Legal Positivism and John Austin's Command Theory of Law

Flashcards covering key terms and concepts from lecture notes on Legal Positivism and John Austin's Command Theory of Law.

Legal Positivism

The idea that only what is stated by political authority is law, which is separate from morality and has certainty as its primary ideal.

Three Main Positivists

Hans Kelsen, Hart, and John Austin.

Law as It Is vs. Law as It Ought to Be

A central distinction made by John Austin, who viewed natural law theory as law as it ought to be and insisted on studying law as it is through analytical jurisprudence.

Analytical Jurisprudence

A general jurisprudence that seeks a universal concept of law applicable to all legal systems, requiring a comparative attitude as encouraged by Bentham.

John Austin

An English lawyer and pupil of Jeremy Bentham who developed the command theory of law and sought to study jurisprudence scientifically.

Command Theory of Law

John Austin's theory stating that laws are fundamentally a series of commands and orders given by superiors to inferiors.

Command

An imperative expression of a wish or desire by a rational being, which is inseparably connected to duty and sanction.

Superiority

Defined in Austin's theory as might, or the power of affecting others with evil and forcing them through fears to forge their conduct according to the superior subject's wishes.

Inseparable Connection in Command Theory

The principle that command, duty, and sanction are tied together, meaning there is no sanction without command and no duty without command.

Legal Authority

Authority based on the capacity to enforce behavior using power and force, where morality is irrelevant and law does not have to be just.

Criticism of Command Theory

The argument that not all laws are commands (e.g., laws granting rights) and not all duties carry sanctions (e.g., the duty to be faithful in matrimony).

Reductionistic, Monistic Legal Positivism

An approach to jurisprudence that attempts to provide a scientific account of abstract notions by reducing norms and legal concepts to facts.