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A CRITIQUE OF JOHN AUSTIN’S LEGAL POSITIVISM

Philosophy Project Topic: A Critique of John Austin’s Legal Positivism


INTRODUCTION

1.1       Background of the Study 

The pedigree of legal positivism is a very long one, which can be traced to the logical positivism of the Vienna circle, the logical atomism of Bertrand Russell and Ludwig Wittgenstein, the positivism of August Comte, empiricism of David Hume, political philosophy of Thomas Hobbes etc. It could be recalled that Comte used positivism for his philosophy in order to demonstrate the possibility of scientific attitude in human affairs. He saw the sciences forming a natural sequence resting on mathematics and developing both in order of logical, historical, though the physical and biological sciences to sociology and morals.[1]

The logical positivists developed the verification principle of meaning which holds: “If a proportion or statement is to be meaningful, it must be empirically verifiable unless it is logically necessary”.[2]

Hobbesian political philosophy also had an overwhelming influence on the legal positivists. Most of their ideas, such as, law as a command and their idea of sovereign can be credited to Hobbes. According to Hobbes, “civil law is to every subject those rules which the “common wealth”[3] had commanded by word, writing or other sufficient sign of the will to make use of for the distinction of right and wrong[4].

Another influence on the legal positivists came from the British empiricist David Hume. He was the Prime author of the idea that the gap between “is” and “Ought” propositions are Unbridgeable, that both propositions are not derivable from each other. In other words you cannot formulate moral or value judgments from observable facts. In his words, “the basis of moral assertion is the experienced constant conjunction of two sets of similar events where the events of the first set may be regarded as external (voluntary action) while those of the second are either feeling of approval or feelings of disapproval”[5].

All these various ideas came to influence some utilitarian philosophers, precisely Jeremy Bentham and his disciple John Austin. Legal positivism as a philosophical school, therefore, came into existence; as a reaction against “a-priori”[6] and metaphysical conception of law which dominated the naturalism of the classical and medieval philosophies. They came at the dawn of 19th century bringing with them the empirical approach and method of science to the legal terrain. The point of disagreement between the “Naturalists”[7] and the “Positivists”[8] lies in the question: “what should constitute a law in order for it to be just”? The naturalist would answer, that an unjust law is not law, while the positivists would say that “the existence of law is one thing, its merit and demerit is another thing, and which ever case law is law just or unjust”.[9]

According to the naturalists, “law is inseparable with morals, discoverable by reason, its author is God and this law is inscribed in the heart of every man”[10] Among this group are Plato, Cicero, Aquinas, Augustine, Finnis, etc.

It was the basic tenets of the doctrine of the naturalists that Austin rejected owing to its metaphysical inclinations; and therefore set out to redefine the province of jurisprudence and to save law from its unnecessary relationship with metaphysics and morals that have over-ladened it. In the words of Hart, “There is no necessary connection between law and morals, or law as “it is” and law as it “ought to be”.

1.2       Statement of the Problem

Peaceful and orderly social co-existence naturally postulates law (ubi societas, ibi ius = where you have a society, there you have laws).[11] Man as a social being inevitably lives in a society and the smooth running of this society depends on the proper understanding of law, because justice and morality depend on it. But the misconception of the same, can lead to Hobbes’ state of nature or even to a graver situation.

For John Austin, law is the command of sovereign backed by a sanction. The purpose of the sanction is to enforce obedience. And the existence of this law does not depend on moral or on any metaphysical or moral concept.

This misconception of law has caused much disaster in the human history. For instance, the decline in the natural law theory and practice in the continental Europe and its virtual replacement with positivist thinking from the 19th century to the beginning of the 20th century in Germany and Italy prepared the ground for Nazism and fascism respectively, just because during these regimes, laws are not questioned, moral or immoral, law is law.[12]

It also had harmful effects on the subsequent theorists and statesmen. For Karl Marx, the law is an instrument meant for the economic rulers to keep the masses in the state of the subjection and unequal condition.[13] And was still, today felt among tyrant power intoxicated rulers, especially in Africa, such as Robert mugabe of Zimbabwe, Dadis camera of Guinea, Sani Abacha and Obasanjo both of Nigeria and so on. It is in the light of all these problems, that this long essay is dedicated to the critique of the positivistic concept of law in John Austin, and as a contribution to the field of philosophy, an attempt to redeem and redefine the misconceived concept of law. This will go a long way to reduce the level of crisis in the present day leadership. Also to seek a way of bridging the yawning gap created by the positivists between law and morals, the leaders and the masses for both are inseparable for the smooth running of the society.

1.3       Purpose of the Study

Philosophical controversies are rarely resolved but some do fade away. There are few, however, which have extraordinary capacity for survival.[14] The ever recurring problem is how all of human experience may be fruitful for the progressive understanding of a particular object of knowledge. Law is such an object of social knowledge. Indeed, law is one of the greatest institutions and social practices ever developed by man. It also represents in its totality man’s (in the generic sense) experience in the light of his contact with the world within and without. In the light of this philosophy of experience, law can be presented only in an artificial, contradictory way.[15] The purpose and relevance of this research work is therefore, as a student of philosophical discipline to take a putative stand and examine Austin’s legal positivism under critical crucible of reason and also bring to the fore the core essence of law for the better understanding of the same. And also to determine what useful light Austin’s legal positivism has got to shade on the concept of law and finally verify whether Austin’s legal positivism should serve as a model for leaders.

1.4       Scope of the Study

            Considering the importance of law in the society one cannot but pulse and ponder on the concept especially, when its use appears fraught; because the course of history has shown what ‘‘such use’’ has given birth to. It is on this ground that I wish to dwell on Austin’s legal positivism, concerning his origin of law and its place in the society of men.

The scope of this work, therefore, embraces the exposition of Austin legal philosophy with regard to his imperative and province of law, his theory of sovereignty as well as the relationship of the sovereign with the masses; Having in view to proffer some objections (critique) to most of his propositions.

However, attention will also be given to the contributions of other great minds in the field of jurisprudence, and this will be laid bare in the literature review.

1.5       Explication of Terms

1.5.1    Introduction

It was Wittgenstein in his famous work “Philosophical investigation’’ maintained in his language game that the meaning of a word is in its use, hence ask for use and not for meaning.[16] Witness to this fact is the variation in the meaning of terms according to philosophers. It, therefore, becomes necessary to define terms as operationally used by the philosopher, (Austin) so as to give a better background of understanding to this work, hence, Aristotle advices; “Ab initio disputandis definitio nominis”.[17]

1.5.2    Law

Austin conceives law essentially in terms of “command” backed by “sanction” according to him; law is the command of the sovereign enforced by sanction. By law, Austin meant the command of a sovereign and therefore exclusively refers to the positive laws only. Who then is the sovereign?

1.5.3    Sovereign

For Austin, the existence of a sovereign, thus defined was the essential characteristic of an independent state or, in his own terminology of a “political society”. Austin conceived the sovereign as the ultimate superior of a political society or community; a superior in a political society who is habitually obeyed by the bulk of the community and who is not in the habit of obedience to any other person or body, vested with the authority to issue commands to his inferiors who realize that there is possibility of incurring some “evil” in the event of disobedience (sanction).

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[1] A.R. Lacey, A Dictionary of Philosophy, London: Routledge and Kegan, 1976, p. 165.

[2] Hamlyn, The Theory of Knowledge (ed.)D.J O’ Conor, London: Macmillan Press, 1982, p. 60.

[3]In Hobbes, the Common Wealth is that one person ,of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defense. A common Wealth is to be instituted when a multitude of men do agree and covenant, everyone with everyone, that to whatsoever man, or assembly of men, shall be given by the  major part  the right to represent  the person of them all, that is to say to be their representative{John S., &Ronald E., (eds)Social and Political Philosophy, New York: Anchor Books 1963, pp.151-153}

[4] Hobbes T., Quoted by Appadorai, The Substance of Politics, Delhi: Oxford University Press, 1982, p. 23.

[5] Albert D., Quoted in Maduabuchi D, Justice, Law and Corporate Ethics, Lagos: Essence Library, 2004, p. 97.

[6] “A priori” is a Latin word meaning “from what is earlier” as opposed to “a posterior” meaning “from what comes after”. Generally, it refers to verifications. As a term, it dates back to Aristotle, adopted by medieval Arabic and Christian philosophers such as Aquinas, it was later used by Descartes in his “Meditations” and extensively used by Kant in his “critique of Pure reason:. Traditionally it was used to refer to the truth of mathematics, geometry and logic or independent of experience.

[7] Naturalists are the proponents of natural law theories, according to which law is seen as a system of justice common to all human beings, the law of nature applying universally and not based on custom, convention or decision: some of the naturalists are Aristotle, Aquinas Auscombe, Carisez, John Finnis etc.

[8] Positivists on the other hand, are the proponents of the positivism; a legal theory which holds that law of the state is based on the holder of the sovereign power in the state, and that this law is separable from morals. Some of the positivists are John Austin (1790-1859), Bentham, Hart, Olivercrorona etc.

[9] Austin J., The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, London: Weidenfeled and Nicolson, 1954, p. 157.

[10] Dukor M., Justice, Law and Corporate Ethics, Lagos: Essence Library, 2004, p. 98.

[11] Eboh S.O., Human Rights and Democratization in Africa, Enugu: Snaap Press Ltd., 2003, p. 92.

[12] Ibid., p. 97.

[13] Ibid.

[14]Idowu W., Feminism, Gender and The Equality Crisis, in Enwisdomization Journal,Owerri;v0l.,no.3, 2005, p.40

[15] Austin J., Op. Cit., p. 50.

[16]Wittgenstein L, quoted in Ewelu, Philosophy of Language(unpublished class note), Bigard  Memorial Seminary,Enugu;2009, p.42.

[17] Aristotle, quoted in Ossai, Writing a Memoir/Project in Our Philosophy Department( unpublished work)

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