Class Notes (839,459)
Canada (511,348)
Philosophy (120)
34-226 (35)
Falconer (11)
Lecture 19

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

6 Pages
141 Views

Department
Philosophy
Course Code
34-226
Professor
Falconer

This preview shows pages 1 and half of page 2. Sign up to view the full 6 pages of the document.
Description
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
More Less
Unlock Document

Only pages 1 and half of page 2 are available for preview. Some parts have been intentionally blurred.

Unlock Document
You're Reading a Preview

Unlock to view full version

Unlock Document

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit