Abstract
The existence of law is one thing, its merit or demerit is another. John Austin (1790-1859) defines the essence of positivism in this one sentence, which is generally cited as the standard exposition of the imperative theory of law, from his book ?The Province of Jurisprudence Determined' (1832). A disciple of Jeremy Bentham who popularized the same ideas, Austin was also inspired by political philosophers like Jean Bodin, David Hume or Thomas Hobbes, arguing that the source of political authority has to be perceived as a sovereign who gives commands. According to Austin, law and morality must be strictly distinguished and law is merely a command given by a superior, who the society is in the habit of obeying. The law must then be enforced by a sanction. It is valid only if it is set by a sovereign, decreed, and then posited. His ideas were recognized as a dominant force in English legal thinking in the nineteenth century and have been analyzed by a series of writers known as the school of "analytical jurisprudence". Austin's legal theory has also been sharply criticized by other theorists, prominently H.L.A Hart, in ?The Concept of Law' (1961). Today, the Austinian basis has largely been rejected and the weaknesses of his theory are often better known than the theory itself. In this essay, I shall explain the views of these critics and argue that the legal positivist theory of John Austin is fatally flawed.
