The existence of law is one thing, its merit or demerit is another. John Austin (1790-1859) defines the essence of positivism in this one sentence, generally cited as the standard exposition of the imperative theory of law, from his book: The Province of Jurisprudence Determined (1832). A disciple of Jeremy Bentham who popularised the ideas, Austin was also inspired by political philosophers like Jean Bodin, David Hume or Thomas Hobbes arguing that the source of political authority has to be thought of as a sovereign who gives commands. According to Austin, law and morality must be strictly distinguished and law is merely a command given by a superior whom the society is in the habit of obedience. The law must then be enforced by a sanction. Law is valid if it is set by a sovereign, decreed, then posited. His ideas were recognised as a dominant force in English legal thinking in the nineteenth century and have been analysed by a series of writers known as the school of analytical jurisprudence. Austin's legal theory has also been sharply criticised by other theorists, prominently H.L.A Hart in The Concept of Law (1961). Today, the Austinian basis has largely been rejected and the weaknesses of his theory are often better known than the theory itself. In this essay, I shall explain these critics and argue that the legal positivist theory of John Austin is fatally flawed.
[...] The Austin definition of the word “command” does not correspond with the way it is usually used in ordinary language. The common definition of the word is broader. We can indeed speak of commands where the commander uses his authority to respect rather than to punish. To Austin, every command comprises a wish, a sanction, and an expression. This is not the case in the quotidian sense. It is the same with the third element of Austin's conception of law: the notion of desire, which is defined as expression of wish by words or other signs” by him. [...]
[...] R.A Eastwood, A brief introduction to Austin's theory of positive law and sovereignty, (London: Sweet and Maxwell, 1916). J.W. Harris, “Chapter The command theory of and “Chapter Legal concepts”, in Legal Philosophies, (London: Butterworths, 1997). H.L.A. Hart, The Concept of Law, (Second edition, Bulloch and Raz, 1994). Keekok Lee, The positivist science of law (Newcastle: Avebury, 1989). Henrik Palmer Olsen, and Stuart Toddington, Law in its Own Right (Oxford: Hart Publishing, 1999). J.G. Riddall, “Chapter Teeth that can bite” and “Chapter Austin toppled” in Jurisprudence, (New York: Oxford University Press, 1999), pp. 17-53. N.E. [...]
[...] ] Whether it be or be not is one enquiry; whether it be or be not conformible to an assumed standard, is a different enquiry” John Austin, The Province of Jurisprudence Determined, (London, J. Murray, 1832). With his argument for separating and (which worked as a sharp criticism for some forms of natural law theory, which purported to derive moral truths from statements about human nature) David Hume, A Treatise of Human Nature (David Fate Norton & Mary J. Norton, eds., Oxford: Oxford University Press, 2000) (first published, 1739) With his amoral view of laws as a product of Leviathan. [...]
[...] Moreover, according to Austin a sovereign cannot have any political limit: there could be no legal limitation on the sovereign's powers (his definition of a sovereign implies that he must not obey any other superior), the sovereign does not obey any other legislator. This point seems to be false. Indeed, in all modern states, in legally constituted States, the sovereign is always bound by a written constitution, conventions, moral force. The conception of the legally unlimited sovereign misrepresents the character of law in many modern states”. [...]
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