Orders backed by threats

Variety of laws: many don't fit in Austin's model
1. Content of laws
  1. All laws order people to act in a certain way
  2. Some laws perform different social function from "orders backed by threats"
    1. Confer legal powers on them to create - Contracts, wills, marriages - facilities to realize their wishes
      1. =/= Criminal breach...Failure to comply with procedures for creation - NOT violation of any obligation or an offense
      2. Power for this creation = capacity/minimum personal qualification, manner/form to exercise this power, delimit variety of rights/duties, etc
    2. Public/Official powers: rules would confer/define the manner of exercise of legislative powers + rules of criminal law
      1. Cannot "obey"/"disobey" by voting. =/= private powers
    3. distinctions between varieties of law are superficial
      1. private/public rules are the same
      2. "NULLITY" = CRIMINAL PENALTY. actions may be assessed by reference to the rules as the "right"/"wrong" thing to do. possess standards
        nullity may not be "evil" to the person
        Rules only withhold legal recognition from failure at power-conferring. Unlike the conduct discouraged by criminal laws
        Criminal laws are desirable even if no punishment/evil was threatened + can exist independently. Nullity provision is part of the rule itself
        attempt to widen meaning of "sanction" to include nullity
        Essential condition for exercise of power is not fulfilled = criminal breach. Both are threatened evil sanctioned by law for breach of the rule
      3. power-conferring rules are always RELATED to rules that impose duties --> have analogy to "orders backed by threats". Powers conferred --> make general rules to impose duties
        criminal - impose duties. power-conferring - create duties.
    4. Mere fragments: "orders backed by threats" is adequate for private + public powers.
      1. Denies power-conferring rules are "law" (narrow its meaning).
        Complete rules of law = incomplete fragments of coercive rules (these coercive rules are the genuine rules of law)
        Law is directed only at officials. Orders officials to apply certain sanctions if certain conditions are satisfied.
    5. Both make the sanction the centrally important element
      1. Fail if law without sanctions is conceivable
    6. Forced uniformity of rules - conceals the ways in which rules operate, how they're used to guide purposive activities, obscures their function in society
      1. some elements of law = duty, in terms of being characteristic of law + valuable to society. Should not treat as subordinate
      2. power-conferring rules are used differently in social life + valued for different reasons.
2. Mode of origin
  1. Enacted laws must express legislator's actual desires/intentions/wishes
  2. all law have a point of resemblance to legislation. Everything owes its status as "law" to a deliberate law-creating act
    1. But custom.
      1. But is custom law?
        Failure to separate 2 questions
        Is "custom as such" law?"
        No. in any society, many customs aren't part of law.
        Custom is law only if it is recognized as "law" by legal system (i.e. courts applied them in particular cases)
        But some statutes can be law before they're applied by courts, why can't customs?
        Need to be ordered by someone to be "law" (whether by court or legislature)
        Need to establish this contention (customary rule can't have status of law until applied in court)
        What does it mean for a custom to be "legally recognized"? Sovereign/agent ordered it?
        But if "order" includes this, this theory loses its point
        If agent ordered it, sovereign's "order" is via tacit approval (didn't interfere when agent gave order + punished). He signified intentions that his subjects should do certain things.
        Assume sovereign knew order had been given + had time to consider + decided to do nothing
        In reality, this is very rare. i.e. legislature can strip some customs of their legal status, but failure to do so = didn't come to legislature's mind
3. Range of application
  1. Orders given only to others
  2. Legislation can also bind legislators
    1. Official capacity of legislator =/= individual capacity
      1. Different capacities only intelligible in terms of power-conferring rules (can't be reduced to coercive orders)
  3. Similar to promise. Promise creates obligation for promisor. For words to have binding effect, rules must exist (if words are used in certain occasions, it will be binding.
    1. Specified procedures to change our own moral situation <-- imposed obligations on ourselves + conferred rights onto others
    2. Legislation is more like an introduction/modification of general standards of behavior --> society generally folows
Sovereign and Subject
1. Habit of obedience: great majority of society habitually obeys sovereign's order
  1. Continuity of the authority: uninterrupted law-making power by rules during transition from one lawgiver to another
    1. "Habit of obedience" = sovereign's orders have been obeyed for a while
      1. Obedience = deference to authority
      2. =/= Habits. Obey despite strong inclination to oppose. Not unreflective, effortless, engrained
      3. Habit of Obedience is to the Rules regulate this succession IN ADVANCE. i.e. specify qualifications, mode of determining lawgiver, etc
        Already law (before any relationship of habitual obedience has had time to establish itself!)
        Need general social practice + its acceptance (that B will have right to succeed + B should also be obeyed)
        What is the acceptance of a rule?
        Social rules VS Habits
        Similarity: behavior must be general (repeated by most of the group, upon that occasion)
        Rules: Deviations are GENERALly regarded as lapses/faults. Open to criticism
        Rules: acceptance that: good reason for criticism = Deviation from standard OR demands for compliance
        INTERNAL ASPECT of Rules: some people: General standard: that behavior should be followed by everyone
        Critical reflective attitude to certain patterns of behavior as a common standard --> criticism, demands for conformity, acknowledge these are justified (via normative language)
        He has the right to make rules + generally accepted that it is right to obey him (he has AUTHORITY to legislate)
        can even bind himself
        Sometimes, existing rule: give a class of persons the right to legislate in his turn
        Acceptance of this rule - manifested by: obedience to him + acknowledge he has a right to that obedience (by virtue of his qualification under the general rule)
        successor has a RIGHT to legislate (before he even starts) + LIKELY to receive same obedience as predecessor. Can have this right even before the general rule (i.e. revolution)
        Habits are not normative - cannot confer rights/authority
        Habit of obedience to one individual - cannot refer to a class of successive legislators OR render obedience to them likely
        Realistically, in a Modern state, mass will not know about the rules specifying the qualifications of a continually changing sovereign
        General acceptance.
        Officials will explicitly acknowledge these fundamental rules
        i.e. legislators make laws in accordance with the empowering rules, experts refer to rules when guiding ordinary citizens, etc
        "Habit of obedience" - obscures and distorts the other active aspects of a legal system (i.e. lawmaking, law-identifying, law-applying operations - by officials/experts)
        Citizen manifests acceptance via acquiescence in the results of these official operations + keeps the law + exercises power he's conferred. But might not know about origins of rules
      4. Mere habits of obedience to A - cannot confer any right to succeed him to B (new legislator)
      5. Habitual obedience to A - does not found a presumption that B's orders will be obeyed too
  2. Persistence of laws - even after maker/those who rendered him habitual obedience have died
    1. i.e. Witchcraft Act
    2. Not a sovereign, but Habit of Obedience to set of fundamental rules - accepted by successive generations of society
    3. Recognized as "law"still because PRESENT SOVEREIGN recognizes it as such. Tacit expression of sovereign's will (since he did not interfere in enforcement)
      1. But it's already law! Implausible that a statute by a past "sovereign" is not law until it is applied by courts + enforced by present sovereign's acquiescence.
      2. Can't explain why present courts should distinguish between an irrelevant but existing law and a repealed one
        Would need a fundamental rule of "what counts as law" that embraces past and present legislative operations (doesn't discriminate based on "tacit approval")
        Legal Realism: no statute is law until applied by a court.
2. There can be no legal limits on Sovereign's law-creating power
  1. does not obey anyone else
    1. Legally unlimited + illimitable
      1. necessary for existence of law?
      2. understandable in terms of habit + obedience?
  2. Only concerns "legal" limits - i.e. sovereign may defer to Popular opinion
  3. Attractions
    1. Easily identify what are laws
    2. can determine whether we have an independent legal system or just a subordinate part of some wider system
  4. There are rules constraining the manner and form of creation of legislation
    1. The "scope" of legislative power is still unlimited (=/= "form" of power)
  5. This is not a necessary condition of the existence of law
    1. Disregard of Constitution would render his legislation void. Imposes legal disabilities = limits.
      1. i.e. Parliamentary Supremacy - still subject to Constitution
      2. These restrictions are legal, but can't be expressed in terms of Habit of Obedience
        If he does obey someone, he just fails at making valid law. But he won't have violated any legal duty
      3. Sovereignty obscures considerations that we need to understand a foundation of a legal system
        Legal limitations on legislative authority consists of disabilities - contained in the rules that qualify him to legislate
        Have to show enactment was made by a qualified legislator + no restrictions (affecting this enactment). No need to trace enactment back to legislator.
        Show that the rules qualifying the legislator don't confer superior authority on another territory's sovereign
        Legally unlimited legislative authority =/= Supreme, but limited
        legislator's habits of obedience - irrelevant (except as evidence that his authority isn't subordinate to another)
  6. Electors are the sovereign body. Free from all legal limitations.
    1. Manner in which sovereign electorate chooses to exercise its sovereign powers --> ordinary legislature free from legal limitations OR subject to them
    2. Implausible, unless "habit of obedience" and "persons" a very different meaning. Habit of Obedience + Orders - cannot suffice - need to explain
      1. Continuity? Electorate need to habitually obey themselves? Orders?
      2. Individual capacities =/= capacities as sovereign
        Capacities explained in qualifications under rules (i.e. define valid election, law, etc). These need to be by the body "making" them, not the same status as orders issue by the sovereign
        Rules should be constitutive of the sovereign
        We need rule-conferring powers on persons qualified to legislate (by complying with a certain procedure)
      3. If electorate removes all restrictions on ordinary legislature, can these restrictions be duties that the electorate has (tacitly) ordered the legislature to fulfill?
        Failure to exercise power =/= electorate's wishes
      4. there are some restrictions on the legislature that are outside the scope of electorate's amending power?
        Then electorate would have legal limitations - not sovereign anymore
3. Modern society is too pluralistic and shifting - no one sovereign power

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Orders backed by threats

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	Created by Joanna Ip about 9 years ago