JOHN AUSTIN's COMMAND THEORY OF LAW (1832) posits law as:
Adivine ordinances (cf. John Austin, 'The Province of Jurisprudence Determined' (1832)) (cf. John Austin, 'The Province of Jurisprudence Determined' (1832)) (cf. John Austin, 'The Province of Jurisprudence Determined' (1832))
Bcustomary practice (cf. John Austin, 'The Province of Jurisprudence Determined' (1832)) (cf. John Austin, 'The Province of Jurisprudence Determined' (1832)) (cf. John Austin, 'The Province of Jurisprudence Determined' (1832))
Cnatural moral order (cf. John Austin, 'The Province of Jurisprudence Determined' (1832)) (cf. John Austin, 'The Province of Jurisprudence Determined' (1832)) (cf. John Austin, 'The Province of Jurisprudence Determined' (1832))
DCOMMANDS of a POLITICAL SOVEREIGN backed by SANCTIONS — laws as 'orders backed by threats'; the sovereign is the determinate human superior habitually obeyed who does not habitually obey anyone else
Answer & Solution
Correct answer: D. COMMANDS of a POLITICAL SOVEREIGN backed by SANCTIONS — laws as 'orders backed by threats'; the sovereign is the determinate human superior habitually obeyed who does not habitually obey anyone else
1. JOHN AUSTIN (1790-1859), English legal philosopher, founded analytical jurisprudence with 'The Province of Jurisprudence Determined' (1832).
2. COMMAND THEORY:
3. (i) LAW = COMMAND of a POLITICAL SOVEREIGN backed by SANCTION;
4. (ii) Sovereign = the determinate human superior whom the bulk of population HABITUALLY OBEYS, but who does not habitually obey anyone else;
5. (iii) Sanctions = evil consequences for disobedience.
6. AUSTIN'S DISTINCTIONS:
7. (a) Laws PROPERLY SO CALLED = positive law (analytical jurisprudence subject);
8. (b) Laws IMPROPERLY SO CALLED = laws of God (theology), natural laws (physics), positive morality (ethics).
9. HART'S CRITIQUE: (i) law as commands fails to explain enabling rules (contracts, wills); (ii) custom doesn't fit the model; (iii) the unobeying sovereign doesn't account for constitutional democracies; (iv) commands by threats can't explain legal obligation as opposed to coercion.
10. Hence option B is correct.
_Source: Legal Research Methodology + Jurisprudence — John Austin, 'The Province of Jurisprudence Determined' (1832)_
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