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Lecture 3

PHL271 Sept 30 Lecture 3.docx

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David Dyzenhaus

PHL271 Lecture 3Review of HartDworkinF Sept 30 2011Riggs v Palmer in Relation to Hart Dworkin Debate HartTheory of Law and Theory of Adjudication what is law is there a necessary connection between law and morality questions of law necessary connection crises Theory of adjudicationanswer questions of what the law requires when it is unclear law does not dictate an answer so how should judge go about deciding Legal Positivistsimplication of correct theory of lawwhen no settled law exists judge has to legislate outside of settled law in the core what does existing law intend in a social context not dictated by law but by what the judge thinks is best Theory of Adjudicationhow judges should decide cases of unsettled law Corewhere law truly exists judges are making law in the penumbra by what they think is best and must forget fiction that judges dont make law nothing in common between legal positivism and the dissenting judgement Separation thesisno necessary connection between law and morality Dissentingjudge only based on law not look to moral judgements both judges are in the penumbra dissenting judge might think his reason was good but shouldnt think the law is forcing that decision on him mistake majority makeslaw requires the solution because it implies moral values itself also supposed to be choice assumes morality is part of the law and that he is making no judgement both refuse to admit they are stepping outside of the law Hartadmit you are legislating dont hide behind the law to both sidesleads to judges as automatons Legal Positivisttells judges to use their best judgement once out of the core penumbra isnt completely beyond law it is a choice based on bits of law choice is made by judge based on what judge thinks is morally bestDworkin refusal of judges to be in the penumbra supports his argument advocating interpretive theoryhow best to under
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