The final section of Lecture I (pp. 105-110) concerns things called “laws” that do not fit Austin’s account or do not seem to. It is cases of the latter sort that are most important for us. In particular, the difference between the positivist theories of Austin and H. L. A. Hart is tied to Hart’s criticisms of Austin’s attempts to accommodate rights (pp. 107-108) and customary law (pp. 108-109) into his scheme. Although we will be reading Hart later, we won’t read this aspect of his criticisms of Austin, so I’ll suggest something along those lines as things to think about as you read Austin’s account.

•  When considering about Austin’s account of rights, think especially about the sort of rights that might be called powers (e.g., the authority of an official to perform a particular sort of action or the power of private citizens to enter into legally enforceable contracts). How well does Austin’s account of right handle this sort of right?

•  Austin’s account of customary law makes use of the idea of a tacit command. Think about conditions that you take to be required for a command to exist, even as a tacit or unexpressed command. Do you think there would be something meeting those conditions in every case of customary law? Also, it is a consequence of Austin’s account that customary law becomes law only when courts recognize it as law. Do think that is right or do courts merely recognize the existence of law that was already in existence (as custom)?

The selection from Austin’s Lecture V comes from a note added at the end of the lecture by an editor of an edition published after Austin’s death. (There was much material in Austin’s papers that was added to such editions, but similar material appears in a note to Lecture VI in the edition that Austin published, which is the one used for the source browser on the course Blackboard site.) The note is a clear statement of Austin’s positivism, distinguishing positive law from what he calls “natural law” and also from what he calls “positive morality” (see the beginning of Lecture I for his use of these terms). Critically evaluate his argument for making the distinction. (Not all legal positivists would argue in quite the same way; in particular, you will later see H. L. A. Hart argue that distinguishing positive law and morality can make people more willing to disobey laws than they would be if they that nothing could be a law if it was unjust.)