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Lecture 2

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Department
Philosophy
Course
PHL271H1
Professor
Thomas Mathien
Semester
Fall

Description
Sept 19 2013 Ethics and the law Lecture 2- Theories of Jurisprudence, Legal Positivism updated Legal Positivism • John Austin views in 1832 - The province of jurisprudence determined - A law in its most general meaning may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him, the rule is going to be a certain kind of act of communication. Some laws might be god’s law - Specifically interested in cases where people command other people, cases where we have a human political superior directing human political inferiors - Can think of this as involving someone called a sovereign (law giver) and a subject (law follower) - Call the process the giving and enforcing the law government - Has to happen in independent units (if dependent, have to get gratification from a hierarchy) - Has to be some kind of communication, one species has to issue commands, for Austin, the law is a specific kind of command - “Every law or a rule is a command, or rather laws or rules properly so called are a species of command” - A command is a signification of desire but Austin said something else must be added , has to be a consequence(sanction) that can be applied if the command is not carried out and also have the power and purpose to deliver the sanction - Without the power, disregard all that we have - Once the command is there in its full bodied sense with the sanction and the intent of the expresser of the command who imposed the sanction then you have a “duty” - To have a duty is to confront a wish that you want to do something and be under a threat is you don’t, use duty or obligation as a sociological term, to have a duty is to be in a position with a governed activity and respect you and need be will, apply the sanctions - The command be a general command (if not, just order, example: king tells his cook to prepare lunch) - Law will apply to everyone in a certain circumstance - Political superiority is primarily a superiority of a power, power of affecting others with evil or pain and enforcing them with fear of that evil - Group of subjects who are habitually compliable with the law, reflection of power politics - The sovereign or superior (law giver) is not himself/herself/themselves in a habit of obedience to some other human or unit, “is the uncommanded, commander” - Austin says it doesn’t have to be one individual, could be multiple people or a committee or a parliament - Fear the threat and there is broad compliance (kissing children on Sunday in a state) - As long as there was sovereign in that place that would enforce the law, then there would be a law (but just in that place) – deals with international boarders and different laws • Revisionist approach by H.L.A. Hart in 1962 - Most influential jurisprudence of the law - Took insights in response to Austin’s and he managed to develop a new version of legal positivism - Managed to deal with the problem of sovereigns who also used to be citizens - Theory about law which doesn’t require states, there were societies with legal systems but no state like political systems, good theory of law should be a general theory of law - Supports the idea that law and morals are separate things, Jeremy Bentham “in matters of law, one ought to obey punctuality but to censure freely “ - Minimal principle: 1 - just because a rule is immoral doesn’t mean it’s not a rule of law, 2 - - Footnote on page 52 and 53: traditional l
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