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Law and Society
LWSO 201
Marywyatt Sindlinger

Legal Positivism (1700s, 1800s) 1) Basic Principles of Legal Positivism • Opposite of Natural Law Theory a) Law is a social construction • Law is a social contract and depends on social structures (court and enforcement systems) • It’s authority/legitimacy comes from social institutions (it works for us in society and that’s why it has legitimacy) • Morality is a secondary question b) Separates the issue of the existence of the law from the moral content of the law • Law’s existence is a separate question from whether it adheres to moral universal principles c) 2 distinct questions i) The existence of the law ii) The moral value or worth of the law 2) John Austin – Command Theory of Law a) Law exists in societies with a sovereign who issues commands and where those commands are obeyed by most and where the sovereign is obedient to no one b) Commands i) A command is an expression or intimation of a wish that you do or refrain from doing X coupled with or backed by the commander’s will and ability to visit evil upon you if you fail to comply • All laws are commands of some sort; if it’s not a command – it’s not a law • Command – a wish followed by a threat, if there is no threat it’s not a command – only a wish • Two types of commands: General or Particular • General: Austin says laws need to have a general content to them and not be specific c) Duties • You have a duty to obey commands and if you don’t you have disobeyed and this leads to a sanction • Commands give rise to duties d) Sanctions • There is always a sanction • Never involve positive rewards, only negative e) Sovereign • Superior – power of affecting others with evil (threat and application of force) • The person who can oblige another to comply to their commands is the superior of the other one • Independent body of some sort that the bulk of society obeys but the individual himself does not obey anyone else • Limited and reciprocal – power is kept in check through checks and balances (if they do too much, their subjects are going to revolt) ex. We give power to the government of Canada, but if they take it too far, we can vote them out of progress • Austin defined commands and sovereigns, but did not look up from the paper to society’s actions like Hard Critiques: • Some laws do work with commands and sanctions, but it’s not always a gun to the head situation (ex. Rights and freedoms are simply permissive, legal framework doesn’t involve force or sanctions) – simply this theory does not fit with all areas of the law (ex. Wills and estates) – it’s not always about commands and coercion and evil isn’t always a natural consequence • Sovereigns are obeyed, but it doesn’t work in Canada or England because we have elections (new body of people) so we have questions like how long we have to wait to obey them and all of this (we didn’t have to give them 6 months to obey them we just did instead of getting in the habit to) obituary obeying. Response: we obey the government as a whole not just who happens to be sitting there at the time • Legislative officials also must obey the law (sovereign is constrained on making laws – Austin doesn’t deal with this) • Everyone has a superior and an inferior (it isn’t a simple vertical relationship) 3) H.L.A. Hart (1907 to 1992) • Professor of jurisprudence (the study of law) • Loved rules and believed in the idea of “what is a rule” • Thought rules were the most central and fundamental aspects of law a) Problems with the is-ought fallacy b) Critiques of Austin’s command theory • Only having primary rules of obligation is an incomplete law system (we must have secondary rules also) • Hart says Austin only tells us what we can’t do and what happens if we disobey and this isn’t enough c) Emphasis on Rules and types of rules • Rules of obligation – Hart says there is a big difference between being obliged to do something (feel like you ought to have done it or guilt if you didn't) and an obligation (rules) to do something • We have this obligation because it makes certain types of behaviour the standard in our society and we internalize this standard (I have a duty to do this because it is the right thing to do) • Three things to know about rules of obligation: • 1 – rules impose obligations: when the general demand for conformity is high, there is great social pressure in those who deviate • 2 – rules supported by this social pressure are important and necessary for the maintenance of life • 3 – following these rules sometimes d
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