PHL271H1 Lecture 1: PHL271 Tutorial 1
PHL7 Tutorial
Hart osiders three positiist dotries:
1. Command Theory of Law
• Law = general command, backed by force, issued by an
uncommanded sovereign
2. Semantic approach
• To investigate philosophical concepts, we should look at the way
people use the words in question
3. There is no necessary connection between law and morality
• If X is ioral e a’t ifer that X is ot a la
• If X is a la e a’t ifer that X is oral
• Hart disagrees with 1. The command theory
• Hart agrees with 3
• Germany unified in 1872
o No forcible confinement made law
• 1942 – Anti-dissent law
o Law passed forbidding people to speak ill of authority
• 1943
o Woman informs on her husband and he is taken away
• 1947
o She is found guilty of forcible confinement
• Court ruled against her on the grounds that the Anti-dissent law was not
really law
o This example goes against the theory Hart was supporting, as it
suggests there is a connection between law and morality
• A Natural Law Theorist:
1. If positiis ere true, it ould’t e possile to proseute GI
2. That would be morally outrageous
o Therefore positivism is incorrect
• Hart thinks positivism is true, but that it is still possible to prosecute GI
Options for the judge:
1. Say that the 1942 law was never law (since it was immoral)
2. Let the woman go unpunished
3. Introduction in 1946, a retroactive law that repeals the 1942 law from
1942 on [Hart agrees with this]
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