Austin's Command Theory

1687 words.

Question One

The Concept of Law was written in rejection of Austin’s command theory. This theory held that the law was a command by a sovereign backed by a threat of punishment. Hart likened the theory to the idea of a gunman about to rob a bank. This idea is that Austin’s command theory does not work because there is no difference in the sovereign and the gunman giving orders or command, with the threat of punishment attached. The gunman is likely to shot while the sovereign is likely to imprison. Hart also states that not all laws are imperatives or coercive. For example trust and company law.

Hart argues for the distinction between primary and secondary legal rules. The primary rule governs the conduct of the person, while the

Law is not valid if it is immoral or unjust, thus this theory limits the validity of the law. Natural Law Theory questions the purpose of each law. Each positive law must be interpreted so as to give effect to justice and morality.

Natural Law seeks to influence lawyers, judges and decisions makers and all others responsible for created, and interpreting the law, because Natural Law Theory holds that all laws must be moral and all decisions must lead to justice.

Legal Positivism

Legal Positivism is the view that law is separate from morals. Law and morals are completely separate, the validity of law is not assessed on its morals but is assessed on its procedure. Did the people who make the law have the authority to do it? Kelsen and Hart provide two modern theories of Legal Positivism.

Kelsen theory is relevant to decisions makers who wish to know what the law is, because the theory deals with the grounds for law and its validity.

Hart proposes the idea of primary and secondary rules. The primary rules are rules that govern behaviour, in other words primary rules either require or prohibit certain actions. While secondary rules are rules conferring power to make primary rules. Central to Hart’s theory is the rule of

There a process with starts with the karanga which is performed by the woman which welcomes the people onto the Marae acknowledges the departed, and the reasoning for being there, then the people sit down and whaikorero starts either alternating between tangata whenua and manuhiri or the tangata whenua then the manuhiri, in both cases the tangata whenua will speak last. The last process is the hakari, a feast which brings people together. Then the purpose of the meeting is established. There will be people who will assess how the events proceeding, whether they were done according to custom and what could be