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Critique of classic legal positivism: habit and reasons

Do we follow law just because we have a habit of doing so? Dr Ken Ehrenberg explains one critique of command theory.
One of the problems that you might have thought about when you started thinking about Austin’s command theory is this notion of habit. I mean, there’s a couple of problems with habits. Thinking about the ideas that we just have are in the habit of obeying the sovereign. But one of the key problems that we have to address is, what about reasons, right? So when you have a habit– if you’re in the habit of tying your shoe a certain way, for example. That you don’t have a real reason for doing it, other than the fact that it’s the way you regularly do things. If somebody said, hey, why do you tie your shoe that way rather than this way?
You would just say, oh well, that’s just my habit. And if they gave you a reason to do it in a different way, well then you would probably start doing it in a different way. Unless you really couldn’t overcome your habit. The law– usually, we think of the law as trying to give us reasons for our behaviour. If somebody says, well, why do you stop at the red light? You might say, well– you’re not going to say it’s your habit, you’re going to say because the law says I have to stop at the red light. Now you might go into more detail and say, because I’m going to get a ticket.
Which is the back of the bed being backed by the threat of force thing again. Or you might say, I’m afraid of getting hit by a car going the other way. Which of course, is another good reason to stop at a red light. But there are lots of things that the law tells you to do. And at least from the law’s point of view, it thinks that by telling us to do that It’s giving us a reason to do that. And that you don’t need any additional reasons such as the threat of force or the idea that somebody else is going to do something bad if you do it or something.
So the idea behind the law is one that gives us reasons. And it seems as though Austin’s theory isn’t doing a great job of capturing that with this notion of the command of a sovereign backed by a threat of force. If somebody orders you to do something and you have that threat of force behind it then you might say, OK, well the threat of force is itself perhaps my reason. But then it’s not really the law that’s giving you the reason, it’s the threat that’s giving you the reason. If I tell you to go make me a sandwich.
And I say, if you don’t go make me a sandwich I’m going to– if you were one of my students here at the University– I’m going to give you a bad mark or something like that. Well, then you’d have a command and a threat but we wouldn’t call that the law. And it’s not the fact that the command is giving you a reason, it’s the threat that’s giving you a reason. So we’d like with the law to think that the mere fact that the law says to do something is itself a kind of reason to do it, independently of the threat of force.

One critique of command theory comes from thinking about the difference between habit and reasons. Do we follow law just because we have a habit of doing so, or do we follow it because the fact that it is a law gives us a reason to follow it?

Can the threat of force itself be a reason to follow the law? If you treat the threat of force as a reason for following the law, then it is the threat not the law acting as your reason for following it. If you knew you could avoid the punishment, you wouldn’t have any reason left to follow the law. Instead, the law itself is supposed to be a reason.

Watch the video to find out more. In the next step you will answer a poll question to test out your existing views on habit, reasons, and the law, and compare your response to other learners.

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Jurisprudence: Introduction to the Philosophy of Law

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