Jurisprudence - Austin Part 1
Summary
TLDRThis 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
- đ Legal positivism focuses on the source of the law rather than its moral merits.
- đ Legal positivism, particularly Austin's command theory, defines law as a command from a sovereign backed by sanctions.
- đïž 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.
- âïž Austin's theory fails to explain how legal systems maintain coherence and function independently of the sovereign or legislature.
- đ Hart introduced the 'internal aspect of law,' highlighting that people obey laws because they view them as rules that guide their conduct.
- đš Hart and Kelson both critiqued Austin's command theory, offering new ways to understand how legal systems unify laws and operate autonomously.
- đĄ Hart argues that legal systems are primarily controlled by general rules rather than officials enforcing every law individually.
- đ ïž Hart disputes that nullity (the absence of legal effect) is a sanction, as it applies to power-conferring rules which donât aim to suppress behavior.
- đ„ Hart asserts that understanding the internal point of view of law is crucial for a complete understanding, but without implying moral endorsement.
- đ 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. Hartâs criticism of Austinâs 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 Hartâs view differ from Austinâs 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 Austinâs model?
-Hans Kelsen criticizes Austinâs 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 Hartâs view on the limitations of Austinâs command model?
-Hart believes that Austinâs 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 Austinâs 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
đ 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 lawâs source and its moral worth.
đ§ââïž 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.
đ Hartâs 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.
đ 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.
âïž 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.
đą 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.
Mindmap
Keywords
đĄLegal Positivism
đĄJohn Austin
đĄCommand Theory
đĄHLA Hart
đĄInternal Aspect of Law
đĄSovereign
đĄSanction
đĄGenerality of Law
đĄPower-Conferring Rules
đĄNullity
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 Kelsenâs 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.
Hartâs claim that Austin's model ignores the variety of laws and their different purposes, making it an incomplete account of legal systems.
Carlâs defense of Austin against Hartâs 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
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