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PHL271H1 (17)

Theories of Law

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University of Toronto St. George
Sophia Moreau

Reading NotesLaw and Morality are DISTINCT modes of social orderingIs and ought to be is one and the same but it should not be so There are two dangers to confusing law in this manner1One is that law and its authority may be dissolved in mans conceptions of what law ought to be For instance if someone passes a moral judgement on a current law abortion is wrong slavery is right etc and feels that since it is moral it ought to be but not yet is he will ignore the rules and do what he believes is correct 2The second is that existing law may supplant morality as a final test of conduct and so escape criticism People will basically believe that because it is law it is moral and will therefore not question it Legal Positivism DOES ACCEPT the intersection of laws and morals many mirror the other throughout time and are influenced by one another In Austins view this is why law often confused ought to be with is Morality DOES go into and form some rulesCourts are legally bound to decide in accordance with what they thought just and best ie the constitution charter of rights Some morality impacts laws in ways that limit and give restraint to legal rules and laws such as the constitution However in Austins view the above did not have the force of law It is believed by legal positivists that1In absence of expressed constitutional rule or legal provision it is NOT TRUE that if a rule VIOLATED standards of morality that it was NOT a RULE OF LAW2And vice versa Just because a certain rule is MORALY DESIRABLE does NOT make it a RULE OF LAW for instance it is morally desirable to not commit adultery or to lie to people but neither of these are rules of lawLegal positivism believes that there needs to be a distinction between what law is and what it ought to be However when Austin and the founders of legal positivism gave this criticism they had particular laws in mind In Harts opinion Austin and Bentham obscured the contact of the two law morality is and ought in their insistence for their doctrines and with their terminology A question we must ask ourselves is whether a legal system that does not satisfy a moral minimum can be a legal system at allThe utilitarianlegal positivist doctrine also proposed the two following things1A purely analytical study of legal concepts its distinctive vocabulary They believed it was vital to the nature of law as a historicalsociological study
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