Sovereignty And Legal Positivism

“The existence of law is one thing,and the advantages and disadvantages of law another”.In this way,John Austin established the basic proposition of legal positivism:the separation proposition is that the law has no moral implications,the task of jurisprudence is to study the positive law established by the sovereign,and what kind of law should belong to the study of ethics.As for the legal ontology of what the law is,different jurists have different understandings.Austin defines law as the general command of the sovereign.By studying the birth of positivism of law,we can find that the relationship between law and sovereignty is close.Hobbes advocated the sovereignty legislation and constructed the internal relation between sovereignty and law,and laid the foundation of legal positivism,but he did not establish the separate proposition of law as clearly as Austin.Bentham went further and took the legal basis on the basis of experience and laid the theoretical foundation of positivism for Austin's commandments.Austin based the law on the concept of sovereignty and stripped the relationship between law and morality.This paper focuses on Austen's concept of law: the theory of legal order,reconstructing Austen's theory of legal order from the angle of legal concept,elements of legal order theory,legal system and legal origin.The relationship between Austin's view of sovereignty and the theory of legal command is recognized through analysis.The sovereign is the source of the law,the basis of the existence of the law,and the judgment standard of the law as the law is called.It also uses Hart's critique of command theory to examine the power of the theory of legal command theory.Secondly,with putting the theory of legal order under the proof of sovereign authority,it shows that the obligation to obey the law or the binding force of the law,and that the law as the categorical reason for the conduct guidance needs to be safeguarded by the sovereign authority.Furthermore,it is pointed out that sovereignty is the basis of legal authority,which makes up for the lack of legal authority caused by the invalidation of natural law theory.Finally,in the historical context,the author thinks that Austin's emphasis on sovereignty legislation is to elevate the status of enactment law and to solve the problem of the common law disorder and lack of system.however,Austin is not as radical as Bentham in advocating an overhaul of thecommon law but taking a gradual path after balancing reality with tradition.Sovereignty is the focus of Austin's legal theory.This paper focuses on The Province of Jurisprudence Determined and takes sovereignty as the starting point to understand the theory of legal command.This paper reveals the relationship between legal command and sovereignty in order to reconstruct the theory of legal commandments to a certain extent and deepen the understanding of Austin's jurisprudence.