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David Dyzenhaus

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H.L.A. Hart Essay
Hart is a legal positivist this was his manifesto for legal positivism
Bentham (founder of philosophical doctrine of utilitarianism) and Austin
Hart tries to revive them
Utilitarianism: Institutions arranged so that society gets the greatest
happiness in the greatest numbers
Hart detaches legal positivism from utilitarianism
Institutions of society arranged in greatest happiness
Establish radical democracy (vote for representitives)
Parliament: reps. Make statute; which will make society the happiest
Law where it plays its role where society is run by happiness: views transmit
as happiness to people
Law should be used to produced the greatest happiness in the greatest
number and implemented this way
Officials shouldn’t second guess themselves; must subordinate themselves
to what is written
Hart Focuses: History of an Idea
The idea: no necessary connection between law and morality
2 reasons:
we will have a better understanding of law
has moral benefits
2 problems
cant be a law because it isn’t moral
ex. Anarchism (Problem)
if it’s a law it must be moral (NOPE! Problem)
Hart: Right Moral View: I recognize a law as such. Ex. There is a law but I will
disobey it because it is immoral
Positivism: helps us differentiate law and morality
BLACKSTONE: belief of necessary connection as a “disease of lawyers”
Certain kind of connections between law and morality; law coincides with
Law as immorality reflects immoral ideas
Its all contingent
Law reflects ideas of morality (if people have the right morals)
Hart admits law can incorporate moral principles
Judges interpret
Makes sure it is secire with chater of rights and freedoms

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Judges -> have principles been violated, “moral tests” “legal tests”
Hart wants to take over 2/3 doctrines:
No necessary connection between law and morality
Analysis of legal concepts
Rejects command theory of law
Command theory: law is a special command, formed by political soverign
to those subject to him (who is obeyed by society)
Can punish with non-compliance and sovereign obeys no one he is
uncommanded (Bedtham and Austin)
If institutions are democratic; it will make society better, therefore command
theory looks less authoritarian especially in terms of greatest happiness of
greatest #’s
In any legal order, the person at the top is subject to law. Hart: there will be
rule that apply to leader and it is law. He must follow a law to make a law.
Hart: authority is legally constrained but we houldn’t think constraints are
moral ones
Separation thesis
Hart says pay attention to how laws should be interpreted; then we may find
a necessary connection.
Realism: rely on moral consideration judges job: interpretation
Ex. No vehicles in the park
What is considered a vehicle
When we try and use language; we cant completely have control, words are
Panumbra (unsettled meaning)
Core (settled law)
judge: is the skateboard a vechicle?
He must make an intelligent decision
Social policy: why did society put sign there?
Not judges duty to be moral -> follow the law
Applying law vs. legslating law
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