Austin (The Naive Empiricist?)

Question 1

What is Austin’s Command Theory of Law?

Answer 1

1. Only COMMANDS are laws
2. Commands are:
   - - An imperative
   - - Backed by sanctions
   - - Enforced by a determinate political sovereign
   - - Obeyed by most people

“A signification of desire by a party with a power to inflict evil if the desire be disregarded, thereby imposing upon the party commanded a duty to obey.”

Question 2

According to Austin, what is the relationship between law and morality?

Answer 2

Both are distinct sets of commands BUT only law is backed by sanctions and issued by a sovereign

Question 3

According to Austin, why should people obey the law?

Answer 3

Implication that people should obey for fear of the sanctions

Question 4

According to Austin, what should judges do when facing unfair laws?

Answer 4

Judges should just apply the law and not question it

??

Question 5

Why is Austin an analytical legal positivist?

Answer 5

Sought clarity on the system, less concerned with what law ‘ought to be’
– In jurisprudence, “there abide 3 things: faith, hope and clarity. But the greatest of these is clarity and that is all that is needed for definition.”

Question 6

How did Austin see the law?

Answer 6

1. Command Theory
2. Presupposed a single logical system based on classification of rights: Laws Properly So-Called vs Laws Improperly So-Called

Question 7

What are Laws Properly So-Called?

Answer 7

Commands

Comprise:

1. Laws of God
2. Human Laws (Positive Laws or Laws Strictly So-Called; and Laws set by a non-political determinate sovereign, e.g. house rules)

Question 8

What are Laws Improperly So-Called?

Answer 8

Rules that only resemble commands of sovereign

Comprise:

1. Laws by slender analogy (e.g. laws of biology??)
2. Laws by close analogy (issued by indeterminate body, e.g. fashion rules)
3. Other laws, e.g. permissive and declaratory laws