-if that is correct than dwrokings claim that legal principles apply to all law anywhere is
-the application and discoveries of principles happens in certain instances.
-EG of a legal principle ± \RXFDQ¶WSURILWE\\RXURZQFULPH
3. principles and certainty
-legal positivism demands that the law be determinable by certainty
-what is harts position on certainty?
-dworkin exaggerated the degree of certainty that a positivist requires
-what if there is a system of only primary rules
-would have to be a simple community
-jjust because there is SOME uncertainty does not invalidate the legal system\
-hart says moral principles can still be brought to bare on the debate.
-hart frames the sort of principles that would go into a rule of recognition PG 254 to
make law in accordance with morality
-dworkins statement that the justification for a secondary rule is acceptance ± not so true.
- pg 254 ± hart accepts a criticsm of dworkin
-if you have 2 communities: 1. Individuals believe P (these people all agree about P). this
is not conventionalism. 2. It is a reason to believe P, that most people believe it: this is a
-ordinary law is not conventional in this sense: it can be new or not accepted but still a
-in the case of moral principles (not conventional moral principles) apply whether people
accept them or not.
-but moral principles in the law can be treated under this same conventional principle.
They must be practices in the judicial community to resolve disputes.
-following a moral because it is a convention does not make it a moral
-Dworking says positivists have to adopt convention to use moral principles = bad
-Hart says this is not the case,
5. Positivism as a semantic theory
-semantic ± pertaining to meaning
-technical sense arises in 1930s a theory that has to do with the truth of a
-for a concept to be true or false
-Dworkin seems to flip and flop between the two meanings
-Says that psoitvwt seem to be arguing about the meaning of the word `law`
-Hart`s (pg 246) response: if the meaning of the law is determined by pedigree factors
how is it that udges are arguing about meaning.
-pedigree determines meaning