HUMA 1825 Note 6
Class Writing Assignment #2
- Grasp the over all theme so far:
o Have a personal (individual understanding of natural law v. legal
o What are the claims respective advantages and disadvantages?
o Which side are you on?
- Know Hart’s “history of an idea”
o The rise and fall of natural law
o The rise and fall of legal positivism
o Who are the utilitarianists?
Who is Jeremy Bentham? John Austin? What they said, why
they believed what they did about law, and what they wanted
- What is Hart’s theory of law?
- Have some grasp of Hart’s theory of Adjudication.
o What do judges do when they decide cases?
o Apply the theory of adjudication to Whiteley and Chappelle.
Know the decision of the case
Facts of the case
The reasons of the case and why that information is significant.
Legal Positivism: Separation thesis.
- A doctrine that was developed by the early utilitarians in the late 18 -19 th
century of English by the two founding fathers Jeremy Bentham and John
o These founding fathers were social reformers: scholars who wanted
to effect socio-economical and political changes based on their
Indexing pleasure over pain for the greater good
The vehicle was the law
If you want to change society, change the law
o If you consider law as a man-made doctrine, then it would be easier to
change. Then it could incarnate whatever values society wanted it to
- This new legal theory with mockery repudiated the old theory
- What law is: separate and apart from what law ought to be: a normative
o Law as it is was differentiated from what law “ought to be”
- Laws are valid and authoritative if they came to being in the criteria
stipulated by the regime o Creon was the supreme lawmaker; he had within his jurisdiction to
make whatever laws he wanted it. Therefore, Creon’s law is valid,
authoritative law because it was within his power.
According to Natural law, this isn’t a natural law, not
withstanding of HOW it came into being, but because its
content was immoral and unjust, on that basis this law had no
validity to natural law thinkers.
o Legal positivists: this is a non-sensical statement: Austin = star
nonsense. Jeremy Bentham called the whole notion of natural law a
non-sense on stilts.
- Legal positivists think of the natural law position in the way how Bentham
talks about Blackstone Pg.74 “Obsiquious Quietism”
o They thought it was dangerous because it bred bad attitudes:
Anarchist, who said this ought not to be the law, claims that therefore
I won’t obey it.
o On the other hand, it bred reactionism: this is the law, I have to be
deferential to it, I have to obey it.
o Bentham thought that natural law of Blackstone (Aquinas clone)
- Bentham thought a better formula was obey promptly, censure freely.
- It was simply not supported in reality.
- While the natural law theorists might say unjust law is not law at all, legal
positivism says look at what happens in reality.
o “If you try to plead in court that the law under which you were
charged was unjust and immoral, just see what will happen to you.
Just see if that argument is going to carry any weight.”
Antigone tells Creon his law is unjust, and he kills her.
Look at what Austin says on pg.92.
“The Most pernicious laws, therefore those which are most
opposed to the will of god, have been enforced by judicial
- Wanted to reform society through the laws
- They wanted to separate law from morality conceptually, because they
wanted to heighten and sharpen the citizens awareness that the time might
come when the laws commands were so wrong that they might have to be
disobeyed, so that the issue of disobedience would have to be faced by
o Fathers thought it would be clearer to see that time if those concepts
were decoupled, rather than the way the natural theorists wanted to
Bentham “Obey promptly, censure freely.”
Criticize, and critique the laws at will.
- Legal positivists did NOT genocide morality. For Austin, Gods commands
were all. Utility was simply used.
- Don’t say that natural law care about morality, and LP don’t o Each of these cared about morality, but they used it in a different way,
and for a different purpose
- Natural: define and describe law
- LP: Use morality to critique law.
o Legal positivists acknowledged and recognized the intersection
between legal and moral principles. There has been a historical
overlap. Sometimes, actual moral principles were incorporated into
o Sometimes, when the law ran out the judges decided what ought to be
the law. That ought was sometimes a moral ought.
- Hart said that in two ways there’s a necessary connection between law and
o On the substantive levels: there had to be laws that prohibited
violence and property. This was a necessary content in law.
o Procedural level: it was necessary to treat like cases alike
o Aside from these principles, we each have different values; therefore
it’s impossible to find a moral content aside from those two.
- The law cannot and does not make certain things necessarily legal because
they are “immoral” or “illegal”
- Conceding a minimal moral compromise does not compromise Hart’s
position as a legal positivist.
Hart’s three main criticisms
- He makes a response to three major criticisms about legal positivisms:
o Austin’s command theory of law:
One of the doctrines of legal positivism as articulated by the
Hart shares many of the criticisms directed at this theory.
He instead, severs thought theories from legal
Says that legal positivism has three doctrines that are
independent of each other. If you sever one of these doctrines,
it still stands as a legal theory.
Three doctrines as part of utilitarians positive
Austin’s command theory: If you are able and willing to
harm me in case I comply not with your wish, the
expression of your wish amounts to a command.
o A command: a wish for something to be done
o A sanction (punishment): the punishment that
will be done if you disobey them.
o And a sovereign: a power that commands, but no
one commands them.
o “If you are able to harm me if I don’t do what you
want me to do, I am bound or obliged by your
command, or I lie under a duty to obey it. Command and duty are therefore correlative
Hart has major criticisms of this theory
o Hart is analogizing the law’s commands to that of
a person who puts a gun to your head and says
“Do as I say or else”
o By saying this, Austin has made a fundamental
error because he confuses being obliged
(punishment) and having an obligation (duty) to
do something. Therefore, Austin’s theory is like
why a person turns over his money to the
They don’t have an obligation; instead
they want to live (obliged).