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Legal Positivism.docx

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York University
Social Science
SOSC 2350
Dena Demos

Legal Positivism John Austin: th  Legal Positivist theorist of the 19 century who believes that Law and Morality should be separate to avoid intellectual and moral confusion and offer a pedigree test for legal validity.  Analytical Jurisprudence: “Law as it is”  Normative Jurisprudence: “Law as it ought to be”  Austin’s theory is called the “The command theory of law”  The command theory: o All laws are commands. o Law is a forceful method of social control. o The commander expresses (1) desire and, (2) has the ability to inflict punishment if disobeyed. o The commanded is “bound, obliged or under the duty” to obey to avoid possible sanctions. o The concept of sanction seems more reasonable in criminal law to prevent people from doing certain things but it does not really work for Contract law. If you fail to fulfill the rules of contract law, no sanction is given. o Kelsen’s suggests: Punitive sanctions: punished by the state. EX: Criminal Law Privative sanctions: “being deprived of the enforcement of the state with respect to our transactions”  H.L.A Hart disagrees with sanction theories as he says it confuses the concept of being obligated (Under duty), and being obliged (Forced). EX: “Austin’s theory forces us to say we are obligated or duty- bound to surrender our money to a gunman”(17). This would make the gunman, the person making laws.  Austin then clarifies that law
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