LAW_516_JURISPRUDENCE_II_FULLY_EDITED

40 conclusion in the fashion of legal positivists

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4.0 CONCLUSION In the fashion of legal positivists, John Austin propounded the command theory of law wherein he sought to locate the command or law of a particular political organization within the precincts of an identifiable sovereign. He believed that doing so advanced the cause of positivism the cause of rejecting that which cannot be proved or demonstrated. However, his analysis of types of law, and the trilogy leaves much to be desired, at least, in contemporary times. Many atimes, we were tempted to believe that his theory was a recipe for effective dictatorship or autocracy. Finally, it is relieving to note that much of his theory on the relationship between the sovereign and the subjects or citizens has been overtaken by contemporary events where real sovereignty now resides in the people. 5.0 SUMMARY In this Unit, we continued our discussion of the theory of positivism by considering the command theory of Austin. He defined law as the command of the uncommanded commander. It is this point of view that informed his categorization and discussion of various types of law. Thereafter, we examined the trilogy of the sovereign, command and sanctions. Herein, we attempted some analyses of the constituents of the trilogy and, where appropriate, tried to situate it in contemporary politico-legal milieu. In the main, 64
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LAW 516 JURISPRUDENCE AND LEGAL THEORY II it was found that the trilogy is a hard sell in contemporary governance of States. We ended the Unit with a glance at some of the criticisms against his theory. 6.0 TUTOR-MARKED ASSIGNMENT Although Austin’s command theory appears to be consistent with a dictatorship, it is a strange theory in modern democracies. Discuss. 7.0 REFERENCES/F URTHER READINGS 1. J.M. Elegido, Jurisprudence (Ibadan: Spectrum Law Publishing, 1994). 2. L.B. Curzon, Jurisprudence (London: Cavendish Publishing Ltd, 2nd Edition, 1995). 65
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LAW 516 JURISPRUDENCE AND LEGAL THEORY II Unit 3 LEGAL POSITIVISM: HANS KELSEN (1881-1973) CONTENTS 1.0 Introduction 2.0 Objectives 3.0 Main Content 3.1 Essence of Pure Theory of Law 3.2 Norms 3.3 Validity and Hierarchy of Norms 3.4 Basic Norm or Grundnorm 3.5 Efficacy of Norms 3.6 Change in Basic Norm or Revolution 3.7 Criticisms 4.0 Conclusion 5.0 Summary 6.0 Tutor-Marked Assignment 7.0 References/Further Readings 1.0 INTRODUCTION We will continue our study of the theory of legal positivism with the examination of the Pure Theory of Law, which was propounded by Hans Kelsen (an Austro- American Jurist). He was a central figure in drafting the Austrian Constitution (adopted in 1920), became a judge of the Austrian Supreme Constitutional Court and, after emigrating to the US, participated in the drafting of the UN Charter. He escaped Europe at the rise of Hitler to power. He published dozens of books and articles for over four decades. His positions on several issues changed in subtle but important ways.
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