Concepts and Nature of Law
1) PHILOSOPHER’S VIEW
John Austin’s philosophy of law was that “where there is law, there are patterns of commanding and obeying. His definition of commanding was a general one rather than specific to a given occasion or an expression of one person’s wish for another person to act a certain way. He believed that any expression of an intention did not count as a command, only the expressed intention of a superior or sovereign who has the ability and willingness to authorize a sanction in the absence of obedience to the command. Austin also stated that in the area of law, compliance could not be a one-time situation, that there should be a habit of compliance to the sovereign giving the command. The sovereigns in this case would be those with education and experience in the area of law, and those who do not have the education and experience are called subjects. Austin did not believe that laws are for the common good. He said: “To say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act…be prohibited by the sovereign under the penalty of death; if I commit this act, and I object to the sentence, that it is contrary to the law of God…the court of justice will demonstrate the inconclusiveness of my reasoning, by hanging me up, in pursuance of the law of which I have impugned the validity.” [Austin, 1832]
He said that what law is is a matter of social fact, and that what law ought to be is completely different. In Austin’s view, he felt that law should aspire to the laws laid down by God, and the standard for determining this was known as the principle of utility, the belief that morality dictates that we act in a manner that maximizes societal well-being. 1) ANALYSIS
Austin’s viewpoint of the philosophy of law legitimizes the commonplace of common good in that obedience to the commands are necessary to keep order in our society. Austin accommodates the commonplace of common good, not by saying that there has never been a law passed that is contrary to the common good, but rather by addressing what law ought to be, that they should be made to achieve overall societal well-being. His viewpoint also validates the commonplace of authority, in that those who are knowledgeable in law have the authority to deliver the commands that are to be obeyed, and specify the sanctions that will be handed down if the commands are not obeyed. At first glance, Austin’s philosophy of law appears to be logical, consistent and persuasive, but it has been targeted by those who disagree with his views since he published The Province of Jurisprudence Determined in 1832. 2) CRITICISM
Austin’s emphasis that sovereignty and sanctions are essential to the analysis of law makes any number of laws that we have today invalid. The law that allows someone to create a Do Not Resuscitate order (DNR) is more likely to be considered instructions on how to create a document that will be considered binding in a court of law, rather than a command with a sanction if it is obeyed. A sovereign can also be likened to a monarch who also has the capability of making the laws for their subjects in their country. When the monarch passes away, and the next monarch is put in place, the laws are no longer enforceable because the monarch who created them is death, and has no more power to make laws or determine sanctions for those who disobey. Technically and literally speaking, Austin’s view of the sovereign-subject philosophy of law is suitable only for a very specific form of society, so it does not satisfy the commonplace of authority, and possibly not the commonplace of common good. These are but a few reasons why Austin fails to satisfy the...
References: Austin, J. (1832/1995). The province of jurisprudence determined. Cambridge, UK: Cambridge University Press.
Bix, B. (2002). “Natural law theory: The modern tradition.” Oxford Handbook of Jurisprudence and Philosophy of Law. New York, NY: Oxford University Press.
Murphy, M.C. (2006). Philosophy of law. Malden, MA: Blackwell Publishing.
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