IndexIntroductionAbout John AustinCentral aspects of Austin's theoryA. Analytical jurisprudence B. Legal positivismC. Command theory of law and theory of legal sovereigntyPositive law according to John AustinPositive morality according to John AustinCritiqueConclusionIntroductionPositivist thinkers have famously challenged the proposition that international law is in fact law. John Austin asked how international law could be considered a law without a sovereign, and HLA Hart argued that international law is a law, but that it includes primary norms. International legal thinkers seeking to respond to these challenges often argued that secondary norms of international law have now been developed. Above all, the rule of recognition is often articulated through the theory of the sources of international law. These statements are part of the positivist tradition of international legal thought which, throughout the 19th century, distanced itself from the theories of natural law that had dominated the field in previous centuries (see, for example, the writings of Alberico Gentili, Ugo Grozio (1583 -1645 ) and Emer de Vattel (1714-1767)). Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an original essay International law has been treated in relation to or in comparison with international ethics or morality. This is highlighted by John Austin's statement that international law is not law in the proper sense of the term but positive morality. Consequently, what we call “international law” is, as Austin says, really “law in name only.” a form only of what he called “positive morality,” because whether or not it is applied depends entirely on the willingness of “nation states” to obey it. He was a jurisprudence thinker along the typical Hobbesian line of thought. Austin defined a “law” as a rule established by a sovereign power to which obedience can be imposed ⎯ because there is a penalty for those who do not comply with it. So, as he saw it, for a "law" to be considered a law, there must be a legal sanction for those who fail to comply with it. About John Austin As a young man, John Austin's family bought him a junior commission in the army, and after five years' service he began studying law in 1812. From 1818 to 1825 he practiced, rather unsuccessfully, at the Chancery Bar. Austin did not he was never a practical man, but he impressed the circle of people around Jeremy Bentham with his capacity for rigorous analysis and his uncompromising intellectual honesty. In 1826, when University College London was founded, its first professor of law was appointed; at that time legal education was mostly practical and it was almost impossible to obtain a degree in English law. A key point for Austin is that to achieve legal reform (and reform of government and social institutions through law) one must have a very clear understanding of the nature of law itself. The first task was to free our understanding of law from the confusions and “mysteries” of the common law tradition. Austin attempted to do this by placing "positive law" in a political framework, taken largely from Hobbes: law was part of the political relations between sovereign and subject. Central Aspects of Austin's Theory A. Analytical Jurisprudence Austin was interested in analyzing the concept of legal system and the central concepts used in legal discourse. Reductive Analysis: Austin's particular form of analysis was reductive. His intention was to analyze legal concepts in terms of non-legal conceptslegal so that the entire scope of law could be understood in non-legal terms, particularly in psychological and sociological terms. This was part of the attempt by many philosophers to unify all knowledge with underlying physics.B. Legal positivism The descriptive/prescriptive distinction: both as a substantive point of his legal theory and as a methodological point, Austin drew a clear conceptual distinction between the law as it is and the law as it should be. Test of legal validity: Since the law, for Austin, has any content, there must be some test of legal validity that does not depend on the content of the law. Like later positivists, Austin accepts a genetic test. The validity of the law is determined by its origin or history. (For example, has it been approved by the required legislative bodies, signed by the required executive bodies, etc.?) Rule centrality: Law is a kind of rules.C. Command Theory of Law and Theory of Legal Sovereignty These two aspects of Austin's theory provide the basis for his specific genealogical test of legal validity. They are part of his version of legal positivism but not, as we will see later, an essential part of legal positivism itself. Criticisms of Austin's views: His description of laws as commands, producing a habit of obedience, misrepresents the nature of legal positivism. the authority given by law. His requirement that sovereignty, as he defines it, is necessary for the existence of law needlessly denies the validity of primitive (and modern) customary law, including international law and constitutional law. regulatory body to a set of simple rules (requests accompanied by a threat of harm) is an impossible project. It is based on the radical empiricism of its day, but is out of touch with modern notions of the scientific method. His version of sovereignty (a determined person or persons without habit of obedience to another such person or group) is clumsy to the point. to be inconceivable in modern legal systems. The same criticism can also be leveled against the related notion of an independent political society. Austin overlooked or obscured the necessary relationship between law and moral values. This has been an important issue in modern debates centered on the term “legal positivism.” Lon Fuller and, more recently, Ronald Dworkin have been major critics, arguing that Austin has misrepresented, if not ignored, the inevitable presence of morality in the law. My project will deal mainly with the second critique (i.e. Austin on international law). Positive law according to John Austin The subject of jurisprudence is positive law: the law, simply and strictly said: or law imposed by political superiors on political inferiors. But positive law (or law as simply and strictly so called) is often confused with objects to which it is related by similarity, and with objects to which it is related by analogy: with objects that are also signified, properly and improperly. , with the broad and vague expression law. «A law, in the most general and comprehensive sense in which the term is used, in its literal meaning, can be said to be a rule established for the guidance of an intelligent being by an intelligent being who has power over him». The laws laid down by men to men are of two main or main classes: classes which are often mixed, though extremely different; and which, for this reason, should be cut with precision and contrasted clearly and conspicuously. Of the laws or rules established by men to men, some are established by political superiors, sovereigns and subjects: by people exercising supreme government andsubordinate, in independent nations, or independent political societies. Only the set of rules thus established or some aggregate constituting a portion of that set applies, the term law, if used simply and rigorously. But, in contrast to natural law, or the law of nature (meaning by these expressions, the law of God), the set of rules established by political superiors is often called positive law, or law existing by position. In contrast to the rules that Austin called positive morality, and on which he immediately touched, the set of rules, established by political superiors, can also be conveniently labeled positive moralitylaw. Closely analogous to the human laws of this second class are a set of objects frequently but improperly termed laws, being rules established and enforced by mere opinion, that is, by the opinions or feelings held or felt by an indeterminate body of men concerning human conduct. Examples of such use of the term law are the expressions: "The law of honor"; 'The law established by fashion;' and rules of this kind constitute a large part of what is usually called "international law". The aggregate of human laws properly so called belonging to the second of the above-mentioned classes, with the aggregate of objects improperly but by strict analogy called laws, Austin places together in a common class and denotes them by the term positive morality. The name morality separates them from the positive law, while the positive epithet separates them from the law of God. Indeed the name morality (or morality), when unqualified or alone, denotes indifferently one of the following objects, namely the positive morality as it is, or without regard to its merits; and positive morality as it would be if it conformed to God's law, and was therefore worthy of approval. Positive morality according to John Austin In addition to the human laws that Austin calls positive law, there are human laws that he calls positive morality, rules of positive morality, or positive moral rules. The generic character of class laws can be briefly stated in the following negative way. No law belonging to the class is a direct or indirect command of a monarch or a sovereign number as a political superior. In other words, no law belonging to the class is a direct or indirect command of a monarch or sovereign number to one or more persons in a state of subjection to its author. But of the positive moral rules, some are proper laws or laws properly so called: others are improper laws or laws improperly so called. Some have all the essential elements of a mandatory law or rule: others are deficient in some of those essential elements of a mandatory law. or rule: others lack some of these essential elements and are called laws or rules by an analogical extension of the term. Positive moral rules, which are laws properly so called, are distinguished from other laws by the union of two signs: they are imperative laws or rules established by men to men. They are not set by men as political superiors, nor are they set by men. as private persons, in exercise of legal rights. Inasmuch as they bear the latter of these two signs, they are not commands of sovereigns in their capacity as political superiors. Consequently, they are not positive laws: they are not imbued with legal sanctions, nor do they legally oblige the people for whom they are intended. But being commands (and therefore being established by certain individuals or entities), they are laws in the strict sense: they are armed with sanctions, and impose duties, in the proper meaning of the terms. Positive moral rules, which are improperly called laws, are laws established or imposed by general opinion: that is, by opiniongeneral of any class or of any society of persons. For example, some are fixed or imposed by the general opinion of people who practice a profession or trade: others, by that of those who live in a city or province: others, by that of an independent nation or political society: others, by that of a larger society made up of various nations. Some types of laws established by general opinion have obtained appropriate names - For example, there are laws or rules imposed on gentlemen by current opinions among gentlemen. And these are usually called rules of honor, or laws or law of honor. There are laws or rules imposed on fashion people by current opinions in the fashion world. And these are usually called the laws established by fashion. There are laws which concern the conduct of independent political societies in their various mutual relations: or rather, there are laws which concern the conduct of sovereigns or supreme governments in their various mutual relations. And laws or rules of this kind, imposed on nations or sovereigns by current opinions among nations, are usually called the law of nations or international law. Now, a law established or imposed by general opinion is a law improperly called. It is called law or rule by analogical extension of the term. When we speak of a law established by general opinion, we indicate by this expression the following fact: An indeterminate body or an uncertain aggregate of people regards a type of conduct with a feeling of aversion or sympathy: Or (changing the expression) that an indeterminate body pronounces itself unfavorably or favorably on a certain type of conduct. As a result of that feeling, or as a consequence of that opinion, it is likely that they or some of them will be dissatisfied with a party who pursues or does not pursue conduct of that kind. And, in consequence of this displeasure, it is probable that some party (which party is not determined) will visit the party provoking it with one evil or another. The body by whose opinion the law is said to be established does not command, expressly or tacitly, that conduct of this kind be tolerated or prosecuted. Indeed, since it is not an exactly determined or certain body, it cannot express or express a desire as a body. As a body, it cannot express a desire with oral or written words, or with positive or negative aspects. The so-called law or rule that his opinion imposes is simply the feeling he has, or is simply the opinion he has, regarding a type of conduct. On the prevailing tendency to confuse what is with what should be law or morality, that is, first, to confuse positive law with the science of legislation, and positive morality with deontology; and secondly, to confuse positive law with positive morality, and with both legislation and deontology. – of the latter, examples are the rules relating to the formation of wills, trusts and contracts), while excluding other matters (for example international law) which we are not inclined to exclude from the 'law' category. More generally, it seems more distorting than illuminating to reduce all law to a single type. For example, the rules authorizing people to make wills and contracts perhaps can be recharacterized as part of a long chain of reasoning to possibly impose a sanction (Austin spoke in this context of the sanction of “nullity”) on those who fail to do it. comply with the relevant provisions. However, a redevelopment like this misses the fundamental purpose of these types of laws: they are probably about granting power and autonomy, not punishing transgressions. Austin assumes that the commands God gives us are true morality. Austin distinguishes the law.”