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Interpretation and Obligation: Foundations of Canadian Law 2009

Foundations of Canadian Law 2009, week 9

Desmond Manderson

on 15 August 2012

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Transcript of Interpretation and Obligation: Foundations of Canadian Law 2009

Interpretation and Obligation HLA Hart:
"Separation..." Lon Fuller
"Fidelity" Concepts:
Obliged v. obligation
Primary v secondary rules

Is v. ought
Core v. penumbra Examples:
'no vehicles in the park'
'The US President must be 35'
the mushroom case (Ontario) Quotes: "if we are to communicate with each other at all...then the general words we use (like vehicle in the example I consider must have some standard instance in which no doubts are felt about its application... There must be a core of setlted meaning but there will be as well a penumbra of debatable cases (607) "We say to our neighbour 'you ought not to lie and that may certainly be a moral judgment, but we should remember that the baffled poisoner says, 'I ought to have given her a second dose." (613) Concepts:
Penumbra AND core
Is AND ought

The circle and the line
Interpretation, norms, and 'fidelity to law' Examples:
The jeep in the park
Wittgenstein Quotes: "law cannnot be built on law" “On the one hand, we have an amoral datum called law, which has the peculiar quality of creating a moral duty to obey it. On the other hand, we have a moral duty to do what we think is right and decent. But this is like saying I have to choose between giving food to a starving man & being mimsy with the borogoves.” (656) The Morality of Law: Gesetz als gesetz
Is positivism morally good or morally evil?

The case of the Nazi informer
theory v practice
reading v context
yes/no v a matter of degree Hart - the outsider's view: we have an obligation because we 'know what law is'
Fuller - the insider's view: we have an obligation because we 'help build what law ought to be'
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