| Phi 213 Spring 2016 |
|
(Site navigation is not working.) |
This assignment includes a somewhat disparate collection of material all related to Hart’s views on the dispute between natural law theory and legal positivism.
We will be focusing on two ideas from ch. 9. The first concerns areas in which law and morality overlap due to what Hart speaks of as a “natural necessity” (p. 199). The second is a discussion of the extent to which each of natural law theory and legal positivism provides support for criticisms of legal systems.
• In the last paragraph of §1 of ch. 9, Hart prepares the way for his discussion in §2 by describing the sense in which and the limited degree to which he thinks a system of law must seek the common good (pp. 192f).
• He then goes on to outline the content of this minimal natural law theory in §2 (pp. 193-200). Think about his list of 5 connections between individual aspects of the human condition and features of legal systems. Has he got the right list? That is, are the features that he points to in legal systems really all required for them to serve the functions he is describing? And is there anything of the same sort missing from his list?
• In §3, Hart considers a series of arguments for a closer connection between law and morality than he has granted in §2. We will look only at the last of these (pp. 207-212). Although the issue he considers there is a broad one, he looks at it by way of a particular example. He describes this example on p. 208 (though be sure to follow his reference to a later note, pp. 303f, to get the history right). In assessing Hart’s argument about this issue, think not only about the historical case but also about his general claim (at the end of p. 210) that the perspective provided by legal positivism is more conducive to moral resistance to unjust law than is the perspective of natural law theory. You might compare this with the views expressed by Austin in the final note to his fifth lecture (at the end of the Lecture V handout, pp. 215f) as well as Aquinas’ discussion of the issue in Summa Theologiae I-II, q. 96, a. 4 (item 22 on p. 7 of the handout of natural law selections).
Although your assignment is all from ch. 9, there is some further material relevant to it in ch. 8. Hart there considers some common features of law and morality, and you can find a summary of these at the middle of p. 172. He also considers four differences between law and morality, which appear as numbered points in the remainder of §2, pp. 173-180. We will return to these ideas late in the course because they are important for Hart’s discussion of international law.