Theorists Austin Hart Dworkin Holmes

Theory Legal positivist Legal positivist Interpretivism / Realist

formalist
Definition of law Command of the Laws are rules or Laws are made up The law is what
sovereign backed series of rules of rules and moral the judges says.
by sanction (principles) Laws are
predictions of
what the court
will do.
Break down The sovereign is Laws are made up Laws must conform The actual
source of law. of primary and to morality of the meaning of law
secondary rules people to be (text) is
Primary rules: grant obeyed. uncertain.
The sovereign is the right and impose Morals or principles
uncommanded obligation are standard to There is no logic
commander (Above Secondary rules: observe as to law.
the law). rules of requirements of
recognition(validate justice and fairness. Judges deduce
Law is made by law) The nature of legal and also apply
political superior to Rule of argument lies in the induction to law
be binding on the change( amendmen best moral Laws are
political inferior. ts) interpretation of prophesies of
Rule of existing laws. what the court
Law is separate Adjudication will do.
from morals or (judgement) Principles have general
what is deemed Judges used dimensions that propositions (The
just. discretion when rules do not have, written text) do
there is no can be applied not decide
specified law on a when necessary. concrete cases
case.
Law must be Law is embedded in
generally accepted. morality. Flows
Separate law from from morality.
morals.
Validation of law Social facts Social fact. Validity is
Sourced from the By their pedigree, Validity of law is determined in
sovereign (king) or when the rule based on its Moral the court room.
followed accepted superiority on a Character of the
procedures. case. judge in
question.

Legal obligation Legal obligation is Based on what the Legal obligation is Legal duty is
Based on threats law says. ( bound connected to moral prediction that
one faces for by rule) based on obligation one will suffer by
disobeying . the generally judgment of the
accepted rule court for an act
Judges discretion - Judges Judges have Judges have no Judges judge by
discretion discretion in hard discretion, they prejudices,
cases apply morals which discretion.
are already laws. No objectivity of
This ensure courts
objectivity.
Summary The law is not Legal system is Laws are also made The law cannot
based on morals complex of rules up of legal be known prior
but the one from a which traces it principles. Laws to its
sovereign political validity to social goes beyond the interpretation by
head which comes fact ( the written letters or the courts. To say
with sanction to recognized sources recognized what the law is, is
force compliance. or procedures of documents but just to make a
Law is d pendent laws) based on underlined by prediction of
on it source not regular conduct and morals and made what the courts
based on internal views of up of morals. will do. Judges
conception or acceptance. ought to try to
merit.(positivist) advance the
public interest.
Criticisms Stability and Individuals have Do judges have Uncertainty on
continuity. rights before capacity to discover th law makes
Does the law break written laws. the right principles. citizens loose
down when the (Rights precedes confidence that
sovereign dies? In a legislation) How do we the law ability to
legal system there If judges uses their determine the protect them.
is continuity of law. discretion in hard weight of a Will a contract
De-psychologize cases then they principle or made today
law ( law should have become law morality in a case. mean the same
not be the wishes makers ( breach thing tomorrow?
and desires of a separation of (My personal
sovereign) powers) objection) bold text Such perception
Authority. Law is about legal
more of respect Judges making laws system will not
than fear of in hard cases give assurance to
sanction commit ex post reasonable
facto law standards and
In a legal system fairly treatment
the law applies to in any court.
the law makers
too(range of
application).
Some laws are not
backed by
sanctions ( power
conferring by laws,
laws on contracts
or legal relations)

Blurs obliged with

being obligated
Obligation in the law is legal and obligation to the law is moral . Legal obligations are legal
requirements which the law subjects are bound to conform . An obligatory act is what the law
renders non-optional. It is necessary that if a law applies to a person , the person has a legal
obligation to do something is just the assertion that there exist a law requiring him to do it
under whose jurisdiction he falls.

The real issue in prima facie obligation is whether we have a moral obligation to fulfill our
legal obligation.

Argument for prima facie obligation

1. It is the nature of law to be obeyed. It is therefore absurd to ask whether you are obliged to
obey it.

Voluntarist account
There is no objectively prescriptive obligation to obey the law, for the simple reason that
there are no objectively prescriptive obligation at all.

Non voluntarist
A theory of political obligation is non-voluntarist if its principles justifying legal authority do
not invoke the choice or will of the subjects among its reasons for thinking they are bound to
obey

Consent based account : the right of all sovereign is derived from the consent of everyone of
those to be governed

Expressive account : we are bound to obey because that is an appropriate expression of

emotions .we have good reasons to feel gratitude to the law for it gives us . respect it good
faith as effort to guide us

Fairness: if others obey the law to our benefit we owe them a duty not to take a free ride on
their compliance.

Consequential account: we must obey the law because of the consequence of disobedience

Criteria for successful account of obligation should be general, comprehensive.

Argument against legal obligation.

There is no general obligation to obey the law nor even in prima facie nor even in a just
society. Obligation to obey the law is is incompatible with moral autonomy. If one retains his
autonomy by reserving to himself the in each instance the final decision whether to co
operate , he there by denies the decision authority of the state . if on the other hand , he
submit to the state and accept its claims to authority then he loses his autonomy.

Others
The fact that I benefit from the govt does not give it right to dictate all my behavior.

Legitimate authority of government should separated from moral right to obey laws
Prima facie obligation . Subject have prima facie obligation to obey particular laws when it
has serious out ward consequences but the subject have no prima facie obligation to obey all
it laws

. Attempted crime
There is attempted crime when
1 . The individual intent to
2. Takes steps towards the crime
3. Goes beyond mere preparation to commuting the crimes
4. Goes some distance towards completion of the crime

The difference between crime and attempted crime is moral luck.

Punishing attempted crime

Giving same sentence of attempted

and completed crimes, argues
they have done so on the grounds that there is no moral luck and so often no difference in
moral culpability between those who try
and fail.

Proscribing attempts
solves a problem only by reintroducing the very same problem.

counter argument
It is very difficult, that is, to do both of the following two things: (1) deny moral luck in the
way required to support the justification just described
for the practice of criminalizing attempts, and (2) adequately justify, along the lines
suggested by the appeal to the evidential
role of acts, the fact that the crime of attempt requires an act.