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Legal Positivism by Mind Map: Legal Positivism

1. Austin

1.1. Command Theory

1.2. Law = General Commands of a Sovereign

1.2.1. General= role/set of persons in repeated action.

1.2.2. Commands= (i) a wish (for something to (not) be done) (ii) communicated (iii) by someone (willing and able to cause an evil if no compliance)

1.2.3. Sovereign= a superior obeyed by the majority which does not habitually obey a superior

1.3. Specifics

1.3.1. Only for rules that influence behavior

1.3.2. Starting point for definition

1.4. Criticisms

1.4.1. Not applicable for some law (custom/ international)

1.4.2. What if Rex dies?

1.4.3. State as gunman

2. Commonalities

2.1. Give an accurate picture of how law is

3. Hart

3.1. Rule of Recognition

3.1.1. Test of what is (not) law

3.1.2. Social rules among legal officials

3.2. Social Rule

3.2.1. Rule = Performance + Attitude

3.3. Primary and Secondary Rules (Note v Austin having just obligations)

3.3.1. Primary

3.3.1.1. Obligations

3.3.1.2. Prohibitions

3.3.2. Secondary (power- conferring)

3.3.2.1. Rules of Recognition

3.3.2.2. Rules of Adjudication

3.3.2.3. Rules of change

3.4. Criticisms

3.4.1. Dworkin: Hart's picture of law is inaccurate in hard cases

3.4.2. Distinguishes legal ought from other oughts

4. Kelsen

4.1. Pure theory of law

4.1.1. Legal science as an objective legal science

4.1.2. No value judgments/ sociology- purely legal

4.2. Positive law

4.2.1. Law is a coercive system of norms

4.2.1.1. Legal norms are addressed to legal officials and stipulate a sanction

4.2.2. System of norms

4.2.2.1. Hierarchy with Grundnorm, Constitutions, laws

4.2.2.2. Grundnorm

4.2.2.2.1. Presupposed, only way to perceive law juridically with an is/ought distinction

4.2.2.2.2. Functions: Founds validity of legal order through system membership and bindingness (ought)

4.2.2.2.3. Functions (ii): Satisfies effectiveness, the pre-condition for a system to work as