Introduction

Theory of Legal Postivism

Postivism stands for a conviction, which forms the basis
of traditional English thought, that law is something
that could be identified and studied separately from
any moral elements. This thought is believed to
originate from Bentham. His pupil, John Austin has
made significant contribution on the theory. The other
great postivists are Kelsen and Hart.
The Command Theory
Read the Province of Jurisprudence
Take note of the meaning of laws properly so called
and laws improperly so-called
His idea of divine law founded in utilitarianism
Take note of the importance of separating the laws of
science and nature with positive laws
Austin clarifies the concept of positive law - man-
made law
The Command Theory
Austin define the law as :
The command of the sovereign, backed by sanctions
Define command as:
An intimation or expression of a wish to do or forbear
from doing something, backed up by power to do harm
to the actor in case he disobeys.
Furthermore, the person whom the command is given is
under a duty to obey it, and the threatened harm is
defined as a sanction.
The Command Theory
Rights and Power

Austins view of law as a tool of efficient government is

compatible with his portrayal of the fundamental
nature of duties as opposed to rights
Please refer to the Hohfeldien analysis of rights
The Command Theory
Sanction
Ascribe two-fold role of sanction:
It identifies expression of desire or wishes as
commands
It makes certain conduct obligatory sanctions being
the motive of compliance
To Austin, nullity is also a form of sanction
The Command Theory
Sovereign
Austins idea of sovereign, as opposed to Benthams is grounded on the
notion of an independent political society
The two axioms: The sovereign is legally illimitable and the sovereign is
indivisible
The sovereign is not answerable to law but answerable to Utilitarianism
Austins description of the sovereign as a body or body of persons is
open to debate
There are 2 marks of sovereign:
The positive mark the sovereign is a person or body of persons who
receives habitual obedience from the bulk of society
The negative mark the sovereign habitually obeys no-one
The Command Theory
Judicial activism
Unlike Bentham, Austin thinks that the judge is a delegated
legislator who commands on behalf of the sovereign. This
is an interesting point in the context of judicial reasoning
when read in the light of Dworkins criticism.
Any theory, such as one of the most common forms of
positivism, claims that law is to be identified only in terms
of its origination from some definite, posited, source such
as sovereign is faced with the difficulty of saying whether
customary law is really law.
Austins account provides the basis for the English idea of
statutory interpretation and judicial precedent.
The Command Theory
International law and constitution law
International law is not law because it arises not through
the assertion of commands but through popular
sentiment and mere opinion among nations and thus
positive morality.
Constitutional law is not law because it is not possible
for a sovereign to be under a legal duty.
Critiques
Hart
The idea that law consists merely orders, backed by
threats is inadequate to explain modern legal system.
There are many modern laws governing the foundation
and implementation of contracts, wills, marriages
Variety of laws
Customary laws
Critiques
Sovereign Parliamentary supremacy challenged
Rights and power
Hart fails to appreciate Austins project which is to
describe law at a deeper level. To Austin, rights are
correlative of duties
Habitual obedience
This cannot not explain the continuity of the laws
Distinguish between habit and rule
Nullity take note of Cotterrells comments
Conclusion
Austins theory is much more complicated and subtle
than the picture his commentators paint. Student
must demonstrate the ability to appreciate Austin
beyond his immediate view.
Past year exam questions
1. What are the strongest points, in your view, of the
command theory of law?
2. Austins theory is not a theory of the Rule of Law- of
government subject to law. It is a theory of the rule
of men of government using law as an instrument
of power. Such a view may be considered realistic or
merely cynical. But it is, in its broad outlines,
essentially coherent. (Cotterrell)
Discuss