Philosophy of Law - Research Paper Example

Amongst them includes the Natural School of thinking, The positivist School of thinkinginter alia. This subject is a broad area of study and our discussion will be confined within the understanding, conceptualization, and comprehension of the Positive school of thinking under which Legal positivism being the theory, which was propagated by John Austin famously, referred to Austin’s Theory, was extracted. Austin’s theory commonly referred to as Legal Positivism revolves around the idea that law is what it is and not what it ought to be.

As was contradistinguished with the idea drove forth by the Natural School of law thinkers who opined that law must reflect eternal principles of Justice and morality which they believed originated from a super natural power beyond human’s understanding but which dictated the lives of men and which existed independence of government recognition (Austin 40). Austin’s approach to Law offered the best-formulated alternative of both the natural school of law and utilitarian approaches, which were propagated by Bentham.

He also advanced the idea that there should be a complete separation of between law and morality and that law should be developed towards maximization of utility or personal pleasure or pain. Consequently, wisdom of a guiding policy can be calculated by addition of all pleasures and subtraction of all pain brought to everyone. (Ibid) Austin’s theory of law is most often referred to as the “command theory of law” based on the fact that the concept of command lies at its core viz law is the command of the sovereign, backed by a threat of sanction in the event of non-compliance or disobedience aimed at undermining its dictates (Patterson 244-46).

A proper case scenario includes the laws of a state orchestrated from which norms and policies of a state are debated and passed by the legislative arm of the government. Assented by the president as the head of the executive, the same becomes a law, which commands the activities of the national within their sovereignty (Petterson 244-46). If a tort feaser feasernegligently causes an injury to a complainant, then the claim against him will be made based on the law. In the cause of his engagement with the claimant, the tort feaser must have been alive to the requisite norm.

Once you subject one to danger and the same consequently occurs the event that proceeds thereafter shall culminate to liability or remedy compensational by rules put forth in the statute, otherwise referred by Austin as sanctions of the state. The element of the breach originated from the actual conduct of the injury otherwise referred to as the actusreus is what dictates whether he is suppose to be held accountable or liable for the injury against a claimant. The same argument equally applies to the criminal case instance where once it is established that the element of both mensrea and actusreus exists then the accused person can be punished according to a source of law that is in existence with accordance to the law of that state.

Legality according to Austin, on this basis, is determined by the source of a norm and not based on the merits of its substance. The answer to the question “what is law?” is therefore obtained vide resort to facts not value. According to John Austin, a rule R is legally valid in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a