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Methodology
Considerable controversy over past few
decades on how to pursue philosophical
analysis in legal theory:
Morally neutral conceptual analysis? (Hart,
Marmor, Raz (?), Dickson)
Morally engaged interpretation? (Dworkin)
Naturalized jurisprudence? (Leiter)
Legal Positivism
Hobbes/Austin/Bentham: command of a political
sovereign whose identity is socially determined
(enjoys general habit of obedience; habitually
obeys no one else; issues general commands;
threat of penalty/sanction)
Hart: conventional rules (secondary rules, i.e. rules
about rules) accepted and practiced by officials
(especially judges) which determine certain facts
or events that provide the ways for the creation,
modification, annulment, and authoritative
interpretation of, legal standards
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Separation/Separability Thesis
John Austin (1790-1859):The existence of law is one thing;
its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry.
Separation/Separability Thesis,
contd
Overlap/connections can be a function of:
contingent social fact
natural necessity minimum content of natural
law doctrine (Hart)
Given certain natural facts about human beings and
their environment, law would/could not arise and be
sustained unless, like morality, it regulated violence
(criminal and tort law); keeping of promises (contract
law); and possession (property law, estate law, etc.)
Without such regulation no one would have reason to
support/submit to law
Greens Conceptual
Connections
Necessarily, law deals with moral matters (regulates our
most vital (moral) interests)
Necessarily, law makes moral claims on its subjects
(purports to impose moral obligations; requires
consideration of the interests of others)
Necessarily, law is justice-apt (In view of the
normative function of law in creating and enforcing
obligations and rights, it always makes sense to ask
whether it is just, and where it is found deficient to
demand reform. p. 19)
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Separation/Separbility Thesis
So whats left of the Separation/Separability Thesis?
Depends on type of legal positivism
Two main contemporary forms: Exclusive (Hard)
Legal Positivism versus Inclusive (Soft) Legal
Positivism
Exclusive Positivists: Raz, Green, Marmor,
Giudice/Culver
Inclusive Positivists: Hart, Coleman, Kramer,
Waluchow
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An Implication of ILP
The legal validity of a norm can (but need not)
depend on its moral content
Depends on whether Rule of Recognition requires
conformity with a particular moral norm as a
condition of legal validity
Thus: The social conventions on the basis of which a
community determines its laws may, but need not,
contain reference to acceptable moral content as a
condition of legal validity
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Harts Alternative
Hart: neither option is correct
Austins reductionism fails to distinguish being
obliged (by threat of sanction) and being under
obligation
Those who accept legal norms as imposing
obligations/providing reasons for action view the
norms themselves as providing the reasons for action
and (possibly) for the imposition of sanctions in the
event of a failure to comply
They view themselves as bound by the norm, not any
sanction there might be for failure to comply with it
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Harts Alternative
Those who accept legal norms as providing reasons
for action (e.g. imposing a legal obligation) take the
internal point of view towards those norms
But to take a legal norm as providing a reason for
action is not necessarily to take it as providing a
moral reason for action
Therefore, legal obligation is not a species of moral
obligation
Harts any reasons thesis
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Consequences/Further Features of
Razs Service Conception of Authority
Laws legitimate authority dependent on successful
fulfillment of its essential, distinctive role
Fulfillment of laws essential, distinctive role requires
that the identity and content of its directives can be
ascertained without appeal to underlying (hopefully
right) reasons (dependent reasons)
It should pre-empt our reliance on those reasons
Otherwise authority can no longer successfully
mediate between us and those dependent reasons
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Consequences/Further Features of
Razs Service Conception of Authority
Since law necessarily claims to be a legitimate
authority, it must be the kind of thing that
could at least, in principle, be a legitimate
authority
Even when it fails to be legitimate, it must be
the KIND of thing that COULD be a legitimate
authority
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Consequences/Further Features of
Razs Service Conception of Authority
Law can only be that kind of thing if its directives can
be identified & understood independently of appeal to
dependent reasons
One can determine whether a putative valid law has
the appropriate social source without considering its
pre-empted dependent reasons
Therefore if ELP is true, law is the kind of institution
that is capable of serving its distinctive social role in
our practical reasoning
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Consequences/Further Features of
Razs Service Conception of Authority
However, according to ILP its possible that laws
valid directives can sometimes be determined only
through appeal to relevant dependent reasons
According to NLT, this is necessarily so i.e. appeal
to dependent reasons is always relevant
Therefore, ILP and NLT deny law its capacity to be
authoritative to serve the vital role it necessarily
purports to provide
Hence: ELP is correct, and ILP and NLT must be
rejected
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Consequences/Further Features of
Razs Service Conception of Authority
Razs theory consistent with both the Social
Thesis and the Separation/Separability thesis
Social Thesis: valid law identifiable exclusive
by social facts determined as relevant by
socially constituted rules of recognition
accepted and practiced by officials (ELP)
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Consequences/Further Features of
Razs Service Conception of Authority
Separation/Separability Thesis:
Law necessarily claims to be a legitimate authority
But laws claim is often false (it fails to provide its
distinctive service)
Its directives fail to track right reason; fail properly
to reflect relevant dependent reasons
In some cases, these reasons are/include moral
reasons
Therefore, The existence of law is one thing; its
merit and demerit another (Austin)
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