CDS (I) 2021 General Knowledge · Question 37 of 120

Correct — C, John Austin. Austin, the first Professor of Jurisprudence at University College London from 1827, was the first legal thinker to work out a fully developed positivistic theory of law, and he did it in The Province of Jurisprudence Determined (1832). His command theory holds that laws are general commands issued by a sovereign to the members of an independent political society and backed by credible threats of punishment. What makes it positivism is the separation it insists on: law is a social fact, a matter of who in fact holds power and who in fact obeys, and the question of whether a law is just is a separate question from whether it is law. The verb in the stem — 'developed by' — is doing real work, because the ideas were in the air before him; Austin is the one who systematised them.

• (a)T.H. Green — Green is the opposite pole. He was an English idealist who argued that the state exists to remove obstacles to the good life and that rights rest on their contribution to a common moral good — a position that ties law to morality rather than separating them.
• (b)Thomas Hobbes — Hobbes supplies raw material for positivism with his absolute sovereign in Leviathan, and later positivists acknowledge the debt, but his project is social-contract political philosophy, not a worked-out analytical jurisprudence.
• (d)Patrick Devlin — Devlin argued the other side of the twentieth century's most famous jurisprudential quarrel. In the Hart-Devlin debate that followed the Wolfenden Report he held that a shared morality is part of the fabric of society and may properly be enforced by law.

Legal positivism is the view that the existence and content of law depend on social facts — enactment, custom, recognised practice — and not on the law's merits. Its classical English line runs Bentham, then Austin, then in the twentieth century H.L.A. Hart, who replaced Austin's sovereign-and-command picture with a union of primary and secondary rules and a rule of recognition. Its standing opponents are the natural-law tradition, which holds that an unjust law is defective as law, and interpretive theories such as Ronald Dworkin's, which deny that law can be identified without moral reasoning.

A candidate who knows a little more than the syllabus can talk himself out of this one, because Jeremy Bentham is the true ancestor: he wrote the critique of Blackstone, coined much of the vocabulary, and got Austin his chair. Two things settle it in Austin's favour. First, Bentham's jurisprudential manuscripts stayed largely unpublished until the twentieth century, so Austin's 1832 lectures were the version the nineteenth century actually read. Second, the stem asks who developed the theory, not who first conceived it, and the standard formulation is that Austin, drawing heavily on Bentham, was the first to work out a fully developed positivist theory of law. The honest way to hold the answer is therefore Bentham as source, Austin as system-builder, Hart as the one who refined it.

• John Austin lived 1790-1859 and was appointed the first Professor of Jurisprudence at University College London in July 1827, largely through Bentham's influence.
• His The Province of Jurisprudence Determined was published in 1832.
• On his command theory, laws are general commands of a sovereign to an independent political society, backed by credible threats of sanction.
• Positivism's central claim is the separation of law and morals: the existence of a law is one question, its merit or demerit another.
• H.L.A. Hart's The Concept of Law (1961) rebuilt positivism around primary and secondary rules and a rule of recognition, in place of Austin's sovereign.

• Answering Bentham, or rejecting Austin because Bentham came first; the stem asks who developed the theory, and Austin is the system-builder.
• Reading positivism as approval of whatever the state commands; it is a claim about how law is identified, not about whether it deserves obedience.
• Confusing Hobbes's sovereign in political philosophy with Austin's sovereign in analytical jurisprudence.

Asked as a thinker-to-theory match, so the safest preparation is one line per name — Austin with command theory, Green with idealism, Hobbes with the social contract, Devlin with the enforcement of morals.

No directly related past PYQ was found.

• practice — not a real PYQ

  The work 'The Province of Jurisprudence Determined' (1832) was written by

  • (a)Jeremy Bentham
  • (b)John Austin
  • (c)H.L.A. Hart
  • (d)Roscoe Pound

  Answer(b) John Austin — the lectures in which he set out the command theory of law and the positivist separation of law from morals.

• practice — not a real PYQ

  The debate on whether the law should enforce a society's shared morality, arising after the Wolfenden Report, was conducted between

  • (a)Bentham and Blackstone
  • (b)H.L.A. Hart and Patrick Devlin
  • (c)Austin and Savigny
  • (d)Kelsen and Dworkin

  Answer(b) H.L.A. Hart and Patrick Devlin — Devlin arguing that a shared morality is part of the fabric of society, Hart that private immorality is not by itself the law's business.