Week 2: Early positivism(John Austin) Flashcards
Thomas Hobbs, Leviathan
State of nature = state of war[civil war]
Not what it was like → but what it WOULD be like(positivist could agree with this)
Tribal Law - Hobbes
they were not in a state of nature(positivist would certainly agree with this)
Hobbes would still deny that they had anything like laws
Tribal Law - consists of customs(legal practices)[“seem right”- what we have always done]
Persuasion by the elders
Lacking codification, centralized authority
Enforcement → clans, families(self enforced)
Positivist denies the STATUS of law, but also denies or downplays international law
Characteristics of tribal law:
Who says? Cosmic grounding
Gods.
Regulates, de-escalates disputes
Pg. 20 → compulsory
Setting things right - compensation
Legal personality(accrues to the family)
Ultimate put-down is outlawry.
Customary law is ________ of tribal law
codification
Who says? By what authority?
God says sosay-so(this is right because wills it)
Natural lawnorm(god wills it because it is right)
Might makes “right”say-so (sovereign derives its authority not from any pre-existing norm, but from its ability to coerce)(rests purely on social facts)
Legal authority -traceable to social rulesnorm
We’ve always done this.
Legal positivism: rests purely on social facts
Command(wish that xyz +threat):
rule + [backed up by potential or actual] enforcement
Austin: Law is
rules + sovereignty
Sovereign: oversees + rules over parents, gangs, etc(mother of sovereign)
“Positive morality”
Etiquette
Morality
International law, so called law, properly so called
Ought, should, etc.
Obligated(Austin’s)
Austin constructs a theory of law using non-legal notions
Non legal notions:
Notably
Commands
Rules
Wishes
Sanctions
Habits
Bulk of the population
Is(description)/ought(prescriptive)
Description IN Description OUT
Description IN Norm OUT e.g this is the way we have always done it/this is the way we ought to live by
Norm IN Norm OUT
