Law as the Command of the Sovereign

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ABSTRACT Austin defined Law as the command of the Sovereign. He said that this would be the ultimate test of law. He being a legal positivist in determining a sovereign explains command theory which is the main purpose of this research paper. Austin believed that every legal system had to have a sovereign who creates the law. He considered the law as commands from a sovereign that are enforced by threat of sanction. There were many criticisms to Austin’s theory, especially Hart, he argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create. Another criticism of Austin's command theory is that a theory that portrays law exclusively in terms of authority fails to distinguish rules of terror from forms of governance adequately just that they are accepted as reasons for action by their own citizens. INTRODUCTION John Austin defined law, “Law as the command by the political sovereign enforceable by a sanction.” Like Bentham, Austin too adhered to the utilitarian philosophy of life. This appeared to him to be the ultimate test of law. He said that, “The proper purpose or end of a sovereign political government,” he said, “is the greatest possible advancement of human happiness.” He being a legal positivist regarded jurisprudence as the science of ethics and a self-sufficient theory of positive law. The science of jurisprudence is concerned with positive laws. The science of legislation, on the other hand, which according to Austin was a branch of ethics, was to perform the function of determining the tests by which positive law was to be measured and the principles was to be based on merit. This explains that Austin admitted that it was impossible to consider jurisprudence apart from legislation because the inducements or
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