John Austin's Command Theory: Criticisms by H.L.A Hart - Essay Sample

Introduction

Most individuals consider John Austin as the establisher of the school of jurisprudence that is particularly known as legal positivism. Particularly, the command theory, as outlined by Austin, has been a subject to criticism by people like H.L.A Hart. According to Austin, the law perception is nothing but a sequence of orders receded by threats. Nonetheless, Hart criticizes this concept. This essay focuses on discussing the idea, "The Law Is Nothing Other Than a Series of Orders Backed by Threats” by analyzing John Austin's "The Providence of Jurisprudence" and H.L.A Hart’s, “The Concept of The Law."

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John Austin’s “The Province of Jurisprudence Determined”

According to John Austin, positive laws are a set of rules established for subjects by a foreign in a politically independent society (Austin, 1863). Austin commands can analyze the rules of law of the sovereign obliging the non-performance or performance of a particular class of individuals by the subjects of a class of actions, which in this case, pay specific taxes. In turn, commands are analyzed as expressions of wishes or desires on the part of the authority that the particular actions be left undone or done by the subjects, accompanied by perceived abilities and intentions of infliction of some sanctions in case subjects refuse to comply. In a minimal sense, subjects are required to observe the laws either by being liable to the threatened sanctions or by fearing them. Austin's theory is encompassed of an analysis of the points of view of the politically independent society and the sovereignty claiming that rules of positive law are commands. Austin's theory focuses on the ideas of a politically and independent sovereignty society and the claims that rules of positive laws are commands (Austin, 1863). in his book, "The Concept of Law," Hart criticizes Austin's command theory claiming that most of the unquestionable laws in contemporary states cannot be plausibly analyzed as commands. Hart insists that most positive laws in the demonstration, lack a comprehensive form of directives or commands supported by an assortment of extortions.

H. L. A. Hart’s “The Concept of Law”

In the Concept of Law, the author, in an empathetic manner, rejects the notion that a mature legal system can be analyzed adequately or illustrated majorly in terms of commands assisted by threats. Hart notes that the simple model of law as a forceful sovereign order can hardly yield particular essential aspects of a legal system. This is regardless of whether the rules and las of the modern legal system can be demonstrated as one form of a problem or problem fragments (Hart, 2012). Hart remains conscious of the statement that “legal systems at any rates seem to contain laws that are divergent from the model of general orders," looking at it as assailable (Hart, 2012). However, Hart admits that a powerful correspondence exists between criminal law, its authorization, and overall orders backed by threats that leave an open question the extent that the point of view of a law enforced by the threat of punishment for disobedience can serve to explain the idea of criminal law. Hart analyses power conferring rules to appear to be logically distinct from the duty imposing rules and notably distinct from unpretentious commands backed by threats. If Hart is correct in this, this suggests that the command theory of positive law by Austin can hardly be made to encompass an essential class of the legal phenomena and all the power conferring rules of law; hence, Austin's theory can be termed inadequate.

Conclusion

Austin version of the law being nothing other than a series of orders backed up by threats ahs been criticized by Hart. He points out that the theory provided by Austin is a little outline of the validity of law since it aims at one particular form of rule that needs individuals to either abstain or fail to refrain from specific actions, regardless of their wishes and wants. Hart believes that despite that, each legal system should encompass the basic rules that control the actions of its citizens. A system that consists of an entire form of freedom limitations found in the criminal is a primitive legal system. Hart views Austin's theory to emphasize the forceful force that leads him to miss the presence of the second form of primary law that communicates upon citizens the authority to modify, form and get rid of rights and obligations in other people.

References

Austin, J. (1863). The Province of Jurisprudence Determined: Being the First Part of a Series of Lectures on Jurisprudence, Or, the Philosophy of Positive Law (Vol. 2). J. Murray. https://books.google.co.ke/books?hl=en&lr=&id=4okDC_aoO00C&oi=fnd&pg=PA113&dq=John+Austin%E2%80%99s+The+Province+of+Jurisprudence+Determined+&ots=6hSKST40yt&sig=okbMVnkLDaSBvXBoxPn3KrBFId8&redir_esc=y#v=onepage&q=John%20Austin%E2%80%99s%20The%20Province%20of%20Jurisprudence%20Determined&f=false

Hart, H. L. A. (2012). The concept of law. oxford university press. https://books.google.co.ke/books?hl=en&lr=&id=hC0UDAAAQBAJ&oi=fnd&pg=PP1&dq=H.+L.+A.+Hart%E2%80%99s+The+Concept+of+Law.&ots=MDfaxz-zyu&sig=sdnqk9nJuRn1R4pn2WeCV6rm8Bs&redir_esc=y#v=onepage&q=H.%20L.%20A.%20Hart%E2%80%99s%20The%20Concept%20of%20Law.&f=false