Legal Theory 5th Week Assignment

Legal Theory Autumn Term 2022-23
G. 72 Law and International Relations.

Prof. Victoria Roca
Week 5 11th-14th of October
Lesson 4 Law and Morality
NOTICE : We will cover The problem of the relationship between Law and Morality.
Social Morality and critical morality. The arguments of Natural Law Theory, Legal
Positivism and Postpositivism.
To read/study
Tuesday
• Fuller, J. (1949): The case of the Spelucean Explorer, Harvard Law Review.
• Read Paragraph “Iusnaturalismo y Iuspositivismo”, in chapter 4, Derecho y
Moral, Atienza’s El sentido del Derecho.
To prepare Class Activity:

Give an account of the fact of the case of the Spelucean explorers and a short
characterization of the main line of reasoning of each minister of the Court.
Give an account of the case “Si yo fuera presidente” and the challenges
involved thereof. NOW IN THE CINEMA: ARGENTINA, 1985. [The theoretical-
practical frame for the trial against the Argentinian military regime during Alfonsin
presidency of Democratic Argentina particularly involves the content of Lesson 4
covered during this week]
Friday
• Wacks, R. (2014): Philosophy of Law. A very short introduction, Chapter 1, 2 and
3.
Background Material: Atienza, M. El sentido del Derecho, cap. 4 Derecho y Moral.
TO STUDY: Please Follow the indications to relevant pages. Otherwise, note that to be
prepared to give an answer to the following topics is a requirement to reach sufficient
knowledge of the program and to pass the course.
1. Natural Law. Read “Introduction [1-7]”, “The fall and rise of Natural Law” “Lon
Fuller: The inner morality of Law” “Contemporary Natural Law Theory” in chapter 1
Philosophy of Law. A very short introduction. Make a 3-4 pages outline with the main
ideas under those tittles (3-4 pages aprox.).
2. What is the relationship between the happenings during Nazism, the second world
war and the renaissance of Natural Law?
3. Legal Positivism. Read “Introduction [25-26]”, “Law as commands: Bentham and

Austin [27-28, 30-33]”, “Law as social rules: H.L.A. Hart [33-39] in chapter 2
Philosophy of Law. A very short introduction. Make a 3-4 pages outline with the main
ideas under those titles. Why is this school of thought called positivism? Why the
claim that Law ought to meet certain minimum content of Natural Law does not
challenge Hart’s positivism? When you study these pages make sure you understand the
difference between Austin/Bentham command theory and Hart’s normativism (internal
perspective, critical reflective attitude).
4. Postpositivism. Read “Introduction [49-51]”, “Hard cases [51-55]”, “Principles and

policies [55-57” in chapter 3 Philosophy of Law. A very short introduction. Outline
Dworkin’s main contributions to the understanding of the Legal Phenomenon (3 pages
aprox.).
5. Dworkin’s approach to Law (its concept, its content and limits) is called post-
positivism and it takes some ideas from the natural law theory (the Law and Morals
connection) and some from the positivistic one (Law is a social phenomenon; not an
idealisation). Atienza’s approach follows this path. Read “¿Es aceptable la tesis
positivista de la separación entre el Derecho y la Moral?” excerpt “Pero hay quizás
mejores razones a las que cabe apelar para no considerar […] no serían sistemas
jurídicos”, “La conexión (y la separación) necesaria entre el Derecho y la Moral” in
chapter 4, and “El postpositivismo: R. Dworkin”, “El paradigma constitucionalista” in
chapter 10. Try to characterize the main lines characterizing post-positivism as different
to Natural Law and Positivism.
6. Analyse the position of each minister from the Spelucean explorers trial under
the light of the ideas explored in the questions above (Natural Law, methodological or
conceptual positivism, ideological positivism, postpositivism).
7. Make sure you can characterize the differences among: Natural Law Theory,
Metholodological or conceptual positivism, ideological positivism, and
postpositivism.

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Legal Theory Autumn Term 2022-23

G. 72 Law and International Relations.

Week 5 11th-14th of October

Lesson 4 Law and Morality

To prepare Class Activity:

Background Material: Atienza, M. El sentido del Derecho, cap. 4 Derecho y Moral.

3. Legal Positivism. Read “Introduction [25-26]”, “Law as commands: Bentham and

4. Postpositivism. Read “Introduction [49-51]”, “Hard cases [51-55]”, “Principles and

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