John Austin Case
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The basic concepts of law according to Murphy (2007), is “law is a social phenomenon, law is authorative, and law is for the common good” (pg. 4). The five philosophers that I have chosen for this assignment are John Austin, H.L.A. Hart, Lon Fuller, Joseph Raz, and Thomas Aquiras. For each of these philosophers I will summarize their views of law, while relating to the concept and nature of law. I will also analyze each of the philosophers views and determine if their views are logical or illogical, consistent or inconsistent, as well as persuasive and unpersuasive. Lastly, I will criticize the philosphers views of law, and explain why their views are such with “clear cases” that demonstrate the philophers success or failure to the concept and nature of law that they include in their theories.
John Austin
John Austin viewedJohn Austin viewed law as a legal positivism, Austins view seperates moral law from positive laws. Law is a matter of social fact, and this follows Austins belief of “where there is law there are patterns of commanding and obeying” (Murphy, 2007, p. 17). Law begins with a society, because without people laws would not exist, this is a concept that law is a social phenomenon. Most of Austins views on legal positivism explain the criminal law system, because it forbids certain actions, and imposes punishment to people that break the law, this view is logical. Contract law is an example of Austins illogical views because in contract law there are no sanctions for a breach of contract. Austins views are consistent with the criminal law system, but inconsistent with contract law, laws in the criminal law system have to be consistent in order to maintain order in society. Contract laws are inconsistent because they are able to be changed to better benefit the people that are involved. The criminal law system persuades people in society to behave in a certain way that will guarentee that they will remain free from sanctions and punishments as long as they obey. Contract law is unpersuasive because if the one person involved in the contract doesnt like the stipulations, they can sue the other person for breaching the contract. The last commonplace theory is that laws are created for the common good. Austins theory doesnt apply to adjudication, because a judge applies the case law based on legal reasoning.