The Province of Jurisprudence Determined
Encyclopedia
The Province of Jurisprudence Determined is a book written by John Austin, first published in 1832, in which he sets out his theory of law generally known as the 'command theory'. Austin believed that the science of general jurisprudence consisted in the clarification and arrangement of fundamental legal notions.
His object in this book is to identify the distinguishing characteristics of positive law to free it from the precepts of religion and morality. The book consists of six lectures designed to be delivered in a law school setting. Although his theory did not receive significant attention in the 19th Century, it has since become central to the jurisprudential canon, and has been criticised, adapted and enlarged upon by subsequent jurists such as H. L. A. Hart
and Ronald Dworkin
.
Austin was a student of Jeremy Bentham
, and as such subscribed to Utilitarianism
. He adopted this perspective in his understanding of law, and argued that all laws should work toward promoting the greatest good for the greatest number of people.
According to Austin, a law is 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.' This was what Austin defined as positive law. Austin believed that positive law was the appropriate focus of study for jurisprudence. He states that:
'Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is supreme.'
According to Austin, the sovereign could not be legally limited, 'supreme power limited by positive law is a flat contradiction in terms' he states. However, he did concede that a sovereign may be limited in a non-legal sense by 'popular opinion'.
He defined divine law as 'law set by God to his human creatures'. Although he contends that God's is above and beyond human law, he also states that:
'To say that human laws which conflict with the Divine law are not binding, that is to say, are not law, is to talk stark nonsense.' He emphasises that a law set by a sovereign to a subject is not negated by any apparent conflicting divine or moral law.
His object in this book is to identify the distinguishing characteristics of positive law to free it from the precepts of religion and morality. The book consists of six lectures designed to be delivered in a law school setting. Although his theory did not receive significant attention in the 19th Century, it has since become central to the jurisprudential canon, and has been criticised, adapted and enlarged upon by subsequent jurists such as H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....
and Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
.
Austin was a student of Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
, and as such subscribed to Utilitarianism
Utilitarianism
Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
. He adopted this perspective in his understanding of law, and argued that all laws should work toward promoting the greatest good for the greatest number of people.
According to Austin, a law is 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.' This was what Austin defined as positive law. Austin believed that positive law was the appropriate focus of study for jurisprudence. He states that:
'Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is supreme.'
According to Austin, the sovereign could not be legally limited, 'supreme power limited by positive law is a flat contradiction in terms' he states. However, he did concede that a sovereign may be limited in a non-legal sense by 'popular opinion'.
He defined divine law as 'law set by God to his human creatures'. Although he contends that God's is above and beyond human law, he also states that:
'To say that human laws which conflict with the Divine law are not binding, that is to say, are not law, is to talk stark nonsense.' He emphasises that a law set by a sovereign to a subject is not negated by any apparent conflicting divine or moral law.