Command Theory, Sovereignty & Positivism
1. Austin’s Command Theory of Law
John Austin is the chief exponent of the Command Theory of Law. He defined law using three core elements: Command, Sovereign, and Sanction.
- Command: A general order issued by a political superior to a political inferior.
- Sovereign: A supreme political authority habitually obeyed by the bulk of society, while not obeying any other authority.
- Sanction: The physical force of the state behind the law to compel obedience.
- Binding of Law: This implies that subjects are bound to observe the law.
- Imperative Law: A rule of action imposed upon men by some authority which enforces obedience to it.
2. Legal Positivism
Legal Positivism is the approach to the study of law according to which only laws posited (made) by their rightful creators are valid.
- Core View: It espouses that there is no necessary connection between morality and law (law and morals are separate).
- Least Accurate Description: Stating that positivism "records morals and law as inseparable" is entirely false.
- Subject Matter: According to John Austin, the subject matter of jurisprudence is positive law (man-made law, or law as it is).
- Legislative Basis: Positivism emphasizes formal law-making; John Austin famously noted that there can be no law without a legislative act.
3. Utilitarianism vs. Hedonism
These are ethical and philosophical principles that influenced early legal analysts like Bentham and Mill.
- Hedonism: The doctrine of "avoid pain and gain pleasure." It states that all human actions are controlled by these two sovereign masters.
- Utilitarianism: The doctrine of the "greatest happiness for the greatest number of people."