PHL271H1 Lecture Notes - Lecture 3: Procedural Law, Social Fact
PHL 7 – Leture – Hooré
Tips for writing a Philosophy Paper
1. Begin by stating your conclusion at the start of the paragraph
2. If your conclusion is that there is no clear answer, say so up front
3. Define any special terms you are using (e.g. positive law)
4. Explain exactly what a particular philosopher is claiming
5. Draw very clear connections between his/her claims and conclusions
6. Avoid clichés and generalisation
Tony Honoré, The Neessary oetio etee la ad
orality 2002
Two Theses of Positivism
• How law is to be identified: as a matter of social fact
o Every society has individualised laws
o Contrasted with the need to have moral argument
o Just eause soethig is la, does’t ea it is just
• Relation of law to morality: nothing is disqualified from being law just
because it is morally indefensible
Two versions of positivism
• Etree for the seati thesis: la giers ho purport to asrie
rights do not claim to ascribe binding duties
o Endorsed by Hart
o But moral obligations are different from legal ones
• Less extreme form: law and legal systems claim to be just, but some fail. They
are still laws/legal systems.
Why the Extreme Thesis is mistaken
• Legal authority ust iole the authorit to sa hat people should do all
thigs osidered ot hat the should do fro a legal poit of ie,
rather than a moral one (148)
• There is a difference between legal and moral rights, but it concerns the
institutional context
o The meaning of oligatio is parasiti to the legal & oral eaigs
• Law makers must be able to impose morally binding requirements – and this
opens the law to moral challenges (149-150)
o Because of moral claims of the legal system
Hooré’s idea of Critial Morality
• Alteratie to Dorki’s ie – ot eough
o Moral ideas too robust to support some of procedural law
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