Concepts and Nature of Law
Elizabeth Lake
Concepts and Nature of Law
John Austin 1) PHILOSOPHER’S VIEW
John Austin’s philosophy of law was that “where there is law, there are patterns of commanding and obeying. His definition of commanding was a general one rather than specific to a given occasion or an expression of one person’s wish for another person to act a certain way. He believed that any expression of an intention did not count as a command, only the expressed intention of a superior or sovereign who has the ability and willingness to authorize a sanction in the absence of obedience to the command. Austin also stated that in the area of law, compliance could not be a one-time situation, that there should be a habit of compliance to the sovereign giving the command. The sovereigns in this case would be those with education and experience in the area of law, and those who do not have the education and experience are called subjects.
Austin did not believe that laws are for the common good. He said:
“To say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act…be prohibited by the sovereign under the penalty of death; if I commit this act, and I object to the sentence, that it is contrary to the law of God…the court of justice will demonstrate the inconclusiveness of my reasoning, by hanging me up, in pursuance of the law of which I have impugned the validity.”
[Austin, 1832]
He said that what law is is a matter of social fact, and that what law ought to be is completely different. In Austin’s view, he felt that law should aspire to the laws laid down by God, and the standard for determining this was known as the principle of utility, the belief that morality dictates that we act in a manner that maximizes societal
Concepts and Nature of Law
John Austin 1) PHILOSOPHER’S VIEW
John Austin’s philosophy of law was that “where there is law, there are patterns of commanding and obeying. His definition of commanding was a general one rather than specific to a given occasion or an expression of one person’s wish for another person to act a certain way. He believed that any expression of an intention did not count as a command, only the expressed intention of a superior or sovereign who has the ability and willingness to authorize a sanction in the absence of obedience to the command. Austin also stated that in the area of law, compliance could not be a one-time situation, that there should be a habit of compliance to the sovereign giving the command. The sovereigns in this case would be those with education and experience in the area of law, and those who do not have the education and experience are called subjects.
Austin did not believe that laws are for the common good. He said:
“To say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act…be prohibited by the sovereign under the penalty of death; if I commit this act, and I object to the sentence, that it is contrary to the law of God…the court of justice will demonstrate the inconclusiveness of my reasoning, by hanging me up, in pursuance of the law of which I have impugned the validity.”
[Austin, 1832]
He said that what law is is a matter of social fact, and that what law ought to be is completely different. In Austin’s view, he felt that law should aspire to the laws laid down by God, and the standard for determining this was known as the principle of utility, the belief that morality dictates that we act in a manner that maximizes societal
References: Austin, J. (1832/1995). The province of jurisprudence determined. Cambridge, UK: Cambridge University Press. Bix, B. (2002). “Natural law theory: The modern tradition.” Oxford Handbook of Jurisprudence and Philosophy of Law. New York, NY: Oxford University Press. Murphy, M.C. (2006). Philosophy of law. Malden, MA: Blackwell Publishing.