Command Theory And Obligations Justification

In the history of modern western legal thought, natural law and legal positivism are the great two schools. They share the same goal: justification of the obligation. The former seek for the legal obligation's sources from outside, the latter from the legal system's own logic. There is a hidden main line, the so-called "imperative theory", in the legal positivism school. The beginning of this theory was Hobbes, as for Bentham and Austin it was mature, and after Hart's criticism, it was well known. This paper follows this approach of legal thought history, and reviews the thoughts of these representative law thinkers.Hobbes considered from the perspective of geometry to construct human political society. Of course, the deduction is based on the geometry definition. Definition of the words constitutes the largest source of human society's disputes. For this reason, the purpose of uniform definition is actually uniform epistemology. Hobbes's definition of mankind is the passionate self-preservation, and the rational construction of the contract. In the country based on the social contract, sovereignty representatives have the supreme authority. The law is the sovereignty's command, which plays an important role of peace-keeping and sub-set struggle ended. Since legal resistance is directed towards sovereignty, in fact, it logically towards its own citizens. Thus Hobbes's justification of the obligation is actually derived from the rational logic that "they can not object to themselves".Bentham started from the rational utilitarianism, thinking that the most rational principle is "pleasure and exemption from pains", and the purpose of political and social construction is "the greatest happiness for the greatest number". Therefore the obligation to obey the law in fact aims at the overall social objectives. As Bentham, Austin abandoned the "social contract", thinking it as such an non-scientific, non-validated reasoning. However, the difference between the two is that Austin thought law as political advantage's command, which should be based on the support of God, because God shall be kind to mankind. So, the inevitably conclusion is that obeying the law is subjected to God. However, Austin's pursuit of clear and scientific law was consistent with Hobbes, that is, only the authority can create laws and law science; on the contrary, only the popularization of law science can better safeguard the authority. We can appreciate the "imperative theory" from the perspective of Michel Foucault's "Archaeology of Knowledge".The linguistics turn of philosophy is the profound point of contemporary philosophy. Based on the Wittgenstein's philosophy of language, Hart criticized the approach of "definition" which was used by Hobbes and Austin that, as a social phenomenon, the law can't be defined but only can be interpreted. It would be highly concentrated on the general but at the same time missing a lot to observe specific things only from the perspective of external definition. In this way, Hart interpreted law phenomenon as sociology combining with the internal and external perspective. He discarded the traditional imperative theory of law, and an new concept of law that law is constituted by rules was put forward. Thus, Hart's justification of obligation, in fact, has turned out to be empirical observation of the word "obligation" which is used by common people.In short, from the beginning of law positivism school, it has discarded the outside sources of obligation. In this approach, language and the practical history are always separated, and its final logical evolution has proved that its justification of obligation is failed. The imperative theory of law may be thought as successful or failed, but it reflects one image of the nation-state's history. China is now in a period of social transition, so that we should take it as reference.