NotesWedSept16

PHL271 – Wednesday, September 16, 2009

H.L.A Hart

Revisionist Legal Positivism Traditional Positivism Critique of T.P. “penumbra” and Interpretations

5 doctrines associated with traditional legal positivism

list of 5 are in a foot note on page 52 and 53

they are points about particular laws

Principles 1. laws are commands of human beings “in the habit of being obeyed but not in the habit of obeying”

2. there is no necessary connection b/w law and morals, that is the law as it is and the law as it ought to be

3. Analysis is of legal concepts is worth pursuing and to be distinguished from historical, sociological studies ….or anything of that sort. So, law isn’t judging or enforcement. Law is something is embodied in part by our language with accepted and traditional meanings. An important way to study the law is to understand what the law actually means.

4. reality à [ facts à decision à Law] you don’t need anything else to make decision. In particular what kind of good the law could achieve.

5. (optional) moral judgements, theses judgements can not be established ….statemetns of proof. This means, you can’t get rational answers to moral questions. There is no reasonable way to determine morality.

Hart is a revisionist so he doesn’t accept 1. He accepts 2 and 3. He doesn’t accept 4. He doesn’t even comment on 5.

Traditional constitutional monarchy. The king is the commander and yet must obey.