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PHL271 LECTURE 1-2.odt

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09/01/2013 LECTURE 1& 2 PHL271 Law and Morality What is law? What makes this question philosophical Complex phenomena Normative- norms or standards how things should/ ought to be reasons for actions Social practice Legal Positivism vs Natural Law Legal Positivism • Positives • Written • Statutory man made laws Austin “ existence of law is one thing its merit/ demerit is another” • Separation of moral question • Law is nonmoral facts of social practice 1.) Sources Thesis- Social source is necessary and sufficient for law The validity of a rule of law depends upon its source, not upon its content 2.) Separation Thesis- No necessary connection of law and morality -It does not follow from the mere fact that a given rule violates standards of morality that it is not therefore a valid rule of law. - It does not follow from the mere fact that a given rule is morally desirable that it is therefore a valid rule of law Natural Law • Based on universal principals and reasons • In accordance with “your nature” • Independent of human social practice “Unjust law is no law” ( justice is the very point of law without it, it loses central point) • All law must be understood in normative terms -must have some minimal moral aspect (denial of separation thesis) -Includes question of validity Law and Morality hold necessary connection (denial of separation thesis) -law must forbid some moral wrongs -promotes moral goods -rule of law includes virtues 09/01/2013 LECTURE 1& 2 Ex. -International law hold idea of Natural Law -- Nazi’s charged with war crimes --Chinese head tax in Canada Last Class: How is the legal system possible? How could there be legal authority? Two ways: • Establish legal authority by appealing to an ultimate authority ex. God • Appeal to an alternate norm that establishes the possibly of someone exercising egal authority over others. Gustav Radbruch “Statutory Lawlessne
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