2. Wednesday, January 19, 2011

2. Wednesday, January 19, 2011 - Wednesday last week we...

Info iconThis preview shows pages 1–2. Sign up to view the full content.

View Full Document Right Arrow Icon
Wednesday, January 19, 2011 - last week we looked at Queen vs. Dudley and Stevens - we looked at two different ways of reading that case - the courts up to that point had never seen a case before where people like Dudley and Stevens could use the defense of necessity where they had not been thretened - the first way: Lord C was just applying existing law, and is drawing out moral principles that are latent in the law (sometimes its an individuals duty to sacrifice themselves, it is wrong to kill an innocent human being) - Hart wants to say that you can be a positivist without accepting command theory What does legal positivism claim? - p30: Hart mentions that positivism draws a crucial distinction between law and morals - How? it separates the question is it a law and is it moral/just? - when we talk about the separation of law and morals, what do we mean by rule of law? bodies charged with enforcing the law and ensuring that citizens obey rules laid down by an authority (legislation/ judges) there are sanctions attached to them for disobedience some general purpose(s) including stability of society influences our behaviour and guides us (if you think of Queen v. Dudley & S, Lord was looking at this) generally accepted creates rights law is not a benevolent parent guiding you, laws are things we have to obey and have obligatory/ normative force - a law can have most of these features, even if it is not moral - p30: “What both Bentham and Austin were eager to assert. .. desirable, that it was a rule of law” - a law can violates standards of morality, but are still a rule of law - example: slavery - conversely, just because a rule is moral, that does not make it a rule of law - example: don’t lie, taking off your hat when you are in church, immoral of Canada not to allow same-sex marriage but it should be law What does legal positivism not claim? - doesn’t just make the blank-head claim that law and morals are separate - it only affirms the separation of laws and morals in certain senses - there are certain instances where Hart accepts the fusion of law and morals (29, middle of the page) (1) Historial connection between law and morals doesn’t deny that legal rules change when society’s morals change (ex: same sex marriage) moral standards are also influenced by the law (anti-discrimination law took off at a time when there was open and blatant prejudice against minority groups, and these laws made people realize that they could not do this as it was not publicly acceptable) (2) by express legal provision through constitutional ammendment, and such, moral principles might be a basis for a law a good example of this is the Canadian Charter of Rights and Freedoms
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Image of page 2
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 11/18/2011 for the course PHL 271H1 taught by Professor Professormoreau during the Spring '11 term at University of Toronto.

Page1 / 4

2. Wednesday, January 19, 2011 - Wednesday last week we...

This preview shows document pages 1 - 2. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online