1/23/20151WHAT IS LAW?Legal PositivismLegal Positivism TheoryKey Assumptions… •Law is known through the systematic observation of a given society •The question of what law is is distinct from the question of what law ought to be•A morally neutral description of law is possible and desirableJohn Austin (1790-1859)“The existence of a law is one thing, it’s merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it.”
1/23/20152Austin’s Command Theory of LawLaw is:•the command of a sovereign, •backed by force or threat of it,•who is habitually obeyed and, •who does not habitually obey anyone else. Critiques of Austin•Difficulty distinguishing who/what is sovereign in a democracy •Even in a monarchy, habitual obedience is not guaranteed.