Austin Flashcards
Who is the sovereign according to Austin?
Sovereignty is the power to fashion someone’s conduct. There are positive and negative marks of a sovereign, which must both be satisfied to become a sovereign.
What is the positive mark of a sovereign?
The bulk of society follows your command and is obedient to a common and determinate superior.
There are three factors to this definition:
1. Bulk can have outlaws or exceptions, as long as the majority follows its good
2. Habitual and continuing obedience. No one will repeatedly tell you to follow the commands, it will come out of habit. you will not cross a red light even when there is no police around.
3. Should be both common and determinate. If one group follows Y but another Follows X then it is not common or determinate and hence fails to be sovereign according to Austin.
What is the negative mark of a sovereign?
The determinate superior should not be in the practice of following any other determinant superior above it.
Who is austin? What was his view of law before positive influence
According to Austin, the domain of law before positivism was malleable and had no definite and defined boundary to confine it. He held that real matter of law is positive and it must be kept separate from all other disciplines.
What is austin’s Comprehensive meaning of law?
Laws are rules laid down for guidance of one intelligent being by another intelligent being having power over the other. The laws of theology, society and fashion and all etc can therefore come under the comprehensive meaning of law but not the minute meaning. only sovereign law is encompassed by the minute meaning.
What is a command according to Austin?
A command is an expressed desire to do or forbear to do something which is backed by evil. The consequence of not complying with such desires is an evil which Austin terms sanction.
Don’t cross the red light
Don’t cross the red light or you’ll be rewarded.
Don’t cross the red light or you’ll be punished.
Are declaratory laws commands?
No, declaratory commands are not laws because the commands are not backed by sanction. They only serve to declare something.
Are judgemade laws commands?
No, judge made laws are invalid as they are occasional commands. Judges only occasionally use them to interpret.
Are Customary laws commands?
No, as the authority doesn’t flow from a politically superior to an inferior but from practice.
Where can Austin’s sovereign be found today?
Difficult to find attributed to individuals or organisations in the prevalence of democratic governments who are members to the united nations or the world trade organisation. It can be found in constitutions as even governments are subject to their authority.
Indivisible Sovereign
Another reason modern countries do not fit into the framework of the sovereign is that according to Austin the sovereign must be indivisible, which cannot be found in today’s federal government prevelant society.
Restriction
The sovereign must also not be restricted in its limits by any law or external entity.
Austin, positivism and his definition of law properly so called.
Austin, like a true positivist, places some laws outside the scope of what laws are defined to be. These are called laws improperly so called. He also believes that positive morality and positive law are different.
This is the structure he draws:
Law Properly so called:
Law of god as transcribed in scriptures
Law of the sovereign:
Law developed by sovereign, Law developed by jurists under common law, private law made for legal rights.
Law improperly so called:
Law of good in believe (Positive morality)
Even private law not for legal rights comes under this.
