Austin’s Theory of Law
According to Austin positive law has three main features :it is a type of command. It is laid down by a political sovereign. It is enforceable to sanction.
The connection of greater to inferior consist for Austin in the power which the former enjoy over the other i.e. his ability to punish him for disobedience the idea of sanction is built in Austin in idea of control.
There are commands which are laws and commands which are not law. Austin differentiate law from other commands by their simplification laws are general commands. However there can be exceptions. There can subsist laws such as acts of attainder which lack the character of generality.
According to Austin law is law only if it is efficient and it must be generally obeyed. Perfect respect is not necessary without general. obedience. the commands of law maker are empty as language which is no longer spoken what is sufficient for a legal theorist is that obedience exists.
According to Austin, laws are of two kinds: divine law and human law. Heavenly law was given by god to men, human being laws are set by men for men.
Human laws are two kinds: specific laws are set up political superiors and are positive law and there are other which are not set up political superiors. The second category covers charitable association and clubs.
According to Austin .laws strictly so called. are one particular species of set rules and consists of only those which are set by a sovereign authority to a member of an self-governing political civilization wherein that. person or body is sovereign or supreme.
A command is wish/desire to another so that he shall do a particular thing or abstain from doing a particular thing. in case of non- conformity with command .he has to for evil consequences .the permit behind law is the evil which is to be influenced in case of disobedience.
John Austin was born in 1790. In 1818 he was called to the bar. For seven years.he practised law but lacking success. In 1819 he married Sarah Taylor a women of great intelligence rule and beauty. When the university of London was founded Austin was appointed as professor of jurisprudence and he spent the next two years in preparing his lectures.
His opening lectures were attended by john Stuart Mill. Romilly and others .After initial success. Austin failed to attract new students and he resigned the chair in 1831. Through the efforts of his wife. an expanded description of the first part of the lectures was published in 1831. Under the title of “the province of jurisprudence determined “Austin repeated the lectures in 1834 but without success .Hence he gave up gave up teaching jurisprudence altogether.
Austin wrote with extreme difficulty. He imposed on himself he standards of precision and lucidity that. made work a torment .Between 1832 and 1859; he published only a couple. of articles and a pamphlet –a plea for the constitution.
The second edition of the province of jurisprudence was published by this widow in 1861. She also reconstructed from the notes of her husband “lectures on jurisprudence” or philosophy of positive law and published them in 1863.
Austin is called as the father of English jurisprudence and the creator of the analytical school. Allan prefers to call Austin school as the vital school. It is contented that Austin does not fit exactly into any of the important schools.
AUSTIN THEORY OF LAW
Austin’s most important contribution to Legal theory was substitution of the command of the sovereign. for any ideal of justice in the description of law.
He defined law as a rule laid down for the guidance of intelligent being by an intelligent being having. authority over him” law is strictly diverged from justice. It is based on the power of a superior .This units Austin with Hobbes and other of sovereignty.
According to Austin laws are of two kinds: Law of God, Human laws.
In Austin positivists of law .the law of god seems to fulfil too others purpose then that of serving As a respectable for Austin utilisation beliefs the principle of utility is the law of god. Laws properly so called (positive law)
Human law are divisible into probable laws and laws shockingly. So called the former are law set by. political superiors to political secondary or laws set by subjects as personal person in carefulness of legal rights approved to them.
Laws improperly so called are those laws which are not set directly or indirectly by a political superior.In this category are diverse type of rules, such as rules of clubs, law of style, laws of natural science. The rules of so called international law .Austin gave these the name of constructive morality.
Laws improperly so called also incorporated a final class called “laws by metaphor” which enclosed look of uniformities of nature.
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According to Austin positive law has three main features :it is a type of command. It is laid down by a political sovereign. It is enforceable to sanction. The connection […]