John Austin – criticism of John Austin’s theory – a quick summary

law articles for llm phd students
  • He was the intellectual successor of Jeremy Bentham
  • Some would say he is the founder of modern legal positivism
  • 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)
  • Austin’s theory about law is sometimes called “command theory”
  • Austin’s “command theory” has 3 main parts:
    • Law is a command (or set of commands) issued by an uncommanded sovereign
    • The commands are backed by the threat of sanctions (punishment)
    • The sovereign is one who is habitually (usually) obeyed

Criticism of John Austin’s theory:

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. 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).

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 “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.

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.

He influenced other legal positivists such as HLA Hart and Joseph Raz

Further reading:


 

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