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PHL370 November 4, 2010
+DUW¶V5HVSRQVHV to Dworkin:
1.moral principles part of rule of recognition
3. principles and certainty
4.conventions ± GZRUNLQLQWURGXFHVQRWLRQRIFRQYHQWLRQ«RRSVORO
5.positivism as a semantic theory
1. Moral principles as part of r of r
-a judge can always bring moral principles from outside the law
-dworkin argued against this because it was too wide open
-too many morals to choose from. Not legal principles they are choosing from
-Hart responds that he denies bringing outside sources is the only option\
-you could have moral principles in a r of r
-you could also have legal principles in a r of r
-Hart rejects that positivism is bound only to pedigree or sources alone
-he recognizes other approaches where moral principles ARE part of the law ±
Australiam and American constituation
-examples from inside the law not outside are brought to bare
-what distinguishes positivists from naturalists is that an r of r CAN contain moral
principles but does not NEED to. ± it would still be valid law
-soft/inclusive positivism is that which means moral principles CAN have moral
-hard positivism means it CANNOT be a moral principle at all
-principles can also be in a r of r
-legal principles must be part of a pedigree
-Dworkin accepts that some principles will have a pedigree
-hart questions whether rules/laws like princples are radically different in how they
pertain to decisions.
-there is a difference to statutes and principles
-sometimes laws conflict with one another ± ZHGRQ¶WJHWULGRIRQHZHMXVWPDke one
weigh more heavily
-laws are usually all or nothing but not always
- we can identify system in which legal systems play no part
-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