Term
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Definition
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Whether a particular law meets moral standards is different from whether it is law.
- seperates morality and law.
prodcedural bases. empahasises social aspect..
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Term
| The Legal Positivists were |
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Definition
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HART
BENTHEM
AND AUSTIN (HABS)
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Term
| There are four major
Tennets to Legal Positvism
Law... (CC,L, AP, service soical goals, goals,mORAlly good. |
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Definition
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1)carries with it a coercive force to comply with rule
2)Makes a claim to legitimacy (in so far it is justified in forcing us to comply)
3) Arises from Procedure
4) Made in service of social goals, and should be morally desirable and Good.
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Term
| Hart differs from Bentham and Austin on one major point, and is justified by one other point...... |
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Definition
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1)Hart denies that law is akin to morality
2)Authoriy and cocercive force is not dependant on moral standard.
1 and 2 are not reliant on moral goodness
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Term
| Further Clairfication of Harts POINT |
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Definition
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a rule can violate a moral standard and it still be law. EX. Apartheid South Afica.
Conversely just because a rule expresses moral good,doesnt make it a rule.
giving money to the poor.
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Term
| Hart lists two points where Morals and Laws Intersect (2) |
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Definition
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1) Casual Intersection: Laws and morals have influenced one another. Moral standards influence the Law same sex marriage.
2)Moral principles can be Brought in by legislators. ex. Canadian Charter of Rights and Freedoms. for hart moral principle can be part of law but are not necessary.
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Term
| CRITICISMS OF POSITIVISIM
(Bentham and Austin) |
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Definition
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1) Command Theory of Law: Law is credible because it comes from an Uncommanded Commander- a soverign. A rule becomes a law because it is issued by soverign. It is credible because the force comes from somebody everybody already obeys.
Objection is that the Command theory mistakes coerscion for obligation it turns law into a Gunman situation.
However, not the gunman because law uses legimiate way. law has forms of punishment that are codified, law does not just command it can perscribe contexutally. the legislature can be seens as the uncommand commander.
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Term
| OBJECTION AGAin to command theory of law. |
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Definition
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Mistakes the legislature for those in positions of complete authority. same people who make the law are subject to it. There is no uncommaded commander in a democratic society.
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Term
| Another Objections is ...
(similar to secondary rules, and deals with hierarchy) |
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Definition
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The command theory fails to list different types of legal rules. It is organized vertically, but not all laws are punished by sanctions, some rules bind legislators not to diretly command the people, they instead constitute the legal system.
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Term
| HART Differs from Bentham and Austin agin
because he furthers their position by stating that law and morality are not necessarily intertwined.
HARTs Primary and Secondary rules take over the command theory .
USI... USI (like CSI with a U) |
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Definition
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If we only had primary rules we would run into hte issues of
1) Uncertanity: what to do when doubts arise
2) Staic character: cannot amend
3) Inefficiency: No single authority
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Term
| Hart's Secondary Rules
rca
answer to
USI |
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Definition
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1)recognition- fixes uncertanity. lays down rules must possess to become law
2) Change- empower use both first and secondary. changing our legal rules
3) Ajudication- answers inefficientcy. empower judges authority to judge whether law has been broken or not.
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Term
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Definition
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Legal rules which tell us our duties are and must be in conformity with secondary rules society accepts
(legal duties and conformity sec. rules)
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Term
| Hart despite recognizing that morals can go into laws, makes a bold statement that.... |
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Definition
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Even though our secondary rules can incorporate moral principles, it doesn’t alter the fact that the reason why they are law and other rules are rules of law is because they have been enacted in the right procedural way.
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Term
| DWORKIN
full law
POSITIVE LAW AND MORAL PRINCIPLES |
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Definition
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"Law for Ambitions itself"
law should be thought of not just positive
but also inclusive of basic legal rules and political morality. Thes moral laws makes STATEMANSHIP possible.
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Term
| Dworkin's Theory of Adjudication
2) FJ (fit and justifcation)
best light, statesmanship. attractive moral ideal. |
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Definition
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Judges are always engaged in acting in the pnumbera. They are engaged in interperting the law in light of moral principles makng it the best it can be.
Ajudication always comes with 1)Dimension of fit, dimension of Justification
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Term
| Dworkin backs Mill's harm prinicple for an attractive moral ideal |
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Definition
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Judges apply test of fit they are appealing to moral ideals of democracy. only valid in minimal egaltarian context.
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Term
| Advantages and disadvantages of
Hart vs. Dworkin |
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Definition
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Hart- judges in the pnumbera, make law.
D- Judges applying law.
d- view of law serves integrity, inclusionary
H- legal post. unattractive political ideal, defer will of makority or legislature. H- defends by saying that his account fits all regimes,
D- he cant help but take a politicla stance. Hart takes a minimal moral content. hes criticism of the command theory, conntoes some normativity of law, thus a mimum level of morality. \
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Term
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Definition
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(1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies
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