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Midterm

SOSC 2350 Study Guide - Midterm Guide: Charismatic Authority, Negative Liberty, Positive Liberty


Department
Social Science
Course Code
SOSC 2350
Professor
Amelie Barras
Study Guide
Midterm

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Austin (Created Positivism – Analytical/Normative Jurisprudence – Command
Theory):
Utilitarian alongside Jeremy Bentham - developed the legal theory of legal
positivism.
Austin believed that the purpose of the legal philosophy was to be separated into
two tasks: analytical and normative jurisprudence. Analytical jurisprudence was
the analyzing of law as it was written and normative jurisprudence was
considering social norms to determine law is it ought to be.
oHe saw that a failure to separate these two tasks would cause further
intellectual and moral confusion.
Analytical Jurisprudence (Austin): This is the legal theory that suggests judges
should only look at the law as it is in society. This is the judge looking at the law
as it is written and based on the exact wording of the law they must come up with
a decision. This form of jurisprudence is very strict and forbids the judge from
using judicial activism or any of their own experience. Analytical jurisprudence
suggests that judges are only present to read and understand the written law, and
that they shouldn’t legislate from the bench.
Normative Jurisprudence (Austin): This is the legal theory that judges must
look at the intention behind the laws based on the norms of society. This
particular form of jurisprudence involves the judges looking at the law through
their own experience determining what the law ought to be instead of what it is
written as. This form of jurisprudence is used for when the written law “runs out”
in specific cases. Under these circumstances the judges must use their own
discretion and step outside the written law in order to determine what the law was
intended for or what it “ought to be”.
Austin came up with legal positivism as a system in which laws are commands.
oHis command theory suggested that all laws are non-optional and that law
is a coercive method of social control that is significant in its desire and
ability to inflict evil, harm or non-satisfaction,
Austin specifically said that laws are a species of commands in the sense that it
must have a certain pedigree to have legal validity
oThis pedigree was expressed in the sovereign and that sovereign was to be
determined empirically.
Command theory of Law (Austin): This is a model of legal positivism that suggests
laws are a species of commands in the sense that laws must have a certain pedigree to
have legal validity. This theory focuses on the separation of commands based on their
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source. A sovereign (lawmakers for Austin) is seen as the only legitimate source of
commands, and therefore members of society must obey the sovereign’s commands. The
sovereign is to be determined empirically and the question of the source of the
sovereign’s legitimacy isn’t put into question. This theory forces us to say that we are
obliged (forced) to obey laws in regard to where we have no choice. This specific theory
sees commands (laws) as a coercive method of social control. For Austin, commands are
a significant desire and ability to inflict evil or harm non-satisfaction onto society’s
members, thus causing them to feel obliged when obeying commands. Therefore, the
commands have the power to impose sanctions.
Legal Positivism (Hart and Austin):
This is the contrary belief to natural law theory.
Contrary to natural law, legal positivism demands for the separation of law and
morality for the purpose of properly criticizing law and not simply obeying it.
The separation of law and morality also allows for the further development and
evolution of those laws. This way, judges need to focus not on what the law as
written is, but what the law ought to be (the ought doesn’t have to be moral).
In this approach human beings make law and the law can be constantly changing.
There are two types of legal positivism models: H.L.A. Hart’s and John Austin’s.
Hart had a civil model of legal positivism in which he viewed positivism as more
of a system of rules intended to systematically organize society to be properly
functioning. It viewed law as not evil and more for the purpose of civilized life
and complex institutions.
Hart’s system consisted of primary (rules about particular circumstances) and
secondary rules about recognition, change and adjudication of rules in a legal
system. In order for a legal system to work both rules had to be present. Austin’s
model of positivism focused more on laws being direct commands and the
lawmakers maintaining sovereign positions.
Hart:
Provided another perspective on legal positivism
Critiqued Austin‘s theory
Fatal confusion between concept of being obligated (under a duty) and being obliged
(forced) to do it
Austin‘s theory forces us to say that we are obligated or duty bound to surrender our
money to a gunman in a stickup
By Austin‘s logic (command theory) the gunman, because he issues a command, is
making law
People should feel obligated to obey the law, not obliged
Law as a system of rules
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Primary Rules: rules that tell people how to act in particular circumstances
Secondary Rules: rules about rules
A legal system needs a union of both types of rules
Mill (Rational Person, Critical Thinking, Harm Principle)
Mill is a liberalist who believes in the enlightenment of the “rational person” in
order to have proper productivity towards their own freedoms and goals.
oTherefore, in Mill’s legal system the government must have an
appropriate, minimum role when interacting in the lives of citizens in
order to enable them to excel, reach for their hopes and dreams and realize
their full talents
He believes that the world consists of a multitude of independent individuals who
have entered into a social contract to establish common ties for the common good.
A liberal society would consist of like-minded individuals who have equal voting
rights for the creation of values and ideals.
oHe sees people as a representation of voices. This can also include the
dissenting voice (minority vote). Mill actually considers it to be an
important insight that could contribute to society, laws and the
government.
Through the dissenting voice, Mill encourages critical thinking in
liberalism because it is an expression of reason and it forces us to
work on the over all freedom of society.
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