Austins Theory of Law
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Laws in the most general sense are rules made by one intelligent being for the guidance of another intelligent being, the former having power over the latter.
– All laws are a species of command, a command being an expression of a wish or desire that some other person do something. Commands can only be issued by one who has the power and intention to inflict a sanction in the event of disobedience.
– A legal duty is a liability to a sanction for refusal to comply with a command. Hence, commands and duties are correlative; there cant be one without the other. Commands are said to bind or oblige the person to whom they are directed. Sanctions are always intended to be evils, never goods. Rewards (bribes) cannot be sanctions.
– Conclusion regarding the basic definition of law: a command that obliges a person to observe a general course of conduct, issued by a superior (in power) to an inferior.
– Special problems:
Customary laws and rules of common morality which may appear to oblige independently of any superior power are not really laws until recognized by a court.
Common laws (judge-made law) likewise may appear not to stem from a superior power. Austin argues such laws are tacitly commanded by the state.
Legal rights are creatures of law, but they are not exercised by following orders; the option to exercise a right is up to the owner of the right. Austin: no law creates a right without also creating a correlative duty, hence the link with commands.
– Positive Law is a set of commands issued by a sovereign to his subjects. The sovereign is a determinate person or group (a) who receives habitual obedience from the bulk of society (he is the superior power within his society) and (b) is not in a habit of obedience to a like superior group (independent of any other political power). Hence the sovereign is incapable of legal limitation; so-called constitutional limitations on sovereign power are only moral, not legal limitations.
– Natural laws or the laws of God are genuine laws, but positive laws need not be in compliance with the laws of God to qualify as genuine laws.