Table of ContentsIntroductionAbout John AustinCentral Aspects of Austin's TheoryA. Analytical jurisprudenceB. Legal positivismC. Command theory of law and legal sovereignty theoryPositive law according to John AustinPositive morality according to John AustinCritiqueConclusionIntroductionPositivist thinkers have challenged the proposition that international law is in fact law. John Austin questioned how international law could be considered a law without a sovereign, and HLA Hart asserted that international law is a law, but composed of primary rules. International law thinkers who have sought to respond to these challenges have often argued that secondary rules of international law have now been developed. More particularly, the rule of recognition is often articulated through the theory of the sources of international law. These assertions are part of the positivist tradition of international legal thought that pushed back, throughout the 19th century, the theories of natural law that had dominated the field in previous centuries (see, for example, the writings of Alberico Gentili, Hugo Grotius (1583-1645) and Emer de Vattel (1714-1767)). Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”? Get the original essay International law has been discussed in relation to, or in comparison with, international ethics or morality. This is evidenced by John Austin's assertion that international law is not a law in the literal sense of the term but a positive morality. Therefore, what we call “international law” is, as Austin said, really “law in name only.” only a form of what he calls "positive morality", because whether it is applied or not depends entirely on the willingness of "nation-states" to obey it. He was a jurisprudential thinker who followed the typical Hobbesian line of thinking. Austin defined a “law” as a rule established by a sovereign power to which obedience can be enforced – because there is a penalty for non-obedience. Thus, according to him, for a “law” to be considered a “law”, there must be a legal sanction for non-obedience to it. About John Austin As a young man, John Austin's family bought him a junior commission in the army. and after five years' service he began to study law in 1812. From 1818 to 1825 he practiced unsuccessfully at the Chancery Bar. Austin was never a practical man, but he impressed those around Jeremy Bentham with his analytical rigor and uncompromising intellectual honesty. In 1826, when University College London was established, he was appointed its first professor of jurisprudence; At that time, legal training was largely practical and it was almost impossible to obtain a university degree in English law. A key point for Austin is that to achieve legal reform (and reform of government and social institutions through law) one must have a very clear understanding of the nature of law itself. The first task was to rid our understanding of the law of the confusions and “mysteries” of the common law tradition. Austin attempted to achieve this by placing “positive law” within a political framework, largely inspired by Hobbes: law was part of the political relations between sovereign and subject.Central Aspects of Austin's TheoryA. Analytical JurisprudenceAustin aimed to analyze the concept of legal system and the central concepts used in legal discourse. Reductive analysis: Austin's particular form of analysis wasreductive. His intention was to analyze legal concepts in terms of non-legal concepts so that the entire field of law could be understood in non-legal terms – particularly in psychological and sociological terms. This was part of an attempt by many philosophers to unify all knowledge with physics at its core.B. Legal Positivism The descriptive/prescriptive distinction: both as a substantive point of his legal theory and as a point of methodology, Austin drew a clear conceptual distinction between the law as it is and the law as it should be. Test of Legal Validity: Because law, for Austin, has any content, there must be a test of legal validity that does not depend on content. of the law. Like later positivists, Austin accepts a genetic test. The validity of the law is determined by its origin or history. (For example, was it passed by the required legislative bodies, signed by the required executive bodies, etc.?) Rule centrality: Law is a species of rules.C. Command theory of law and theory of legal sovereignty. These two aspects of Austin's theory form the basis of his specific test of legal validity. They are part of his version of legal positivism but do not constitute, as we will see later, an essential part of legal positivism itself. Criticisms of Austin's views: His description of laws as commandments, producing a habit of obedience, misrepresents the nature of the authority given to law. His requirement that sovereignty, as he defines it, is necessary for the existence of law needlessly denies the validity of primitive (and modern) customary law, including international law and constitutional law. His so-called agenda to reduce the inchoate set of regulations to a set of simple rules (requests accompanied by threat of harm) is an impossible project. It is based on the radical empiricism of its time, but is disconnected from modern notions of scientific method. His version of sovereignty (one or more determined people without a habit of obedience to another person or group) is clumsy to the point of being inconceivable in modern legal systems. The same criticism can also be leveled at the related notion of independent political society. Austin ignored or obscured the necessary relationship between law and moral values. This has been a major issue in modern debates centered on the term "legal positivism". Lon Fuller and, more recently, Ronald Dworkin have been major critics, arguing that Austin distorted, if not ignored, the inevitable presence of morality in law. My project will focus primarily on the second critique (i.e. Austin on international law). Positive law according to John AustinThe subject of jurisprudence is positive law: the law, simply and strictly so called: or the law fixed by political superiors to political inferiors. But positive law (or law, quite simply and strictly so called) is often confused with the objects to which it relates by resemblance, and with the objects to which it relates by analogy: with the objects which are also properly and improperly signified. , by the broad and vague expression law. “A law, in the most general and complete sense in which the term, in its literal sense, is used, may be considered as a rule established for the guidance of an intelligent being by an intelligent being having power over him. » The laws imposed by men on men are of two ruling or principal classes: the classes which are often mixed, although they differ extremely; and who, for this reason, shouldbe broken precisely and opposed distinctly and conspicuously. Among the laws or rules set by men for men, some are established by political superiors, sovereigns and subjects: by persons exercising supreme and subordinate government, in independent nations, or independent political societies. The set of rules thus established or some aggregate forming part of this set, the term law, as it is used simply and strictly, is exclusively applied. But, as opposed to natural law, or the law of nature (that is to say, by these expressions, to the law of God), the set of rules established by political superiors is frequently called positive law, or existing right by position. In contrast to the rules which Austin called positive morality, and which he immediately touched upon, the body of rules, established by political superiors, can also be conveniently labeled positive moral law. Closely analogous to the human laws of this second class are a set of objects frequently but improperly called laws, being rules established and applied by mere opinion, that is, by the opinions or sentiments held or felt by a indeterminate body of men with regard to human conduct. Examples of such use of the term law are the expressions: “The law of honor”; “The law fixed by fashion; ” and rules of this kind constitute a large part of what is usually called “international law”. The set of human laws properly so called belonging to the second of the classes mentioned above, with the set of objects called improperly but by close analogy laws, according to Austin. together in a common classroom, and we refer to them as positive morality. The name morality separates them from the positive law, while the epithet positive separates them from the law of God. For the name morality (or morality), when it is alone or without reservation, designates indifferently one or the other of the following objects, namely positive morality as it is. is, or without regard to its merits; and positive morality such as it would be, if it were consistent with the law of God, and therefore deserved approval. Positive morality according to John Austin In addition to human laws that Austin calls positive law, there are human laws that he calls positive morality, rules of positive morality, or positive moral rules. The generic character of the laws of this class can be stated briefly in the following negative way. No law belonging to this class is a direct or indirect command of a monarch or a sovereign in the capacity of political superior. In other words, no law belonging to this class is a direct or indirect command from a monarch or a sovereign to one or more persons in a state of submission to its author. But among the positive moral rules, some are proper laws or laws properly so-called: others are improper laws or laws improperly so-called. Some have all the essential elements of a mandatory law or rule: others lack some of these essential elements of a mandatory law. or rule: others lack some of these essential elements and are called laws or rules by an analogical extension of the term. Positive moral rules which are laws strictly speaking are distinguished from other laws by the union of two marks: They are imperative laws or rules set by men for men. They are not set by men as political superiors, nor by men. as private persons, by virtue of legal rights. To the extent that they bear the latter of these two marks, they are not commands of sovereigns in the capacity of political superiors. These are therefore notpositive laws: they are not accompanied by legal sanctions and do not legally bind the people on whom they are imposed. But being commandments (and therefore being established by specific individuals or bodies), they are laws properly so called: they are armed with sanctions, and impose duties, in the proper sense of the terms. Positive moral rules which are improperly so-called laws. , are laws fixed or imposed by general opinion: that is to say by the general opinion of any class or any society of people. For example, some are fixed or imposed by the general opinion of people who are members of a profession or a trade: others, by that of people who live in a city or a province: others, by that of a nation or an independent political society: others, by that of a larger society made up of various nations. Some species of laws established by general opinion have received appropriate names - For example, there are laws or rules imposed on gentlemen by the opinions current among gentlemen. And these are generally called rules of honor, or laws or law of honor. There are laws or rules imposed on fashion people by current opinions in the fashion world. And these are generally called the law set by fashion. There are laws which govern the conduct of independent political societies in their various relations with each other: or rather, there exist laws which concern the conduct of sovereigns or supreme governments in their various relations with each other. And laws or rules of this kind, which are imposed on nations or sovereigns by the opinions current among nations, are generally called international law or international law. Now, a law established or imposed by general opinion is a law improperly so called. It is called law or rule by an analogical extension of the term. When we speak of a law fixed by general opinion, we designate, by this expression, the following fact: An indeterminate body or an uncertain group of people considers a kind of conduct with a feeling of aversion or appreciation: Or (by changing the expression) that an indeterminate body issues an unfavorable or favorable opinion on a given type of conduct. As a result of this feeling, or as a result of this opinion, it is likely that they or some of them will be dissatisfied with a party continuing or not continuing conduct of this kind. And, in consequence of this discontent, it is probable that one party (which party being indeterminate) will visit the one who provokes him with one evil or another. The body by which the opinion is intended to establish the law does not order, expressly or tacitly, that conduct of the given kind be refrained from or pursued. For, as it is not a precisely determined or certain body, it cannot, as a body, express or express a desire. As a body, it cannot signify a wish through oral or written words, nor through positive or negative meaning. The so-called law or rule that her opinion is supposed to impose is only the feeling she has, or simply the opinion she has regarding a certain type of conduct. On the dominant tendency to confuse what is with what should be right or moral, that is to say first of all confusing positive law with the science of legislation, and positive morality with deontology; and second, confusing positive law with positive morality, as well as with legislation and ethics. – of the latter, the rules for drafting wills, trusts and contracts are examples), while excluding other matters (for example international law) which we are not inclined to exclude from the category “law” . Of.”