GROUP 9 – Austin’s Theory

I. A description of the theory

- A state shall be governed by commands given by a sovereign person and that sanctions are
important for every command.
- Legal positivism - Command theory of law. Law is the command of the sovereign backed with a
sanction in the event of a non-compliance.
- There is one supreme person or authority will give orders to everyone and the society shall follow
and shall be subjected to sanctions.
- Austin's theory of law or the positive law school of thought would recognize the law maker's
command as legitimate. Questions about the law's morality or immorality is not important.
- Austin’s theory somehow defines that the law is a duty or obligation laid down by a competent or
legitimate authority and such disobedience may lead into imposing of such sanctions.

II. Proponent/s
- Jeremy Benthan - father of modern utilitarianism
- Justice Wendell Holms Jr.
- Hans Kelsen proponent

III. Significance to the development of legal systems

- The divine law is the highest law in the world. The divine law is the foundation of the laws
created by governments. In other words, divine law is supreme over other laws.
- Austin laid down many of his propositions as deduced from English law as it was during his time.
The credit goes to Austin for opening a new era approach.
- Austin was intimate to great thinkers and philosophers of his time like Benthan and Hill and he
wiped out many false notions which had obscured the true meaning of law and legal terms.
- Austin's classification and analysis of the concepts of English law has served as a guide for better
English analytical jurists.
- Austin's theory attains the notion of simplicity consistency and clarity of exposition. Austin's
method is described as characteristic of English jurisprudence.
- Austin's theory was widely accepted in English and American jurisprudence. Later on his theory
received increasing attention and respect from the Continent and Germans.
- Later Analytical theories have improved upon Austin's theory and have given a more practical
and logical basis. Jurists like Salmond and Gray have improved upon it and considerably
modified the analytical positivist approach. The Vienna school of law is the outbreak of Austin's
theory.
- Even the defects of Austin's theory is the constant source of illumination; for his errors are often
the mis-statement of truths of central importance for the understanding of law and society.
- Austin as a jurist kept himself free from the rival political ideologies of nationalism and
internationalism. Even one of the great critics, Olivecrona, also acknowledges him as the pioneer
of modern positivist approach to law. Thus, Austin made great contribution to jurisprudence.

- The theory acts as a foundation for those who are interested in law to understand the nature of it
so that it could be later used to re-shape relations according to the modern societal needs.

IV. Practical use of the theory (you may give examples)

- The command from certain group of people could be promulgated to adapt to changes in society
- Significance to the development of the legal system. According to Austin’s the law is command
so one of the laws stated is divine law commanded by God to his people then the government
must create or created the laws in accordance with the command of divine law or by the law of
God. No other law is supreme than this divine law. in creating the law of the government all are
base in this divine law.

V. Cases/policies where the theory is used as a reference or basis

- Austin talks about the Divine Law and Human Law. He also talks about that legislation should be
based in Divine Law. So we can use Austin's Theory in imposing penalties whether the crime
committed is mala in se or mala prohibita.
- It represents a continuing manifestation of our commitment, in this respect at least, to the
Austinian or positivist concept of law. Under this view, it can be created only by the state. It can
flow from no other source (Caltex Philippines Inc. v Customs Arrastre Service, G.R. No. L-26632
May 29, 1970).
VI. Criticism on the theory
- When Austin said that sovereign is the creator of laws, he disregards the fact that foundation of
law lies in common consciousness of the people which manifests themselves in customs. Hence,
it overlooks Customary law which has always been extensively respected and followed.
Personal laws like Muslim law and Hindu law, existed long before sovereign began to legislate.
So far, these laws were not only acknowledged but followed with immense devotion.
- Law making powers are dispersed in many modern societies and it is difficult to identify a
"sovereign" in Austin's sense.
- Positive law has the disadvantage of obscuring the normative character of the law which derives
from our intuitive moral realism about social forms.
- Threats do not give rise to obligations. If they did, there would be no essential difference between
a gunman's threat and an ordinary piece of legislation.
- The most influential criticisms of legal positivism all flow, in one way or another, from the
suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to
contribute little to our understanding that law has important functions in making human life go
well, that the rule of law is a prized ideal, and that the language and practice of law is highly
moralized. Accordingly, positivism’s critics maintain that the most important features of law are
not to be found in its source-based character, but in law’s capacity to advance the common good,
to secure human rights, or to govern with integrity.

GROUP MEMBERS
Ariz, Hannah
Bunagan, Jeremy
Camarao, Marivic
Carodan, Jayson
Collera, Joshua
Delgado, Rocco
Directo, Neil-Rey
Favor, Precious Joana
Guinucud, Jeremy
Gumpal, Ramoel
Ibanez, Diana
Kingat, Rejane
Mallillin, Delmar
Mangibunong, Marlon
Matote, Jake Mac
Palcong, Julius
Pattaguan, Jezreel
Rivera, Leth Let
Soriano, Guy Carlos
Valdez, Lararose