Austins Theory of Law

Austins Theory of Law

Laws in the most general sense are rules made by one intelligent being for the guidance of another intelligent being, the former having power over the latter.

- All laws are a species of command, a command being an expression of a wish or desire that some other person do something. Commands can only be issued by one who has the power and intention to inflict a sanction in the event of disobedience.

- A legal duty is a liability to a sanction for refusal to comply with a command. Hence, commands and duties are correlative; there can't be one without the other. Commands are said to bind or oblige the person to whom they are directed. Sanctions are always intended to be evils, never goods. Rewards (bribes) cannot be sanctions.

- Conclusion regarding the basic definition of law: a command that obliges a person to observe a general course of conduct, issued by a superior (in power) to an inferior.

- Special problems:

Customary laws and rules of common morality which may appear to oblige independently of any superior power are not really laws until recognized by a court.

Common laws (judge-made law) likewise may appear not to stem from a superior power. Austin argues such laws are tacitly commanded by the state.

Legal rights