John Austin's Theory of Sovereignty

Legal positivism is generally based on the principle that Law and morality is distinct and that the validity of a rule depends more on its sources, while Natural law would be more inclined to favour features of reasonableness and the link between morality and law. There are two predominant groups of legal theorists being, Natural law theorists and Positive law theorists, John Austin and HLA Hart

Popular sovereignty means that the people obtain the power of their government. Without the people,

Popular sovereignty is the idea that the people are sovereign and it is the leader of the countries responsibility to reflect the people’s interests. Jon R. Bond and Kevin B. Smith defined popular sovereignty in their book Analyzing American Democracy by

concentrates that law is purely used to promote good by the state. Furthermore, law should

PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should

In the first chapter of “How Congress Works”, Lee H. Hamilton discusses the idea of the American people being sovereign, or the supreme power. In our representative democracy, “neither Congress nor the president is supreme, because the ultimate authority lies with the people” (Hamilton 4). In “Why Does Sovereignty Matter to America”, Steven Groves shares the same sentiment as Hamilton saying, "Sovereignty is a simple idea: the United States is an independent nation, governed by the American people, that controls its own affairs” (Groves). Both Hamilton and Groves see sovereignty as a pivotal part of how our nation works. It’s obvious that the Founders intended for it to be this way. After being held under the tyranny of the King, they wanted

“Positive” law defines legal liability (or culpability), but many theorists subscribe to concepts of “natural” law. What is “Positive” law? “Natural” law? How are they different?

This is the major difference between positivist and natural law thinkers. Natural law is the combination of laws and morals while legal positivism is the seperation of laws and morals. Legal positivism declares that morality is irrelevant to the identification of what is valid law and that the criteria for the validity of a legal rule or law in a society is that it has the warrant of the sovereign and will be enforced by the sovereign and its agents. Raz, a positivist, stated that ‘the validity of a law can never depend on its morality’ 6 Positive law or positivism is

Through understanding where ultimate authority resides in political institutions, the features and key principles of democracy are analysed. Furthermore, through revising sovereignty, it can be understood how it applies to non-democratic institutions such as dictatorships or one party political regime. By studying sovereignty, a comparison of the contrasting political regimes, (democracies and dictatorships) can be undertaken. Sovereignty, in this way is an intrinsic part of the study of politics. The concept of sovereignty enables a student to explore one of the political controversies of the C21st.

Natural law theorists believe that all law must be morally justified if it can be legitimised as law at all. Legal positivism means the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have otherwise done so. (Hart, DATE)

In this relationship, the sovereign and government, which I will describe in more detail in the subsequent chapters, are completely separate. The sovereign represents the will of the people and is the legislative power. The government’s duty is to execute

The exercise of authority and power are facts as old as time, throughout the ages men have tried to explain and understand how and why political authority is organised. Sovereignty is a concept used to explain political power, to

Law can be defined as the written agreement that a society agrees upon this dictates appropriate and acceptable conduct and behaviour we display toward each other. Law is the foundation of the society it can only work if the society abides by it and work to maintain its existence, this will help solve any problems and crimes.

In this paper, I will propose that it is better to look at whether a law is legally valid or not through the perspective of natural law theory as opposed to positivist theory. My argument consists mostly of the language of “improvement” which can only exist based on the theory of natural law which states that law is something which has an objective truth behind it. Only when there is an objective mark to hit can there be hits and misses and I believe that positivism disregards the possibility of hits and misses entirely. So, my argument is that it makes more sense to consider legal validity of a law from the perspective of natural law rather than positive law because it includes not only the previously set up legal system when considering validity, but it also considers the general idea of some kind of morality as well. A sub argument is that the starting legal system must have had some basis by which to have been created and accepted which must be some form or notion of morality.

On the other hand, positive law is forced by the government for everyone to obey. In order for the law to be a positive law it must be formed and applied so that it is acceptable by most people .Common law is geared toward custom and usage for instance, nonstatutory customs, ways of life and examples that help steer the decisions of the judicial system The purpose of criminal law is to catch those individual’s that break the law and may harm other people. Not only does criminal law show individuals what they have done wrong but it also states what the punishment will be if the law is broken. Criminal law not only punishes the accused but it also offers protection through the judicial system that punishes and controls (http://www.hg.org/crime.html, 2012).