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Q no 1.. Jurisand legal theory of austin..?

The word jurisprudence is derived from a latin maxim as referred


'jurisprudentia' but owes its origin to Rome. It is a combination of two
words 'juris' which means 'law' and 'prudence' which means 'knowledge'
or 'skill'. Therefore jurisprudence is the study, knowledge, skill and theory
of law. Jurisprudence includes principles behind law that make the law
Natural law is the idea that there are rational objective limits to the
power of legislative rulers. The foundations of law are accessible through
reason and it is from these laws of nature that human-created laws gain
whatever force they have.[2]
Legal positivism, by contrast to natural law, holds that there is no
necessary connection between law and morality and that the force of law
comes from some basic social facts. Legal positivists differ on what those
facts are.[3]
Legal realism is a third theory of jurisprudence which argues that the
real world practice of law is what determines what law is; the law has the
force that it does because of what legislators, barristers and judges do with
it. Similar approaches have been developed in many different ways in
sociology of law.
Critical legal studies are a younger theory of jurisprudence that has
developed since the 1970s. It is primarily a negative thesis that holds that the
law is largely contradictory, and can be best analyzed as an expression of the
policy goals of the dominant social group.

Theory of legal positivism


The three basic points of Austin's theory of law are that:

the law is command issued by the uncommanded commanderthe sovereign;


such commands are backed by threats of sanctions; and
a sovereign is one who is habitually obeyed

Austin's view of 'a sovereign' was challenged by Henry Maine in "Early Institutions"
where he argues that in some Empires of the Orient there is nothing to correspond with
"determinate superior" or sovereign.[4]

Austin was greatly influenced in his utilitarian approach to law by Jeremy Bentham.

The theory of legal realism, like positivism, looks on law as the expression of the will of
the state but sees it as made through the medium of Courts. Law no doubt is the
command of the sovereign, but the sovereign to the realist is not the Parliament but the
Court.
1. IMPERATIVE OR AUSTIN'S THEORY OF LAW:
Austin says that law is a command which obliges a person or persons to a course of
conduct. It is laid down by a political sovereign and enforceable by a sanction.
2. FEATURES OF IMPERATIVE THEORY:
According to Austin, positive law has three main features:
A. Command.
B. Sovereign.
C. Sanction.
A. COMMAND: According to Austin: Commands are expressions of desire given by
superiors to inferiors.
(i) Laws are general commands: There are commands which are laws and which is not,
Austin distinguishes law from other commands by their generality. Laws are general
commands, unlike commands given on parade grounds and obeyed there then by the
troops.
B. SOVEREIGN: According to Austin, a sovereign is any person or body of persons,
whom the bulk of a political society habitually obeys and who does not himself habitually
obeys, some other persons or persons.
Characteristics of Sovereign:
(i) Source of Laws: Sovereign is the source of law. Every law is set, by a sovereign
persons or body of persons.
(ii) Source of Power: Prof. Laski says that there are three implications of the definition
of sovereignty given by Austin. The state is a legal order in which there is a determinate
authority acting as the ultimate source of power.

(iii) Indivisible Power: The power of sovereign is indivisible. It cannot be divided.


Accordingly to Austin, there can only be one sovereign in the state. The totality of
sovereign is vested in one person or a body of persons.
(iv) Habitual obedient by People: The chief characteristic of sovereign lies in the power
to exact habitual obedience from the bulk of the member of the society.
C. SANCTION: The term sanction is derived from Roman Law. According to Salmond
"Sanction is the instrument of coercion by which any system of imperative law is
enforced. Physical force is the sanction applied by the state in the administration of
justice.

3. CRITICISM: Austin's theory of law has been criticized on many grounds.


1. Laws before State: According to Historical School, law is prior to and independent of
political authority and enforcement. A state enforces it because it is already law. It is not
correct that it becomes law because the state enforces it.
2. Gunman Law: Some have criticized the positivist theory of law as a theory of
gunman, as it makes no real distinction between a law and the command of a bank-robber
who points his gun at the bank clerk and orders him to give him money.
3. Generality of Law: According to Austin, law is a general rule of conduct, but that is
not practicable in every sphere of law. A law in the sense of the Act of the legislature may
be particular in the fullest sense of the word. A Divorce Act is law even if it does not
apply to all persons.
4. Promulgation: According to Austin, law is a command and that has to be
communicated to the people by whom it is meant to be obeyed or followed but this is not
essential for the validity of a rule of law.
5. Law as Command: According to Austin, law is a command of the sovereign but the
greater part of a legal system consists of laws which neither command nor forbid things
to be done e.g., right to vote.
6. Existence of Personal Commander: The term command suggests the existence of a
personal commander. In modern legal systems, it is impossible to identify any
commander in the personal sense.

7. Refusal of Precedents as Laws: The bulk of the English law has been created by the
decisions of the Court. To describe the judges as delegates by the positivists is
misleading.
8. Sanction: The concept of sanction is also misleading as in modern democratic country,
the sanction behind law is not the force of the state but the willingness of the people to
obey the same.
9. Sanction is not essential elements: Sanction is not an essential element of law, as in
civil law no such sanction is to be found.
10. Disregard of ethical elements: According to salmond, Austin's theory of law is onesided and inadequatic. It disregards the moral or ethical elements in law.
11. Not applicable to International Law: Austin's definition of law cannot be applied to
International law that is to say that International Law is not an imperative law. The
International law is not the command of any sovereign, yet it is considered to be law by
all concerned. (xii) Not Applicable to constitutional law: Austin's definition of law does
not apply to constitutional law which cannot to called commands of any sovereign.
Constitutional law of a country defines the powers of various organs of the state.
4. IS MORAL LAW IMPERATIVE: Moral law has also been called the divine law, the
law of reason, the universal or common law or eternal law. It is called the command of
God imposed upon men. Natural law appeals to the reason of men. It does not possess
physical compulsion. It embodies the principles of morality. Natural or moral law exists
only in an ideal state and differs from positive law of state. In Austin view of law
morality altogether ignores therefore moral law is not an imperative law.
CONCLUSION:
To conclude, I can say, that inspite of criticism of Austin's theory of law, it cannot be
denied that Austin rendered a great service by giving a clear and simple definition of law.
He makes a distinction between what law is and what it ought to be. It seeks to define law
not be reference to its contents but according to the formed criteria which differentiate
legal rules from other rules such as those of morals, etiquette etc.