Natural law theories hold that there is a necessary connection between law and morality. Legal positivists deny that this is so. They claim that laws have to come from an appropriate source: they need not be morally acceptable.
Austin’s version of legal positivism treats laws as commands.
Austin’s version of legal positivism has these elements:
According to Austin, all laws are commands. All commands, in turn, involve threats of sanctions. And being threatened, in turn, is the same thing as having an obligation to comply with the command. So ‘command,’ ‘sanction,’ and ‘obligation’ are all defined in terms of one another.
Sovereignty is defined in terms of habitual obedience. The sovereign in a society is habitually obeyed by the bulk of the population while not habitually obeying anyone else. While many people could issue commands, as Austin understands them, only sovereigns can issue commands that are laws.
We started raising some questions about the adequacy of Austin’s definitions. For example, Callum maintained that there was no sovereign, according to Austin’s definition, in medieval France. If that is so and if it seems pretty obvious that they had laws in medieval France, that’s a problem for Austin’s theory.
Next time, Hart will argue that each element of Austin’s theory is mistaken. This will lead him to formulate his own version of legal positivism.
Tena had a good point. Both the legal positivists and the natural lawyers agree that immoral rules are bad. Their disagreement is over whether immoral rules would constitute laws or not.
Since both sides would think it’s desirable to eliminate bad rules, what’s the significance of that disagreement? We’ll come back to this when we discuss Hart and Fuller’s exchange over Nazi law.
I mentioned a case in which a man stood to inherit his grandfather’s estate because he had murdered the old man. Michael asked how it turned out.
The answer is that Elmer, the poisoner, lost.
And, more generally, there is apparently a so-called “slayer rule” that prevents murderers from inheriting the estates of their victims. At least, this rule applies in most jurisdictions. Texas seems to be an exception.