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• He
was
the
intellectual
successor
of
Jeremy
Bentham
• Some
would
say
he
is
the
founder
of
modern
legal
positivism
• His
most
famous
book
was
The
Province
of
Jurisprudence
Determined
(1832).
• He
stressed
that
there
is
a
big
difference
between
what
the
law
is,
and
what
the
law
ought
to
be
• “The
law”(i.e.
positive
law)
is
different
from
other
uses
of
the
concept
of
law
(e.g.
God’s
law,
laws
of
morality,
social
norms.
Example
of
a
social
norm:
queuing
at
the
petrol
station)
• For
Austin
“the
law
properly
so-‐called”
is
only
the
law
that
is
made
by
men
who
are
the
political
superiors
of
others
• The
central
part
of
his
theory
of
law
is
the
notion
of
law
as
a
command
of
the
sovereign
• Austin’s
theory
about
law
is
sometimes
called
“command
theory”
• Austin’s
“command
theory”
has
3
main
parts:
o Law
is
a
command
(or
set
of
commands)
issued
by
an
uncommanded
sovereign
o The
commands
are
backed
by
the
threat
of
sanctions
(punishment)
o The
sovereign
is
one
who
is
habitually
(usually)
obeyed
• What
is
a
‘sanction’?
Austin
defines
it
as
some
harm,
evil,
or
pain
that
is
conditional
upon
the
failure
to
obey
the
command
Differences
between
Austin
and
Bentham:
Austin
insists
on
the
sovereign
being
one,
but
Bentham
allows
for
the
possibility
of
a
divisible
sovereign
(eg
under
a
federal
system)
• Criticism
of
John
Austin’s
theory:
o The
concept
of
the
sovereign:
§ 1.
These
days,
the
“sovereign”
is
usually
not
one
person,
but
a
group.
Austin’s
theory
seems
to
be
based
on
a
monarchy,
where
the
sovereign
is
the
person
at
the
top.
§ 2.
Sometimes
the
“sovereign”
does
have
to
answer
to
someone
higher
(e.g.
member
states
of
the
EU)
so
they
can’t
be
called
“uncommanded”.
§ 3.
Sometimes
the
“sovereign”
is
limited
in
power
or
divided
–
eg
–
federal
government
shares
power
with
state
governments
§ 4.
In
the
modern
world,
the
sovereign
is
also
subject
to
the
same
laws
that
he/she/they
make.
It
isn’t
a
one-‐way
action
of
the
sovereign
giving
laws
to
the
subjects.
The
sovereign
is
also
bound
by
them
(in
most
democracies
at
least).
o The
concept
of
commands
being
backed
by
the
threat
of
sanctions:
this
explains
criminal
laws
nicely.
But
lots
of
laws
empower
or
enable
people
to
do
things.
Austin’s
theory
doesn’t
seem
to
notice
that
many
other
laws
(e.g.
wills,
trusts,
contracts,
voting
in
elections
etc)
are
Social
Theory
and
Law
Monday,
June
24,
2013
Dr
Myra
Williamson
Summer
Semester
2013
1
“law”
but
they
don’t
have
a
“sanction”.
Other
types
of
laws
give
power
or
authority
to
people,
not
punish
them.
So,
Austin’s
theory
does
not
describe
all
law.
o Only
accepting
as
laws
those
rules
that
come
from
the
sovereign
might
result
in
individuals
obeying
tyrants.
His
theory
assumes
that
the
sovereign
will
be
a
good
leader
and
will
make
good
laws.
However,
if
he/she
doesn’t,
it
doesn’t
leave
people
with
much
choice
other
than
to
obey
the
commands.
o His
idea
that
the
sovereign
is
one
who
is
always
obeyed
leads
him
to
refuse
to
accept
as
“law”
customary
law,
international
law
and
a
good
deal
of
constitutional
law
as
law.
General
comments
o His
ideas
were
more
restrictive
than
Bentham’s
but
he
was
still
influential.
Bentham
had
a
more
sophisticated
and
comprehensive
approach.
For
example,
Bentham
thought
that
commands
were
only
one
type
of
law,
whereas
Austin
said
that
only
positive
commands
issued
by
the
sovereign
counted
as
laws.
o Bentham
and
Austin
together
laid
the
foundations
for
modern
legal
positivism.
o He
influenced
other
legal
positivists
such
as
HLA
Hart
and
Joseph
Raz.
• Further
reading:
o Bix,
Brian,
"John
Austin",
The
Stanford
Encyclopedia
of
Philosophy
(Spring
2013
Edition),
Edward
N.
Zalta
(ed.),
forthcoming
URL
=
<http://plato.stanford.edu/archives/spr2013/entries/austin-‐john/>.
o Davies,
M.
Asking
the
Law
Question
3rd
Edition
(Oxford
University
Press,
Oxford:
2008).
o Wacks,
R.
Philosophy
of
Law
–
A
Very
Short
Introduction
(Oxford
University
Press,
Oxford:
2006)
o Wacks,
R
Understanding
Jurisprudence
(Oxford
University
Press,
Oxford:
2012)
chapter
3
Social Theory and Law Monday, June 24, 2013 Dr Myra Williamson Summer Semester 2013 2