John Austin's Theory of Law
John Austin (1790-1859) was a British legal philosopher and was the first Professor of Jurisprudence at London University. His publications had a profound influence on English jurisprudence. They include The Province of Jurisprudence Determined (1832), and Lectures on Jurisprudence. John Austin is best known for his work developing the theory of legal positivism. He attempted to clearly separate moral rules from "positive law." Austin's theory also falls under Constitutions, International Law, non-sanctioned rules, or law that gives rights.
Austin believed that people have different interpretations of what is wrong and right. Therefore, 'set' laws needed to be established that has to be obeyed. There are three aspects of Austin's theory of law - Analytical Jurisprudence, Legal Positivism and Command theory of law and the theory of legal sovereignty.
Analytical Jurisprudence: It is a method of legal study that concentrates on the logical structure of law, the meaning and uses of its concepts, and the formal terms and the modes of its operation. John Austin's particular form of analysis was reductive. He analyzed legal concepts in terms of non-legal concepts so that the entire law could be understood in non-legal terms.
Legal Positivism: In the 19th century, Austin developed legal positivism theory. The legal positivism states, "What is Law?" Is it written?, Where does it come from? Positivism is from Latin 'root-positus', which means to be certain and fixed. Legal positivism states that laws are derived from written rules, regulations which have been enacted, adopted and recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies. It is based on the legal philosophy that what is the intent of the enacting body.
Command theory of law and the theory of legal sovereignty: This aspect of Austin's theory is based on the commandment of the sovereign. He realized that there should be fixed written commandments, which should be obeyed by all people. These commandments should be backed with sanctions. For example, if we do not obey traffic rules or commit an offence which is codified in the Canadian Criminal Law, we shall be penalized. Austin also realized the need about the uniformity of law. By uniformity means, that the law should be equal for all people of the state.
~ Copyright © Surabhi Kaura 2011
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