Austin Theory of Law

Another criticism of Austin`s command theory is that a theory that presents the law only in terms of power does not sufficiently distinguish the rules of terror from forms of government, only that they are accepted by their own citizens as legitimate (or at least as reasons for action). John Austin (3 March 1790 † 1 December 1859) was an English legal theorist who posthumously influenced British and American law with an analytical approach to jurisprudence and a theory of legal positivism. [1] Austin rejected traditional approaches to «natural law» and opposed any need for connections between law and morality. Human legal systems, he argued, could and should be examined empirically and worthlessly. This chapter highlights some of the difficulties raised by Austin`s theory of a legal system. Section 1 explains how and why the limitability thesis means that Austin`s theory does not explain an important part of constitutional law. Section 2 examines how the condition of personal obedience to the sovereign leads to a condition of existence of a legal system to a distorted picture of the duration of legal systems. The other two sections deal with the failure of the identity criterion. Austin`s importance to legal theory lies elsewhere – his theories of law were new to four different levels of the general public. First, he was arguably the first author to approach the theory of law analytically (as opposed to legal approaches based more on history or sociology, or arguments about law that were subordinate to more general moral and political theories). Analytical jurisprudence emphasizes the analysis of key concepts, including «law», «law (legal)», «duty (legal)» and «legal validity». Although analytical jurisprudence has been questioned by some in recent years (e.g., Leiter in 2007, Leiter and Etchemendy 2021, Postema 2021 [Other Internet Resources]), it remains the predominant approach to discussing the nature of the law. Analytical jurisprudence, an approach to the theorizing law, has sometimes been confused with what American legal realists (an influential group of prominent theorists in the early decades of the 20th century) called «legal formalism» – a narrow approach to how judges should decide cases.

American legal realists regarded Austin in particular and analytical jurisprudence in general as their opponents in their critical and reform-oriented efforts (e.g., Sebok 1998: pp. 65-69). The realists were simply wrong; unfortunately, this is an error that is still found in some contemporary legal commentators (see Bix 1999, 903-919, for documentation). Fourth, Austin`s version of legal positivism, a «theory of the law of command» (described in detail in the next section), also had a great influence for some time. Austin`s theory had similarities to the views of Jeremy Bentham, whose theory could also be called «command theory.» In a posthumously published work, Bentham defined the law as follows: When H.L.A. Hart revived legal positivism in the mid-20th century. (Hart 1958, 2012), he did so by criticizing and relying on Austin`s theory: for example, Hart`s theory did not seek to reduce all legal rules to a single type of rule, but emphasized the different types and functions of legal rules; and Hart`s theory, based in part on the distinction between «obligation» and «obligation», was based on the fact that some participants in legal systems «accepted» legal rules as grounds for action, beyond fear of sanctions. Hart`s «hermeneutic» approach, which was based on the «internal vision» of participants who accepted the legal system, differed greatly from Austin`s approach to the law. Third, within the framework of analytical jurisprudence, Austin was the first systematic proponent of a legal conception known as «legal positivism.» Most important theoretical works on law before Austin had treated jurisprudence as if it were only a branch of moral theory or political theory: the question of how should the state govern? (and when were governments legitimate?), and under what circumstances did citizens have a duty to obey the law? Austin in particular, and legal positivism in general, offered a very different approach to law: as a subject of «scientific» studies (Austin 1879: pp. 1107-1108), which were dominated neither by recipes nor by moral evaluations.

Aside from subtle jurisprudential issues, Austin`s efforts to deal systematically with the law gained popularity in the late 19th century among English lawyers who wanted to approach their profession and professional training more seriously and rigorously (Hart 1955: pp. xvi-xviii; Cotterrell 2003: pp. 74-77; Stein, 1988: S. 231-244). John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well as, in particular, of the approach to law known as «legal positivism.» Austin`s theory of the law of special command has been the subject of widespread criticism, but its simplicity gives it an evocative power that continues to attract followers. There were theorists before Austin who no doubt offered views similar to right-wing positivism, or at least anticipated legal positivism in some way. Among them, Thomas Hobbes with his amoral view of laws as a product of leviathan (Hobbes 1996); David Hume, with his argument for separating «is» and «should» (which has been seen by some as a scathing critique of certain forms of natural law theory, those views that claimed to derive moral truths from statements about human nature, Hume 1739, section 3.1.1, but see Chilovi and Wodak 2021, which raises questions about the relevance of Hume`s views here to the theory of natural law or legal positivism); and Jeremy Bentham with his attacks on judicial legislation and on commentators such as Sir William Blackstone who justified such legislation with justifications similar to natural rights (Bentham 1789). Since many readers come to Austin`s theory, especially through his criticism of other authors (especially H.L.A.

Hard; see also Kelsen 1941:54-66), the weaknesses of the theory are almost better known than the theory itself: Austin`s work had an influence in the decades following his death (Rumble 2005); This influence was due in part to the reformulation of his ideas by other thinkers such as T.