In class on Tuesday, we discussed the basic principles of the jurisprudence of both Dworkin and Hart. We started creating the mock trial around Dworkin's example of a 'hard case,' Riggs v. Palmer.
One of Hart's biggest pros, which we discussed on Tuesday, was the idea that even a positivist can (partially) remedy hard cases, by creating more/specific laws that combat extenuating circumstances. Of course, I think we conclusively argued that this idea does not entail the creation of a law which states "no man ought to benefit from his own wrong." The political and moral charge in those words and their relative ambiguity would create nightmares for judges.
What Hart would argue would be to created laws or contracts which included a clause, specific to the beneficiary, which would prevent him or her from illegally acting to "legally," gain an inheritance.
Thoughts/new ground covered Thursday?
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ReplyDeleteI think that's what we see represented in law today. e.g.,(http://le.utah.gov/~code/TITLE75/htm/75_02_080300.htm)
ReplyDeleteThough Palmer wasn't awarded the inheritance, there are other instances in our legal system whereby persons who murdered their benefactors were awarded their inheritance, though I'm noticing not directly, e.g., sometimes the inheritance went to another family member. Hart's proposition is intriguing and I'm not certain if he trusts interpretation any more than most reasonable persons might. I think we might refer to a general principle in positivism to form universal rules, but Hart might call these facts. Is Hart's valid rule a disguised morality: valid precisely because it is a social norm, or fact?
It might be. He would of course avoid describing it that way, and might use the relativist dodge that from the law's point of view it is merely a FACT that something is a social norm, but I think at that point at least one skate has gone through the ice...
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