PHL271H1 Lecture : A critique Reading and lecture notes from the second lecture of PHL271H1S. The reading was one of Hart’s essays regarding legal positivism. It went over what legal positivism was, what it was not and outlined the basic issues that legal
Document Summary
Law and morality are distinct modes of social ordering. Is and ought to be is one and the same, but it should not be so. There are two dangers to confusing law in this manner: (1) one is that law and its authority may be dissolved in man"s conceptions of what law ought to be. People will basically believe that because it is law it is moral and will therefore not question it. Legal positivism does accept the intersection of laws and morals; many mirror the other throughout time and are influenced by one another. In austin"s view, this is why law often confused ought to be with is . Morality does go into and form some rules. Courts are legally bound to decide in accordance with what they thought just and best (i. e. the constitution, charter of rights). Some morality impacts laws in ways that limit and give restraint to legal rules and laws (such as the constitution).
