Law and Justice: Legal Positivism

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 John Austin
• The Classical version of positive law theory is John Austin's (1797-
1859)"command theory." His model was that of a definition and his
goal was to give a definition of law that removed all evaluative
language.
• Law, Austin reasons, has the status of command. Austin then
defines 'command" as any signification of a desire by the sovereign.
He then defines the sovereign as "the determinate rational being or
body that the other rational beings are in the habit of obeying."
• Austin's analysis of a law is different from a normal command in the
sense that a law must be logically general. The court makes
particular judgments, but the legislation is always general in form. A
direct, one-time command to an official is not law. Law is a
command to "forbear a whole class of acts."

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 Hart’s criticism of Austin
• Hart’s major dissatisfaction of the Command theory model
is that it is ubiquitous, in a sense that it ignores rule
following and reduces the element of law to the legitimate
use of coercion on the pretext of defiance.
• Hart argues that Austin’s theory cannot explain the variety
of different types of laws encompassed within a legal
system.
• Laws are not orders backed by threats. And if some laws do
resemble orders backed by threats, for example criminal
law, not all laws can be classified as such as there are many
types of laws that don’t resemble orders backed by threats
for example laws that prescribe the way in which valid
contracts, wills or marriages are made, these laws do not
compel people to behave in a certain way.
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 Hart’s criticism of Austin (Contd.)

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• HART and Kelsen

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