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John Austin, Legal Positivism, and the Debate over the Sources of Law January 14, 2013

Posted by Christopher Donohue in History of the Human Sciences, Philosophy of Law.
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One of the most important developments in the understanding of law, what law is and why it is that law has authority in society, was the move away from natural law jurisprudence, articulated by Cicero, Montesquieu, and by Hugo Grotius in the nineteenth century. Natural law jurisprudence was the idea that law derived its authority due to the perfection and purpose of nature and divinity. Since true law had its origins and its sanction from nature and divinity, outside of society, it stood against whim, convention, custom, and caprice. Laws which were against natural law, against reason or justice, were not laws at all.

Early in the nineteenth century, legal positivism, espousing a narrow definition of “positive law,” or those laws enacted by the State or sovereign in the form of commands, attempted a similar style of reasoning to that of earlier natural law jurisprudence insofar as, like natural law theory, it was both rationalistic and deductive. Legal positivism in John Austin’s prose, considered law to be law (as opposed to morality and custom) if it was a command from a sovereign authority that was coercive. This meant that going against the command of the sovereign brought threat of an “evil.” Law was sovereign, moreover, if it emanated from an authority which was subject to no other, such as a king or parliament, who was habitually obeyed.

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