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1st Test Study Guide! Hart & Dworkin

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University of Toronto St. George

PHL271H1 Study Guide Test #1 - Hart & Dworkin H.L.A. Hart Legal positivist Legal positivism distinguishes law as it is from law as it should be Feels law and morality should be separate Law only includes moral principles insofar as legislature has specifically included them Critical of Austins Command Theory The command theory affirms that law is a command issued by an uncommanded commander (a sovereign). The sovereign is obeyed by the majority, who in turn obey these commands under threat of sanction . How do we determine if law is actually a law? Depending on its pedigree (if the proper judicial and legislative procedures were utilized in the enactment of the said law Harts main aim is to rehabilitate how we define legal positivism Whether something is law does not depend on its morality, but rather, on its pedigree. A moral duty is not necessarily a legal duty To consider morality as law risks falling into anarchism (the view that is law is immoral, it is unjust and removes all obligation to comply) andor quietism (the view that just because something is a law, it is just). The law is not simply the gunman writ larger; not only does it have teeth, but it also attempts to impose obligation on you Law is a union of Primary and Secondary Rules Primary rules are rules that govern conduct (proven through the thought experiment) Problem of the Static Character of Rules There would be no way to change rules, and no one to let
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