Lecture Three Two opposing theories of law where discussed in class. One is Hart's opinion of what all legal systems look like (just, unjust, democracies, all of them). The other was about Dworkin’s view of the just and valid legal system. 7 pages, carefu
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Lecture OutlineA Harts own account of a legal system law as the union of primary and secondary rules1 Why a legal system needs secondary rules2 Three kinds of secondary rules3 The defining features of a legal system4 On his view is law different from the gunman situation writ largeB Dworkin Laws Ambitions for itself1 The three mysteries2 Dworkins model of law3 Dworkins interpretive model of judging as illustrated by Dronenburg caseExtra Readings a The Oxford Handbook of Jurisprudence and Philosophy of Law bThe Stanford Encyclopaedia of Philosophy and c OJLS 2004 Harts Postscript by Dworkin Lecture NotesLast class we looked at the negative side of Harts project He tried to rehabilitate legal positivism by discarding what he though was dispensable command theory and explaining what he thought was positive The command theory of law in Austins view gave a positive explanation of how law could be law Hart wants to reject this rule We now need some other account of what makes law law like In Harts opinion law as the union of primary and secondary rules Why does a legal system need secondary rules But does his version really counter the gunman situationA What makes a rule into a rule of law How can we fill this gap that taking the command theory out we are left withBegins with a thought experiment in order to show why a legal system needs secondary rules He asks us to imagine a society with the following features they only have primary rules dont murder other people dont injure other peoples property these are rules telling others how they should behave lay down a series of dos and donts There is no legislature courts officials or other authority Nor are there rules about how these rules should be enforced or applied No authority vested in interpretations or applications of these rules Could such a society even exist What kinds of problems would a society like this have 1 There would be no way of deliberately changing the rules in a way that everyone in the society would have to recognize and accept this change The static character of rules Its not that it could never evolve in terms of beliefs or moral practices but that there would be no deliberate way of doing this at a particular point in time or ensuring that everyone would recognize the change and take it into account The change would happen slowly and hazardously2 Problem of inefficiency When disputes arise about what rules say there would be no authority to resolve these sorts of disputes or exert pressure for conformity to said rules There will always be disputes of these sorts but there would be no authority to resolve them