Austin: Legal Positivism

PHIL 310

How does Austin define law?

Law is a general command of the sovereign.

What is a command?

A command is a signification of desire backed up by a threat (with that threat being either explicit or implicit).

Laws for Austin are a species of ____ _____ by a ______ .

Laws are a species of general commands by a sovereign.

The presence of what obliges one to preform an action?

A threat

Commands may oblige, but may not be laws unless…

they are general, pose a threat, and are given by a sovereign.

What is a sovereign according to Austin?

The sovereign is the person or determinate body of persons who are habitually obeyed and not under obedience of anyone else.

What is the legal positivist view of law?

• In order for something to be a valid law, it need not conform to any moral or common view (i.e., Nazi laws are still laws).

• As long as they are issued by a sovereign, and backed up by threat, it is a law.

T/F: For Austin, it is not essential for the law to be made for the common good.

True.

(If the sovereign wishes to remain in power, he will not want to egregiously disobey morality/the common good because he knows this will lead to backlash and revolution, but he doesn’t need to — it would be in his own self-interest.)

T/F: Distinction between common good and morality is not relevant when creating law in the positivist view.

True.

(Austin is attempting to simplify things with his view by saying we need not appeal to any notion of ‘natural rights’ or ‘justice’ ; we as judges only need to look at what the law says → the law is simply what the sovereign has commanded)

What is the relevance of custom in Austin’s view?

• It poses a problem because it grows from the general body, not originally from a sovereign power.

• Custom can sometimes seem to have force of law, enforced by judges, but not always.

• For custom to be a law, the sovereign can apply it tacitly.

What is a tacit command?

When a subordinate person of authority (i.e., a judge) makes a rule, the sovereign can passively accept it through non-interference, turning it into law/statute.