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PHL271 Jan 16 th Ethics and the Law Main Thesis - there is a distinction between ‘law as it is’ and ‘law as it ought to be’ - a law need not be moral to count as law The Utilitarian Theory of Law 1. Distinction between law and morality 2. Command theory of law a. law is in essence, a command – ex. command of the sovereign b. do this, don’t do this 3. Emphasis on linguistic analysis of legal terms and concepts The Separation Thesis - law and morality need no coincide - does not mean that they don’t sometimes coincide – may or may not o they don’t NEED to in order to be counted as a law o don’t need to conform to moral norms to be a law - laws may be moral or immoral - an immoral law is still a law Bentham - two confusions from holding law and morality too closely together - 1. ‘I think this is a bad (immoral) law – it isn’t as it should be. So I can disregard it entirely’ – anarchist o danger= authority of law – may be dissolved in man’s conceptions … - 2. ‘This is a law. So it must be as it should be’ – reactionary o this is a law so it must be moral - the basic question: o not whether some laws in fact are moral or have moral content o rather whether there is some necessary point of contact between a valid law or legal system and morality Start with the question of individual laws - separation thesis  an individual rule or norm need not intersect with morality/moral norms/moral reasoning to count as a valid law within a legal system The Problem of the Penumbra - some kind of shaded/grey/ambiguous area - for any law, there will be some cases to which it clearly and indisputably applies o ex. no vehicles in the park  precludes cars in the park - but there will also be vague cases in which the rule neither clearly applies nor clearly fails to apply – these are ‘penumbra’ or borderline or grey cases o ex. no vehicles  no bikes? skateboard? handglide? canoes? a remote-controlled car? motorized scooter? - in these cases, the phenomena themselves and logic alone do not settle whether the law applies - judges must instead decide how to resolve the vagueness and apply the law - they do this by deciding whether certain cases or instances of some phenomenon (ex. motorized scooters) fall beneath a particular description or concept (vehicle) for the purpose of this law - how can judges make decisions about grey cases in a way that’s rational? - What should judges appeal to as their reason or grounds for counting a motorized scooter as a vehicle (or not) for the purpose of the law? - One very natural thing a judge might do to defend a decision in a grey area is to appeal to a conception of what the law ‘ought’ to be The Queen vs. Dudley and Stephens - two men lost at sea in a lifeboat on the verge of death killed and ate the cabin boy o they argue that they should be acquitted on the grounds of necessity o just like taking someone’s life in self-defence when necessary to save one’s own life is permitted – so should killing and eating the cabin boy o but is this the same thing as self-defence? was it really a necessity? Hart Claims… 1. in fact many decisions about how to apply the law in grey cases are made by appealing to a conception of what the law in question ‘ought’ to say 2. appealing to a conception of what the law ought to be is the ‘right’ way to decide the penumbral cases Whitley v. Chapel – what Hart thinks judges shouldn’t do - voter fraud – is a per
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