PHL271H1 Study Guide - Winter 2018, Comprehensive Midterm Notes - Ronald Dworkin, Legal Positivism, Canada
PHL271H1
MIDTERM EXAM
STUDY GUIDE
Fall 2018
Lecture Outline - PHL 271 – September 24, 2015 (Prof. Sophia Moreau)
Hart, “Positivism and the Separation of Law and Morals”
(A) What does legal positivism claim?
-Separates the question “Is this a law” from the question “Is it just?”
(B) What does positivism not claim?
-That law & morals fail to influence each other historically (they do)
-That morals can never be a part of law (they can, by explicit legal provision)
(C) Why should we be positivists?
-Steer between dangers of anarchist and reactionary
(D) Hart’s replies to three criticisms of legal positivism
1. Reply to the criticism based on command theory of law
-The command theory of law fails to capture the kind of force laws have
-It fails to distinguish law from “gunman situation writ large”
-We can reject the command theory without rejecting positivism
-Positivism offers another explanation of what makes a rule into a valid law
2. Reply to the criticism based on formalism
-No plausible theory of law is formalistic: model of adjudication with core
cases and penumbral cases. In core cases, the law is decided and judges
simply apply it. In penumbral cases, judges may appeal to moral principles.
-Two advantages of positivism: (i) clear picture of adjudication + (i) allows
that in core cases judges are applying law, not making it.
3. Criticism based on response to wicked laws/legal systems
-Case of woman who denounced her husband for insulting Hitler
-Hart claims that positivism offers the best response to this case
(E) Must a “legal system” as a whole have some moral core? No.
find more resources at oneclass.com
find more resources at oneclass.com
Hart, Excerpt from The Concept of Law
We’ve seen that Hart rejects the command theory. So he needs another explanation of
what makes a rule into a rule of law. This piece provides the explanation.
(A) Thought Experiment: Why a Legal System Needs Secondary Rules
1. Three Defects in this Society
2. Three Reasons We Need Secondary Rules
(B) Three Kinds of Secondary Rules
1. Rule of Recognition
2. Rules of Change
3. Rules of Adjudication
4. Some examples of secondary rules
(C) The Defining Features of a Legal System (on Hart’s view)
1. Three Defining Features
2. What is the “internal point of view”?
3. Hart’s main criticism of Bentham & Austin
4. What does Hart think he has accomplished?
Extra Reading (optional)
Instead of looking at other articles, it is a very good idea to read our required readings
again. If you do want other material to read, it is a very bad idea just to google “legal
positivism.” Some more reliable sources are:
(1) The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Coleman and
Shapiro
(2) The Stanford Encyclopedia of Philosophy (a peer-reviewed web-based encyclopedia)
(3) David Dyzenhaus, “Law and Public Reason”, McGill Law Review Vol. 38 (1993)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lecture outline - phl 271 september 24, 2015 (prof. sophia moreau) That law & morals fail to influence each other historically (they do) Steer between dangers of anarchist and reactionary (d) hart"s replies to three criticisms of legal positivism: reply to the criticism based on command theory of law. The command theory of law fails to capture the kind of force laws have. It fails to distinguish law from gunman situation writ large . We can reject the command theory without rejecting positivism. Positivism offers another explanation of what makes a rule into a valid law: reply to the criticism based on formalism. No plausible theory of law is formalistic: model of adjudication with core cases and penumbral cases. In core cases, the law is decided and judges simply apply it. In penumbral cases, judges may appeal to moral principles.
