Postivism stands for a conviction, which forms the basis of traditional English thought, that law is something that could be identified and studied separately from any moral elements. This thought is believed to originate from Bentham. His pupil, John Austin has made significant contribution on the theory. The other great postivists are Kelsen and Hart. The Command Theory Read the Province of Jurisprudence Take note of the meaning of laws properly so called and laws improperly so-called His idea of divine law founded in utilitarianism Take note of the importance of separating the laws of science and nature with positive laws Austin clarifies the concept of positive law - man- made law The Command Theory Austin define the law as : The command of the sovereign, backed by sanctions Define command as: An intimation or expression of a wish to do or forbear from doing something, backed up by power to do harm to the actor in case he disobeys. Furthermore, the person whom the command is given is under a duty to obey it, and the threatened harm is defined as a sanction. The Command Theory Rights and Power
Austins view of law as a tool of efficient government is
compatible with his portrayal of the fundamental nature of duties as opposed to rights Please refer to the Hohfeldien analysis of rights The Command Theory Sanction Ascribe two-fold role of sanction: It identifies expression of desire or wishes as commands It makes certain conduct obligatory sanctions being the motive of compliance To Austin, nullity is also a form of sanction The Command Theory Sovereign Austins idea of sovereign, as opposed to Benthams is grounded on the notion of an independent political society The two axioms: The sovereign is legally illimitable and the sovereign is indivisible The sovereign is not answerable to law but answerable to Utilitarianism Austins description of the sovereign as a body or body of persons is open to debate There are 2 marks of sovereign: The positive mark the sovereign is a person or body of persons who receives habitual obedience from the bulk of society The negative mark the sovereign habitually obeys no-one The Command Theory Judicial activism Unlike Bentham, Austin thinks that the judge is a delegated legislator who commands on behalf of the sovereign. This is an interesting point in the context of judicial reasoning when read in the light of Dworkins criticism. Any theory, such as one of the most common forms of positivism, claims that law is to be identified only in terms of its origination from some definite, posited, source such as sovereign is faced with the difficulty of saying whether customary law is really law. Austins account provides the basis for the English idea of statutory interpretation and judicial precedent. The Command Theory International law and constitution law International law is not law because it arises not through the assertion of commands but through popular sentiment and mere opinion among nations and thus positive morality. Constitutional law is not law because it is not possible for a sovereign to be under a legal duty. Critiques Hart The idea that law consists merely orders, backed by threats is inadequate to explain modern legal system. There are many modern laws governing the foundation and implementation of contracts, wills, marriages Variety of laws Customary laws Critiques Sovereign Parliamentary supremacy challenged Rights and power Hart fails to appreciate Austins project which is to describe law at a deeper level. To Austin, rights are correlative of duties Habitual obedience This cannot not explain the continuity of the laws Distinguish between habit and rule Nullity take note of Cotterrells comments Conclusion Austins theory is much more complicated and subtle than the picture his commentators paint. Student must demonstrate the ability to appreciate Austin beyond his immediate view. Past year exam questions 1. What are the strongest points, in your view, of the command theory of law? 2. Austins theory is not a theory of the Rule of Law- of government subject to law. It is a theory of the rule of men of government using law as an instrument of power. Such a view may be considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent. (Cotterrell) Discuss