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command theory of law

Subject Philosophy

DOI: 10.1111/b.9781405106795.2004.x


P hilosophy of law A theory that can be traced to Jeremy Bentham , but which became widely known through the work of his disciple John Austin , who elaborated the theory in The Province of Jurisprudence Determined (1832). Austin rejected the claim of natural law theory that positive law is derived from natural law. Instead, he defined law as a species of command issued by a sovereign person or body that has purpose or power to inflict punish ment. Law is a coercive method of social control, and we do not have an option to avoid following legal requirements. In his understanding, a command has two aspects: (1) it signifies a desire or wish conceived by a rational being; (2) it can inflictevil or harm on those who fail to satisfy this desire.Accordingly, his definition of law excludes customary law, constitutional law, and international law, because they are not commands in his sense. If the sovereign has stipulated a sanction, one is under a legal duty. Austin's command theory of law is generally criticized as being too narrow, for law does more than merely command. In recent times, his definition of law is examined by H. L. A. Hart in The Concept of Law . “Austin's particular theory is often called ‘the command theory of law’ because he makes the concept of command central in his account of law and maintains that all laws are commands, even when they do not take a form ... log in or subscribe to read full text

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