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PHIL 348 - Austin: A Positivist Conception of Law.doc

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PHIL 348
Storrs Mc Call

Austin – A Positivist Conception of Law Law – a rule laid down for the guidance of an intelligent being by an intelligent being having power over him . Laws come in two forms: 1) Laws set by God to men 2) Laws set by men to men The second is that which Austin terms positive law, or “the aggregate of the rules, established by political superiors” over political inferiors (26). This is distinct to what Austin terms positive morality, which are rules set and enforced by popular opinion. COMMANDS Furthermore, laws or rules are a species of commands. Command – to desire one to do, avoid or desist from some act, and is complimented with a threat to inflict evil in the case of noncompliance with the desire “If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command” (27). “Command and duty are, therefore, correlative terms... wherever a duty lies, a command has been signified” (28). Sanction – the evil to be inflicted if a command is disobeyed. Furthermore, the probability of incurring a sanction is “foreign to the matter in question.” For “where there is the smallest chance of incurring the smallest evil, the expression of a wish amounts to a command, and therefore, imposes a duty” (28). This is because “no conceivable motive will certainly determine to compliance, [and] no conceivable motive will render obedience inevitable;” hence, to factor probability and compliance is to deceive oneself of reality (28). In addition, a command can only be thought of as a desire + a sanction, and NOT a desire + a reward. “It is the power and the purpose of inflicting eventual evil, and not the power and the purpose of imparting eventual good, which gives to the expression of a wish the name of a command” (29). “If a law hold out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed, upon those who shall act accordingly: The imperative part of the law being addressed or directed to the party whom it requires to render the reward” (28). Again, a command entails three components: 1) A wish/desire conceived by a rational being, that another rational being shall do/forbear 2) An evil to proceed from the commander, and inflicted upon the commanded, should the latter not comply 3) An expression or intimation of the wish by words or other signs A command is also related to the concept of duty/obligation (that which results from a command) and of sanction (the evil inflicted in cases of noncompliance of a command). PARTICULAR/GENERAL Commands can be further separated into two forms: 1) Particular Commands 2) General Commands Only general commands are laws. “If Parliament prohibited simply the exportation of corn, either for a given period or indefinitely, it would establish a law or rule: a kind or sort of acts being determined by the command, and acts of that kind
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