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Global Jurist

Ed. by Mattei, Ugo / Monti, Alberto

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`Austin's Positivism': Is it a Retrospective Investigation of Contractualist's Sovereign? Locating Hobbes' Theory in the History of "Sovereign's Debate"

Prabhakar Singh1

1National Law Institute University, Bhopal, India,

Citation Information: Global Jurist Topics. Volume 6, Issue 2, ISSN (Online) 1535-167X, DOI: 10.2202/1535-167X.1188, April 2006

Publication History:
Published Online:
2006-04-08

Legal positivism is the Jurisprudential debate, which is primarily located with the writings of Austin, which gained ground after his death. This theory is all about keeping law separate from morals, with certain explanation to sovereign, laws, society, normativity et al. But long before Austin it was Thomas Hobbes who gave his explanations to the theory of sovereign, nature of law, morality and power. But he has been kept at bay; termed as a ``political Scientist", in the manufactured tradition of legal positivism. I have tried, in this paper, to locate the proper place of Hobbes in the lineage of positivist philosophy. Secondly, I have tried to capture the debate on “Judge Made Law” as “inherently paradoxical” by supplying examples two examples--one borrowed and one mine in the second half of the paper.

Keywords: Austin’s Sovereignty; Hobbes; retrospective investigation of Contractualist Sovereign; Hobbes’ location in the legal positivistic debate; “Judge Made Law” a paradox

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