Ep. 303: H.L.A. Hart on the Foundations of Law (Part Two)
The Partially Examined Life Philosophy Podcast
Mark Linsenmayer
4.6 • 2.3K Ratings
🗓️ 7 November 2022
⏱️ 52 minutes
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Summary
Continuing on "Positivism and the Separation of Law and Morals" (1958) and The Concept of Law (1961), ch. 5 and 6.
If law is not based on morality, then why obey the law? What makes a legal system exist at all, as opposed to a lawless state? Is saying something is legally required just a way of predicting that people will generally obey it?
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Transcript
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| 0:00.0 | This episode is sponsored by Betcher Help, the world's largest therapy service. |
| 0:04.9 | For more information, seebetterhelp.com slash partially. |
| 0:17.6 | This is the partially examined life episode 303 Part 2. We've been discussing HLAA Hearts |
| 0:23.0 | SA positivism and the separation of law and morals using ideas from his book The Concept of Law, |
| 0:28.6 | which we'll get more into chapters 5 and 6 of that. We were up to about section 4 of the positivism. |
| 0:36.0 | We're just finished for it didn't we? Yeah, I guess we were summarizing that. That was the stuff |
| 0:39.1 | about the Nazi regime. Yeah. He doesn't put it this way, but one of the critiques that I was reading |
| 0:45.6 | of heart, you know, the whole reason why people might think that there needs to be some |
| 0:51.6 | connection between law and morality is because you might think the whole purpose of doing a philosophy |
| 0:55.6 | of law is to figure out why law is actually obligatory on us. Right. And there's nothing in here. |
| 1:04.4 | It just says, well, it's a fact and people feel that it is. And that's hearts answer that there |
| 1:12.1 | is nothing more profound that you're going to dig in there. Whereas this guy in section 4, |
| 1:18.4 | this German philosopher Rod Bruch that we're talking about briefly, you couldn't feel that living |
| 1:26.0 | under an evil regime, you could not feel that those laws were obligatory on you in the same way |
| 1:32.0 | that in a rightly constructed society where laws are put in place for the common good that there's |
| 1:38.8 | something just sort of built into legitimate law itself, right? If law is functioning correctly, |
| 1:44.5 | you might want to even say if there is a functioning legal system, you know, that one of the characteristics |
| 1:48.2 | you might want to claim is that it is as a whole. And I think heart actually agrees with this |
| 1:53.3 | ultimately is built around if it is fundamentally like a think of evil alien colonizers or something. |
| 2:01.7 | And they set these laws for the people and they're entirely just about keeping the people down. |
| 2:07.0 | Yeah, there's a sense in which those laws exist. The colonizers wrote those down. You could judge |
| 2:12.3 | in the colonizers could say, yes, you've contravened this law, but this one not so much and they could |
... |
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