Analysis Of Austin’s Command Theory Of Law

The thinking about "what is the law?" has been a long history. Heidegger has been said:"any social phenomenon has different, multiple answers." The law is no exception. Thus as no one can give a perfect answer, and I think there can be no perfect answer. Austin’s command theory of the law is about what the law is, so this has determined that the theory cannot be perfect. The author believes that a theoretical cannot be evaluated as good or bad. A doctrine is immaculate or not cannot become an absolute standard to judge the theory is good or bad. What we should focus on is the thinking of this theory, the influence and inspiration of this theory. Austin’s theory faced with various difficulties, but it has an epoch-making significance in legal circles. We can understand this theory by it’s generated background in economic、social、political、ideological and we can also understand it through the interpretation of its contents. And we can combine the criticism of other scholars to analyze the difficulties faced by the theory in order to find the true value of this theory.This article is divided into four parts:The first part is about the generate background of the command theory of the law. This part gives a specific analysis on the generate background of the command theory in economic、social、political、ideological. The British Industrial Revolution in19th century laid the economic foundation. Three Discoveries of the Natural Science、the influence of Berkeley and Hume’s empiricist philosophy、the elaboration to the state first by Hobbes and Hegel and the urgent requirement to social stability had opened up new ideas and put forward a new subject. In this context, Austin put forward his theory.The second part is about Austin and his theory—the command theory of the law. This part intends to investigate the real presenter of this theory. We can confirm that Austin is the real representative figure through the investigation. Austin is a master of the command theory of law. His development in this theory is more than the inheritance from his predecessors. It just is the theory of Austin that positivist jurisprudence becomes the dominant ideology in the History of Western Legal Philosophy for more than a hundred years. The command theory of law becomes the main theory that the thinkers study on. Austin is this theory’s real representative figure, it mainly reflected on his books which are not so many. So this article will study Austin’s theory based on "The Province of Jurisprudence Determined".·The third part is about the elements of command theory of law. This part mainly analysis this theory’s basic components. We will understand this theory in four elements, they are:1、the sovereign;2、Command, obligations and sanctions;3、The relationship between the sovereign and command, obligations and sanctions;4、Not accurate meanings of law. The command theory is about "what is law", and it gives a new interpretation on the question of the validity of the law. This part will accurate positioning of the accurate meanings of the law. And I hope to understand command theory of law comprehensively.·The forth part is about the dilemma of the commands theory of law. This part combined with a variety of criticism mainly Hart’s criticism on the commands theory of law. This part is divided into five sections:1、The "Robber dilemma";2、"Have an obligation to do something" and "forced to do something";3、Authorized (optional) law;4、The persistent of law;5、 The legal constraints and sanctions on the sovereign.·Through the four-part study, I believe that Austin’s commands theory of law is not perfect, and even criticism by later scholars. However, it is undeniable that it is just Austin’s theory injected new blood to the study of Western Legal Thought and broadened their horizon. The greatest value of Austin’s theory is his direction and his mistakes. Of course there are a variety of defects, but we can not deny that it has epoch-making significance in the field of law.·In summary,"background---thinking---criticism and Inheritance---evaluate" is this paper’s structural context. The main object of study is Austin’s and Hart’s ideas."The Province of Jurisprudence Determined" and "The Concept of Law is the study text". Of curse, other related theories are also adopted. So we can elaborate the questions on Austin’s commands theory of law from its creation to its development.