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com

Positivism,Austin

The Command
Theory
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Philosophers Associated
with Command Theory
Earliest Roots of
Command theory can be
attributed to Thomas
Hobbes John Austin

1748–1832

1588–1679 1790–1859

Jeremy Bentham
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Every Legal system has a human sovereign who Is himself

above law.

Sovereign could also be group of human beings but they

must have a mechanism to resolve conflicts. The Important
point is, as a group they must be above law.
What is
Command Austin allowed sovereign to obey God.

Theory? Sovereign commands his subject and threatens them with

sanctions if they disobey.

If there are no sovereigns then there are no legal system in

a country.
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HLA Hart ,an English positivist criticized

the command theory
• He noted legal rules often remain in
force even after sovereign dies or
resigns, so the validity of laws cannot
depend on sovereigns command.

Critique of the command

theory
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2nd Criticism of command theory-Hart

Austin’s Basic Assumption of law ,is that

All laws require subjects to act or to refrain from

acting.
• Parents should feed their children
• Laws forbidding rape
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2nd Criticism of Command theory-Hart

But not all laws require the subject

from acting or refrain from acting
•Ex-Law of Contracts
•Law of Contracts Enable or empowers some
people to make contracts but it does not force
them to do so.
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Austin claims people obey law because

they are threatened by sanctions if
they disobey.

3rd Criticism But Hart Says People Obey Law even if

of the there is no threat of Sanctions. Hart
Feels People may have an Obligation to
Command obey Law.
Theory This obligation to obey law is called
Internal point of view.

Austin v Hart
Austin
Every Legal System needs a
Sovereign.
Law Requires Subject From Act or
Refrain From Acting
People, obey laws because they
are threatened by sanctions.
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Hart
Legal System can exist without
Human Sovereign
Not all Law are like this, Some laws
are enabling and empowering
laws.
Rational People obey laws due to
their internal Obligation,without
the need of sanctions.
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Hart and Austin Agree on

Social Fact • What Constitutes the law in a certain society is

ultimately a matter of social facts.

Thesis • The laws of society exist and have meaning if and only
if human beings create them and give them meaning.

Separability • There is no connection between Law and Morality

Thesis