just separates the 2  The confusion of competing theories o “ What both Bentham and Austin were anxious to assert were the following two simple things: First, in the absence of an expressed constitutional or legal provisions, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow form the mere fact that a rule was morally desirable that it was a rule of law” –pg 599 o Hart tries to revive Bentham and Austin’s lost theories of positivism o Unless you understand that the question of law and morality are separate, than you will get confused on what constitutes as a law or not o The separation thesis enables positivists to steer a middle path between two kinds of confusion:  Anarchism (Radbruch) – If something is immoral/ unjust, it cannot be law  Quietism – If something is law, it cannot be immoral/ unjust o These theories are inadequate because A – assumes that even if a law is a little bit unjust you have no duty to follow it therefore since many laws are not 100% just, no one has to obey them and society is free to not follow law Q- completely dismisses criticizing or evaluating laws all together o Hart wants to find a way to  Why is this theory progressive o “So Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws. Why then did they insist on the separation of law as it is and law as it ought to be?” – pg 596 o Answer: they wanted to have procession as legal reformers because they want to evaluate laws by a) is this a law b) is it a good law. Therefore they take a given law in their society a) was it enacted in the right procedure b) is it a good law (moral) if it is they leave it, if not then they try to restructure it
More Less

Related notes for PHL271H1

Log In


Don't have an account?

Join OneClass

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

Sign up

Join to view


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.