PHL271 Sept 30 Lecture 3.docx

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19 Apr 2012
PHL271 Lecture 3 Review of Hart/Dworkin F Sept 30, 2011
Riggs v. Palmer in Relation to Hart Dworkin Debate
Hart Theory of Law and Theory of Adjudication
-what is law, is there a necessary connection between law and morality, questions of law, necessary connection crises
Theory of adjudication answer questions of what the law requires when it is unclear, law does not dictate an answer, so how
should judge go about deciding
Legal Positivists implication of correct theory of law when no settled law exists, judge has to legislate outside of settled law
in the core
-what does existing law intend in a social context
-not dictated by law, but by what the judge thinks is best
Theory of Adjudication how judges should decide cases of unsettled law
Core where law truly exists
-judges are making law in the penumbra by what they think is best and must forget fiction that judges don’t make law
-nothing in common between legal positivism and the dissenting judgement
Separation thesis no necessary connection between law and morality
Dissenting judge only based on law, not look to moral judgements
-both judges are in the penumbra; dissenting judge might think his reason was good, but shouldn’t think the law is forcing that
decision on him
-mistake majority makes law requires the solution because it implies moral values itself; also supposed to be choice
-assumes morality is part of the law and that he is making no judgement
-both refuse to admit they are stepping outside of the law
Hart admit you are legislating, don’t hide behind the law; to both sides – leads to judges as automatons
Legal Positivist tells judges to use their best judgement once out of the core
-penumbra isn’t completely beyond law, it is a choice based on bits of law
-choice is made by judge, based on what judge thinks is morally best
-refusal of judges to be in the penumbra supports his argument
-advocating interpretive theory how best to understand the law
-example we should use in constructing the theory are the ones where judges disagree strongly about what the law requires
-theories of law that judges rely on becomes apparent
-hard cases are valuable because we see competing theories of law arising, and we will be able to choose the most attractive
theory by comparing the models
Criterion political morality, ideal of that theory, helps us choose what theory has the most attractive political ideal at its
-all law consists of it is the core core consists of legal events which give the judge an answer; precedent, constitutions
-what scheme of principles best justifies choosing what is relevant to the judgement e.g. precedents
-judge has to show what principles show the law in its best moral light
-principles also answer the hard questions
-principles are valid law, as any other law; forelaw
-answer is thus fully determined by law through a process of moral arguments
-difference between interpretive theory and his idea of legal positivism; his idea law is only what we find in the core
-what is the political principle within the law?
-law is a way of settling political disputes
-must have a transmittable content from decidable disputes to those they are currently deciding
-it if relies on moral decision, the legal conflict will arise again
-so answer must be determined in a way other than moral argument
-a theory of utilitarianism decide all political controversies in a way that maximizes the greatest happiness of the greatest
-positivist; stay within the core
Interpretive decided by which political principle behind the theory is more attractive
-Dworkin’s argument imposes a political ideal onto Hart
-requires denying Hart; hard cases judges are in penumbra and have to legislate
-Dworkin does not think judges move beyond law, there is no penumbra
Legal Positivists judges are always in the core penumbra belongs to the legislative, cannot rewrite the law
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