Relevance of Austin’s analytical positivism juxtaposed with the international world order

Gupta, Kamiya (2021) Relevance of Austin’s analytical positivism juxtaposed with the international world order. [Working papers (or Preprints)]

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At the core of positive law is seeking to describe and conceptualize law by reference to formal rather than a moral criterion, as antithetical to natural law. The positivist theory does not aim at discrediting law’s merits as being inconsequential to the philosophy, it simply expounds that it does not factor-in to validate a law.

Legal Positivism developed during the 18th and 19th centuries and then further came to the forefront during the latter half of the 20th century. The inception of this school of thought can be owed to Jeremy Bentham, who viewed analytical positive law with a utilitarian lens, and whose account was adopted and more often than not modified and critiqued by John Austin, who is also the subject of my research here. Bentham advocates limited sovereignty, as opposed to Austin.
The purpose of this paper is to study the pertinence and materiality of positive law by relegating focus on Austin’s conception of positive law, his ‘command theory’ in particular and to equate his thesis in a globalized contemporary world to test its efficacy.

Throughout the paper, questions like: is the authority of the sovereign overarching with respect to Austin’s command theory and how it plays out today, and how approved is the notion of only laws backed by sanctions being valid will be explored to ultimately infer how the idea of “Absolute sovereignty” in Austin’s command theory is thrown a direct challenge at by various new tenets within the realm of law like international law and the rise of a multidimensional globalized world system.

This will be understood by analyzing how efficacious is it to keep imperative subjects like international law outside the purview of real laws by Austin by stifling the sphere jurisprudential inquiry in terms of what would qualify as ‘positive laws’ especially in the contemporary world order. To define the scope of research, the paper is divided into the following segments: a) Core concepts of Austin’s theory b) Has Globalization transcended Austin’s “Command theory”? c) Problems with Austin’s overemphasis on the importance of sanctions.

Item Type: Working papers (or Preprints)
Keywords: International law | Positive law Austin | Rules | Global
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Admin Library
Date Deposited: 12 Mar 2022 14:17
Last Modified: 15 Mar 2022 07:02
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