Foundations law Section 1 Article B

Hart was one of the most important legal and political philosophers of the twentieth century. A
valuable starting point of Hart is from ‘Positivism and the Separation of Law and Morals’
1. That Laws are commands of Human Beings.
2. That there are no necessary connection between law and morals.
3. That a legal system is a closed logical system in which correct decisions may be deduced
from predetermined rules by logical means alone.
4. That the analysis of legal concepts is worth pursuing, distinct from sociological and
historical enquiries and critical evaluation.
5. That moral judgments cannot be established as statements of fact.

Certain jurists are described as positivists and these include Hart, Bentham,

Legal positivism concentrates its attention on what law is, not on what its substantive content
should be, nor on what could be done with the law.

He believed that law is a social phenomenon and can only be explained by reference to the actual
social practices of a community

Hart maintains that a legal system, in contrast to a set of unrelated laws, consists of a union of
primary rules of obligation and secondary rules of which the most important he believes is the
‘rule of recognition’.
 Primary rules are ones that actually tell people to do things or not to do something, they
lay down duties.
 Secondary rules are concerned with the primary rules in that they lay down the ways in
which primary rules may be introduced, can be varied or can be abandoned.

Dworkin claims that law is concerned not only with what has been established, and the rules
relating to the laws themselves, but also with principles

Principles: standard that is to be observed, not because it will secure a economic, political or
make a social situation desirable, but because it is a requirement of fairness or some dimension
of morality.

He is able to demonstrate that the rules approach of Hart to certifying valid positive law does not
take into account the presence of principles within jurisprudence.

Hart states that there are no necessary conceptual connection between the content of law and
morality and there can be legal rights and duties, which have no moral justification whatever.
Whereas, Dworkin rejects this in favour of the view that there must be some form of prima-facie
moral grounds for assertions of the existence of legal rights and duties.

Henningsen v.Bloomfield Motors: judges held liability of injury on employers over

enforcement of contract, employer was judged at a higher duty of care while employee had
signed waiver but still got injured. Dworkin says this shows the correct method of implementing
law as no court had applied the principle that auto makers are subject to a greater standard of
care but the court felt compelled to do so.

Use the same sense of appropriateness to implement legal rulings as the sense of moral
perception that it is “fair to place special burdens upon oligopolies that manufacture
potentially dangerous machines.” Or unfair to allow people to profit by wrongdoing (life
insurance scam, theft etc.)

Opposite: (Shows that legal participants acknowledge the pedigree of a law but dispute their
legal significance.)
Tennessee Valley Authority v. Hill: several conservation groups sued the Tennessee Valley
Authority (TVA) to prevent them from completing a $100 million dollar dam project. They
claimed that the dam would threaten the existence of the snail darter – a three-inch
fish of no particular scientific, aesthetic, or economic interest –and hence would violate
the Endangered Species Act of 1973. The TVA, however, argued that the Endangered
Species Act did not apply to a project authorized, funded, and substantially
constructed before it was passed and, hence, should not be construed to prohibit the dam’s
completion.

Is the law ultimately grounded in social facts alone, or do moral facts also determine the
existence and content of the law?
Hart argues pedigree theory, Dworkin argues principle implementation theory.