Jurisprudence - Austin Part 1

Summary

This lecture introduces legal positivism, focusing on John Austin's model and its critiques by H.L.A. Hart and others. It explains that legal positivism is about understanding law based on its source rather than its moral value. Austin's 'command theory,' which defines law as commands from a sovereign backed by sanctions, is analyzed. The lecture also covers how Hart and Kelsen criticized this model, emphasizing law's internal perspective and its ability to function independently of sovereigns. Hart's criticism of Austin's theory is discussed, along with counterarguments from theorists like Cal. For further learning, additional resources are available online.

Takeaways

• 📜 Legal positivism focuses on the source of the law rather than its moral merits.
• 🛑 Legal positivism, particularly Austin's command theory, defines law as a command from a sovereign backed by sanctions.
• 🗝️ Hart's criticism of Austin emphasizes that laws cannot be understood solely as commands; there is an internal perspective that considers how individuals use law to guide their behavior.
• ⚖️ Austin's theory fails to explain how legal systems maintain coherence and function independently of the sovereign or legislature.
• 🔍 Hart introduced the 'internal aspect of law,' highlighting that people obey laws because they view them as rules that guide their conduct.
• 🔨 Hart and Kelson both critiqued Austin's command theory, offering new ways to understand how legal systems unify laws and operate autonomously.
• 💡 Hart argues that legal systems are primarily controlled by general rules rather than officials enforcing every law individually.
• 🛠️ Hart disputes that nullity (the absence of legal effect) is a sanction, as it applies to power-conferring rules which don’t aim to suppress behavior.
• 👥 Hart asserts that understanding the internal point of view of law is crucial for a complete understanding, but without implying moral endorsement.
• 📚 Austin's model has various limitations, including its overemphasis on coercion, which Hart and other theorists like Kelson worked to address and refine.

Q & A

What is the central concept of legal positivism?

Legal positivism is a doctrine about the nature of law that holds that all laws are laid down by a person or procedure, and the legal validity of a rule depends on its sources rather than its merits.

How does legal positivism differ from moral considerations?

Legal positivism does not concern itself with whether a law is morally good or bad. It focuses solely on where the law has come from and the procedures that established it.

What are the key points of John Austin's command theory of law?

According to John Austin, positive law is the command of the sovereign, backed by the threat of a sanction in case of non-compliance, and people show habitual obedience to these commands.

What is H.L.A. Hart’s criticism of Austin’s command theory?

Hart criticizes Austin's command theory by arguing that it fails to explain how legal systems operate as a system. Laws are not just isolated commands but are interconnected, and legal systems persist even when sovereigns or legislatures change.

What is the 'internal aspect of law' as described by H.L.A. Hart?

Hart's internal aspect of law refers to understanding law from the perspective of those subject to it, who use the law as a guide for their behavior. This perspective is necessary to fully understand how law functions in society.

How does Hart’s view differ from Austin’s command theory in understanding legal systems?

Hart argues that Austin's view presents those subject to the law as passive and focused on coercion. In contrast, Hart believes legal systems have a life of their own, with rules that guide behavior rather than being mere commands.

How do theorists like Hans Kelsen attempt to improve upon Austin’s model?

Hans Kelsen criticizes Austin’s model for failing to explain the unity of legal systems. Kelsen emphasizes that legal systems regulate their own creation and persist over time, independent of the sovereign who enacts them.

What is Hart’s view on the limitations of Austin’s command model?

Hart believes that Austin’s command model cannot account for many types of laws, such as those that confer legal powers, which are not orders backed by threats but instead enable actions like making contracts or wills.

What is the significance of 'nullity' in Hart's criticism of Austin?

Hart argues that nullity, which results from non-compliance with power-conferring rules, is not the same as a sanction. He believes this distinction weakens Austin’s model, as power-conferring laws are not about suppressing behavior but setting limits on actions.

How did Cal respond to Hart's criticism of Austin's model?

Cal defended Austin by arguing that Austin's theory required generality in laws, meaning that laws apply to categories of people and behaviors. He also stated that Austin did not claim all laws serve the same purpose but was only identifying familiar characteristics of law.

Outlines

00:00

📚 Introduction to Legal Positivism and John Austin

The lecture begins by introducing the concept of legal positivism, focusing on John Austin's model. Legal positivism is explained as a doctrine that emphasizes the source of law rather than its moral value. According to Austin, laws are commands issued by a sovereign, backed by sanctions. The discussion then shifts to H.L.A. Hart's criticism of Austin, found in 'The Concept of Law,' and how theorists like Cal defended Austin in their works, particularly focusing on the distinction between law’s source and its moral worth.

05:01

🧑‍⚖️ Command Theories and the Sovereign's Role

The lecture continues with an exploration of Austin's command theory, which sees law as the command of a sovereign enforced by threats of sanctions. This view emphasizes coercion but fails to explain how legal systems function independently of the sovereign. Theories by Hart and Kelson criticize this shortcoming by arguing that laws and legal systems have a life of their own, persisting through changes in leadership and governing bodies. Hart and Kelson's works aim to improve upon Austin's model by addressing these issues.

10:02

🔍 Hart’s Internal Aspect of Law

Hart introduces the concept of law's internal aspect, arguing that legal theorists must understand how individuals subject to the law use it as a guide to conduct. This perspective contrasts with Austin's external, passive view of people merely obeying laws out of habit or fear. Hart insists that understanding the law from an internal point of view is crucial, but without necessarily endorsing the law morally, which keeps the theory aligned with legal positivism.

📝 Hart's Criticism of Austin's Command Model

Hart's criticism of Austin's command model is discussed in detail. He challenges the idea that law functions merely through commands and sanctions issued by officials. Instead, Hart argues that law operates more through general rules that apply to a broad population, not through specific orders given to individuals. Hart also points out that many areas of law, like contract law, do not fit the command model as they confer powers rather than dictate behavior. These criticisms highlight the limitations of Austin's model in accounting for the complexities of legal systems.

⚖️ The Role of Generality and Sanctions in Law

The lecture examines how both Austin and Bentham emphasized generality in law, applying to categories of people and general actions. Hart critiques this view by arguing that many laws, particularly those that confer legal powers, do not fit this model. The issue of sanctions is also debated, with Hart rejecting the notion that nullity (invalidity) serves as a sanction in power-conferring laws. Hart concludes that laws vary in purpose and cannot all be reduced to commands backed by threats, a view defended by theorists like Kelson.

📢 Conclusion and Further Learning Resources

The lecture wraps up by encouraging students to visit Law Prep 101 for additional resources, including notes and summaries that complement the topics discussed. This serves as a bridge to the next part of the lecture, which will delve deeper into Austin's legal theory and its modern critiques.

Keywords

💡Legal Positivism

Legal positivism is the doctrine that law is a set of rules laid down by a person or procedure, and its validity is determined by its sources, not its moral content. In the video, legal positivism serves as the foundation for exploring John Austin's theory, emphasizing that law is based on its origins rather than whether it is morally good or bad.

💡John Austin

John Austin is a 19th-century legal theorist known for developing the 'command theory' of law, which states that laws are commands issued by a sovereign backed by the threat of sanctions. In the video, Austin's model is discussed as a central element of legal positivism, later critiqued by theorists like Hart and Kelson for its shortcomings in explaining the complexity of legal systems.

💡Command Theory

The command theory, presented by Austin, defines law as the command of the sovereign backed by sanctions for non-compliance. The video highlights how this theory focuses on obedience to authority but fails to explain the ongoing life and evolution of legal systems, especially when sovereigns change or laws adapt over time.

💡HLA Hart

HLA Hart is a 20th-century legal philosopher who critiqued Austin's command theory by introducing the idea of law's 'internal aspect.' In the video, Hart's criticisms are presented, including his argument that Austin's model does not account for how legal rules are understood from within the legal system by those who follow them.

💡Internal Aspect of Law

The internal aspect of law, as described by Hart, refers to the way in which people subject to legal rules view and use them to guide their conduct. The video explains that Hart saw law not as a mere external command, but as something understood from within, contrasting Austin's view of passive obedience.

💡Sovereign

In legal theory, the sovereign is the authority that creates and enforces laws, as described in Austin’s command theory. The video explains how Austin sees law as the command of the sovereign, but critiques this view for not explaining how legal systems survive and evolve independently of any particular sovereign's will.

💡Sanction

A sanction in legal theory refers to the punishment or consequences imposed for not complying with a law. In Austin’s command theory, sanctions are essential to enforce laws, but the video discusses how Hart and Kelson critique the idea that all laws are enforced through sanctions, especially in the context of power-conferring rules.

💡Generality of Law

Generality of law refers to laws being applicable to broad categories of people or actions rather than specific individuals or cases. The video discusses how Austin and Bentham argued that generality is a core feature of laws, countering the criticism that their theories overly simplify the nature of legal systems.

💡Power-Conferring Rules

Power-conferring rules are legal rules that give individuals or institutions the ability to create or change legal relationships, such as contracts or wills. The video contrasts these with coercive rules, explaining Hart's critique that not all laws fit into Austin’s command model, as power-conferring rules do not rely on sanctions.

💡Nullity

Nullity refers to the legal consequence of an action being invalid if it does not comply with a certain rule. In the video, Hart argues that nullity is not a sanction because power-conferring rules, like those governing parliamentary votes, are not designed to punish but to regulate legal actions. This distinction challenges Austin's view of all laws as orders backed by threats.

Highlights

Introduction to legal positivism and John Austin's model, focusing on law as rules laid down by a person or procedure rather than moral considerations.

Explanation of command theories by Jeremy Bentham and John Austin, where laws are commands of the sovereign backed by the threat of sanction.

Criticism of Austin's command theory for failing to explain how legal systems have a life of their own, independent of the sovereign.

H.L.A. Hart's improvement on Austin's model by introducing the internal aspect of law, focusing on how law is used as a guide to conduct by those subject to it.

Hart's internal aspect of law contrasts with Austin's passive obedience theory, emphasizing that people follow laws not just out of fear of sanctions but because they understand and accept them.

Hart and Hans Kelsen’s criticism of Austin's command theory and their attempt to explain the unification of laws into legal systems.

Hart's notion of the internal point of view as essential to understanding law adequately, without turning it into a moral endorsement.

Hart's criticism of Austin's model in 'The Concept of Law,' particularly the idea that law is not just orders backed by threats.

Hart's argument that laws are generally made by statutes and other forms of general directions, not merely through commands issued to individuals.

Austin's belief that law must have a generality in terms of its addresses and actions, focusing on utility rather than maximizing liberty.

Hart's distinction between criminal law and other laws, arguing that Austin's model fails to account for laws that confer legal powers rather than suppress behavior.

Hart's rejection of the notion that nullity (lack of legal effect) is a sanction in the context of power-conferring rules, such as contract laws.

Hart's assertion that laws designed to suppress negative behavior, such as fines for speeding, differ from laws aimed at other purposes, like taxation.

Hart’s claim that Austin's model ignores the variety of laws and their different purposes, making it an incomplete account of legal systems.

Carl’s defense of Austin against Hart’s critique, arguing that Austin sought to identify common characteristics of laws rather than claim they serve identical purposes.

Transcripts

[Music]

welcome to your first lecture on Juris

Prudence legal positivism and John

Austin in particular today we will be

going over the introduction to Legal

positivism and John Austin's model we

will then subsequently begin to explore

the internal aspect of law as presented

by heart thirdly we will move to primary

texts like the con of law which contains

HLA heart's criticism of Austin's Theory

and lastly We Will We Will merge heart's

criticism with the criticism of

theorists like Cal where who in his book

politics of jurist prudence especially

chapter 3 and four ended up defending

Austin so let's begin by describing what

legal positivism is legal positivism is

a Doctrine about the nature of law

According to which a all laws are laid

down by a person or procedure and B

something counts as a wed law of a

certain system in virtue of being laid

down by a certain someone or according

to a certain procedure in other words

the legal validity of a rule depends on

its sources where has it come from how

and when rather than its merits whether

it is a good rule or a bad rule so um

legal positivism does not concern itself

with whether something is morally good

or morally bad it only concerns itself

with where the law has come from that is

what legal positivism is about now this

way of understanding the law was also

made famous during the 19th century by

the command theories of law which were

presented by Jeremy benam and John

Austin now according to these theories

positive law or law so-called is the

command of The Sovereign which is backed

up by the threat of a sanction in the

case of non-compliance to which people

show habitual obedience now these

command theories help us to understand

the positive nature of law allow us to

identify and understand what law is

before considering whether it is morally

good or morally bad and foreground the

role which coercion plays in the law and

so furnishes us with a legal Theory

which attempts to tell citizen subject

to the law exactly the sort of thing

they're dealing with however

unfortunately the command theories make

the command Theory makes it difficult to

understand how legal systems work as a

system each law is law because it is

posited by an act of The Sovereign and

so each law appears to be self-contained

and self-sufficient unified only in that

all laws have in fact been commanded by

the present Sovereign this however fails

to explain the way in which legal

systems seem to have well a life of

their own independently of the lives of

The Sovereign or legislatures which

posit the laws legal system remain in

force and are capable of altering the

laws which comprise them are capable of

creating laws across time and even they

retain these

characteristics when for example One

Sovereign dies or one legislature

dissolves and a new one ascends to the

throne or is reconvened now the 20th

century legal theorists like chart and

Hans Kelson both criticize these

weaknesses in Austin's command theory of

Law and in their own sep ways set out to

explain what law is what is what is it

rather that unifies laws into legal

systems and allows legal system to

regulate their own creation have a life

of their own so we saw previously how

both Hart and Kelson uh try to improve

upon Austin's model by saying that

Austin's model fails to describe how

legal systems happen to have a life of

their own another important way in which

both Hart and Kelson try to improve upon

Austin's legal positivism was to give a

better account of Law's internal aspect

Austin presented those who were subject

to the law as being passive in the face

of an external Force law was the command

of The Sovereign which was backed up by

the sanctions in the face of which the

population had a habit of obedience they

were passive in heart's view this

account of law only explained how law

looked on the surface and from the

outside and was similar to an account of

car stopping at traffic lights such as a

martian sociologist might offer a

martian sociologist could state that

cars have a habit of stopping in the

face of traffic lights turning red this

way of looking at the situation however

fails to tell us how things appear from

the inside to those who use legal rules

to guide the conducts in their daily

lives cars do not merely happen to have

a habit of stopping at red lights rather

those people in the cause understand

that there is a rule requiring them to

stop which they are using to guide the

conduct and which they take as a reason

for stopping when the traffic traffic

light turns red the point which Hart

wanted to make was that legal theorists

will miss some of the most important

things about the nature of law unless

they understand law as it is understood

by those who are subject to it and use

it as a guide to conduct hard dub this

the inside is perspective the internal

aspect of Law and insisted that law had

to be understood taking into account

this internal point of view if it if it

was to be understood adequately now Hart

and Kelson gave different accounts of

this internal aspect of law but both

wanted to stop short of turning it into

an intrinsically moral aspect which

would cast doubt on their legal

positivism according to Hart and Kelson

then legal theorists must understand law

from the internal point of view but that

point of view must not be so internal so

as to entail a moral endorsement of law

we will now be going over H's criticism

of Austin's model uh which he went over

quite elaborately between chapters 1 to

7 and in the prephase now har said that

Austin defined uh law by the command

model that is laws are just orders back

by the threats or habits issued by a

person institution that is generally

obeyed now when defining legal controls

orders from officials

cannot be the primary way the law

functions according to hard the law

doesn't function primarily by officials

going around and telling everyone of

every single act that they are required

to do no state would have the resources

to do this where officials do

communicate the rules to the individuals

according to Heart it is the exception

normally laws are made by General forms

of directions for example statutes

therefore legal control is primarily

controlled by directions that apply to

General classes of people and prescribe

General types of behavior the party

issuing the order must be habitually

obeyed by the population and there has

to be a belief that the sanctions for

non-compliance will be affected Now cal

responded to this criticism of heart

towards Austin and he stated that Austin

and benam both require a generality for

a law to exist generality relates one to

the category of addresses and two to the

ACT prohibited required by the rule that

is not merely a direction on one

specific case or action nor to a

particular individual Austin therefore

sees a law as a technical instrument

that could aim for utility not as a

device to maximize

Liberty now hard also lists several

other objections to Austin's point of

view these are categorized in content

mode of origin and the range of

application of laws argument we will

briefly go over the cont content

argument now hard believe that while

criminal law and T law do bear an an

analogy to the command model many areas

of law do not rules that confer P legal

powers on people example by allowing

them to contract and giving effect to

the contracts or the power to make a

will is not demanding any particular

type of behavior and there is no

sanction involved some try to get around

this objection by associating power

conferring rules with coer Ive Rules by

suggesting that nullity is the sanction

resulting from non-compliance with the

rule har denies this saying that it

makes no sense to speak of nullity as a

sanctions since power confirming rules

are not trying to suppress a type of

behavior but instead are setting limits

to the power confirmed for example the

rule that only a majority vote in the

parliament will allow a bill to pass

cannot be regarded as punishing failure

to obtain a majority another attempt to

counter the argument was by Kelson who

said that in order to get around this

nullity as a sanction you could use my

art

proposition har also points out that if

a law without sanction is shown to be

possible then this argument and Austin's

entire model disappears he also says

that laws which operate as orders backed

by threats are fundamentally different

from other types of laws since only the

former are designed to suppress activity

viewed as negative for example there's a

difference between a fine mental to

deter people from driving above the

speed limit and a tax whose purpose is

simply to collect Revenue now heart's

criticism on the basis that first the

Austin single coercive model ignores the

variety of laws and secondly ignores the

different purpose of laws as

demonstrated by a variety of sanctions

is rejected by Cartal on the grounds

that Austin was merely seeking to

demonstrate characteristics familiar to

all laws not claim that all laws serve

the same purpose laws repealing other

ones were not laws in real sense since

they commanded absolutely nothing now

for part two of this lecture on uh

Austin please log on to law prep 101.com

where you will be able to find other

notes and summaries which will really

Aid to your

[Music]

learning