LAW 302

Jurisprudence
Course Instructor: Dr. Nabaat Tasnima Mahbub
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence
❑ John Austin, the father of English Jurisprudence.
❑ ‘The Province of Jurisprudence Determined’ (1832) – Addressed the general
limits of jurisprudence.
❑ Like Bentham, Austin was, fundamentally, a utilitarian. For him, “the proper
purpose or end of a sovereign-political government is the greatest possible
advancement of human happiness”.
❑ Jurisprudence was concerned, he believed, solely with ‘positive laws’.
Positive law is law set by political superiors to political inferiors.
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence
❑ Law is the command of a Sovereign.
❑ Austin’s definition of ‘Law’ -
❑ “A law, may be said to be a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him.”
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence
❑ Laws properly so-called are ‘general commands’ and may be divided as follows:
❑ Laws of God, set to his human creatures.
❑ Laws set by men to men.
❑ Austin’s concept of sovereignty - Sovereignty involves the positive exercise of
ultimate authority over persons and groups within a State’s territory. The essence of
the exercise of sovereignty is the demand for obedience. The ‘base of sovereignty’ is,
according to Austin, the fact of obedience, which involves a relationship of sovereignty
and subjection.
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence
❑ Where there is no law there is no Sovereign; where there is no Sovereign there is no law.
❑ Law is, therefore, “a command issued by a political superior to whom the majority of
members of society are in the habit of obedience, and which is enforced by a threatened
sanction”.
❑ Sanctions are based, according to Austin, on motivation by the fear of ‘evil’.
❑ Four essential attributes of law according to Austin are –
❑ Command
❑ Sanction
❑ Duty
❑ Sovereignty
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence (Criticism)
❑ He was said to have confused ‘law’ with the product of legislation and to have failed to
understand that ‘law’ was much more than Parliamentary enactments.
❑ The absolute authority of the Sovereign, which Austin postulates, is rarely found in practice.
There are almost always limitations on the exercise of power by most persons and bodies.
❑ Law is not always a command - Is law valid merely because it is the command of a Sovereign?
Law may owe its validity to the fact that it expresses the community’s feelings for natural justice,
or that it is perceived as embodying a people’s wishes. Is the term ‘command’ appropriate as a
description of all laws? Is the law of contract, for example, based on ‘command’? Is the source of
law to be interpreted solely in terms of a Sovereign?
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence (Criticism)
❑ The doctrine approaches law from its formal side only; it does not admit of any
examination of the contents of legal propositions, so that a harsh, unjust enactment is
considered to be as ‘valid’ as a rule as ‘the most righteous law’.
❑ The basis of law is often provided, not by one-sided command, but by agreement. It
may well be asked whether law is binding only on persons who receive the command
or on those who give it as well. Even if the King ‘can do no wrong’, yet he is bound to
respect the laws.
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence (Criticism)
❑ English common law, which is fundamental to the legal system, ‘stands or falls with
the admission of legal principles obtained not by command, but by retrospective
estimates of right and justice.’ Judge-made law, which figures considerably in the
development of the common law, does not emanate from the command of a
Sovereign.
❑ There are many laws in which there is neither ‘order’ nor ‘threat’. The concept of law
as ‘order plus threat’ is an inadequate explanation of the basis of much of the law as
we know it today.
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence (Criticism)
❑ Austin’s view of the law-maker as ‘above the law’ is unrealistic. In the English legal system,
Parliament is bound by its own rules, for example.
❑ Law did not originate in ‘order plus threat’. The importance of custom as a source of our law
is not reflected in Austin’s doctrine.
❑ Austin’s suggestion that the Sovereign is obeyed because of ‘habits of obedience’ is too
simplistic. Thus, citizens’ obedience to the orders emanating from the Queen in Parliament
represents, basically, an acceptance of the appropriate rules affecting legislation. Austin’s
‘omnipotent Sovereign’ is a fiction. Thus, Parliamentary sovereignty is limited in a variety of
ways.
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL
Austin and Analytical School of Jurisprudence (Contribution)

❑ Despite being criticized, Austin’s contribution to the analytical school

can never be ignored. He introduced a new approach to law.
❑ The defects in his theory has acted as a further enlightenment of the
idea of law and its connection with the sovereign.
❑ His theory was further developed by Salmond and Grey who added that
law includes rules recognized and developed by courts of justice.
 Schools of Jurisprudence
ANALYTICAL/POSITIVIST SCHOOL

BENTHAM AUSTIN