John Austin. A Positivist Conception of Law.
What is the central question?
What is law with respect to the ruler and the governed?
What is the quick summary
Law as posited by superiors.
What is the evidence?
Law (properly so called) is understood as something set by political superiors to political
inferiors. The hierarchy of society dictates law. Note how this relates to material
circumstances. How legal significance will follow is through a negative sanction: the
power of effecting pain on others. One who can oblige another to comply is his superior.
Law must be given to a rational being. This forms the question: what is a rational being?
Does rationale not constitute something more than the adherence to a sanction? Is this not
where Kelsen would object? Austin states “For where intelligence is too bounded to take
the name of reason, he is too bounded to receive the purpose of law” is this not a form
Austin reinforces the Separation Thesis by asserting that morality servers from positive
law, referring to the former merely as the law of God. Laws improperly so called, ie.
related to fashion and honour, are mere opinion so where laws lack a sanction, it is
Every law is a command. A command is not a simple imitation of desire. But it MUST be
coupled with a negative sanction Therefore, law is not efficient due to a probability of
consequence but by a negative sanction