PHL271H1 Midterm: 1st Test Study Guide! Hart & Dworkin
Document Summary
Legal positivism distinguishes law as it is from law as it should be. Law only includes moral principles insofar as legislature has specifically included them. 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 . Depending on its" pedigree (if the proper judicial and legislative procedures were utilized in the enactment of the said law. Hart"s 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) and/or quietism (the view that just because something is a law, it is just).
