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Lunch » Tags » Books » Reviews » The Province of Jurisprudence Determined (Great Minds Series)

The Province of Jurisprudence Determined (Great Minds Series)

1 rating: 5.0

A book by John Austin

A work that has had a profound influence on the study of English and American law, "The Province of Jurisprudence Determined" is a model of rigorous and clear analysis. With its publication Austin brought order to the disparate elements of a legal profession … see full wiki

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Author: John Austin

Publisher: Prometheus Books

1 review about The Province of Jurisprudence Determined...

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One of the "founders" of "legal positivism"

Jan 15, 2009

by MNeulander
posted in Cafe Libri: Reviewing Books & More

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I read this book for a class on the philosophy of law. The English legal philosopher and jurist, John Austin, was instrumental in developing the theory of legal positivism, which held that there had to be a separation between religious laws of morality and positive or human made law. In his book "The Provence of Jurisprudence Determined," he delineates how laws are made and obeyed. "Every positive law, or every law simply and strictly so called, is set, directly or circuritously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is sovereign or supreme" (253-254). Therefore, in a representative democracy, the people are the sovereign and either they or their elected representatives produce the laws.

Austin argued against judges interpreting their nation's constitution or law code to make perceived necessary changes to keep up with changing social values. Austin believes that in a democratic society, the people are sovereign and thus a nation's constitution and law code should be changed by the people's elected representatives and not by appointed judges. Austin is not against citizens changing their Constitution or laws, "... the Constitution should keep up to date--but it should keep up to date with the views of the people."

Austin's genius was in his perception of the history of how nations govern, which has provided ample proof that there is a direct correlation between those democracies that maintain a healthy balance of powers between the branches of government and are the same democracies that are most protected from the danger of slipping into tyranny; whether it is rule by a dictator or rule by a politically privileged few, such as an oligarchy.

Recommended reading for those interested in philosophy, history, and political science.

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