Topic 3 - Command Theory Flashcards
(32 cards)
What is the central concept of command theories of law?
Law is seen as commands issued by a sovereign authority
Who is considered a key contributor to the notion of sovereignty in command theories?
Thomas Hobbes
What did Thomas Hobbes define as the ultimate authority in society?
Sovereignty
What philosophical approach did Jeremy Bentham develop alongside legal positivism?
Utilitarianism
What did John Austin argue law consists of?
Commands from a sovereign backed by threats
What significant role did John Austin have in the academic world?
First law professor at University College London
What does command theory emphasize about the nature of law?
Law as a tool of government
Fill in the blank: Austin viewed international law and constitutional law as forms of _______.
positive morality
What is a criticism of Austin’s command theory?
Oversimplification of law as commands backed by threats
What did H.L.A. Hart challenge in Austin’s theory?
Identification of law exclusively with commands backed by threats
What is the ‘is-ought’ problem articulated by David Hume?
One cannot move logically from descriptive statements to normative conclusions without additional premises
True or False: Hobbes believed that the sovereign should have limited power.
False
What did Bentham advocate for in terms of legal systems?
Clear, codified laws
What is a significant limitation of pure utilitarianism according to critics?
It can justify sacrificing individual rights for collective welfare
What did Austin’s ‘is-ought’ distinction clarify?
The existence of law is separate from its moral merit
What did Hart introduce to modify Austin’s rigid command theory?
The idea of a system of rules
What are primary rules in Hart’s theory?
Rules imposing duties
What are secondary rules in Hart’s theory?
Rules about the creation, modification, and adjudication of primary rules
Fill in the blank: Hart emphasized the _______ point of view in law.
internal
What does Hart say about law’s validity?
It depends on social facts, not moral criteria
What is the significance of the distinction between ‘is’ and ‘ought’ in legal theory?
It prevents confusion between fact and value
What does a descriptive statement about law refer to?
What the law actually is
What does a normative statement about law refer to?
What the law or one should do morally or legally
True or False: Law is purely coercive according to Austin’s command theory.
True
