Austin and Hart
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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.”
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)
what counts as law in a given society is a matter of social fact
there is no necessary connection between law and morality
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.
Exclusive legal positivism:
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.
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.
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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