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PHL271 Lecture Notes.pdf

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Lecture 1Monday May 14IntroductionPart I What is lawPart II What is good lawWhat is law Assumes there is something called lawassumes Canadian Law American Law Russian Law is all talking about the same thing What makes this a philosophical questionLaw is an extremely complicated phenomenonLaw containshas what philosophers call normative aspect normative statements refer to how things ought to be descriptivewhat things are Law is actionguiding It tells us what we ought to doLaw is also a social aspectphenomenon This makes is a strange thing Its a social fact that gives us reasons for action tell us what to doWhat kind of social practice is this that it gives people social obligationsWhat is law is a question about the relationship between moral obligation and social practiceLegal positivists HLA Hart natural law theorists Ronald DworkinLegal positivism v natural law theoristspositive law v natural law Positive law is law that is positive the law in the books manmade statutory law passed by parliament Its contrasted sometimes with natural law if there is such thinguniversal law that is known to humans by reason think about basic human rights Legal positivists positionlaw is just the law that is written in the books for them there is no such thing as natural law JL Austin Existence of law is one thingdifferent inquirystrict separation between what is law and what is good law Purely descriptive answer to the question what is law Dont deny that good law isnt important but hold that law and good law are two separate things and must be separated Effectively criticize the law Legal positivism asserts two primary theses1The sources thesis social sources are both necessary and sufcient for law Law depends upon its source not its content2Separation thesis there is no necessary connection between law and morality this follows from the sources thesislaw can have any content and so there is no necessary connectionSeems obviously right but throughout history has been supported by minorityNatural law theorist slogan unjust law is no lawJustice is the very point of havingrespecting law Unjust law doesnt give you reason for action Natural law theorists law cannot be properly understood in a purely descriptive way Were going to missobscure central aspects All law has to be understood in normative terms positivist says you can give an account of what law is in descriptive terms Natural law theorist denies both of the theses from the positivists position Of course we have to write the law in the books however it has to be moralthere is a necessary connection between law and morality Connection between law and moralityAll legal systems forbids things like murder and theft Law must forbid certain characteristic moral wrongs Law also promotes certain kinds of characteristic legal goods Most legal systems do lots of things to not only forbid bad actions but to promote good things Rule of law itself entails some virtues treat like cases alike and treat proactively rather than retroactivelypart of what it is to be ruled by law Natural lawargues that unjust law is no law content of law is necessaryLook at the law legal systems of different countries Morally bad law is not lawseems to be false think of slavery Jim Crowthere are lots of examples of morally bad law there are examples of legal systems that are bad through and throughDebate The Third Reich was it law did Germany have a legal systemwas it just really evil lawInuence of abstract moral principles in anglo countries Canada US England When a judge has to decide a case he applies what has always been the law universal law of reason universal moral principlesInternational lawhuman rights law war crimes when tyrants are tried for crimes they are said to have broke the law Just looking at the law is not going to settle the questionWere going to be looking at philosophical sourcesaccounts how best to understand what law is Theoretical argumentsDirection 2 How law is applied in Canada and a few other countries Canadian Chinese Head Tax caseLecture 2Wednesday May 16 get notes from Alessandra and FadiaLegal PositivismReadings HLA Hart Positivism and the Separation of Law and Morals and Primary and Secondary Rules pp 2865 Whitely v Chapel pp 6567Assignmentexhibit the structure of his argument conclusion as thesis evaluate the argument of Hart is it good or bad begin with thesis and summarize arguments no introquotes only use in text citations Legal PositivismSources thesissocial sources both necessary and sufcient for law the validity of a rule of law depends on its source not its content legal rules can have any content
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