| Phi 213 Spring 2016 |
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The two parts of this assignment follow a rough division in Hart’s chapter between his consideration of arguments to the effect that international law is not law and his own account of its character.
Topics for Wed. 4/20: sects. 1-3, pp. 213-226
• §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. 217f) and the other concerning divergence from what Hart has called the “minimum content of natural law” (pp. 218f). Be sure to think about each argument and Hart’s responses to it. (Hart here has in mind his discussion of the “minimum content” in ch. 9, pp. 193-200.)
• Here are two to ask yourself regarding §3 (which is, in some ways, the most important section of the chapter):
• Is Hart right in saying (see, for example, p. 224) 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?
Topics for Fri. 4/22: sects. 4-5, pp. 227-237
• Although Hart makes a number of references in §4 to ch. 5, he has mind primarily a series of distinctions between law and morality (in the sense of what Austin calls “positive morality”) that he discussed ch. 8, pp. 173-180. I’ll summarize them as follows: (i) rules must be important to be part of morality but need not be important to be part of the law; (ii) the law is open to deliberate change but there is no way to decide to change accepted morality; (iii) although it is possible for legal liability to be strict, some form of fault is required for an action to be morally wrong; and (iv) the two systems of rules (i.e., legal and moral) are associated with different forms of social pressure. 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 the differences he mentions here seem 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 much of the whole chapter.