Assignment for Fri 4/21: sects. 1-3, pp. 477-486

Assignment for Mon 4/24: sects. 4-5, pp. 486-493

The notes below are intended to supplement the brief comments on Hart in Culver’s introduction (pp. 458f).

• §1 is mainly an introduction to the issues, but note Hart’s rejection of the idea that disputes about whether international law is law are merely verbal; Dworkin has accused positivists, like Hart, of making (in other contexts) the sort of move that Hart criticizes here.

• Notice that Hart responds to two different arguments in §2, one concerning the simple absence of sanctions (pp. 479f) and the other concerning divergence from what Hart has called the “minimum content of natural law” (pp. 480-482). Be sure to think about each argument and Hart’s responses to it. (Although Hart here has in mind his discussion of the “minimum content” in The Concept of Law, there is a briefer discussion of the same ideas in the paper included in Culver’s anthology, pp. 139f.)

• Here are two things to think about regarding §3 (which is, in some ways, the most important section of the chapter):

• Is Hart right in saying (see, for example, p. 484, col. 1) that the concept of international law is more fundamental than that of sovereignty (rather than vice versa)?

• What are “voluntarist” theories of international law and what are Hart’s (three) arguments against them?

• Although Hart makes a number of references in §4 to ch. V of The Concept of Law, which is one of the selections you have read, he has mind primarily a series of distinctions between morality (in the sense of what Austin calls “positive morality”) and law that he discussed later in the book. One of these is the distinction in the kind of social pressure associated with the rules of law and morality (a distinction he makes in ch. V—see Culver, p. 150, col. 2); but he adds several others in ch. VIII: rules must be important to be part of morality but need not be important to be part of the law; the law is open to deliberate change but there is no way to decide to change accepted morality; and although it is possible for legal liability to be strict, some form of fault is required for moral offenses. These features are designed to distinguish ordinary municipal law from morality, and they don’t all work for international law. In §4, Hart looks at the ways in which a distinction between law and morality can be made in the case of international law. Which of differences he mentions here seems the most important?

• The focus of §5 is the difference between Hart’s views and those of Kelsen (who would agree with many of the things Hart has said so far). In particular, Hart criticizes Kelsen’s claim that international law, as a legal order, has a rule of recognition (or, in Kelsen’s terms, a “basic norm”). It’s worth thinking through the “two comments” in Hart’s last sentence; they sum up not only the discussion of this section but of much of the whole chapter.