Year: 2018
Type: conference-paper
Abstract: Is law like the threat of a burglar in any significant sense?When one contemplates this question, legal philosopher John Austin's command theory merits some attention.He took over and modified the project Jeremy Bentham had put forward.According to Austin (1832/1995), law is a command or order backed by a threat in a refined sense.For good reason, this command theory has long been ignored, if not neglected.Quite apart from the fact that it is a theory from the nineteenth century, the command theory seems to have lost much of its philosophical attraction due to criticisms raised by none other than H. L. A. Hart.Today, not many seem to take the command theory seriously 1 .The following fact suggests a stringent fact about the command theory: only a couple of affirmative works on John Austin and his command theory were published in the latter half of the twentieth century (Morrison 1982;Rumble 1985).However, it would be fair to ask if Hart's criticism was sound, or even if he was free from the paradigm set by the command theory anyway.In The Concept of Law [hereinafter CL], Hart pointed out several defects in the command theory.Not only does the command theory inevitably fail to appreciate the use of rules from the internal point
Author: Motoki Miura
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2894979222