Cotterrell Politics of Jurisprudence, Chs. 3 and 4

  • Austin’s main aim was to separate law from other doctrines such as morality or politics, and defined law as “a rule laid down for an intelligent being, by an intelligent being having power over him.” Power and “commands” are at the centre of the Austin/Bentham definition, though Bentham, unlike Austin, was willing to include stipulated rewards as an alternative to sanctions. Austin denied this possibility, since he thought law was to do with commands, and commands are different from incentives. He claimed that nullity was a sanction (to get round the power-conferring problem). Hart’s criticism on the basis that (1) Austin’s single coercive model ignores the variety of laws and (2) ignores the different purpose of laws, as demonstrated by the variety of sanctions, is rejected by Cotterrell on the grounds that Austin was merely seeking to demonstrate characteristics familiar to all laws, NOT claim that all laws serve the same purpose. Laws repealing other ones were not laws in a real sense, since they commanded nothing.

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