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HUMA 1825 Note 5.docx

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York University
HUMA 1825
Neil Braganza

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 positivism 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 be. 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 conditions Intellectual History - “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 relation.  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 validity. 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 of us. 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 circumstances. o Defense of Necessity in Law.  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 being”  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 theory.  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
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