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Austin Theory of Law in Jurisprudence

Andrew Halpin argued (Halpin 2013) that Austin shaped the essence of modern analytical jurisprudence and legal positivism by deciding to exclude legal reasoning from his discussion of “jurisprudence.” According to Halpin, it would have been more difficult to place more emphasis on legal reasoning and to claim a clear separation of the law “as it is” and the law “as it should be”. Halpin points out that later prominent legal positivists followed Austin, either by speaking little about legal reasoning (Hans Kelsen and, to some extent, H.L.A. Hart), or by speaking extensively about the subject, but treating the subject as strongly distinct from their theories of law (the nature of law). 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.” Bentham, in a book published posthumously, defined the law as follows: Third, Austin was the first systematic proponent in analytical jurisprudence 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” study (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). Austin`s goal was to turn law into a true science. To this end, he considered it necessary to purge human law of all moralistic ideas and to define central legal concepts in a strictly empirical manner. The law, according to Austin, is a social fact and reflects the relationships of power and obedience. This dual view that (1) law and morality are separate, and (2) that all man-made (“positive”) laws can be attributed to human legislators, is called legal positivism. Relying heavily on the ideas of Jeremy Bentham, Austin was the first legal thinker to develop a fully developed positivist legal theory. 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.

Austin was aware of some of these lines of attack and had answers; That is another question of whether his answers were appropriate. It should also be noted that Austin`s work shows a silence on methodological issues, although this may be forgivable given the early stage of jurisprudence. As mentioned in a previous section, Austin has taken a new path in many ways. On methodological issues, later commentators on Austin`s work have struggled to determine whether it is better understood as empirical assertions about law or conceptual claims; Elements of all kinds of approaches can be found in his writings (Lobban 1991: pp. 224-225; Cotterrell 2003: pp. 81–83). Austin`s theory of sovereignty assumes that people will obey exactly what the sovereign commands, which is not the case in the current scenario of Indian politics. [5] His theories place the usual obedience to subjects on the quintessence of philosophy. Those who regard the sovereign as the good will obey voluntarily. Those who think that the sovereign is imperfect will obey lest the evil of their resistance prevail over the evil of obedience.

And those who are not sure will obey the sovereign out of habit. Austin`s theory also assumes that people are perfectly educated politically. [6] In the above criteria, Austin succeeded in distinguishing law and legal norms from religion, morality, conventions, and habits. However, customary law (except to the extent that the sovereign had directly or indirectly adopted practices such as law), international law and parts of constitutional law were also excluded from the “jurisdiction of jurisprudence”. (These exclusions alone would make Austin`s theory problematic for most modern readers.) Austin also included certain “exceptions” in the “province of jurisprudence,” points that did not meet his criteria, but should nevertheless be considered with other “laws aptly called this”: repeal of laws, declarative statutes, and “imperfect laws” — laws that prescribe actions but without sanctions (a concept Austin attributes to “Roman [legal] jurists”) (Austin 1832: Reading I, p. 36). Austin`s work had an influence in the decades following his death (Rumble 2005); this influence was partly on the reformulation of his ideas by other thinkers such as T. E.

Holland (Postema 2011: p. 4). E. C. Clark wrote in the late 19th century that Austin`s work “undoubtedly forms a school of English jurists, perhaps also of English legislators. It is the basic element of jurisprudence in all our systems of legal education” (Clark 1883: pp. 4-5). A similar assessment is made by H.L.A. Hart, who looks back nearly a century later: “A few years after his death it was clear that his work had established the study of law in England” (Hart 1955: p. xvi). As we have seen, Austin`s influence can be seen on a number of levels, including the general level of how legal theory and law in general were taught (Stein 1988: pp. 238-244), and the use of an analytical approach in legal theory.

At these levels, Austin`s influence is still felt today. Hart could write that “Austin`s influence on the development of English [jurisprudence] was greater than that of any other writer” (Hart 1955: p. xvi), although Austin`s theory of the special command of law has become almost hostile and is probably better known today of Hart`s use (1958:602-606, 2012:18-25) as a foil for the elaboration of Hart`s own. a more nuanced approach to legal theory. In recent decades, some theorists have revisited Austin`s command theory (and other work), offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble 1985, see generally Freeman & Mindus 2013). Thus, we can conclude from the above facts that Austin`s entire theory is not adapted to the modern Indian political and legal scenario because it leads to political instability, anarchy and social chaos. Austin`s command theory, however, was more influential than Bentham`s, as his jurisprudential writings did not appear in an almost systematic form until long after the publication of Austin`s work, with Bentham`s most systematic discussion appearing only in the late 20th century (Bentham 1970, 1996; Cotterrell 2003: p.