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Jurisprudence
Leo’s Readings Week 2
Content
- Notes from every page from both readings in
simplified language
- Background on Fuller and Hart
- Summary of their arguments
- Additional analysis
‘Positivism and the Separation of Law and Morals’
Hart
(Prescribed: page 606-615)
- A law says that you can't drive a car into a public park. Obviously, this doesn't allow
cars, but what about bikes, roller skates, and toy cars? But what about planes? Are
these things "vehicles" for the rule's purposes or not?
- There must be a core of clear meaning, but there will also be a penumbra of grey areas
where words are neither obviously right nor obviously wrong.
- If we want to say whether or not new facts fit into the existing rules, the classifier must
make a decision on his own
- Situations don't come to us neatly labelled, folded, and creased, and their legal
classification isn't written on them so the judge can just read it off.
- Instead, when applying legal rules, someone has to decide if the words in question cover
the case at hand or not taking into account all of the practical effects of this choice.
- We can call problems that don't fit neatly into standard cases or meanings "problems of
the penumbra."
- If there must be a penumbra of uncertainty around all legal rules, then it can't be a
matter of logical deduction to apply them to specific cases in the penumbra area.
- This means that deductive reasoning can't be used as a model for what judges should
do to bring specific cases under general rules.
Jurisprudence
Leo’s Readings Week 2
Content
- Notes from every page from both readings in
simplified language
- Background on Fuller and Hart
- Summary of their arguments
- Additional analysis
‘Positivism and the Separation of Law and Morals’
Hart
(Prescribed: page 606-615)
- A law says that you can't drive a car into a public park. Obviously, this doesn't allow
cars, but what about bikes, roller skates, and toy cars? But what about planes? Are
these things "vehicles" for the rule's purposes or not?
- There must be a core of clear meaning, but there will also be a penumbra of grey areas
where words are neither obviously right nor obviously wrong.
- If we want to say whether or not new facts fit into the existing rules, the classifier must
make a decision on his own
- Situations don't come to us neatly labelled, folded, and creased, and their legal
classification isn't written on them so the judge can just read it off.
- Instead, when applying legal rules, someone has to decide if the words in question cover
the case at hand or not taking into account all of the practical effects of this choice.
- We can call problems that don't fit neatly into standard cases or meanings "problems of
the penumbra."
- If there must be a penumbra of uncertainty around all legal rules, then it can't be a
matter of logical deduction to apply them to specific cases in the penumbra area.
- This means that deductive reasoning can't be used as a model for what judges should
do to bring specific cases under general rules.
