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Philosophy Of Law

by: Selena Stehr

Philosophy Of Law PHIL 168

Selena Stehr

GPA 3.61


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This 4 page Class Notes was uploaded by Selena Stehr on Thursday October 22, 2015. The Class Notes belongs to PHIL 168 at University of California - San Diego taught by Staff in Fall. Since its upload, it has received 26 views. For similar materials see /class/226824/phil-168-university-of-california-san-diego in PHIL-Philosophy at University of California - San Diego.


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Date Created: 10/22/15
Draft of 1708 PHIL 168 Philosophy of Law Winter 2008 David O Brink Handout 1 Austin and the Command Theory In The Province of Jurisprudence Determined 1832 John Austin 17901859 exploits a very natural view of the law as a body of rules or commands issued by the state for the purpose of regulating conduct violation of which is subject to punishment Austin39s command theory develops and makes more accessible some related views of Austin39s mentor friend and fellow quotphilosophical radicalquot Jeremy Bentham 17481832 Bentham and Austin both defend the legal positivist claim that there is no necessary connection between law and morality against the sort of natural law tradition exemplified by St Thomas Aquinas 122574 and the English jurist William Blackstone 172380 Austin embeds the command theory in an elaborate taxonomy of law and related phenomena see chart on next page THE COMMAND THEORY 1 law is the command of the sovereign which is backed by threat of sanction for noncompliance 2 x is a sovereign within a community iff a the bulk of the community is in the habit of obedience or submission to x and b x is not in the habit of obedience to any person or group of persons in that community THE COMMAND THEORY AND LEGAL POSITIVISM Natural law theory asserts that there is an essential connection between law and morality whereas legal positivism denies this On one interpretation of the essential connection natural lawyers insist that genuine laws must have adequate moral content whereas legal positivists deny this Austin insists that the command theory supports legal positivism A sovereign can issue morally acceptable or wicked commands quotThe existence of the law is one thing its merit or demerit anotherquot CONCERNS ABOUT THE COMMAND THEORY Whereas the command theory fits absolute monarchies and criminal and tort law pretty well Hart thinks Austin cannot do justice to the complexity of modern laws and legal systems Hart has several worries about the command theory even if Austin39s theory can avoid incoherence Hart thinks he achieves consistency and uniformity at the price of distortion DESCRIPTIVE PRESCRIPTIVE Expression of a wish by one intelligent being to another that the other behave in a certain way Includes laws of nature NONCOIVIMANDS Includes requests and pleas COIVIMANDS Laws properly so called commands from one intelligent being to another expression of a wish where the issuer is willing and able to in ict a sanction for DIVINE LAW POSITIVE LAW Laws set by God for Laws set by humans for umans humans our indeX is utility POSITIVE POSITIVE LAW MORALITY PROPER Includes a commands from one sovereign to another b commands outside political society c commands Within political society but not in pursuance of legal rights and d laws that are not commands eg declaratory laws repeals of previous laws and imperfect laws Laws set by sovereigns for their subjects X is a sovereign iff the bulk of the population is in the habit of obedience to X and X is not in the habit of obedience to anyone else COMMANDS AND OPTIONS POWER CONFERRING RULES Whereas some laws regulate behavior enjoining particular kinds of conduct other kinds of law parts of contract probate and family law confer legal powers Hart distinguishes between public and private powerconferring rules and contrasts both with commands Commands appear to express categorical demands 39 In circumstances C do X regardless of your own interests or desires By contrast powerconferring rules express hypothetical demands 39 In circumstances C do X iff that will help you achieve your aim A Whereas commands foreclose options power conferring rules create options However might commands be understood as hypothetical demands after all 39 In circumstances C do X iff you want to avoid the risk of punishment Or we might represent them as having disjunctive form 39 In circumstances C do X or risk punishment As hypothetical demands powerconferring rules could also be represented disjunctively 39 In circumstances C do X or forego your aim A Notice that with powerconferring rules the condition is a carrot whereas with commands the condition is a stick Is this a problem If so might nullity be treated as a sanction stick With commands the sanction for noncompliance is conceptually independent of the rule enjoining conduct Is nullity a conceptually independent sanction In any case can categorical demands be rendered in hypothetical form Hasn39t the criminal broken the rule even if he suffers punishment indeed isn39t this why he suffers punishment when he does SCOPE LAWS THAT BIND THE SOVEREIGN Is the sovereign above the law In democracies and constitutional monarchies the sovereign falls within the scope of the law Austin seems forced to claim that in such cases the law makers are either a commanding themselves or b each is quotreallyquot two people sovereign and citizen Hart treats a as absurd and argues that b requires sovereignindependent public powerconferring rules ORIGIN LAWS NOT THE RESULT OF ENACTMENT Commands are discrete dateable events But some laws e g customary law are not the result of eXplicit enactment Austin thinks that courts recognize custom as law and that judicial enactments are tacit or oblique commands of the sovereign insofar as the sovereign delegates authority to the judiciary But Hart thinks courts recognize custom as law rather than making it into law its status as law Hart thinks presupposes public powerconferring rules CONTINUITY OF AUTHORITY How can we explain the orderly transition of sovereign authority e g from Rex I to Rex II on the command theory Rex H s first commands cannot count as law because there is as yet no habit of obedience to Rex II that has been established Could Austin appeal to standing laws that Rex I creates to obey Rex II CONTINUITY OF LAW Here the problem is not with the smooth transfer of authority but with the persistence of law after the sovereign who commanded it is gone Might Austin appeal to standing laws again Can39t he claim that x is a law if it was commanded by a sovereign and has not been subsequently contravened by a sovereign SANCTIONLESS LAW Are sanctions part of the very concept of law such that we couldn39t imagine a legal system that did not regularly apply or threaten sanctions for noncompliance


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