Political Legal Theory Notes.doc

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University of Ottawa
Political Science
Sascha Maicher

Natural lawLaw to reflect natural order of the worldLaw as a response to our rational understanding of how things areOne can discover what is morally correct and base our law on itNot necessarily Gods order can be a natural orderThere is an objective universal morality and law should reflect itLaw must be moral immoral laws are not lawsSources for natural law are reason and religionModern legal system is fundumentally based on natural law human rights preceed lawNaturalistic fallacy cannot derive ought from isJohn FinnisNo other choice but to follow natural lawDetermine how law should function what good law should aim atNeed account of basic goods law should achieveBasic goodsBasic goods we value for their own sakeBasic goods are selfevidentOnly reason we enter community is to have community help us access these basic goodsNeed social coordination to best achieve these goodsLaw is mechanism for social coordinationLaw must aim to achieve goods and reflect the social goodsDefending this account requires moral evaluationAny account of law needs to explain purpose of lawLaw is a reason giving activityGood reason for actionmoral questionCannot talk about law without talking about why law is authoritativeFinnis and Dworkin1 SimilaritiesaCannot understand law without understanding purpose of law2 DifferencesaDworkin restricted in moral purposes of lawbFinnis not limited to framework of what has been doneOn the Incoherence of Legal Positivism2 problems1 All we need to study is pedigreeaGives us no reason why we should follow pedigreed lawsbObligation means more than pragmatic selfinterestcPrudence in of itself is not the final answer for reason to act2 Such an account does not require coherence they say is thereaIf not coherent cannot reason from a general rulebHow explicit does the ultimately rule have to becSocial facts not specifictly articulated how to derive rules from themdNo way to determine what counts as pedigreeTo appeal to pedigree is to appeal to moralityCannot deduce from them what they require without moral claimsTo describe law or pedigree you need moral claimsTwo vantage points of law1 InternalaWe have to feel good about following the law as a system even if some individual cases are bad2 ExternalaOnly way we get a good reason to act is if law itself is based in moral reasonLook to purpose of law not merely pedigreeJust because something is moral does not mean it is a law law still has to become coherent lawPositivism cannot explain why we feel obligated and why we should keep moral arguments out of lawJust because there is a rule of recognition does not mean you should follow itPositivism derived an ought from an isPositivism repeats what any competent lawyer would sayPositivism is redundantLegal positivismTheory of law with no moral claims only seeks to describe lawJohn AustinLaw is just a social factWhether a law is a law is whether or not that society thinks it is a lawCommand theoryLaw is what powerful people set on less powerfulPositive law empirical law established by political superiorEvery law or rule is a command we obey law with greatest sanction behind itGreater the sanctionmore likely to obeyHLA HartAims to produce positivism that is not only about powerInterested in validity of lawDistinguishing between valid and invalid law is to distinguish between law proper and forceLaw not simply composed of commandsMany laws do not create obligation but confer power to citizens not only to officials and not simply a question of punishmentLaw does not only emminate from political sovereignNot the power of sovereign that produces adherence to rule but it is the validity of the sovereignDangers from not separating law and morality1 Dissolves authority of law become dependent on morality Just because a rule is morally made does not make it a rule of law2 People might become slavishly obedient to law we want to be able to criticize lawBasic divisions in rules standard for judging sovereign1 Primary rules
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