2013 ZB Q10 Answer answer Jurisprudence PDF

Preview

Summary

2013 ZB Q‘John Austin failed to give an accurate account of law because he did not pay sufficient attention to law’s nature as a set of social rules.’ Discuss.John Austin was an English legal theorist who believed in the positivist theory of law. In his view, the law was a command backed by a sancti...

Description

2013 ZB Q10 ‘John Austin failed to give an accurate account of law because he did not pay sufficient attention to law’s nature as a set of social rules.’ Discuss. John Austin was an English legal theorist who believed in the positivist theory of law. In his view, the law was a command backed by a sanction emanating from a political superior and directed towards a political inferior and this command was obeyed habitually by a bulk of society. Austin, in his analysis of law, thus did not consider that law could exist as a mere social rule without a coercive force or sanction to ensure its enforceability. John Austin gathered his Command Theory of Law from legal theorists, Thomas Hobbes and Jeremy Bentham who preceded him. Both Hobbes and Bentham were legal positivists. Hobbes believed that man by nature was ‘solitary, poor, nasty, brutal…’ and thus needed law to control him. Bentham, on the other hand, carried a utilitarian view and believed that the greatest happiness of the greatest number of people should be the basis of a legal system. Influenced by these theorists, Austin believed that a political superior’s powers were illimitable, indivisible and clearly identifiable. Austin also specified three qualities of a command; a command was a wish or desire of a sovereign, a political inferior would be punished if these commands were not obeyed and the commands could be expressed through words or other means. Austin’s command law theory has been subjected to criticism by Professor H.L.A Hart, who, though himself a legal positivist, did not believe that Austin’s theory offered a precise view of law. Hart built his legal theory based on criticizing that of Austin’s. One of Hart’s main criticisms of the Command Theory of Law revolved around Austin’s portrayal of law simply and totally as a command backed by a sanction which was then obeyed by individuals due to fear. Hart disagreed with Austin on this matter and argued instead that although there are instances where coercive power comes into play with regard to obedience to the law, many individuals obey the law due to the respect that they possess for the sovereign. Hart focused on the distinction between ‘obligation’ and ‘being obliged’. Accordingly, ‘obligation’ denotes that one considers it a duty while ‘being obliged’ denotes that one is forced to act in a specific manner contrary to their personal views. Hart saw Austin’s command theory of law as ‘being obliged’ and a mere order backed by a threat and equated it to a situation of a gunman giving orders to a bank clerk during a bank robbery. According to Hart, law emanates from a position of authority and as mentioned above, habitual obedience is due to respect for this authority and Austin failed to see this aspect of law. Hart further criticized Austin based on the fact that Austin provided only an external aspect of the law in habitual obedience. This aspect does not take into account the attitudes of individuals in following the law but merely focuses on the fact that there is a regular conduct by the majority of society and thus conformity by all individuals to that conduct. Hart highlights an internal aspect of law which involves a critical reflective attitude by individuals to certain patterns of behaviour. Here, behavior is simply not followed due to conditioning but individuals reason with the rules, interpret and make judgements on their own and then decide to show obedience. For example, in the following of traffic rules, according to the internal aspect of law, the rules will be evaluated by individuals, be deduced that it is for their own safety and benefit and then followed. Therefore it becomes a social rule and not a mere order backed by a threat coming from a political superior. Since this internal point of view involves the perspective of those who accept the rule, the existence of social rules consist of this acceptance and subsequent use.

Austin by focusing only on the external aspect thus ignored the existence of inherent social rules and focused on the almost mechanical obedience given to the sovereign without independent evaluation. Hart also focused on the fact that customs in a specific society are obeyed by individuals as social rules even before they are passed as valid law. In this argument, customs cannot be shown to have become law in accordance with the qualities of a command specified by Austin, mainly as they are not the wishes or desires of a political superior. Therefore, they cannot be said to be backed by fear of punishment. However, customs are yet followed by individuals as social rules, even prior to incorporation as law, due to the respect they have for the customs. Austin, as a positivist, argued that customs are not laws in themselves until they are incorporated as law but, at most, are only rules of positive morality. However, Hart in his counter argument defended the position that customs could be laws and raised a question as to why if statutes are valid law even before they are applied through a court of law, the same stance could not apply to customs. For example, crime in Japan is considered to range from low to moderate in comparison with other countries and in 2015 Japan had one of the lowest murder rates in the world. The low crime rate in Japan is argued by Haley to be dependent on consent and mutual agreement in the Japanese social system and not on a formal legal system which provides sanctions. Self-policing and mutual surveillance as a social rule takes place in Japan and individuals conform to the majority view without fear of sanctions or punishment. In conclusion, it can be stated that the above arguments put forth by Professor H.L.A Hart in criticism of Austin’s command theory of law highlight the fact that Austin failed to give a comprehensive view of law as he did not to take into account that laws can be followed as social rules. Although Austin was correct in his submission that law entailed a coercive feature in the majority of instances, in his failure to consider the instances in which laws are followed even without fear of sanctions and only due to reasons such as internalized habitual obedience, respect for authority and conformity to customs in a community which were highlighted upon by Hart, John Austin thus failed to give a totally accurate description of law....