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”. [...]
[...] Actually, to be accepted and legitimate, a sovereign must be bound. This leads me to my second subsection which concerns the inadequacy of the notion of the habit of obedience, the question of legitimacy and the acceptance of the law and of the sovereign. Because Austin believed that the sovereign could not be bound by any laws even those which have been promulgated by previous sovereigns, Austin excludes from his definition the idea of continuity of law from one sovereign to another[16]. [...]
[...] On the one hand, the range of application is different: while the lawmaker is bound by the law he made (Austin disagrees with this point), the person who expresses an order backed by threats is not. On the other hand, the mode of origin of law is not the same as the mode of origin of an order backed by a threat. Contrary to orders backed by a threat, which are performed at a specific time, laws do not necessarily originate from a datable act. This is especially true for customs. Another criticism concerns terminology. The Austin definition of the word “command” does not correspond with the way it is usually used in ordinary language[10]. [...]
[...] Austin simply does not address the continuity of law-making power, which is probably his greatest inconsistency in the command theory. Finally, Austin does not mention questions of legitimacy and the acceptance of the law and of the sovereign. He fails to see that law and sovereignty also contain sociological and psychological aspects. According to him, sovereignty is a pre-legal political fact and law and all concepts are definable. A theory which portrays law solely in terms of power fails to distinguish rules of terror from forms of governance sufficiently just that they are accepted as legitimate by their own citizens. [...]
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