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In-Class Test 1 study notes

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University of Toronto St. George

Legal Positivism: Legal positivism claims that there is a crucial distinction between laws and morals A rule can violate morals but can still be law (ex. Slavery) There can also be immoral actions that are not illegal (ex. Lying to your parents) Legal positivism only affirms the difference between laws and morals in certain cases However there are still occasions where laws and morals intersect Legal rules change with societys moral standards, just as moral standards can be influenced by the law (historically, laws and morals can influence each other) Through expressed legal provision, moral principles can play a part in law Hart (as a positivist) does not believe that the only reason that something becomes a law is because it is moral, however he does not deny a relationship between the two Morals do not give laws their normativeobligatory force Hart believes that a moral verdict is irrelevant to a legal deliberation however legal deliberation Positivism: law and morality are separate things Natural law: morality is prior to law Dworkinism: morality is in the law Why be a positivist?(2 problems with viewing morality and law as the same) Reactionary: just because something is a law then it must be moral PROBLEM: evil laws would be allowed Anarchist: the law isnt moral, therefore is does not need to be regarded as law PROBLEM: they will not follow the law Harts response to criticism based on command theory: Command Theory: what makes a rule a law is that it is a general command laid down by an authority Command: an expression by someone asking someone to do or not do something with threat of punishment if they do not obey. What makes a law obligatory is that it is backed by a threat of force. Hart believes that command theory fails to capture the kind of force that law has and turns the law into a gunman situation writ large it reduces the law to someone holding a gun to your head
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