PHL271H1 Lecture Notes - Algebraic Interior, Indian Act, Thought Experiment
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PHL271: Law and Morality: Lecture #1: January 7th, 2010
The Queen v. Dudley and Stephens 14QBD 273 (1884)
Style: title of a legal document (the v. refers to „and‟, not „versus‟)
- The cabin boy was killed, the boy was week, non threatening and did not consent
- The men likely would not have survived without consuming the boy
- They had no knowledge of the boat coming
- The boy was about to die anyways
- The judgement must be made on necessity: was killing the boy a necessity?
1. First step in reasoning: starts by defining necessity, does this through
addressing textbook definitions of necessity. Notes that these only address
repelling violence, which is a distinction from the current case
Consider the questions:
1. Is new law mare or is existing law applied?
Existing Law Supporting Claims:
a. The convicted did not murder according the textbook definitions
b. The judge says that he doesn‟t want to go beyond existing law
i. Several examples in the judge‟s address of this
c. It‟s the role of the court to interpret the law however not to go outside the law to
make a sentence, this is the responsibility of the crown
d. There is no one „book of law‟ so there is a necessity for interpretation however
this does not mean that new law is made
New Law Supporting Claims:
a. He canvasses the existing definition and it does not apply. Therefore, this type of
„necessity‟ has never been contemplated resulting in a gap in the law that must be
filled in order for judgment to be passed
b. Since the law did not extend to this case, in addressing the case for the first time,
the judge has authoritatively laid down the law perhaps appealing to the moral
principles he posses
c. This decision makes new „positive law‟, contributing to the body of existing case
records and sources
2. What does he think of the relationship between law and morality?
In applying existing law, law and morality are necessarily linked because law
appears to be all encompassing. However, if new law is made then it is made on
a moral basis and thus law and morality are separate in some cases.
The judge goes further to acknowledge instances where general human death outside of ordinary
causes are accepted, even required. He mentions soldiers sacrificing themselves to save their
country or help innocent women and children. Furthermore, he eludes to the moral service of
what is right. These acknowledgements pave the way for a decision making new law however
founded upon the same moral grounding as all other laws regarding killing others.
Legal Positivism: distinguishes law as it is from law as it „ought to be.‟ What makes something
law is not the fact that it is morally right, rather that it‟s been made law in the appropriate way.
o when gaps in the law exist (such as for new issues like this), the judge can look to
moral principles to guide them but they must be clear in acknowledging they are
making new law
o says there is a sharp line between law as it is and law as it ought to be.
Therefore, the judge must be quite clear if under positivism they are making new
Natural Law/Law as Integrity: law already includes the moral principles that are justified.
Therefore, new cases still fall under existing law. These can be appealed to and this is regarded
as simply extending the law that already exists
o both enacting by a legislature and support by sounds moral principles are
required to be law
o law always includes moral principle. Therefore, you are only ever applying
existing law (refers primarily to political morality – making the constitution the
best that it can be)
Today’s Lecture Includes:
• What does legal positivism claim?
• What does legal positivism not claim?
• Why be a positivist
• Hart’s response to 3 main criticisms of
• Criticism based on the command theory of
• Criticism based on formalism
• Criticism based on the awareness of wicked
• Must a legal system have some moral core?
Hart‟s aim in writing this paper is to convey the
following: we can accept positivism without command
theory of law. He also seeks to address the other
criticisms of the „positivism‟ that is desperately in need
of rehabilitation. In next week‟s readings we will
actually learn of Hart‟s thoughts on what should replace
the command theory of law.
What makes something law?
• it creates obligations (has normative forces) to
each other, government and other entities
• it is established by a legislature or government
(an entity recognised as having the authority to make law)
• it must be possible for us to comply with
• sanctions are attached to disobedience
• provides us with guidance (how should I act in a
• laws must be general (non-discriminatory...will
be addressed later in the course)
• laws must be codified and public
• laws establish rights
• law is not absolutely governing (you have the
potential choice to follow the law or not)
• law claims to be legitimate
• What does legal positivism claim?