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LWSO 201 Lecture Notes - Social Forces

Law and Society
Course Code
LWSO 201
Marywyatt Sindlinger

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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
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
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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
Austin defined commands and sovereigns, but did not look up from the paper
to society’s actions like Hard
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
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