Legal Philosophy

Midterms

Austin’s Legal Positivist: Command Theory of Law

Yaweh Vincent Cesar R. Ybanez

Ven Albert E. Buenaobra
Shanielle Qim F. Caneda
Justin Denise S. Franco
Mary Rose T. Saloma
Jan-Jefferson E. Tilos
Kaye M. Villacrucis
Pamela L. Altubar
Renz Macion
Elaika T. Orio

August 17, 2019

 Austin’s Legal Positivist Theory

Austin’s theory is the command theory of law. He pointed out that a law is a command
which obliges a person or persons and obliges generally to acts or forbearances of a
class. The one who makes the law are those who are in superior. The superior that he
meant is not who has excellence but who is more dominant. If the person who do not
follow the law, he will be facing consequences or punishment.

The Social Contract

There are three main Philosophers that has three different approaches that is more
applicable to this topic. There are Leviathan Hobbes, John Locke, and Jean – Jacques
Rousseau
 John Locke’s version of social contract theory is striking in saying that the only right
people is striking in saying that the only right people give up in order to enter into civil
society and its benefits is the right to punish other people for violating rights. No other
rights are given up, only the right to be a vigilante. Even the right to be a vigilante
returns to the individual if the government breaks the social contract by not punishing
those who violate right. However, the principle that “People Must Not Be Judges in Their
Own Cases” means that no more one person or group of people who all have the same
grievance should make the decision that the government has failed in its job of
punishing those who violate their rights. There should be some substantial set of
individuals who do not have a direct grievance who else think that the government is
failing in its job before anyone takes the law into their own hands again. The principle
that people must not be judges in their own cases means that setting up at least an ad
hoc civil society to patch the regular government’s failings is better than reverting to
anarchy.

Jean – Jacques Rousseau was a French philosopher and writer who lead a life rich in
contradiction. In the Social Contract (1762) Rousseau argues that laws are binding only
when they are supported by the general will of the people. His famous idea, “man is
born free, but he is everywhere in chains” challenged the traditional order of society.
Where previous philosopher had spoken of elites, Rousseau became the champion of
the common person. His perfect world was one in which the will of the people was most
important.

On the other hand, Hobbes thinks the state of nature is something we ought to
avoid, at any cost except our own self-preservation (this being our "right of nature," as
we saw above). But what sort of "ought" is this? There are two basic ways of interpreting
Hobbes here. It might be a counsel of prudence: avoid the state of nature, if you're
concerned to avoid violent death. In this case Hobbes's advice only applies to us (i) if we
agree that violent death is what we should fear most and should therefore avoid; and (ii)
if we agree with Hobbes that only an unaccountable sovereign stand between human
beings and the state of nature. This line of thought fits well with an egoistic reading of
Hobbes, but we'll see that it faces serious problems.

Differences between Austin’s Command Theory of Law and Social Contract

Austin Social Contract

Positivism: Command Theory of Law Society is in the state of anarchy

What is law? What is law?

A command – obliges a person or persons A regulation of human interaction
A law of nature – set by god
 Who can make law? Who can make law?
A superior Sovereign entity (Government)
State
Courts
God
Society is in a state of anarchy. In social contract, the people give up their freedom of
anarchy and give the government the authority to enforce laws and agreement.

Those living under a government are parties to a social contract. Each person agrees to
follow the laws of the state on the condition that everyone else does the same. That
way, we are all relatively safe from each other and we all benefit from the other social
goods that will result

Unlike positivism, social contract must have reference to social consideration.

Interpretation of the Social Contract by Hobbes

Since Hobbes theory of Social Contract is more applicable in this matter. There are other
way of interpreting Hobbes is not without problems either. This takes Hobbes to be
saying that we ought, morally speaking, to avoid the state of nature. We have a duty to
do what we can to avoid this situation arising, and a duty to end it, if at all possible.
Hobbes often makes his view clear, that we have such moral obligations. But then two
difficult questions arise: Why these obligations? And why are they obligatory?

Hobbes frames the issues in terms of an older vocabulary, using the idea of natural law
that many ancient and medieval philosophers had relied on. Like them, he thinks that
human reason can discern some eternal principles to govern our conduct. These
principles are independent of (though also complementary to) whatever moral
instruction we might get from God or religion. In other words, they are laws given by
nature rather than revealed by God. But Hobbes makes radical changes to the content of
these so-called laws of nature. In particular, he doesn't think that natural law provides
any scope whatsoever to criticize or disobey the actual laws made by a government. He
thus disagrees with those Protestants who thought that religious conscience might
sanction disobedience of "immoral" laws, and with Catholics who thought that the
commandments of the Pope have primacy over those of national political authorities.

Although he sets out nineteen laws of nature, it is the first two that are politically crucial.
A third, that stresses the important of keeping to contracts we have entered into, is
important in Hobbes's moral justifications of obedience to the sovereign. (The remaining
sixteen can be quite simply encapsulated in the formula, "do as you would be done by."
While the details are important for scholars of Hobbes, they do not affect the overall
theory and will be ignored here.)
The first law reads as follows:

Every man ought to endeavor peace, as far as he has hope of obtaining it, and when he
cannot obtain it, that he may seek and use all helps and advantages of war. (Leviathan,
xiv.4) This repeats the points we have already seen about our "right of nature," so long
as peace does not appear to be a realistic prospect.

The second law of nature is more complicated:

That a man be willing, when others are so too, as far-forth as for peace and defense of
himself he shall think it necessary, to lay down this right to all things, and be contented
with so much liberty against other men, as he would allow other men against himself.
(Leviathan, xiv.5)

What Hobbes tries to tackle here is the transition from the state of nature to civil society.
But how he does this is misleading and has generated much confusion and
disagreement. The way that Hobbes describes this second law of nature makes it look as
if we should all put down our weapons, give up (much of) our "right of nature," and
jointly authorize a sovereign who will tell us what is permitted and punish us if we don't
obey. But the problem is obvious. If the state of nature is anything like as bad as Hobbes
has argued, then there's just no way people could ever make an agreement like this or
put it into practice.

At the end of Leviathan, Hobbes seems to concede this point, saying "there is scarce a
commonwealth in the world whose beginnings can in conscience be justified" ("Review
and Conclusion," 8). That is: governments have invariably been foisted upon people by
force and fraud, not by collective agreement. But Hobbes means to defend every existing
government that is powerful enough to secure peace among its subjects - not just a
mythical government that's been created by a peaceful contract out of a state of nature.
His basic claim is that we should behave as if we had voluntarily entered into such a
contract with everyone else in our society - everyone else, that is, except the sovereign
authority.

In Hobbes's myth of the social contract, everyone except the person or group who will
wield sovereign power lays down their "right to all things." They agree to limit drastically
their right of nature, retaining only a right to defend their lives in case of immediate
threat. (How limited this right of nature becomes in civil society has caused much
dispute, because deciding what is an immediate threat is a question of judgment. It
certainly permits us to fight back if the sovereign tries to kill us. But what if the sovereign
conscripts us as soldiers? What if the sovereign looks weak and we doubt whether he
can continue to secure peace…?) The sovereign, however, retains his (or her, or their)
right of nature, which we have seen is effectively a right to all things - to decide what
everyone else should do, to decide the rules of property, to judge disputes and so on.
Hobbes concedes that there are moral limits on what sovereigns should do (God might
call a sovereign to account). However, since in any case of dispute the sovereign is the
only rightful judge - on this earth, that is – those moral limits make no practical
difference. In every moral and political matter, the decisive question for Hobbes is
always: who is to judge? As we have seen, in the state of nature, each of us is judge in
our own cause, part of the reason why Hobbes thinks it is inevitably a state of war. Once
civil society exists, the only rightful judge is the sovereign.

APPLICATION OF AUSTIN’S THEORY OF LAW TO THE SOCIAL CONTRACT

Austin’s concept pushes that there are commands which are laws, and which are not.
Austin distinguishes law from other commands by their generality. According to him, the
law is not equivalent to just any command, but constitute a law.

For a rule to exist, on the contrary, there must be some people in the group at least who
intend to follow it and that consider the content of the rule as a general standard of
conduct. It is laid down by a political sovereign and enforceable by a sanction where
these sanctions force the people not to disobey the law so that this punishment would
not be enforced on them. “A command demands a theory of sovereignty.” Simply put,
law is command of a superior to an interior; that is, the state and sovereign lies in the
power to exact habitual obedience from the bulk of the members of the society.

Here are 2 points from Austin’s theory that can be compared with that of the social
contract: (1) generality, (2) hierarchical conception of law

Generality

As discussed above, Austin’s command definition of law embraces only such type that
“obliges generally.” The same is true in the social contract theory. According to Hobbes,
those living under a government are parties to a social contract, and each person agrees
to follow the laws of the state on the condition that everyone else does the same, or
that it has to be binding generally.

Hierarchical conception of law

Austin’s command theory of law establishes a relation between a superior and inferior.
Superiority in his theory which signifies ”the power of affecting others with evil or pain,
and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes.” It
is important to note that in the command theory of law, there is an absence of free will
on the part of the inferior as he is forcibly obliged to obey the superior’s command.
Under the social contract theory, the hierarchical model can still be perceived such that
the government has the authority to enforce laws and agreements, while the people /
members shall obey these laws. However, the difference is that in the social contact
theory, the people voluntarily give up their personal freedom and recognizes his
obligation to obey the government or state.

In a nutshell, social contract theorists tend to rely on constitutional government and

believe vehemently in rule of law. This right to determine who will compose the
government retains because as citizens by the social contract are all equal. All people
have the right to choose their leaders and this right is indispensable for giving the mass
politic life and movement.

NEW LEGAL THEORY

Combining the principle of the theory of Austin, Command Theory of Law, and the
Social Contract by Hobbes would result to a similar concept of the law usually is made
today. People are given the privilege to choose who would act as their government or
such superior. This superior or the government then was given the power of dominancy
to the people, since the government imposes a law in favor for the common good of
everyone. However, not everyone benefits with this law or even agrees. With that, the
law then is obligated to be followed since there are sanctions or consequences if the said
law was not followed.

People are still given the power to change their government under circumstances that
the government was acting from misconduct. This misconduct must be proven and the
act did not also violated the law.