Legal Positivism Jan 27 - WHAT IS LAW Legal Positivism...

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1/23/2015 1 WHAT IS LAW? Legal Positivism Legal Positivism Theory Key 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 desirable John 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.”
1/23/2015 2 Austin’s Command Theory of Law Law 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.

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