Jurisprudence
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+;John Austin’s ‘Positivist Theory’
General overview:
- His theory is known as the command theory – the law commands one
- John Austin’s area of jurisprudence is positive law or man-made law
- Law made by a political superior to a political inferior
- Any law NOT made from a political superior to a political inferior is not part of
Austin’s area of jurisprudence. (Excludes laws made by parents, religious law,
laws of nature, and positive morality)
- Austin’s ‘test’ for law:
1. Law simply and strictly so called and;
2. Law properly so called
- Sanction is the most important ingredient – if a rule accompanies a sanction then
a duty is implied and the law is thus a command or a law properly so called. A
duty is thus predicated in the presence of a sanction.
READ PAGE 43
, Jurisprudence
John Austin’s Theory
The matter of jurisprudence is positive law: law simply and strictly so called: or law set
by political superiors to political inferiors.
A law’s general definition, in its literal meaning, is a rule laid down for the guidance of
an intelligent being by an intelligent being having power over him.
Passing the 1st stage of what constitutes law as per Austin’s theory: law
‘properly and simply’ so called
Note: for a law to be properly so-called, it has to be a command
Every law or rule (taken with the largest signification which can be given to the term
properly) is a command. Or rather, laws or rules properly so called are species of
commands. The term command comprises the term law, the first is the simpler as
well as the larger of the two.
Command: A command is distinguished from other signification of desire, not by the
style in which the desire is signified, but by the power and the purpose of the party
commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or
will not harm me in case I comply not with your wish, the expression of your wish is not
a command, although you utter your wish in imperative phrase. If you are able and
willing to harm me in case I comply not with your wish, the expression of your wish
A command then is a signification of desire. But a command is distinguished from
other signification of desire by this peculiarity: that the party to whom it is intended
is liable to evil from the other, in case he complies not with the desire.
amounts to a command.
+
+;John Austin’s ‘Positivist Theory’
General overview:
- His theory is known as the command theory – the law commands one
- John Austin’s area of jurisprudence is positive law or man-made law
- Law made by a political superior to a political inferior
- Any law NOT made from a political superior to a political inferior is not part of
Austin’s area of jurisprudence. (Excludes laws made by parents, religious law,
laws of nature, and positive morality)
- Austin’s ‘test’ for law:
1. Law simply and strictly so called and;
2. Law properly so called
- Sanction is the most important ingredient – if a rule accompanies a sanction then
a duty is implied and the law is thus a command or a law properly so called. A
duty is thus predicated in the presence of a sanction.
READ PAGE 43
, Jurisprudence
John Austin’s Theory
The matter of jurisprudence is positive law: law simply and strictly so called: or law set
by political superiors to political inferiors.
A law’s general definition, in its literal meaning, is a rule laid down for the guidance of
an intelligent being by an intelligent being having power over him.
Passing the 1st stage of what constitutes law as per Austin’s theory: law
‘properly and simply’ so called
Note: for a law to be properly so-called, it has to be a command
Every law or rule (taken with the largest signification which can be given to the term
properly) is a command. Or rather, laws or rules properly so called are species of
commands. The term command comprises the term law, the first is the simpler as
well as the larger of the two.
Command: A command is distinguished from other signification of desire, not by the
style in which the desire is signified, but by the power and the purpose of the party
commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or
will not harm me in case I comply not with your wish, the expression of your wish is not
a command, although you utter your wish in imperative phrase. If you are able and
willing to harm me in case I comply not with your wish, the expression of your wish
A command then is a signification of desire. But a command is distinguished from
other signification of desire by this peculiarity: that the party to whom it is intended
is liable to evil from the other, in case he complies not with the desire.
amounts to a command.
