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PHL271H1 Lecture Notes - Blackboard

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Sophia Moreau

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Law & Morality
January 19, 2011
Lecture #2
Today’s Lecture:
A.What does legal positivism claim?
B. What does legal positivism not claim?
C. Why be a positivist?
D.Hart’s replies to 3 criticism:
a.Criticism based on command theory.
b. Criticism based on formalism.
c.Criticism based on response to wicked legal systems.
E.Must a legal system AS A WHOLE have some moral core?
Tutorial groups now posted on blackboard
Tutorials begin on Tuesday! Bring your questions!!
-Positivism wasn’t being taken seriously so Hart wanted to reestablish it.
-Distinguish from command theory & responding to other criticisms
-Positivism draws a crucial distinction between law and morals.
-It separates the question “Is this a law?” from the question “is this moral/just?”
-What do we mean by Law:
Passed by an authority (such as legislature, judicial decisions)
Sanctions attached to some of them for disobedience
Some general purposes (stability/peace/protect property)
Influence out behaviour/provide guidance (through general acceptance, also
through our own reason)
Bodies in charge for enforcement
Creates rights
Obligatory force (aka normative force)
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Consistent & universally
*Even if it’s not necessarily just or moral (p.g. 30)
p.g. 30:
-A rule can violate standards of morality but still be law
E.g. slavery laws in some countries.
-Conversely, just b/c a rule is moral that doesn’t make it a rule of law.
E.g. prohibiting lies
-It doesn’t make the assertion that law and morality are separate there are certain cases
in which positivism accepts the intersection between laws and morals.
-p.g. 29 “positivism does not deny…”
-law influences moral standards. E.g. discrimination law. Sense of it being publicly
acceptable to be discriminatory partially b/c of laws.
-in these ways laws and morals connect (HISTORICAL CONNECTION)
-also doesn’t deny that by express legal provision, moral principles might become the
basis of laws (e.g. Charter of Rights and Freedoms sect. 2, 7, 15… these are all in a sense
moral principles and were made into law by the charter).
-all that Hart denies is that whether something is a law depends on whether it is moral.
-Positivist would give a sociological account of how a law came to be rather than
discussing a moral background or whether it is right or wrong.
-Positivists could say that the motivation for a law could be morals. But they say that that
is not what makes it a valid/real law (with normative or obligatory force)
-law could have its origins in morality but that does not give the law it’s normative force.
-Hart notes on p.g. 29 that Bentham and Austin said that positivism could help us steer
carefully between 2 dangers: REACTIONARY & ANARCHIST
- Reactionaryif something is law, then it must be moral. Evil laws would be assumed
to be just.
-Anarchistif law is not moral, then obedience is not necessary. If it’s not just then it is
not law.
- We can steer between these by separating the questionsIs this law?” fromIs this
-Hart encourages us to change unjust laws. But he doesn’t want us to assume that because
they’re unjust they are not law.
Criticism based on command theory:
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