Joh John Austin's Theory Of A Natural Law Theory

Who has the authority to make law? While natural law theorists would point to overarching ethics or morality as the true basis of law, positive law theorists would advance the view that legal authority is a fundamentally different thing than moral authority. However, that is a very broad definition of a school of thought within which there are many points of contention. One of these divisive issues is the very question of who should create laws. Though John Austin set forth an argument linking the power to punish and the power to create law during the early Victorian era, H. L. A. Hart, a positivist thinker from the late twentieth century, takes issue with Austin’s definitions of authority and power, and proposes a more nuanced view of positivism. …show more content…
In a profound departure from natural law theory, Austin argued that law and morality are two separate things, and posited that they ought to remain that way. Laws, according to Austin, are human-made rather than divine in origin. Therefore, rules are set forth by an intelligent, sovereign lawmaker for their political inferior. Although these rules ought to conform to divine law, they are not rendered powerless if they do not, as a natural law theorist like Blackstone would argue. Austin gives us the example of a man who commits a relatively harmless crime which is punishable by death under the law. He has the right to argue that the law is unjust, but he will be hanged despite his protestations. Therefore, Austin argues, the morality of the law does not affect a sovereign power’s ability to punish the