Law and Morality Text Notes

Law and Morality Text Notes - H.L.A. Hart: Positivism and...

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H.L.A. Hart: “Positivism and the Separation of Law and Morals” - Bentham said recipe of life under law is “to obey punctually, to censure freely”, but resistance was needed during the French Revolution (28) - two dangers: that law and authority may be dissolved in a man’s conceptions of what law ought to be, and that the existing law may supplement morality as a final test of conduct and so escape criticism - what Utilitarians (Bentham) did not mean by the separation of law and morals (29): (1) never denied that legal systems were influenced by morals and vice versa, “frequent coincidence” (2) Bentham: rules of courts and legal system may be bound by a constitution based on morals, Austin: restraints like this do not have force of law, but merely act as political or moral checks (3) in the absence of constitution/ provision, rules cannot violate or be desirable according to morality as it is not a rule of law - criticisms of Utilitarianism: we must consider more than criticisms which were directed at the point that they made about particular laws, as outrageous as they may be, are still laws we must consider that even if there is a split between law and morality at points, there is also a point of contact we can find connections if we examine how laws and their disputed meanings are interpreted and applied in concrete cases - along with separations of law and morals, there were two other doctrines (31): analytical study of legal concepts/ vocabulary imperative theory of law - law is a command - another confusion arose when one thought that if they didn’t believe all of these three doctrines, it showed the other true to be false, but they are separate doctrines - indiscriminate label of “positivism” used to explain each of these three doctrines has confused more than anything Law is a Command - Austin says this theory, along with habit of obedience, was the key to sciences of jurisprudence and morals, and moral judgements are imperative and prescriptive to this claim - however, it is inadequate as there is much distorted if presented as a command - commands are laws if: they are general they are commanded by the uncommanded commanders of society (outside of the law) - its inadequacy is due to no connection with morality - command, sanction and sovereign = gunman makes a large group of people accustomed to racket give him something, and they surrender - legal order should not be identified with compulsion - also, it is wrong to think of an electorate as a group of people habitually obeyed, as legislators must comply with fundamental rules specifying law making procedures in order to make laws - therefore, the analysis of what it is for a social group to accept these rules is the “key to the science of jurisprudence” - Austin thought that the mass of the electors to the state and federal legislatures were the sovereign, whose commands given by agents in legislatures, were laws - this relies on the “bulk” of people, and therefore people must obey themselves
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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.

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Law and Morality Text Notes - H.L.A. Hart: Positivism and...

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