Legal Positivism

John Austin's Version

Question: What is law?

Answer: Law is the (general) command of the sovereign.

Command: a statement expressing the wish that something be done; expressed by a political superior to a political inferior; backed up by a credible threat of a sanction in case of non-compliance.

Sovereign: effectively the ultimate political superior

* habitually obeyed by the bulk of the people

* habitually obeys no one else

What is the advantage of this definition over Natural Law Theory?

* entirely descriptive and not normative

(how things are, factual, rather than prescriptive, how things ought to be)

Recall, problem with Natural Law theory is disagreement about universal normative standards

Legal positivism: simply ascertain who has legal authority (political power), and see what he/she/they command(s).

It follows: if a particular directive fulfils the positivist criteria then it should be obeyed.

One can still criticize bad laws, but one clearly does so from a point outside the law, in order to get the sovereign to change the law.

Positivism separates law and morality.

Quick pseudo-problem: the mugger (again)

* if it is a matter of commands and power, why isn't a mugger who says "your money or your life" a law maker?

Answer:

a) not a general command

b) habitual obedience of bulk of the people

A few more serious problems:

1) different kinds of laws (not all have sanctions)

2) who is the sovereign in a democracy (such as Canada)?

3) what happens when the government changes (say from Liberals to NDP)?

4) What exactly is the relationship between law and the sovereign?

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1) notice, criminal law works fine on this model. But what about contract, family law, wills and estates (generally enabling laws)?

Question: what is the sanction for having an invalid will? You can't effectively threaten or punish dead people.

2) Consider Austin's Model

Sovereign

Law Courts Police People

Consider structure of Canadian system

Constitution

Federal Gov. Provincial Gov.

Law

Court

Police

People

Very complicated model!!!!

Who is really the sovereign here?

3) Real allegiance is not to people, but rather to institutions

* when governments change, the new government cannot have the habitual obedience of the population. Habits take time!!

4) Isn't it law (e.g. constitutional law), that confers political authority?

Isn't that why we recognize the power of the parliament, the courts, etc?

So it seems that law is what gives the sovereign the authority to make law? But isn't this going around in a circle?

Further issue:

notice that while parliament makes laws, it is the courts that interpret and apply the law. What impact should this have on our understanding of "what is law"?