Identity of law: what makes the law the law.
Law (is) = Rules + (issued by a) Sovereignty.
A command is an expression of a wish backed by a threat to inflict an evil (=sanction, like telling the child to get the toy is not a command unless it is backed by a threat) in case the wish is not fulfilled, issued by someone who is willing and able to act on the threat. All commands impose obligations. But only the general rules and commands. Eg: Prohibition of importation of corn is a rule, but one that prohibits the importation of a specific shipment of corn is not.
Only rules of positive law are laws. Positive laws are those rules which are issued by a sovereign. Sovereign = habitually obeyed by the bulk of the community + cannot habitually obey anyone else.
So, if a sovereign gives a general rule backed by a sanction it is called a law, the positivist law. Eg, Kinf-in-parliament is the sovereign as per Austin. In America, sovereignty resides in the people, not the president or the congress. They exercise the sovereign powers when they ratified and amended the constitution and selected the government.
In the gunman example, the threats have to be made general and standing. Also, the gunman has to have the character of a legal authority which is:.
Stability and relative permanence – not flit in and out of existence – have longevity. (acquired by habitual obeyance).
Their authority should trump and be superior anyone else.
This supreme authority is independent of the authority of the other legal systems.
So, the GENERAL rules, STANDING quality and HABITS are non legal notions but they are still able to build the theory of law as per Austin.
Implications.
Austins theory allows us to work out which facts ultimately determine the content of law. So, one can determine the legal obligation by establishing the likelihood that one will be harmed on disobeyance of a threat issued by someone who is habitually obeyed by the bulk of the population and habitually obeys no one else.
