Explore The Source Of Austin's Legal Thought

John Austin is an important figure in the western modern jurisprudence,but the jurisprudence of Austin has not been widely and accurately transmitted.Based on the analysis of Austin's jurisprudence,this paper tries to find out the clues of the source of Austin's main legal thoughts in the text,and carries on the detailed research and analysis.From the perspective of the whole of the book of Lectures on Jurisprudence,such as Austin's lectures on jurisprudence at London university courses,is a theory about general theory of jurisprudence,whose ultimate goal is to law as an independent science.In a long historical period,jurisprudence has been as the subsidiary and other scientific law,until it has as an independent science social conditions and their own conditions with the unprecedented development of science and society in the eighteenth and nineteenth century.The author speculates that there is a natural close relationship between the theory of law science of Austin and Bentham's thought,and not only the content explicitly mentioned by Austin.Compared with Blackstone,Austin tries to build a kind of only focusing on the law itself and don't care about the legitimacy of law science,he legislative science,natural law and misleading "law" excluded outside the scope of the law,through layer upon layer,by trying to do a moral.In the process of the law as an independent science,Austin focuses on the following two questions: on the one hand,to demonstrate the content of the law are independent as the research object,and the content and legislative science and theology,ethics,politics,and other scientific research object is different,namely clear the scope of law;On the other hand,the method adopted in the process of argumentation should also have the particularity,that is,the jurisprudence has the mature research method.After defining the scope of the law,Austin thinks law focuses on the different system of law common to specific actual principle and features,further to the general law and special law for the division.At the beginning of the proceedings of the law,there is an account of Austin's judgment on the classification of law--"the true law,or the law in the strict sense of the law,is an order;The law that is not a command is not a true law or a strict law.He mainly divides the principle and other principles into the research method and divides the positive law into the law and the human method.We find that there are a few great articles about the theory of natural law in the original book,but judging from the process and results of Austin's narration,it is mainly based on criticism.Austin's criticism of the law and the strict law in the meaning of natural jurisprudence is proved to be an exam.The first of the natural jurists of Austin's critique was Ulpian of ancient Rome.Austin found that the famous natural jurist Montesquieu of the enlightenment also made a mistake similar to that of the philosopher of the millennium.Speak in the same notes,he puts forward the "reality" and "ought to be" after the separation solutions,namely the ethics as a law should be scientific,or Bentham "moral science" referred to in the main research object.Against,Austin,the law of "reality" problem left to the law,so that he will be surrounded by the law of the most confusing "ought" to clear out the scope of the study of law,further establish the scope of law.When Austin made clear the scope of the law in the strict sense of the law,he devoted a great deal of space to the question of what the law was,and that was commands theory of law."The order of the law" was greatly influenced by Roman law.Although there is a very similar aspect to the law in terms of constitution,the difference between the two is obvious.The ethical basis of Austin's commands theory of law is utilitarianism.Austin did not accept Bentham utilitarianism theory,some scholars,according to the two people in the emphasis of utilitarianism of attention,and summed up the difference,"rule one" and "act one",Bentham is a behavior more utilitarian,and Austin is the rule utilitarian practitioners.And Austin advocated compared to the law in a strict sense,we found that Bentham the extension of the legal concept of a wider,or as a result of the division standard is not strict,causing legal concept is "moderate".In addition to Bentham,we can easily find evidence of the enormous influence of Hobbes and his thoughts on Austin.Although Austin was implicitly criticizes the independent political and social theory of Hobbes,but we can't deny that Austin to Hobbes' s theory of law and political science has a very deep understanding,at the same time,which many argue that inspired Austin's way of thinking about law's basis.Austin is more radical than Bentham,because he treats the original contracts built upon his subjects to obey the sovereign obligations assumption.And it's completely unnecessary that Hobbes' s theorists have no clear source of the obligations.In fact,Austin's views on law and knowledge were deeply influenced by Hobbes.