Legal Studies Notes 09-11-12 - Legal Studies Notes Positive...

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Legal Studies Notes 09/11/2012 Positive Law Theory Key Assumptions… - Law I 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. John Austin (1790-1859) Command Theory Law is the command of a sovereign, backed by force, who is habitually obeyed and does not habitually obey anyone else. Critiques of Austin - Doesn’t seem to describe democracies well, as “command” power is not concentrated in one actor’s or even group of actors’ hands. Sovereign will is much less clear in large democracies. - In monarchies, the ascension of a new sovereign to the throne means that sovereign’s initial commands are not law (there’s no pattern of habitual obedience to the new sovereign). - Doesn’t seem to account for the legal force of contracts or wills that are created by private parties.

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