犹如命令般的法律——关于奥斯丁法律命令说的内涵与价值.pdfVIP

Abstract John Austin’s imperative theory was coming from its unique social background and theoretical background. It is exactly because of such reasons, it has been widely concerned and evaluated, and subsequently it has impacted the empirical law and the analysis of law, which cannot be underestimated. In the 19th century, ideas of positivism became created popular in Europe, and Austin determined to create a law of science which is to study the positive laws, under the influence of the two ideas, which are the utilitarianism and positivism. Definition is the core of science, and the reasoning is after that. And the definition of the law from Austin is the famous imperative theory . In this theory, Austin tried to make a legal definition with very sound and clear connotation and extension in the least concepts, which can defines the subjects and the scope of the law, excluding other factors. And the order is his basic and the most fundamental term to definite the law, in order to clear the specific scope of the law. Austin through introducing and analyzing obligations, sanctions , political advantage and political disadvantage these terms to defined the law as an order further. And based on it, sovereignty and independence political society naturally derived, and then he related his theory of the sovereignty of national sovereignty, the laws’ operation in the countries and other issues. On the basis of this definition, Austin initially designated the scope and limits of the law of science, which created a precedent for Positivism Law, and for this reason, he was called the father of Jurisprudence. However, not only in his life but also after his life, this theory faces with various disputes and blame. Most famous rebuttal came from Hart, after one hundred years. He advocated the imperative theory substituted