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Midterm

In-Class Test 1 study notes


Department
Philosophy
Course Code
PHL271H1
Professor
moreua
Study Guide
Midterm

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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 normative/obligatory 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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It does not provide any justification, people are just forced to do or not do things out of
compulsion (do or die)
Mischaracterizes the legislature the legislature is itself bound by the law (their power is
limited and they must follow procedure). They cannot freely do whatever they please
Command theory mistakes obligatory force for force of compulsion and fails to distinguish
different types of legal rules (theyre all just commands)
Harts response to criticism based on formalism:
Formalism: you never have a choice of how to interpret a legal rule
Hart believes that some rules have a core/fixed meaning, while others are a penumbra where
their meanings are not quite clear
Ex. “No vehicles in the park
A car is very obviously a vehicle and would therefore be banned from the park, however in the
case of a tricycle or motorized scooter, there would need to be some form of clarification to
decide whether or not they would be permitted in the park
Sometimes judges will decide a penumbral case in accordance to moral principles and
sometimes they will not
Positivism: the law is incomplete and sometimes judges need to fill the gaps and create new
law (penumbral cases)
Harts response to criticism based on response to wicked legal systems:
Hart: as long as a law is legally valid there is an obligation to comply
However we must ask ourselves that even though a law is legally valid, can we morally will
it?
There is sometimes a conflict between legal validity (whats recognized as a law) and
morality, this conflict needs to be acknowledged because sometimes morality asks us to
sacrifice procedural principles
Does a legal system as a whole need to have a moral core?
Some might say: a legal system needs to have some moral core, otherwise how can it have
normative authority?
Hart believes that this is unrealistic because we are all too diverse and that above all the only
core to laws is our own insurance and protection of survival
Procedural fairness: Hart believes that just because a legal system has procedural fairness
(minimal requirements) this does not mean that they are moral or just
Harts account of a legal system:
Law as the union of primary and secondary rules
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