What is law?

Answer 2: Legal Positivism

Single biggest problem with natural law theory?

Indeterminacy: disagreements about what is going to count as "natural law"

Also: if we assume law=morality then if we can get our law accepted and enforced then it may displace moral considerations

(e.g. this isn't illegal, therefore it must be morally acceptable)

Also: also, what happens if we disobey a bad law? The problem of obligation.

Question: can we derive an answer to "what is law?" by looking at the nature and structure of positive, human made law?

What is law like? What does it do?

John Austin works with the criminal law

First observation:

* laws or rules are intended to guide people

* they express a wish that something be done or not done.

Second observation:

* laws are a kind of command

* a command is a wish or desire that something be done or not done. This wish or desire is supported by the threat of some evil consequence in case of non-compliance

Third observation:

* the person who has been commanded has a duty or obligation to comply with the desire contained in the command.

Interim summary:

"He who will inflict an evil in case his desire be disregarded, utters a command by expressing or intimating his desire: He who is liable to the evil in case he disregard the desire, is bound or obliged by the command." (Austin)

Fourth observation:

* "the evil" that backs up a command is called a sanction(think: punishment)

* sanctions compel obedience (note that a reward is not a sanction; rewards motivate compliance with requests, but do not create a duty or obligation; not compelling in the same way)

Fifth observation:

* some commands are rules or laws; others are "occasional" or "particular" commands

* laws oblige generally (that is they express desires regarding classes of people and/or actions: do not kill, all drivers must stop at red lights, etc.)

* occasional commands: specify a particular action or event (you must do this; today only something must not be done, etc.)

Austin's example: telling your servant to do something (fetch me a glass of whiskey) is to utter an "occasional command"; to tell your servant that something is to be done habitually is to give a rule (whiskey will always be served at 6pm)

But what does all this have to do with Law?

Sixth observation:

* laws are general commands that proceed from a political superior to a political inferior.

* superiority is measured in terms of power or might (the ability to make one's sanctions credible and obliging, in other words, compelling)

Seventh observation:

* laws are general commands of the sovereign

Characteristics of the Sovereign:

1.The bulk of the given society are in a habit of obedience or submission to a determinate and common superior (whether one person or a body)

2. That individual or body of individuals is not in a habit of obedience to a determinate human superior.

Question:

If you are held up in an alley, and the mugger says "your money or your life" is he/she making a law? Why not?

* is it a command?

* is it a general command?

* is there a credible sanction?

* political superior to political inferior?

* is the sovereign involved?

Next time: making sense of positivism in the context of Canadian law