Austin and Hart

  1. Command: Law is a species of command (command from the sovereign)
    a command =?
    “an intimation or expression of a wish to do or forbear from doing something, backed up by the power to do harm to the actor in case he disobeys.”
  2. Sovereign
    a sovereign is “someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of obedience to anyone.” (habitual obedience)
  3. “social thesis”
    what counts as law in a given society is a matter of social fact
  4. “separability thesis”
    there is no necessary connection between law and morality
  5. soft positivism
    substantive moral principles can count as part of a community’s binding law in virtue of their status as moral principles if the relevant rule of recognition includes a provision to that effect.
  6. Exclusive legal positivism:
    strict separation
  7. the internal element of a rule or procedure
    the critical reflective attitude shared by the group members (in this case the legal profession) towards the conforming or violating conduct of a person.
  8. The two minimum conditions for the existence of a legal system
    • 1) the rules of behaviour are generally obeyed; and
    • 2) the officials accept the rules specifying the criteria for legal validity.
  9. Rule of Recognition
    • These “specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported bny the social pressure it exerts” (CL, 92):
    • “a rule for conclusive identification of the primary rules of obligation” (ibid)
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Austin and Hart
Definitions of Austin and Hart