Natural Law: Partie 2 - Chapitre 3 (John Austin)

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Questions and Answers

What was John Austin's criticism of Blackstone's declaratory theory of law?

It was too similar to Bentham's utilitarian thought

It favored judge-made law over statutory law

It relied too heavily on statutory law

It denied the judge's creative power and relied on retroactive judgments (correct)

What is the key characteristic of positive laws, according to John Austin?

They are only applicable to a specific region

They are always in conflict with divine laws

They are established by God for humans

They are commands formulated in general form and enacted by political superiors for political inferiors (correct)

What did John Austin publish in 1832, which became influential in English legal theory?

Beyond Good and Evil

The Social Contract

The Critique of Pure Reason

The Province of Jurisprudence Determined (correct)

Who noted Austin's significant influence on the development of English legal theory?

H.L.A.Hart Signup and view all the answers

What is the main difference between divine laws and positive laws, according to Austin?

Divine laws are established by God, while positive laws are established by humans Signup and view all the answers

What type of laws does Austin categorize as commands formulated in general form?

Positive laws Signup and view all the answers

Who is the supreme political superior in Austin's legal theory?

The sovereign Signup and view all the answers

What was Austin's occupation before becoming a professor of legal theory?

Lawyer Signup and view all the answers

What is the primary focus of natural law theorists like Hobbes and Hume?

The concept of self-preservation as the foundation of natural law Signup and view all the answers

What is the empirical basis for natural law concepts according to Hart?

Human thinking and language Signup and view all the answers

What is the first fundamental aspect of human nature and societal organization highlighted by Hart?

Human vulnerability Signup and view all the answers

What is the consequence of human vulnerability, according to Hart?

The need for mutual protection and cooperation in society Signup and view all the answers

What is the second fundamental aspect of human nature and societal organization highlighted by Hart?

Rough equality among humans Signup and view all the answers

What is the consequence of rough equality among humans, according to Hart?

The need for reciprocal abstentions and compromises Signup and view all the answers

What is the third fundamental aspect of human nature and societal organization highlighted by Hart?

Limited altruism Signup and view all the answers

What is the consequence of limited altruism, according to Hart?

The need for rules to regulate behavior and prevent exploitation Signup and view all the answers

What is a key distinction between Kelsen's Grundnorm and natural law theories?

Grundnorm serves a purely theoretical function, devoid of ethical or political significance Signup and view all the answers

What criticism does Kelsen have of natural law theories?

They fail to provide a coherent and universally applicable standard Signup and view all the answers

What is a fundamental objection to natural law doctrines, according to Kelsen?

They posit that the validity of positive law is based on an order established by nature Signup and view all the answers

What does Kelsen argue is implied by natural law proponents' claims about nature's commands?

That the existence of a norm obliges obedience to nature's commands Signup and view all the answers

What is a key difference between natural law and positive law, according to Kelsen?

Natural law is based on moral obligations, while positive law is based on legislation Signup and view all the answers

What does Kelsen see as a problem with natural law theories' attempts to provide a standard for judging positive law?

They fail to provide a coherent and universally applicable standard Signup and view all the answers

According to Kelsen, what is a consequence of the conflicting interpretations of natural law?

The inability to provide a coherent and universally applicable standard Signup and view all the answers

What does Kelsen critique about the history of natural law?

Its lack of a firm criterion to justify positive law Signup and view all the answers

Study Notes

John Austin (1790-1859)

Studied at Cambridge and was familiar with Bentham's utilitarian thought
Became the first professor of legal theory at the University of London in 1826
Criticized Blackstone's declaratory theory of law, which denied the judge's creative power
Favored statutory law for its certainty, contrasting it with judge-made law, which caused uncertainty
Published his lectures as "The Province of Jurisprudence Determined" in 1832, which became influential in English legal theory until the 20th century
H.L.A. Hart noted Austin's significant influence on the development of English legal theory, surpassing that of any other writer

The Different Types of Laws

Austin categorizes laws into four types: divine laws, positive laws, positive morality, and metaphorical or figurative laws
Divine laws are established by God for humans, while positive laws are established by humans for humans
Positive laws are commands formulated in general form and enacted by political superiors for political inferiors
The sovereign, according to Austin, is the supreme political superior who is generally obeyed by the bulk of society without having to obey a higher authority

Grundnorm and Natural Law

Kelsen's theory of the Grundnorm has been criticized for resembling jusnaturalism
Kelsen argues that the Grundnorm serves a purely theoretical function in the interpretation of positive law, devoid of any ethical or political significance
Natural law theories aim to provide an ethical and political standard against which positive law can be judged
Kelsen critiques natural law doctrines for positing that the validity of positive law is based on an order established by nature, which is considered a supreme authority above human legislators

A Minimum Content of Natural Law

Hart outlines several fundamental aspects of human nature and societal organization that shape the content of legal and moral rules
First, human vulnerability necessitates rules against bodily harm to others
Second, the rough equality among humans requires reciprocal abstentions and compromises, forming the basis of legal and moral obligations
Third, humans' limited altruism necessitates rules to regulate behavior and prevent exploitation
Fourth, the limited resources in the world necessitate rules regarding property ownership and exchange

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Learn about John Austin, an English legal theorist who studied at Cambridge and became familiar with Bentham's utilitarian thought.