HUMA 1825 Note 5
- The next writing assignment will be on the October 29 ; it’s a common class
writing assignment. It will take place instead of the lecture (12:30-2:30), we
still go to the tutorial afterwards.
o The Monday tutorial, the test will be located at VH 1152A
o That class writing assignment is going to cover the Hart Readings, and
the case (Whiteley v. Chappell)
Positivism and the Separation of Law and Morals
- As it suggests, the article is about the central tenant (core idea) of legal
o The separation thesis “law and morality are conceptually distinct”
- Also, Whiteley and Chappelle is an illustration of the thesis, since it talks
about what law is, on the books, positive as opposed to what law “ought” to
The Concept of Law,
- Law is a system of rules
o Primary and secondary
o You have a legal system when you have a union of those two rules
- He then talks about what he considers the external and internal POV with
respect to those rules
- Then tells us what he thinks are the two minimum, necessary, sufficient
- “Legal positivism is part of the history of an idea”
o Flesh out the intellectual history on legal theory
- In order to situate the details in Hart’s article, you will need the big picture, if
you understand the nature of the legal landscape, you could situate the little
details more easily.
- The Big Picture of the History of an idea:
o What is law? What is the relationship between law and morality?
How, if at all, are they connected
Natural Law theorists: Aristotle and Aquinas
Natural theory may idea: for the natural law theorist,
there is a necessary conceptual connection between law
and morality: they are necessarily connected concepts.
Aristotle shows us that law as justice is the
compendium is the total of most virtue, and those
virtues lead to the full life, well lived life, human
happiness according to justice.
o Distributive justice: a just distributions of
benefits and burdens o Corrective justice: deals with restoring “equality”
when there is inequality within transactions,
whether they are voluntary or involuntary
In Aristotle, Law and moral are in the closest possible
Aquinas calls Aristotle “the Philosopher”
He adopts many core ideas “Telos” (end goal), virtues,
happiness, however he gives it a Christian overlay.
o We have a neat precise expression in how human
law situates itself in divine hierarchy
o This is a clear definition of a four-fold hierarchy
of law in descending order of authority and
o At the top is eternal law.
About the mind and will of God.
We will never know or understand this.
We sometimes interpret this from
scriptures and revelations.
o Then there is Natural Law
God’s imprint in all of us of Divine Law.
This allows us to know what is good and
what is evil.
Do well avoid evil.
This is “God’s light in us”
It doesn’t need to be interpreted
because it’s in each and every one
o At the bottom, is human law
We have human law to wash out precepts.
General precepts: keep your
promises give back trust.
This is based on specific
o Defense of Necessity in
A law that is unjust has no validity
(human law, because it doesn’t relate
back to the natural law)
It’s a perversion of law.
An unjust law does not exact
obedience from the subject, except
if to rebel or disobey that law
would create more evil and chaos
than the law itself. o If the law asks us to do something against
sacrilegious such as heretical, then we ought
never to obey that law.
Sir William Blackstone wrote commentaries on the laws
of England. It was an apology of the status quo.
o He critiqued Jeremy Bentham
They were utilitarians
They flourished in 18 -19 .th
They believed in maximizing utility. This
was defined as the greatest happiness for
the greatest number.
An act was right if it maximized
utility, and produced the greatest
happiness for the greatest number.
Since it’s harder to change human laws if
you consider from God. Therefore, if it’s
under legal positivism (man-made), it
could be unmade, changed, remade and it
was a social fact. A human artifact. It
didn’t come from this “transcendental
Utilitarians (18-19 ): Legal Positivism
With this kind of philosophy, socio-economic reforms
were easier to make
For them, moral philosophy of utilitarianism and legal
positivism were mutually intermingling.
Now, we consider law as an artifact.
Came intthexithence with early utilitarians, flourished
from 19 -20 and then it was completely discredited
because of Nazi Law in WWII. Afterwards, people
considered the value of natural law theory.
After Nazi Law (it was legally elected), every act that
they performed was pursuant by the law. Judges,
followed by political military and etc., enforced it.
After the War, what was to do with the perpetrator?
o They technically behaved legally at the time
when those laws were in effect, therefore, they
are not guilty
o The only way those crimes could be in effect and
punished, was to revert back to natural law
Those laws were so unjust, so evil, that
they were no laws at all; they shouldn’t
have been followed or obeyed. Because of Nazi + Third Reich’s differentiation between
morality and law, there was a push to re-introduce
morality into law.
After the War, there was a resurgence of legal theory
that placed the morality in law.
o Consider what Hart thinks are the advantages of being a legal
positivists, rather than a legal law positivists. Our decision. What is at
stake in this deba