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Lecture 19

Philosophy 34-226 Lecture 19: Lectures 19-20 on Legal Positivism

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Lecture 19-20 on Legal Positivism John Austin  Early/mid 19th century, englishman, utilitarian, normative thinker  His work on positive law is a critic of natural law  The law is primarily about power and coercion, not reason  Austin puts coercion as the core while Aquinas puts coercion to the side  "Is/ought" distinction  he is interested in what the laws are, looking at the laws that had already been made to figure out the social utility  The law will not transform, will not make you a better human being  Sanction is a penalty; if you break a law, you receive a penalty  He tries to find out if the law has an effect on people  He gives the laws a scientific point of view (legal realism)  Analytic jurisprudence  the study of law, not normative (to ought to do, not ought to do)  This is about stats and analyzing criminology, dissecting the law (what is a sanction? What is a duty?)  he tries to describe the law as it already exists  Austin wants to give some consistence in laws  He calls his theory the command theory of law  Outline of Ideas o The province jurisprudence  to Austin, Aquinas is not doing anything but respecting the laws of the church  The law does not make you a better people; the law is not meant to be educative  This theory is about coercing people to behave, perfectly legal to coerce people  Not a retributist theory; does not concern with rational freedom  All it concerns is one's actions, external behaviour (a thing the state can influence you) John Austin  He argues that we should look at the law in a scientific approach, rather than the normative approach (what we should to do and not to do)  The law is coercing external behaviour, doesn’t care about your personality  legal positivism  Concerned about how we actually use language  His approach looks at how society already is  Analytic scientific  breaking things down from big components to small components like biology  Look at the laws that already exist and break them down to see how they work (utility function)  What is the relationship between command and sanction? The main goal/purpose  To clarify the distinction between law and morality  2 basic categories of Law o Divine Law: laws set by God for humanity o Positive Law: laws set by humans for humans  Austin refers human laws to positive laws; his main focus is positive laws, not divine laws  Positive Law  further sub-divided into 2 classes: o Positive law proper  laws established by men as political superiors to those subject to them (sovereignty & subjection)  Those who can command make the laws  Positive laws exist "by position" o Positive morality  rules not established by political  Laws created by a society  Not interested to this one  *what is common between divine law and positive law  command  Command  every law or rule is a command o Command has the notion of "evil" (which means a harm done) o A harm to an individual's liberal, not free to do what you are willed o The law is a negative, tells you how far you can go o Aquinas says the laws help you perfect your characters, Austin doesn't care about your character or what you do as long as you don’t cross the line  Every command implies a duty o We are all connected together o A duty implies command, duty  you are to follow the laws  The command is the expression of the wish  The duty is the liability to the threatened evil (ex. punishment) o you are liable for your actions  The sanction is the evil threatened (not the one threatened but the one given)  For Austin, these are the three essential elements of the law; if one is missing (it's not the law it's a general council) o The laws are to make sure you don't cross the line; thus, you need to know where the line is o Thus, Austin promotes the idea of the laws being written down Commands  What can issue commands? o What is a legitimate authority? Asked from the perspective of natural law. o Austin is different; not what is legitimate or who should command or shouldn’t? He asks who does actually command? o Austin asks who has power to issue commands o Answer: a superior; People in the majority  Who is a superior? What does superiority mean? o The person who has power, superiority base purely on power o Austin is simply describing what already exist, not what should be or shouldn’t  **For Austin, Positive law  A series of commands issued by a sovereign backed by sanction  Who can commands? Those with power  Aquinas puts coercion aside as an after thought; coercion should only be used for worst criminals  Austin puts coercion the centre piece of this theory  Liberalism  we have all the freedom as long as we harm no one nor cross the lines of the laws, breaking the law (Austin)  In legality  we are all subject to the laws  You follow the laws because you are exercising your freedom  The state has coercive power, but even the law makers are bound by the laws  Our thoughts cannot be controlled by the states  This version of the law tells us what we cannot do  negative freedom  The law is about power, this is where abuse power comes from  Natural laws and positive laws are often positive versions of each other  Positive laws are about power, not about reason like natural laws  There is no potential way of criticizing with the tradition (English monarch) o The whole thing is about power o Power is legitimated by more power; Causes power to grow  Legal positivism sets the foundation for the law  **Legal realism  the law is what the law is o "the law is what the judge had for breakfast" o Legal realism started 1930s o Solution to moral error  Appeal to morality, approach to the lawyers about morality o Persuasive power or moral persuasion  they might be the same thing  In Germany and the Holocaust, their laws are no longer legitimate for Austin  Aquinas thinks you cannot lose legitimate authority unless you die  "Theora" from Greek, theory means divine perspectives; in university, you learn theories (seeing things in a big pictures but misses the details; a mix of biases) o Theories are better, some are worst; thus you need to understand what the theories are, what they propose o Theories are a way of looking the world o No best theory because they are nothing more than a vision o Most theories are driven by self-interest, blindness, egoism (social approach of knowledge) o Law economic theories should be about wealth; if it isn't, it should be  Positive law  liberal tolerance discipline  lack of social order  Natural law tells you
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