JOHN AUSTIN (1790-1859)

 John Austin was born in 1790. He Joined the army and served as an
Army officer for five years until 1812 . He was called to the bar in1818
after his graduation.

 He joined as Professor of law in the newly founded Bentahmite

University College in London.

 Austin published Province of Jurisprudence determined in 1832. In

1833. He died in 1859 and his works were later published by his wife
Sarah Austin in 1861.

 John Austin) was a Legal Expert who greatly shaped Legal Systems all
over the world through his Analytical Approach to
Jurisprudence and Theory of Legal Positivism.

 In furtherance of his “Legal Positivism” theory was his notion “Law

as a Command”.

 Owing to his works he has been saluted as “Father of English

Jurisprudence”.
WHAT IS ANALYTICAL APPROACH TO JURISPRUDENCE?
Austin set himself the task of making a beginning with the analysis of the
principal concepts of English law. Before doing so he felt it necessary to
demarcate(set the boundaries) the province of ‘law’ and to distinguish it
from what it ought to be.

Accordingly Austin set himself the task of making a beginning with the
analysis of the principal concepts of English law. Before doing so he felt it
necessary to demarcate the province of ‘law’ and to distinguish it from what
it ought to be.

In his first six lectures he sought to elucidate ‘law’ in the light of which its
concepts would then be analysed.

 In Roman law the authority of the Princeps and later of the Emperor
was seen to have been unquestionable.
 European writers had preached in like vein.
 Bodin, for instance, said that sovereignty was the absolute and
perpetual power within the state and,
 Perhaps most importantly, in the work of Hobbes was to be seen the
connection between the law of the state and enforcement by organised
power. He had also spoken of law as being grounded in ‘natural
reason’, but that it became ‘law’ only by virtue of the command of a
sovereign.
 Bentham’s approach, too, was an imperative one based on
sovereignty. With these influences behind him Austin’s adoption of a
similar basis is hardly surprising.
Like Bentham, Austin believed that ‘law’ is only an aggregate of individual
laws. In his view, all laws are rules the majority of which regulate behavior.

Austin’s Theory of Law:

Austin’s most
ost important contribution to legal theory w
was
as his substitution of
thee command of the sovereign for an
anyy ideal of justice in the definition of
law. He defined law as “a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him”.And This can only be
accomplished by a determinate person or body, since an indeterminate
body cannot express wishes in the form of commands
commands.

Law is strictly divorced from justice. Instead of being based on ideas of good
or bad, it is based on the power of a superior. This links Austin with
Hobbes and other theories of sovereignty.
sovereignty.Austin
Austin proceeded to distinguish
the law as
Laws are divisible into laws properly so called (positive law) and laws
improperly so called.

Proper Law :- The first division of law is that into

 Laws set by God to men (law of God) and

 Laws set by men to men (human laws).

Law of God:- In Austin’s positivist system, the law of God seems to fulfill no
other function than that of serving as a receptacle for Austin’s utilitarian
beliefs. The principle of utility is the law of God

Law by Man :- These are either laws set by

o political superiors to political subordinates or
o laws set by subjects, as private persons, -
in pursuance of legal rights granted to them.every enforceable private right
must fall within this category
Example, - The rights of a guardian over his ward. As the legal nature of
such rights derives from the indirect command of the superior who confers
such right on the guardian,

Improper Law :- Laws improperly so called are those laws Which are not
set, directly or indirectly, by a political superior.

Laws by analogy :- ie laws set and enforced by mere opinion, such as the
laws of fashion, laws of natural science, the rules of so-called international
law etc. To all these, Austin gives the name of ”Positive Morality”.
Laws by metaphor:- Laws improperly so called also included a final category
called ”laws by metaphor” which covered expression of the uniformities of
nature. Eg :- 24hrs per day, 12 months per year etc.

Summary Austin’s Imperative Theory of Law :-

Austin defined law as “a rule laid for the guidance of intelligent beings by an
intelligent being having power over him.” He divides law into two parts,
namely.

(1) Laws set by God for men; and

(2) Human Law, that is laws made by men for men.

 He says that positive morality is not law properly so called but it is

law by analogy.

 According to him, the study and analysis of positive law alone is the
appropriate subject matter of jurisprudence.

 To quote him, “the subject-matter of jurisprudence is positive law---

law simply and strictly so called; or law set by political superior to political
inferiors.” The chief characteristics of positive law are,
 Command,
 Sovereignty
 Duty and
 Sanction
that is, every law is command, given by the sovereign, imposing a duty,
enforced by sanction.,

Commands :-

His definition is also called “Command theory” or “Imperative theory” of

law. “Imperative Law is a rule which prescribes a general course of action
imposed by an authority which enforces it by superior power either
by physical force or any other form of compulsion.”

 In the words of Austin: ”Laws properly so called are a species of

commands.

 Being a command, every law properly so called flows from a

determinate source i.e - sovereign.

 Form of command:

1. Desire or wish of sovereign

2. Request of sovereign
3. Hope of sovereign
4. Order of sovereign

 Command has to be expressed or intimated, communicated

 A command may be particular (addressed to one person or group of
persons) or general.
o General commands are addressed to the community at large
and enjoin classes of acts and forbearance; they are also
continuing commands.
 o A particular command is effective when the commanded
person or group obeys; a general command is effective when
the bulk of a political society habitually obeys it.

 A commander, who receives ‘habitual obedience from the bulk of a

given society’, is sovereign in that society. It is not necessary for
general Opinion to authorise the issue of commands, since a person
can command and threaten without such authority.

From all thisAustin concluded that a law is a general command of a

sovereign backed bya sanction.

Every positive law is set by a sovereign or a sovereign body of persons, to a

member or members of the independent political society wherein that
person or body is sovereign or supreme.”

● “SOVEREIGN”

The sovereign is defined by Austin thus: ”If a determinate human

superior, receives habitual obedience from the bulk of a given society,
that determinate superior is sovereign in that society

- and the society (including the superior) is a society political and

independent.”

 According to Austin, every political set up has a sovereign power

which is habitually obeyed by the people in the society.
  The sovereign may be an individual or a body or aggregate of
individuals.
 It is the sole source of power and creator of laws and thus there can
be no legal limits or “de jure” limits to its power.
 There can, however, be “de facto” or physical limits since the extent
of the coercive force of the commands and their obedience by people
have practical limits.
 Sovereignty has a positive mark and a negative mark.
The positive mark is that a determinate human superior should
”receive habitual obedience from the bulk of a given society” and the
negative mark is that that superior is ”not in the habit of obedience to
a like superior".
 According to Austin, the sovereign must be il-limitable, indivisible and
continuous. As regards illimitability, Austin denied that his sovereign
could be limited.
 The sovereign cannot be under a duty as he cannot command
himself. To be under a duty implies that there is another sovereign
who commands the duty and imposes a sanction.

 The view of Austin was the sovereignty lies with the Queen, the
members of the House of Lords and the electorate.

● “DUTY”
The command levies a “legal duty” on those who are politically subject to
the “commander” who is sovereign. Every duty supposes a command by a
sovereign by which it is created.

● “LEGAL SANCTION”
It is implied in the theory that this sovereign has with itself a power to
punish or penalize for noncompliance of laws. This penalty or punishment
imposed is called Legal Sanction. The dread of legal sanction, as an evil
consequence in case of disobeying, is the motivation behind one’s
adherence of law and thus is a requisite part.

✔ Sanction is Compliance to the sovereign power, fear factor/ only

applicable for penal law.
✔ Civil or punishment -sanction explains due to fear factor (can’t be
basic feature of law)

Exceptional Laws :-
Austin, however, accepts that there are three kinds of laws which, though
not commands, may be included within the purview of law by way of
exception. They are :

1. Declaratory or Explanatory laws.---These are not commands because they

are already in existence and are passed only to explain the law which is
already in force.

2. Laws of repeal.-Austin does not treat such laws as commands because

they are in fact the revocation of a command.

3. Laws of imperfect obligation.-They are not treated as command because '

there is no sanction attached to them. Austin holds that command to
become law, must be accompanied by duty and sanction for its
enforcement.
Criticism of Austin’s Imperative Theory of Law.

Austinian theory of law and analytical positivism has been criticised by jurist
like Bryce, Olivecrona and others. Bryce characterises Austin’s work as full
of errors which hardly has any significance in juristic thought. Austin’s
theory has been criticised on the following grounds :

1. Customs overlooked.-Austin’s view that ‘law is the command of

sovereign’ is not supported by historical evolution of law when customs
played a significant role in regulating human conduct. Further, customs still
continue to be a potent source of law even after the coming into existence of
the State.

2. Permissive character of law ignored.-Austin’s theory does not take notice

of laws which are of a permissive character and confer privileges e.g. the
Bonus Act, or the law of Wills etc.

3. No place for Judge-made law.-Judge-made law has no place in Austinian

conception of law although the creative function of judiciary as a law-making
agency has been accepted in modern times all over the world.

4. Austin’s theory treats International law as mere morality.--Austin does not

treat international law as ‘law’ because it lacks sanction. Instead, he regards
international law as mere positive morality.l4 This view of Austin is hardly
tenable in the present time in view of the increasing role of international law
in achieving world peace.

5. Command over-emphasised.-The Swedish Jurist Olivecrona has

denounced Austin’s theory of law because of its over-emphasis on
‘command’ as an inevitable constituent of law. In modern progressive
democracies law is nothing but an expression of the general will of the
people. Therefore, command aspect of law has lost its significance in the
present democratic set-up where people’s welfare is the ultimate goal of the
state.

It is unrealistic to think that sovereign in modern times is something

separate from the community and is capable of giving arbitrary commands.
The fact is that sovereign is an integral part of the community and in making
of laws, he is guided by public opinion.

6. Inter-relationship between Law and Morality completely ignored.\

Perhaps the greatest shortcoming of the Austin’s theory is that it completely
ignores the relationship between law and morality. Law can never be
completely divorced from ethics or morality which provide strength to it.
The legal concepts such as ‘right’, ‘wrong’, ‘duty’. ‘obligation’ etc. themselves
suggest that there is some ethical or moral element present in them.
Commenting on inter-relationship between law and morality, Dr. Jethro
Brown observed, “even the most despotic legislator cannot think of or act
without availing himself of the spirit of his race and time.”
7. Sanction alone is not the means to induce obedience .-Austin’s view that it
is sanction alone which induces a person to obey law, is not correct. There
are many other considerations such as fear, deterrence, sympathy, reason
etc. which may induce a person to obey law. The power of the state is only
the last force to secure obedience of law.

⮚ When Austin comments that sovereign is the creator of laws, he

ignores the fact that foundation of law lies in common consciousness
of the people which manifests themselves in customs and thus also
overlooks Customary law which has always been widely respected and
followed.
Personal laws like Hindu Law, Canon Law or Muslim law, existed
long before a sovereign began to legislate, and yet, these laws were not
only acknowledged but followed with immense devotion.
Secondly, Legal character of the law becomes obvious when it is
applied by a Court of Law in the administration of Justice. Even Legal
Sanctions, though created by the “sovereign” but are used through the
courts. Courts may misinterpret a statue or reject a custom. In this
process, the court often lays down Precedents or Case-Laws which are
often religiously followed in future cases.

⮚ Austin’s theory does not apply to Constitutional law. The sovereign,

no matter how strong will always be subjected to the Constitution and
the latter cannot be equated with a “command” of a state. It will be an
absurd idea to say that Constitution, which is a command of the
sovereign, will, in turn, direct the sovereign. Further, the Constitution
 is primarily the highest law and essentially comes before the state. It
defeats Austin’s preposition that Sovereign creates the law laid by the
constitution.
⮚ The definition is majorly applicable on Monarchical Police State
which authors the law and has the power to inflict evil on those who
do not comply. In the modern era, there are empowering and
enabling laws which confer privileges on the citizens. They are purely
of permissive nature and give discretion to the individual himself.
They cannot be called a command in their true sense.
For e.g. The law which gives me my right to vote does not command
me to do so neither tells me who to vote.
The law which gives me a right to write a will does not penalize me if I
don’t.
There are laws based on the idea of protection like Laws against
untouchability or bigamy.

⮚ Unlike what is believes, the sanction is not the only motivation behind
adherence to the law. It is also respected out of prudence and
morality. One does not normally enter into a second marital
relationship during the lifetime of the first spouse because they are
scared of being penalized but also because of love and respect. Also, if
everyone decides to challenge the law given by sovereign, it is bound
to collapse…legal sanctions have practical limitations.

⮚ Austin fails to recognize that International Law is not created by a

sovereign and yet is recognized and appreciated by the majority of
states as a law. There is no authority in International Arena which can
 enforce international obligations or sanction them. Yet, they are
largely expected to be adhered to.

⮚ Law is not always “Generally” applicable to all. Many times, it is

specially designed to address certain people or certain situations.
Divorce laws, for example, is only applicable to those who want a
divorce.There are laws which are corporate or position centric.
Austin fails to consider such specialized or particular laws in his
definition.

⮚ Law, most importantly, is an instrument for the attainment of Justice.

Any definition is incomplete if it fails to acknowledge that the end of
law is justice.

⮚ Another limitation is the indifference towards ethical elements which

determine the law. The ethics on which a law is construed are
essential in order to truly understand the nature and requirement of
Law.
It has to be borne in minds that despite the fair criticisms Austin’s
theory stands as one of the most important legal philosophies and
some of its aspects still hold relevance.
⮚ Habitually – can law be habit, habit is wrong term used – HLA Hart
⮚ Habit changeable whereas rule is unchangeable
⮚ How long we should habitually follow or obey – is a matter of fact.
⮚ Limited application of this theory
⮚ Unacceptable in modern legal system
 ⮚ Influenced by English system, no written constitution, rule by statutory
law, power of the parliament is unlimited
⮚ Best to British legal system
⮚ Inapplicable for federal system where it is difficult to find sovereign
⮚ “we the people of India are sovereign” – sovereign making law for
themselves.

Conclusion :-
 Be that as it may, the credit of heralding a new era in the English legal
thought goes to Austin. The shortcomings of his theory paved way for
further improvement on the subject.
 The merit of Austin’s theory of law lies in its simplicity, consistency
and clarity of exposition.
 Austin’s theory was later improved upon by Holland, Salmond and
Gray. Denouncing Austin’s view that sovereign is the sole law-giver,
Salmond holds that law consists of rules recognised and acted upon
by law-courts. Gray also held a similar view and remarked that law is
what has been laid down as a rule of conduct by the persons acting as
judicial organs of the State. Holland, in his Elements of
Jurisprudence, accepted command as an inseparable element of law
but defined it as ‘a general rule of human action enforced by superior
authority on his subjects’.
 These modifications in the Austinian theory later gave rise to the
emergence of Vinenna School in subsequent years.