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Critically discuss the legal theory of Austin

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  1. The definition of positive law according to Austin excludes many areas of the law
  2. Austin's notions of the habit of obedience and sovereignty are deficient

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, which is 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 popularized the same 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 perceived 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, who the society is in the habit of obeying. The law must then be enforced by a sanction. It is valid only if it is set by a sovereign, decreed, and then posited. His ideas were recognized as a dominant force in English legal thinking in the nineteenth century and have been analyzed by a series of writers known as the school of "analytical jurisprudence". Austin's legal theory has also been sharply criticized 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 the views of these critics and argue that the legal positivist theory of John Austin is fatally flawed.

[...] 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. Simmonds, Central issues in jurisprudence (London: Sweet and Maxwell, 2002). [...]

[...] 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. However it could easily be said that the language of judgments does not look like wish-expressive language[11]. At last, the typology of Austin, using expressions as ?laws properly so called?, ?laws strictly so called?, ?laws simply so called? is quite complicated and it is odd to use the expression properly so called? in a sense wider than ?positive or properly so called?. [...]

[...] Moreover, such important laws as Constitutional and International law cannot be considered exceptions if the aim is to provide a universal definition. The main argument of Hart can be recognised here. According to him and it is his main criticism against Austin laws are not only orders backed by threats[8]. Of course, a lot of laws resemble orders backed by threats, criminal laws for example; but what about laws which permit, laws about the manner of contracting, driving, about marriage or property? [...]

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