LEGAL POSITIVISM: AUSTIN’S THEORY

FOCUSED AREA:
The following research questions have been broadly identified:

1. What is Legal Positivism?

2. What is law according to Austin?
3. What are the Attacks and Criticism on Austin’s theory of legal positivism?
4. What are the differences between Austin and Bentham?

WHAT IS JURISPRUDENCE?
The word jurisprudence is derived from the Latin expression juris prudentia, which means “skill
in the law” or “knowledge of the law”. In this sense, it is the philosophy, science and application
of the law. Jurisprudence also means “by the activity of prudence’s; advisors, experts”.1

According to Austin:

He defines Jurisprudence as the "Philosophy of Positive Law".2

AUSTIN:
 John Austin (1790-1859) was an English lawyer and a professor of law who give
imperative theory which is formulated as a defiance to the natural law theory.3
 He was the student of Bentham and served as an Army officer for 5 years until 1812.
 In 1826 he was appointed to the chair of Jurisprudence in the University of London.
 In 1832 he published the volume entitled “The Province of Jurisprudence Determined”.

1
Imran Ahsan Khan Nyazee, Jurisprudence(second edition 2010) 7
2
Law notes.in https://www.lawnotes.in/Definitions_of_Jurisprudence#Austin accessed on 3 October 2018
3
ROHINTON MEHHTA, 50 Lectures on jurisprudence,29
LAW ACCORDING TO AUSTIN:
Austin said:

“A law is a rule laid down for the guidance of an intelligent being by an intelligent being having
power over him”4

Types of Law:

Law is divided in two types:

 Natural Law…Laws of God which are set by God for humans.

 Positive Law….Laws of Humans set by Humans.

POSITIVE LAW:
Positivism derived from Latin words “positium” which means posited.

Legal positivism:

Positive law is different from natural law concept here the laws are separate from God and it is
man made law (Human law), example judicial norms are established by the sovereign authority
of the state and these laws does not concern with moral values it only concern whether the law is
fair or unfair and these laws are must be obey by the citizens of the state.

Characteristics of Positivism:

 Sovereignty as a source of law.

 Command must from sovereign.
 Law as it is and law as it ought to be.
 Scientific study of legal system.
 Sanction.

Positivism three theoretical commitments:

Positivism has three main theoretical commitments which are following:

 The creation of valid law depends on the existence of certain social facts.5

This is called social fact thesis means whether a norm is a law must depend on certain social facts
about it, not on its moral content.

4
carneades.pomona “Austin’s Legal Positivism” http://carneades.pomona.edu/2016-Law/02.Austin.html accessed
on 3 October 2018
5
Imran Ahsan Khan Nyazee, Jurisprudence(second edition 2010) 85
  The validity of law depends upon acceptance by officials of certain criteria of validity as
authoritative. 6

This is called the conventionality thesis which asserts that officials are obligated to apply the
requirements of the rule of recognition in discharging their official functions.

 There is no overlap between law and morality.7

This is Separability thesis and according to this there must be no overlap between morals and law
as is claimed by natural law.

AUSTIN AND LEGAL POSITIVISUM

Austin is very famous due to his best views related to positive law and due to his “Legal
positivism” theory and often called the “command theory of law” because the concept of
command lies at is essential: law is the command of the sovereign, backed by a threat of sanction
in the event of non-compliance. Legality, on this account, is determined by the source of a norm,
not the merits of its substance (i.e. it embodies a moral rule).

Austin’s legal positivism theory:

Start of theory the by his definition:

“If a determinant human superior, not in a habit of obedience to a like superior, commands,
habitual obedience from a bulk of a society, such a society is politically organized and
independent”8

If we explain his definition then we come with attributes and main focus of Austin theory which
are mentioned as following:

1. General law is command

2. Sovereign is the main source of law
3. Sanction is must to enforce law.
4. Separation between law and morals

The key terms of Austin theory are explain as following:

Sovereign:

According to Austin a sovereign is any person or a body of person who is supreme in authority
and to whom the bulk of political society habitually obeys. On the positive side, this determinate
superior should receive habitual obedience, but on the negative side, this superior is not in the
6
Ibid
7
ibid
8
Law teacher “Legal Positivism” https://www.lawteacher.net/free-law-essays/jurisprudence/legal-positivism.php
accessed on 3 October 2018
habit of obedience to others like him. The command from the sovereign authority must be
obeyed by majority of the people. Perfect obedience of the people is not required to make it a
law. E.g. terrorist do not obey the law. The sovereign authority must be a political authority, it
can be king, parliament etc.9

Three main characteristics of Austin’s Sovereign:

 Unlimited powers – must be habitually obeyed by the bulk of society; not habitually obey
anyone else; not bind itself by law means sovereign power is legally unlimited.
 Continuous – institution of the sovereign continues.
 Indivisible – not possible to obey to more than one sovereign and therefore obey a
individual sovereign authority; rare cases can have joint sovereign

Command:

Law is command and it is compulsory. It is imperative to follow it. The commands are from
superior to inferior and citizens have to follow it and obey it and according to Austin if inferior
have the choice then such the law is not a law and that is the reason imperative law is the law of
the land. Positivism regards law as the expression of the will of the state through the medium of
legislature.10

Commands are of two types:

 General command: Is the first one and issue for whole community.
 Particular command: The second one is given to particular command which is given to
the particular community or to individual alone.

Only the general commands are consider as the laws.

According to this theory, all laws should be in a general nature of command and command is
different from the request because it is mandatory if it is come from supreme authority of the
state and if we don’t fulfill the request than it never lead to penalties and punishments as in the
case with commands because whenever a duty lies, a command has been signified and wherever
a command is signified, a duty is than imposed. And only a command not become a law until it
come from sovereign like a command from robber to rob and from a professor is not a law
because they are not supreme political authority but a command is law if they can originate from
other bodies to which the sovereign bestows the power to make law e.g. the courts,
administrations, international organizations etc.

Sanction:

9
ROHINTON MEHHTA, 50 Lectures on jurisprudence,31
10
ROHINTON MEHHTA, 50 Lectures on jurisprudence,30
Sanction is actually means evil and punishment attached to a command which become a law
example: fines, imprisonment, compensations etc and Austin use the word sanction in a legal
term. According to Austin sanction is important for the enforcement of law and peoples never
commit any offence which is against the law because the sanction denotes the fear that there is a
punishment in the case of disobedience of law by anyone. And according to Austin the whole of
law will have to be excluded from the scope of positive law if there is no sanction with it and for
Austin if there is no sanction behind any law than it is positive morality.

MERITS AND DISMEREITS OF AUSTIN THEORY

Merits:
Simplicity:

The influence of Austin’s theory was great due to its simplicity, consistency and clarity.

Separation of moral and law:

Austin theory of positive law separate laws from morals and in early time laws are confused with
religion.

Enforcement of law:

He clearly say the sanction is the way to enforce the law. Laws are the command from sovereign
and do depend greatly upon the sanction for its enforcement.

His theory has an important and universal truth. Law is created by the State sovereign power.

Criticism:
Sovereignty:

Austin notion of sovereignty is not well considered now in many countries because now the
sovereignty is divided into three organs of the state: the legislature, executive and judiciary.

Sanction:

Sanction is not the only way to enforce the law, there are many other considerations like fear,
sympathy, reasons, and respect which encourage a person to obey the law. Forced and punishment
is the last option.

Judge made law (precedent)

If the law is the command from the sovereign than judge made law (precedent) is not considered
as a law, so there is no place for precedents according to Austin theory.

Theory conflicts with other laws:

The theory of the Austin conflicts with other ordinary terms of law. Like customary law,
international law and constitutional law is not the considered as a law according to Austinian
definition because there are not a command from sovereign.11

Customs:

Theory of the Austin ignore the customs. As sometime laws are based on religions example in
Pakistan and India, muslin and Hindus laws are based on religion.

Disregards the moral and ethical elements:

According to Salmond the imperative theory neglect the moral and ethical elements in the law.
According to Austin unjust law is the law. This is wrong because the aim of law is justice.

CONCLUSION:
Legal Positivism, as we know, is one of the most important schools in the jurisprudence of law
and relies on the law as a fact. Many jurist of this school try to understand the law as it is not as it
ought to be. Among these jurist, John Austin did his work great, we know that there are many
defects in his theory but we understand that Austin never say that these types of societies are the
only which work best but he just give his theory according to his point of view to only maintain
order peace law security in the society and his theory on legal positivism is the great contribution
to the study of jurisprudence.

11
ROHINTON MEHHTA, 50 Lectures on jurisprudence,32