necessary for officials to have plans - they can always be using all things considered reasoning (ex: Ill do what the queen says cause I need a pay check, and it is easy to do, and blah blah blah) So Shapiro’s theory seems different from Hart’s. Also different from Dworkins theory because for Dworkins theory you are always using all things considered reasoning to draw out the moral elements from legal practices, so you are always thinking about associative obligations. Further, just because the matter has been settled in the past doesn't mean it was settled correctly, so you always reconsider for Dworkin. Exclusive Legal Positivism because laws are plans, it is not – possible for morality to be law. Why? because plans settle matter, that is the essence of a plan. So what is the problem? Laws try to settle moral problems/questions. This is where we get SLOP. Figuring out the existence and content of a plan cannot require consideration of the matters the plan was supposed to settle. Ex: stop smoking if stopping smoking is “Ill the right thing to do” that's not a plan. When you adopt a plan of what to do you are settling what you are doing. a plan SO would be: stopping smoking.” this “Im settles the matter Since law/plans is supposed to settle morality questions, morality cant be part of the law. Two examples: 1) Montana speed limit example. Proper speed is a reasonable rate of speed. Montana has adopted a moral standard as the law, an exclusive legal positivist will say that that standard cant be the law because it didn't settle anything. People were already required to drive a reasonable rate of speed so nothing new has been settled, so that standard isn’t law. 2) Due Process Clause: equal protection and due process themselves cant be law
necessary for officials to have plans - they can always be using all things considered reasoning (ex: Ill do what the queen says cause I need a pay check, and it is easy to do, and blah blah blah) So Shapiro’s theory seems different from Hart’s. Also different from Dworkins theory because for Dworkins theory you are always using all things considered reasoning to draw out the moral elements from legal practices, so you are always thinking about associative obligations. Further, just because the matter has been settled in the past doesn't mean it was settled correctly, so you always reconsider for Dworkin. Exclusive Legal Positivism – because laws are plans, it is not possible for morality to be law. Why? because plans settle matter, that is the essence of a plan. So what is the problem? Laws try to settle moral problems/questions. This is where we get SLOP. Figuring out the existence and content of a plan cannot require consideration of the matters the plan was supposed to settle. Ex: “Ill stop smoking if stopping smoking is the right thing to do” that's not a plan. When you adopt a plan of what to do you are settling what you are doing. SO a plan would be: “Im stopping smoking.” this settles the matter Since law/plans is supposed to settle morality questions, morality cant be part of the law. Two examples: 1) Montana speed limit example. Proper speed is a reasonable rate of speed. Montana has adopted a moral standard as the law, an exclusive legal positivist will say that that standard cant be the law because it didn't settle anything. People were already required to drive a reasonable rate of speed so nothing new has been settled, so that standard isn’t law. 2) Due Process Clause: equal protection and due process themselves cant be law
2018PhilLawNotes24.docx