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Lecture 1

PHL271H1 Lecture 1: PHL271 Tutorial 1

Course Code
Sophia Moreau

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Hart osiders three positiist dotries:
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 ioral e a’t ifer that X is ot a la
If X is a la e a’t ifer 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
o Woman informs on her husband and he is taken away
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 positiis ere true, it ould’t e possile to proseute 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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