4. Wednesday, February 2, 2011

4. Wednesday, February 2, 2011 - PHL271 February 2 2011 1...

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PHL271 February 2, 2011 According to Hart, law is just all of the primary rules, plus the secondary rules that allow us to implement or change these rules Includes, importantly, the rule of recognition This positive law is quite separate from moral principles that justify the law Positive law = law as it has been enacted by the legislature, including both primary and secondary laws We should not think that these are a part of the law just because they justify it Rules might contain moral principles, but what makes them law is that they have been implemented in the proper way, not that they are moral To complete the legal system, must add a) that these rules are obeyed by the bulk of the population and b) that of±cials take the internal perspective on the secondary law (believe that they are standards of law Keep in mind that Hart believes it possible to separate law and justifying moral principles and laws Inclusion as laws not due to their correctness, or that there are moral principles that justify them, but that they are on the list The penumbra arises when we ask questions about a law (where and how it applies) – likely that for any law, there will be both core and penumbra Gradually, judges will increase the core area by deciding cases (then, we will have settled law on cases that used to be penumbra) In such cases, judges may either make new law or take the conservative stance (though, if taking what seems to be the conservative stance, makes the wrong call, then may be making new law) Dworkin’s view of the “full law” Includes both positive law and the justifying principles (which make it the best law it can be) Assumedly every legal system has bad laws, unjusti±ed by moral principles which need to be changed, and we may or may not consider these law Crucial that these moral principles are a part of the law, not because they have been written into the constitution, but because they are the justi±catory principles that make the law the fairest and most just law it can be Then, does not accept distinction between core cases and penumbral cases: all cases involve exercises of interpretation (all are penumbral): encountering any law, a judge must think, “what interpretation would make this the best (fairest) law it can be Then, any adjudication is an exercise in interpretation 2. Dworkin’s “interpretive model” of adjudication Judging is like monitoring a “chain novel” A book being written, with each author writing a chapter then passing it on
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Plot, characters must be interpreted in consonance with the previous chapter(s)
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4. Wednesday, February 2, 2011 - PHL271 February 2 2011 1...

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