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  • John Austin's Analytic Jurisprudence and Command Theory of Law

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    Moniruzzaman Juror
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    John Austin's theory of law analyzes legal concepts in non-legal terms through a reductive analysis. He draws a distinction between law as it is and as it ought to be, taking a descriptive rather than prescriptive approach. Austin believes law is valid based on its origin and source, accepting a "pedigree test" to determine validity. He views law as a species of rules and proposes a command theory of law, where law is the command of a sovereign power backed by sanctions.

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    Austin Overview

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    John Austin's theory of law analyzes legal concepts in non-legal terms through a reductive analysis. He draws a distinction between law as it is and as it ought to be, taking a descriptive rather than prescriptive approach. Austin believes law is valid based on its origin and source, accepting a "pedigree test" to determine validity. He views law as a species of rules and proposes a command theory of law, where law is the command of a sovereign power backed by sanctions.

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    4 tayangan1 halaman

    John Austin's Analytic Jurisprudence and Command Theory of Law

    Diunggah oleh

    Moniruzzaman Juror
    John Austin's theory of law analyzes legal concepts in non-legal terms through a reductive analysis. He draws a distinction between law as it is and as it ought to be, taking a descriptive rather than prescriptive approach. Austin believes law is valid based on its origin and source, accepting a "pedigree test" to determine validity. He views law as a species of rules and proposes a command theory of law, where law is the command of a sovereign power backed by sanctions.

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    Attribution Non-Commercial (BY-NC)
    Unduh sebagai PDF, TXT atau baca online dari Scribd
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    Overview of John Austins Theory of Law

    I. Central Aspects of Austins Theory A. Analytic Jurisprudence: Austin was concerned to analyze the concept of a legal system and the central concepts used in legal discourse. 1. Reductive Analysis: Austins particular form of analysis was reductive. His intention was to analyze legal concepts in terms of non-legal concepts so that the whole realm of the law could be understood in non-legal termsin particular, in psychological and sociological terms. This was part of an attempt by many philosophers to unify all knowledge with physics at the base.

    B.

    Legal Positivism 1. The Descriptive/Prescriptive Distinction: Both as a substantive point of his legal theory and as a point of methodology, Austin drew a sharp conceptual distinction between law as it is and law as it ought to be. Genetic Test of Legal Validity: Because the law may, for Austin, have any content whatsoever, there needs to be some test of legal validity that doesnt depend on the content of the law. Like later positivists, Austin accepts a pedigree or genetic test. The validity of law is determined by its origin, source or history. (E.g., was it passed by the required legislative bodies, signed by the required executive bodies, etc?) Centrality of Rules: Law is a species of rules.

    2.

    3. C.

    Command Theory of Law and the Theory of Legal Sovereignty: These two aspects of Austins theory give the basis for his specific pedigree test of legal validity. They are a part of his version of legal positivism but not, as we shall see later, an essential part of legal positivism itself.

    II.

    A Chart of Austins Reductionism: Legal Concept law sovereign legal obligation independent political society political inferior/superior Transitional Concepts Non-legal Concepts habit of obedience sanction (penalty) expression of desire ability to inflict harm liability to sanction

    command

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