LS490 – Unit 3
John Austin published the Province of Jurisprudence after ending his career as a professor at London University (Murphy, 2007). In the 19th and 20th centuries’ philosophy of law was influenced by the works of Austin. Austin’s concept of law involves the correlation of commands and obedience (Murphy, 2007). Austin’s theory is based on general commands not specific commands provided to citizens to obey. These commands are provided by superiors who have the ability to punish those who do not obey the law with sanction(s) (Murphy, 2007). When a citizen complies with the command, he or she has obeyed the command. An example of Austin’s theory of law would include an individual obeying the speed imposed by the local government so he or she will not receive a speeding ticket. Austin’s theory is inconsistent in regards to law being for the common good. Austin’s command theory is bases on laws and sanctions to get citizens to obey the law. Just because a law is authoritative does not mean that it is in the best interest of the citizens. The only reason some citizens obey the law(s) is for fear of sanctions. Another inconsistency in Austin’s theory is that not all laws are commanding (Murphy, 2007). For example, a law created that sets limits on how much an individual can put each year in a Roth IRA is not commanding. It does set limits as to what an individual is allowed to do but it does not make an individual create an IRA with a fear of sanctions for noncompliance. Austin’s theory is not a viable theory of the nature of law. There are insistences that occur in Austin’s theory. The first insistence relates to the primacy that “commonplace of law is a social fact (Murphy, 2007).” The second insistence is that Austin uses a distinction of “what law is and what law ought to be (Murphy, 2007).” Austin continues to state “Law’s existence is one thing,” “and its merits or demerits another (Murphy, 2007).” Austin’s theory correlation of commands and obedience is different from Hart’s theory of positivism (Murphy, 2007). The theory of positivism involves rules that become social norm rather than laws (Murphy, 2007). They aren’t look upon as being commanding but rather guidance as to justify behavior (Murphy, 2007). These rules become a way of life rather than authoritative figure commanding citizen’s lives.
Hart’s theory of positivism is a perceived as “an artifact of human sociality (Murphy, 2007).” Laws are viewed as social matter and there are no limits as to what can be counted as law (Murphy, 2007). According to Hart the nature of law is to understand laws as rules because rules have a wider scope than laws (Murphy, 2007). Hart distinguishes two distinct features of social rules that include “descriptive social rules” and “normative social rules (Murphy, 2007).” When there is a pattern of social behavior regarding a rule it is deemed to be descriptive (Murphy, 2007). Essentially what happens is that people accept these rules into their daily life and they follow the rules without even thinking about them. Normative social rules are that society or at least part of society uses these types of rules to help justify their actions and to criticize and/or praise the behaviors of others’ (Murphy, 2007). Issues may arise with citizens not being able to distinguish which rules are laws and what rules are just a custom. Another issue is that rules tend to be static versus being versatile (Murphy, 2007). Essentially for rules to change, a vast majority of citizens would need to “change their mind” about the rule for it be changed (Murphy, 2007). Hart does dictate “basic duties and rights of social life” are primary rules (Murphy, 2007). Secondary rules were created to address uncertainty in social norms (Murphy, 2007). An example of a rule or law would include: thou shall not kill. Hart’s theory of positivism is somewhat similar to natural law. The basis