September 6, 2011

Sample John Austin’s Theory of Jurisprudence - Study of Positive Law

John Austin’s Theory of Jurisprudence - Study of Positive Law

Generally speaking, jurisprudence is a deeper understanding and perception of the theory and philosophy of law. This is related to legal reasoning, legal systems and about the legal institutions. In fact, modern jurisprudence started in 18th century and centered on the principles of natural law, civil law and the law of nations. However, according to John Austin, jurisprudence is the study of the concept of law, that needs to be modified, in order to remove moral criteria of legal validity. Additionally, he believes that moral values must not be used in decision-making in the court. For him, the existence of law offers both its advantages and disadvantages to people. The life of John Austin was being surrounded by disappointments and unattainable expectations during his time. Austin was born in Suffolk merchant family. He joined the military before he began his legal training. After that, he passed the bar in 1818, but he did not stay in the field of law longer, because, by nature, Austin was nervous disposition in dealing public issues and concerns. In the same manner, his health condition is somewhat deteriorating; that led him to depression. Subsequently, he decided to teach in University of London; being a lawyer by profession, his lectures were primarily based on the continental and political legal ideas that also shown in his own writings. His teaching stint had ended up in 1833; and resigned as Chairman of University of London in 1835. Then, he decided to serve on the Criminal Law Commission as a Royal Commissioner to Malta. But, still he did not find true contentment and success. And being perfectionist, his views on moral, political, and legal matters hindered both the publication of a revised edition of “Province of Jurisprudence Determined”.

(http://plato.stanford.edu/entries/austin-john/)

Despite the legal achievements of Austin, he became to realize that life is meaningful and more significant if there is someone who can he share his life with. So, he married to Sarah; she was very supportive wife to him on his field of endeavors. During the later years of their married; Sarah became his best translator and reviewer, as well as the publisher of Austin’s works and writings after his death. When he died, his works and writings became popular among legal schools. Obviously, his legal works and writings had been able to establish the study of jurisprudence in England. Austin’s legal theories seriously dealt with the four different levels of generality. First, he strongly believed that law is analytical; and it is more grounded in history or sociology or arguments. Second, his works and writings must be given importance in the contemporary society. Since his works display more common-law reasoning, judicial resolution of particular disputes, it also declares the existing law; as well as it discovers the importance of “reasons” in the practice of law. Third, Austin was the first lawyer who took the systematic analysis of legal positivism; which is strongly associated with moral values. He considered every citizen has an obligation to obey the law. He pointed out that scientific study of legal positivism led to assertiveness to have a morally neutral conceptual theory of law. Positive law determines the fact that moral and political criticisms of legal systems are very essential. Fourth, Austin also believed that “common theory of law” was also quite influential. His fundamental approach to positive law is generally a paradigm, caricature or analytical argument to many students, scholar, lawyers and other professionals. As for him, law commands for sovereignty. He also clarified that the concept of positive law – or man-made law is through analyzing the constituent concepts of its basic definition. And, it can be distinguished by the other concepts of its definition also. Moreover, Austin expressed his views on the combination of willingness and ability to impose and follow commands. He distinguished positive law as a chain of command; laid down by a sovereign or agents. It is similar to the employer-employee relationship. If the boss is giving a command to the employees, the employees must be with immediate compliance.

(http://www.aboutlawschools.org/law/theory/jurisprudence/)

Accordingly, the “sovereign” refers to the persons who receive habitual obedience from the society; as well it must have independent political societies. It is also associated with the following positive elements such as positive morality, laws of honor, international law, customary law and constitutional law. In view thereof, it is somewhat revealed that Austin’s theory is also focused on the rule of men, for they have their own power to use the law of positivism to protect their own human rights against injustice and inequality in the society.

(http://en.wikipedia.org/wiki/Jurisprudence)

References:

http://plato.stanford.edu/entries/austin-john/

http://www.aboutlawschools.org/law/theory/jurisprudence/

http://en.wikipedia.org/wiki/Jurisprudence

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