Philosophy Of Law


In an attempt to answer the question "What the law is?" Professor J. L. Austin proposes a "Command Theory of Law". One way of understanding this theory of traditional positivism is to compare it to the famous empires of Medieval Japan. These empires consisted of a single Emperor, or a "sovereign" , that was considered to have the complete obedience of the people in his empire. Another aspect of his authority is the idea that there is no other political figure higher than the Emperor. With such power and status at his disposal, the Emperor is able to inflict any degree of punishment that he sees fit if his commands are not carried out or followed. In describing law as being a command backed by threats of punishment for insubordination, Austin is not arguing that any type of command be considered a law. It would be absurd to think a father commanding his son to take out the garbbage would be a type of command to be considered a law. Rather, being that laws govern entire groups and societies, the commands must originate from an authoritative source or "pedigree" that the people in the society give obedience to.


In analyzing Professor Austin's theory of law, Professor H. L. A. Hart argues that Austin fails to describe the true "essence of law" . Hart views Austin's command theory of law as no different than a gunman commanding a bank teller to give him the money. In this example, the gunman is in a position of authority (in relation to the bank teller) and is capable of inflicting lethal punishment to the bank teller if his commands are not carried out. Thus, as Hart contends, the bank teller would feel "obliged" to hand the gunman the money for fear of the...