Consider H.L.a Hart’s Critique of Austin’s Positivist Theory of Law. Do You Think H.L.a Hart Succeeds in Developing an Alternative Account of Law Which Is Persuasive?
The question of what the law is a philosophical one, which probably has no definite answer to it. This is evident as we have seen a lot of legal theorists trying to come with answers to the question. Ronald Dworkin says it is “a set of explicitly adapted rules and ought to maximise the general welfare” , Fuller on the other believed “law should withstand the scrutiny of reason and opposed the idea of legal positivism that law is no higher than a particular authority” , John Austin defined it to be “the command of the sovereign, backed up by sanctions” , Herbert Lionel Adolphus Hart said that law was “the rules that may forbid individuals to perform various kinds of actions or that may impose various obligations on individuals.” These are just some of the legal theorists who have attempted to come with answers to the question. It is probably easier to describe what the law does rather than to define it. From some of these theories and what can be seen in societies, it is not hard to realize that law keeps societies intact with rules on how citizens should conduct themselves and relate with one another.
This essay will focus specifically on only two of the above mentioned theorists, namely John Austin and H.L.A Hart who were both positive theorists (positivists believe that there is no essential link between law and morality, they also believe that genuine laws don’t have to have moral content to be law). These positive theorists have given different accounts of what law is. Hart, in his book, The Concept of Law (1961) criticizes Austin's theory of what the law is. In the essay we will look at whether this criticism renders a persuasive account of what the law is.
Austin saw himself as a criticizing the natural law theory because of his version of legal positivism, his command theory of law which saw law as commands of a sovereign backed up by threat of sanction for disobedience. In his book, The Province of Jurisprudence Determined (1832) he defines some of
This essay will focus specifically on only two of the above mentioned theorists, namely John Austin and H.L.A Hart who were both positive theorists (positivists believe that there is no essential link between law and morality, they also believe that genuine laws don’t have to have moral content to be law). These positive theorists have given different accounts of what law is. Hart, in his book, The Concept of Law (1961) criticizes Austin's theory of what the law is. In the essay we will look at whether this criticism renders a persuasive account of what the law is.
Austin saw himself as a criticizing the natural law theory because of his version of legal positivism, his command theory of law which saw law as commands of a sovereign backed up by threat of sanction for disobedience. In his book, The Province of Jurisprudence Determined (1832) he defines some of