John Austin’s ‘command theory of law’ states that ‘law’ is a command issued by a sovereign to its subordinate. If what he says is true, then, how, pray tell, did the sovereign become ‘sovereign’ to start with? Is it not by law too? Then that means law precedes his sovereignty, not the other way around. The only bailout he can secure is that the sovereign becomes what it is by means of social facts (e.g. people’s acceptance, recognition and so on), but then again, what in turn legitimizes those social facts?
When we say that the market should be restrained by ethical norms we don’t by default mean that the state should carry that responsibility. Critics typically take as axiomatic that the market is the root of all evil that any instance of irregularity, deficiency or oppressive practices that occur in commercial contexts is taken to warrant immediate outside intervention; and by that is often meant the state. Such an assumption about the market seriously underestimates the possibility of the market itself in restraining its own excesses. The misplaced emphasis on developing measures external to the market to rectify the latter’s shortcomings has only the result of treating the symptom rather than the real disease.
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