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Unformatted text preview: LECTURE ONE: The Queen vs. Dudley and Stephens - necessity was an excuse at the time - after they consumed the turtle they had 8 days with nothing to eat or fresh water to drink - Brookes did not consent - they did not discuss their plan with the cabin boy, and the cabin boy was in a defenseless state and did not consent to his death - the prisoners felt that they were trying to save their own lives for the sake of their family- if the men had not fed upon the body of the boy, they would not be alive in order to be rescued- in fact, the boy could have died before him so they did not need to kill him in order to eat him The Judgement - Does killing under the circumstances amount to murder ? - you could only use the defense of necessity if you were being threatened Can they nevertheless use the defense of necessity? Is Lord Coleridge making new law or applying existing law? - he is sticking with traditional deFnition of necessity - he makes remarks that the function of judges is to follow existing law, not make new law- drawing out moral principles that are latent in the law (sometimes its an individuals duty to sacriFce themselves, it is wrong to kill an innocent human being) - there could be a slippery slope : these are moral principles that underly and justify the law as it is Making new law? - there is a gap in the law , as the textbooks have nothing to say about the situation where one is not threatening but law may need to be extended to the murderers being threatened , but not by the victim- Utilitarianism : judges might rule in one way in order to better help the bulk of society , even if the decision may not be right for the particular case Two Basic Principles on the Relation between Law and Morality - if new law is being made , it is likely that one thinks that there is a gap in the law- speciFc moral principles are not already a part of the law but they are a part of the judges moral principles in which he can use to Fll in the gap of existing law- they have to do this explicitly- if you think he applying existing law , one will believe that underlying the law are certain underlying principles H.L.A. HART: Legal Positivism - distinguishes the law as it is , from law as it morally ought to be - what makes it law , is just the fact that it is an act in legislature and enacted by judges- Hart says that law includes moral principles as so far as the law is written- going outside what is written , is creating new law - Hart accepted the command theory of law in addition to positivism, but you can accept law as it is, and be a positivist , but reject the command theory- command theory is a theory about what gave law its legal force , so Hart needs a new explanation of what the law is What does legal positivism claim?...
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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- Toronto.
- Spring '11