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POLI 341 (39)
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Austin Reading.docx

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Department
Political Science
Course
POLI 341
Professor
Storrs Mc Call
Semester
Fall

Description
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 of cognition? 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 imperfect. 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
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