Like A Command-like Laws

John Austin's "imperative theory" was coming from its unique social background and theoretical background.It is exactly because of such reasons,it has been widely concerned and evaluated,and subsequently it has impacted the empirical law and the analysis of law,which cannot be underestimated.In the 19th century,ideas of positivism became created popular in Europe,and Austin determined to create a law of "science" which is to study the positive laws,under the influence of the two ideas,which are the utilitarianism and positivism. Definition is the core of science,and the reasoning is after that.And the definition of the law from Austin is the famous "imperative theory".In this theory,Austin tried to make a legal definition with very sound and clear connotation and extension in the least concepts,which can defines the subjects and the scope of the law,excluding other factors.And the "order" is his basic and the most fundamental term to definite the law,in order to clear the specific scope of the law.Austin through introducing and analyzing "obligations","sanctions", "political advantage" and "political disadvantage" these terms to defined the law as an order further.And based on it,"sovereignty" and "independence political society" naturally derived,and then he related his theory of the sovereignty of national sovereignty,the laws' operation in the countries and other issues.On the basis of this definition,Austin initially designated the scope and limits of the law of "science",which created a precedent for Positivism Law,and for this reason, he was called "the father of Jurisprudence".However,not only in his life but also after his life,this theory faces with various disputes and blame.Most famous rebuttal came from Hart,after one hundred years.He advocated the" imperative theory"substituted with the "theory of legal".On the basis of succeeding some of Austin's theory,Hart criticized more.Especially about the "imperative theory",Hart regarded it as the result of "context of theft".However,the writer thinks that many criticize come either from misreading or from the philosophy of a new methodology.So it is necessary to do a response for the misreading of wittingly or unwittingly to correct the nature of Austin's legal theory and the original intention of his writing,on the basis of the analysis of the connotation and value of Austin's" imperative theory"This paper,containing over 30,000 characters,is divided into five parts:The first part introduces the historical background and the cultural environment about Austin.The generation of any idea stems from the thinking of the reality of the time,so when Austin found the law and ethics,political science and philosophy are in a chaotic and uncertain state,which therefore bringing many difficulties to the United Kingdom education,he determined to create a "law science" to limit the scope and the limits of law.In these factors,in the 19th century,positivism ideas had a tremendous impact on his thinking.And the experience of settling in the Queen's Square of London with adjacent Bentham made Austin accepted the Bentham's utilitarianism idea,and incorporated it into his own theoretical system.It is the integration of these two ideas,making Austin a created precedent of the empirical and analysis Law.The second part introduces Austin's famous "Province of Jurisprudence", and overall grasp the inherent logic structure,and analysis the concept related to "imperative theory" in details,which including:different use about word of "Law" in different context;sovereignty theory;and the relationship between law and ethical.The "imperative theory" is the core vocabulary of the book,and the purpose of it is to find the object and scope of the law,and "order" became the most succinct words to convey the law.After describing the details of legal connotation,Austin also pointed out that the "law" in the different context has different use,and it can be divided into four conceptual categories:Divine Law, the positive law,the positive morality and the metaphorical law.At the same time,the term "order" further leads to the "sanctions" and the "advantage".A political advantage in the sovereignty of a sovereign country is the supreme ruler is the conclusions,which are Austin's basic views and theories of sovereignty and country.Furthermore,the writer referrers to a special theory of Austin, which is popular concerned and blamed,that is,the relationship between law and morality.Austin insists that moral factors should be excluded from the law;it is for he looks at the issue from his own point of view,with his own purpose,that is, to clear the scope of the law.The third part will focus on the interpretation of "imperative theory" and its intrinsic meaning.This theory is made up of several key terms:"orders", "obligation","sanctions","political advantaged" and "politically disadvantaged". In a sovereign state's legal system,these terms are inherent logic specific links in the structure of legal logic,which are inseparable,are indispensable.The "obligations" is generated from the "order",and "sanctions" is hidden behind,as a basis for the existence of the former two.And only the order from "political advantage" to "political disadvantage" is the legal order.Part four recalls the succession of Austin's theory,which expounds a profound impact of "imperative theory",from the United Kingdom and the United States these two different law systems separately.The introduction includes the succession and the revision.Holland and Saermengde are the representatives of Empirical Analysis of Law in England,after Austin;and in the United States,Austin's theory was inherited by Gray,and was developed by Hohfeld.The last part is to analyze the blames coming from different jurisprudents, after Austin passing away,mainly according to Hart's blame.This article holds that these refuting is unhelpful to start a genuine dialogue with Austin,moreover, these intentionally or unintentionally "misunderstanding" also just derives from their own different theories pursuit and different philosophical methodology.The writer hopes that by responding the refuting theories to maintain the legitimacy of Austin's theory,and clarify the foundation of his entire theoretical system as well as his original writing intention again.