John Austin and the Concept of Commands Essay

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Positive law, according to Austin, comprises of overt and covert orders from a person in a position of authority. In general, the law represents and is based on a rulers authority. Such law has very areas of convergence with moral exhortations and divine law. Austins made no attempt to question the validity of such a law and confined his observations to its interpretation. Moreover, he opined that the legal process should remain unaffected by considerations of morality or religion (Watson, 1984).

John Austin further stated that the principles established by positive morality result in laws if the state establishes and implements them either by statute or case law. The implication of this is that the transformation of custom into legislation transpires only by statute or judicial decision. This theory of Austin is valid only if it is accepted that the law was the command of a sovereign (Watson, 1984). In general, any piece of legislation constitutes a rule that has been formulated by a person in authority, which all other people have to obey.

It constitutes a direction from persons of authority to those who serve under them and as such commands constitute positive law. Even commands that have universal applicability do not constitute positive law until and unless deemed to be legislation by a ruler. This theory or model of jurisprudence by Austin has found widespread acceptance, however objections by a number of legal luminaries have served to weaken this command theory (John Austin 1790 1859 , 1999). The principal contention of Austin was that the reality of law and its benefits and disadvantages were unrelated.

In his opinion, the law was a mere reflection of the will of the sovereign, in which relevant sanctions were intrinsic. In the monumental work The Concept of Law H. L. A. Hart, who is one of the best philosophers of this era, interpreted positivism in an extraordinarily complex manner. He also observed that the law constituted a multifaceted combination of rules, which originated from some basic rule of recognition. This represents the positivist view, because of the fact that the definition of law is on the basis of its history and not its substance (Philosophy of law , 2002).

Austin and Bentham expounded the imperative theory of law, which is based on the concept of a sovereigns orders. The central part of this theory is compliance with the orders of the sovereign. Another central theme of this theory is the existence of punishment for infringements. This theory is incapable of adequately integrating the features of civil law (command theory or imperative theory , 2006). The nature of legislation is considered to be either forced as per Austens theory or based on the rule of recognition as propounded by Hart.

The advocates of the theory of natural law have declared that law and morality are more or less the same and in this manner they oppose the legal positivists (legal positivism , 1999). In the year 1832, Austin published The Province of Jurisprudence Determined, which was based on his lectures on jurisprudence. In this work he defined law to be derived from commands. He had adopted this definition in order to explain the difference between morality and law. Moreover, he defined commands as assertions that permitted or disallowed individuals from some act.

In addition, these commands, on being infringed or disobeyed, resulted in punishment. Any command that advocates a particular manner of behavior and not some particular act, constitutes a law and such laws originate from a sovereign. This is the characteristic difference between the law of God, which is also known as basic morality, and positive morality that is comprised of rules that do not originate from a sovereign source (John Austin). Austin attached much importance to the utilitarian value of laws stating that they were good in the sense that they served the practical purposes of society.

However, in this context, he did not specify any standards for good law. He termed sanctions that were based on what a persons conscience dictated as positive morality and contended that whatever was classified in this manner did not constitute law. This discussion results in the query as to whether it would be possible for a society that was stable, to maintain individuals, all of whom were immoral and who obeyed the law out of fear of punishment; or if such a society had to necessarily be attenuated by people who believed in having an obligation towards society and their fellow men.

A society that conforms to the latter principle is extant in our society (Raine, 2006). Austin was the first proponent of the principle of legal positivism. He proposed this principle as constituting a rational study of law. Legal positivism ignores ethical considerations. Authorities on jurisprudence like Hart disagreed with this theory of Austin. According to Austin, the commands of the sovereign, irrespective of their morality or otherwise, constitute law.

Austin further, stated that if a law had utilitarian value, irrespective of ethical considerations, it was fit to be made into law as per the requirements of society (John Austin, 2005). Austins perspective regarding utility has withstood the test of time. For instance, the law permits gay marriages, abortions, cohabitation and divorce, which had been considered immoral by society, has been permitted by legislation. This indicates that the law has to modify itself to serve the changing needs of society. This is precisely what Austins theory of legal positivism proposes.

References command theory or imperative theory . (2006). Retrieved October 16, 2007, from Collins Dictionary of Law: http://www. credoreference. com/entry/5979188command theory or imperative theory John Austin. (n. d. ). Retrieved October 16, 2007, from http://www. maxwell. syr. edu/maxpages/classes/his381/JohnAustin. html John Austin 1790 1859 . (1999).

Retrieved October 16, 2007, from The Cambridge Dictionary of Philosophy: http://www. credoreference. com/entry/826341 John Austin. (2005, February 17). Retrieved October 16, 2007, from Stanford Encyclopedia of Philosophy: http://plato.

stanford. edu/entries/austin-john/ legal positivism . (1999). Retrieved October 16, 2007, from In The Cambridge Dictionary of Philosophy: http://www. credoreference. com/entry/828601 Philosophy of law . (2002). Retrieved October 16, 2007, from A Dictionary of Philosophy, Macmillan: http://www. credoreference. com/entry/1426542 Raine, P. (2006). Gunman Scenario. Retrieved October 16, 2007, from http://paul. raine. googlepages. com/gunmanscenario Watson, A. (1984). AN APPROACH TO CUSTOMARY LAW . University of Illinois Law Review , P. 561.

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