Test prep

There will be a short test on Thursday, February 12. There are a set of instructions on Sakai.

These are some notes to help you get ready.

Chronology

The hardest thing about the way I organized the syllabus is that the realists (Holmes and Frank) come in the middle of the Hart reading. But Hart was actually responding to both Austin and the realists. The dates will help to keep things straight.

• Austin: 1832
• Holmes: 1897
• Frank: 1930
• Hart: “Positivism and the Separation of Law and Morals,” (1958); The Concept of Law (1961)
• Dworkin: 1967

Our readings for Hart mostly come from the second edition of The Concept of Law, published in 1994. This is identical with the 1961 edition except for a postscript at the end. The postscript contains material Hart was working on when he died. Among other things, it includes some ideas about how to respond to Dworkin’s arguments.

Zoology

Name: label, answer to “what is law?”

• Austin: positivist, commands of sovereign
• Holmes: realist, judges
• Frank: realist, judges
• Hart: positivist, union of primary and secondary rules
• Dworkin: no label, law includes principles and not just rules (Dworkin did not advance a comprehensive theory of the law in this article. He did that almost twenty years later in a book called Law’s Empire (1986).)

I have been asked several times for a definition of positivism that would explain why Austin and Hart both count as positivists. I have looked but nothing I found was more informative than just saying that Austin believes laws are commands of a sovereign while Hart treats them as rules.

That said, Dworkin’s discussion of positivism in the second part of his article struck me as both interesting and informative. If you want to pursue the question of what exactly Hart and Austin have in common, that is a good place to go.

Hart (and Austin) agreed with the realists about the importance of separating law and morality. Dworkin disagrees.

Hart and the realists partly agree that judges legislate; Hart thinks the realists vastly overstate the extent of this, however.