RAJIV GANDHI

NATIONAL UNIVERSITY OF LAW, PATIALA,

PUNJAB

JURISPRUDENCE

(SEM-3)

SUBMITTED BY: SHUBHAM PANDEY

SUBMITTED TO: DR. RENUKA SONI

ROLL NO.: 19003 GROUP NO.: 01

TOPIC: AUSTIN THEORY REFERENCE TO THE MODERN

TIME
SUB TOPIC: A TRUE LEGAL THEORY

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 TABLE OF CONTENTS
S NO. TOPICS P. NO.
1. INTRODUCTION 4
2. THE FUNCTIONS OF 5
LEGAL THEORY
3. THE SOVEREIGN 6-11
COMMAND THEORY
4. CONSEQUENCES OF 12
AUSTIN THEORY
5. CONCLUSION 13
6. REFERENCES 14

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ACKNOWLEDGEMENT
This project would not have been possible without the kind support and help of my friends,
and my Jurisprudence teacher. I would like to extend my sincere thanks to all of them. I am
highly indebted to Dr. Renuka soni for her guidance and constant supervision as well as for
providing necessary information regarding the project & also for their support in completing
the project. I would like to express my gratitude towards my parents & my seniors as well for
their kind co-operation and encouragement which help me in completion of this project. My
thanks and appreciations also go to the supporting staff in developing the project and people
who have willingly helped me out with their abilities.

CERTIFICATE
This is to certify that the Jurisprudence project has been positively and successfully
completed and researched upon by Shubham Pandey (2nd Year, B.A. LL.B. (Hons), Roll no.
19003) of Rajiv Gandhi National University of Law, Punjab, under the supervision of Dr
Renuka Soni, Assistant Professor of Law, Rajiv Gandhi National University of Law, Punjab.

1. INTRODUCTION
The view of John Austin's complete command has no merit. His workan indelible
impression ”in legal research, introducing the legal belief that

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 they regard the law as morally independent. Austin's influence in the field is evident,
withmany regard him as "the parent of analytical jurisprudence". He issued a
statementwhich continues to maintain the position of educational value as a pioneer of
good thingsthought. However, the greatness of his teaching does not contradict the
majority of arguments that can be found within its content. This paper will serve as an
analysis for the essence of Austin's vision. It will be introduced, from paragraph
onwards, that Austin's work does not do well in the works of the legal profession.

2. THE FUNCTION OF A LEGAL THEORY

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 The main function of the legal perspective is to provide an answer to the Daedalean
question:“What is the law?” HLA Hart begins his seminary work, The Concept of
Law, with thism"Persistent question", which goes on to give an answer to young
Jeremy Benthamto ask “what is the law?” Both Bentham and Hart, more than
othersRonald Dworkin, Lon Fuller, and Joseph Raz all tried their best to “explainthe
nature of the law at its general level ” and“ to see what is important and important
rather common or unimportant. Therefore, in the legal proceedings
both philosophers who preceded and succeeded Austin, the work of legal
theorycertified as defined by law. This work, as Raz said, “is successful if
meets two conditions: first, it contains proposals regarding the law
they are not really true, and, secondly, they explain what the law is. ”

A.
Therefore, legal opinionsshould aim to provide clarity on what is legal and what is
not. They must “point tothe essentials of the legal system laid down ”, usually by
including a series ofa technical process and a process by which you can measure such
a systemthe law. Austin himself lists the purpose of his work “as a matter of
divisionlegal judgments arising from those various related matters. ”

B.
Austin however was unsuccessful in his attempt to explain the law. His view saysit is
so congested with uncertainty that it fails to provide “a broad definition oflaw ” he
himself admits that“ his meaning is incomplete. ” Elements thatcontaining the law
within his view is also ineffective or outdated, as it cannot beit meets directly with
many of the most well-known modern legal conditions.

C.

This decrease in the rate ofthe law does not satisfy the requirement that legal opinions
be “the definition ofpolicies, opinions, and common divisions in legal systems. ”
Finally,some aspects of Austin's concept, when analyzed, have shown that they
haveanti-democratic stance. This, as will be presented, is contrary to “the nature of the
law.” Theseit is a fundamental criticism of Austin's theory used within this paper.

3. THE SOVEREIGN COMMAND THEORY

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 Austin emphasizes that there is a difference between what is legal and what is realno,
but it's just like it. It refers to the earlier “so-called law,” andincluding the scope of
man-made law, or "law established by… independentlya political community, is a
clear or intellectual authority for its state or supreme authoritythe government. ”His
superior view of justice is to support this division of lawso-called illegitimate law and
uses it to gain effect on the law:the law of the king is the law of the land, which does
not existthe law incorrectly called so. There are two important aspects of this view
that need to be considered:ruler and commander. It will be discussed in the order
below.

A.THE SOVEREIGN

The first requirement of good law in Austin's mind is the presence of a king:
“All the laws that are acceptable or all that are simple and clear, are set by the
kinga person, or body of persons, to a member or members of an independent
bodya political society in which that person or body rules or is supreme. ”The idea
ofthe monarchy can be divided into three categories: monism, public obedience,
and greatness / dictatorship.

1.Monism

In developing his view of legal matters, Austin tried to escape one of the
greatestthe complexity of the theory of natural law: to identify the unmistakable
truth of what law isprobably found. However, Austin himself has been a
victimobstacle. The first thread of royalty in his mind is monism: that king orThe
upper body should, as Cotterrell noted, be “clear.” For Austin, the only lawit is
aptly named when it “flows [from] a fixed source, the fixed mind,or a fixed body
or a number of sensible objects. "Even though Hart allows that

"In any society where there is a law, there is actually a ruler," Austin saidThe
emperor is vague and "his interpretation is questionable". You give nothe
identified way to identify one true king, keep the king'ssize and publicity in it (two
conditions to be analyzed below asinsufficient). The problem of identifying one
king is one of the “most significantand frequent focus on his critics. ”It reveals
one of his many precautions, as his ownthe thesis of monism ignores two possible
scenarios.The first is the situation, as in Spain, where there are competing
competitors(Spanish and Catalan). Where does the empire fall into the Austin
category? TheThe only solution is to define Spanish law as it is incorrectly called,
asthey do not 'walk from a fixed source' but have two conflicting sources.
Thisunacceptable, as it would describe Spain as a country without ‘appropriate’
laws,although it is currently recognized as a legal entity. Thus, Austin's definition

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 of royaltyso small that it includes very simple systems; those that are easy to
dopoint to one ruler. Complex systems, such as Spain, were thus reducednon-legal
sectors without Austin's view. This is a simplification of the law.A second state
that can be controlled by the Austin king who rulesthe existence of a separate
legal force. This is the case in the United States of America,when the legislative
power is dispersed between each province as a junior ruler.
Austin's theory is therefore lacking in application to both established world
modelsprovincial and political and "undeveloped non-Western societies".
Therefore, in seekingcreated a legal concept that was simpler than natural law,
Austin did littlerather than creating a simple legal concept that can only work
within the period in which it was created. The limitation of ideas does not end
there.

B.Obedience from Society

Austin 's reign requires that his subjects be “in subjection” to him: “in
abundanceof the given community have a habit of obedience or submission is
also limitedthe usual high. ”Two aspects of this definition need to be clarified:
quantity and practice.Austin's view could have been saved from criticism if he
had explained the term
‘By the majority’ by managing the part of the community that needed to listen
toroyalty, but there is no such definition. Similarly, he does not provide a
detailed explanation
'practice' which goes beyond the definition that "obedience cannot be
uncommon or fleeting." Thisthe explanation is confusing: is it a habit to listen
for one month? End of listening for
two weeks is enough to make listening pass? Viewed intelligibly, more
questions arise: what if 55% of people have a habit of listening for twenty
yearsand then, with the change of circumstances, that percentage dropped to
40%? That's itthe habit of listening to the emperor who is in power today?
Given the nature of obedience, one cannot say with certainty that
any society that exists or has existed or is in a position to submit to its
masteror not. Austin's view fails to set the record straight
enough clarity. As Hart notes, “the whole idea of 'normal'
‘… listening’ is always hidden ”, the result being Austin’s view
it will not be used to measure the effectiveness of the legal system as the
principles contained thereinis obscured. Therefore, the ambiguity and
uncertainty that covers this aspect of Austin's view makes it deliberately
inappropriate. Austin's response to this is about equalityhis ambiguity. When
asked questions, such as the one above, Austin he answers that “these
questions cannot be answered in the right way, which is a clear indication that

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 monarchy and the independent political community are a mysterious or certain
mysterious testcharges. It will not allow us to decide with all independent
communities, whether they are
political or environmental. ”However, the purpose is to call it his own, as well
as legaltheory, setting rules of requirements that allow a person to decide
whether a law exists
works or not. In his admission, Austin has failed to do this, and therefore, his
view isrevealed as inadequate.
In addition, Hart is a scepticalof theory that explains the law of
obedience, whether the practice is well defined or not. His criticism is well-
founded. Into create a moral-based perspective, Austin transforms law
intosocial status; the relationship between domination and sovereignty
becomes
doctrinal focus. This comes at the cost of real gravity and the considerations
offeredthe contents of the law.
The obvious clarity that the law ceases to apply to
justice and becomes one in human behavior. So the law is not in itself,but it
does so in relation to human nature and morals. This includes the lawon
sociology and contradicts one of the pillars of legal positivism; mutualthe
issuance of legislation in some schools.

C. Supremacy/Despotism

An additional weakness in Austin's thinking is highlighted in the latter's

needmonarchy: greatness / dictatorship. Austin states that “all high
governments
you were legally oppressive. ”He says that a king named after him has no legal
limitnor is it bound by constructive laws, only by a moral obligation to follow
itrules. This view is supported by both Blackstone, who states that “in every
lawthere is a great deal of legal power, complete and unlimited, with
ThomasHobbes, who similarly believes that “in the laws of the king,
the king is not ruled ... ”Blackstone, Hobbes, and Austin are all mistaken,
either in practice, inwhich are antiquated, or ideologically, then opposed to
democracy.
In practice, kings are limited to both national and international levels.
At the national level, masters are often referred to as lateral checks and
individual balancesinstitutions. A prime example is the United States
government, where “power[its] legislature… is subject to legal obligations.
”This prevents you from being present
is really an ancestor in the Austinian sense. This is true of many other modern
lawsprograms. All over the world, kings can also be punished under
international lawTherefore, as Dicey noted, Austin's theory does not work
outside the context of
The English Parliament, and “his monarchy may have been a source of
controversy

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 English law. ”
If Austin's theory has not been applied, but it is only analyzed in theory, it still
isthere is a problem. Although Cotterrell defends "Austin's talks are closely
related toconditions for independent democracy ”Austin's insistence that the
king bethe so-called dictatorship should not be equated with the law which
clearly promotes dictatorship, exposing ithis anti-democratic vision. The
effects of this are obvious. Checkingindependent powers by the division of
power and legal restrictions only allow
democracy to prosper but also support the rule that everything means they are
equal beforethe law. Austin's view would elevate the emperor to a higher
position than the general rule of law. Icon
It is difficult to deny that this is the meaning of any legal theory. Instead, it can
be seen asthe negative effects of a distorted, and inconsistent viewmodern
political views. The modern world holds "democratic vision"its various forms,
to be the most desirable management system. Austin's view is difficult
reconciliation with this idea, therefore its use is not possible in the present
tense.
Criticism of the Austin dynasty's closure is raised by Hart in terms of
"scopeand the persistence of the rules ”. Austin clarifies very little about the
concept of sequence. Asas a result, many questions are left unanswered.
Questions such as “how do we know whenand where does a new king appear
when he is present dying or being destroyed? Why he didThe laws that were
enacted a hundred years ago are still surviving today, given a series of changes
who is the ruler "Austin's view cannot address these questionsenough.
"Contains unresolved disputes" and as a result is unsatisfactorythe clarification
methods described in section 2 of this paper. Therefore, the first requirement
formajesty is the victim of all the criticism presented earlier: uncertainty, the
art of creativity,and anti-democracy. Its failure to properly perform the
functions of the legal professionit is very clear as the following sections are
analyzed.

a. THE COMMAND

A second requirement for the view of Austin's command to have a file

forcommand. This is a decree, issued by a dictator who is violent and
dictatorial obedience is given, it becomes law. Austin sees the law as a form of
command. He explains an order such as “a desire received by another, and
expressed or told to another and the evils that must be done if the desire is
ignored. ”There are two elements to this this definition: evil (or sanctions) and
expression (or address).

1. Sanctions & Obligations

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 First, Austin argues that the basic requirement of command, hence the lawto
be fined: "unless the motivation to follow the law is violent or serious,speech
or intimacy of desire is not a command. ”This way of thinking leads toto the
simple reduction that if no sanctions or "evils will occur" thereit is not the law.
In this controversy, Austin made a mistake and linguistic fraud.His disability
implies that not all laws are accepted as compelling laws
sanctions. These laws are relaxed laws or empowering laws, such ascontract
rules. Austin fails to identify this as ‘well-called’ rules.

This is athe decline of various laws also created “a simple model of law such
as oppressionorders ”. It simplifies the law by creating a small outline where
the rules should fit
to ‘be so named’. There is a consequence of ignoring what it is
legal rules. This weight loss analysis can be transferred to Austin languagethe
construction of penalties. Hart says Austin is failing to make a significant
difference,
which leads to misconceptions about the punishments and obligations they
place. Austin, Hart’sobservation, does not distinguish between the state
“responsibility - where there isthe standard that a person is aware of to be
followed ”and that he is“ obliged – to the feeling that you have to do
something ‘or not’ ”. This failure to distinguish, as Hart notes, means that
under Austin's view man would have no difference of obligation between a tax
collector and a shooter. This misunderstands the concept of legal obligation. If
someone ishe said he had an equal responsibility to the gunman and the tax
collector, the power of the lawit would be an invisible thing. As a result, the
law will lose its legitimacy coercive force. Therefore, in an effort to gain legal
control, Austin unintentionally legislates and empowers a criminal. This is too
far away from the intentions of any legal opinion and shows the inconsistency
of Austin's concept.

2. The Addressed

An additional requirement for the view of Austin's mandate is that the orders
should be the same
"Appointed by political leaders to political subordinates." This also provides
oversight asthere is a serious case where laws can be imposed by political
leaders on political subordinates
and apparently still in operation; international law. Austin says international
law is not like that

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 the law is aptly named as “not set forth by its author on political groundsit is
high. ”Believing that“ there is no superior government in which to submit to
one another ”and thus the laws imposed among them are not favorable, he is
able
"They deny the legitimacy of international law technology." This denial is
incorrect. Austin is possiblebe honest when you say that international law is
set by tradition. Their acceptance by the provincesis, as evidenced by the
popularity of Oppenheim and Anghie based on the license. That being said,
Austin is incorrect in defending the obligations imposed by these laws. You
say thatInternational law is simply a moral code, so kings have no moralsthe
legal obligation to comply with these laws and the penalties imposed on them
are unethical
legal sanctions. However, jus cogens, or ethics, are international lawmasters
under the obligation to receive. The result of rejection is not so, asAustin will
argue, moral punishment as international condemnation. It's legalto punish
with a kind of conflicting law caught in vain and a guilty countrypunishment.
Austin's refusal to accept international law leaves a huge gap for him
, and Westlake argued that Austin "had greatly reduced his
investigation ..."Many critics also express a different view of the international
sourcelegal authority. Professor of law Antony Anghie notes that “society,
rather than
sovereignty, a key concept used to form the international legal system. ”This
could be Austin's preferred method, as is his idea of royaltyit has already been
rebuilt and shown to be inadequate.

Another critic of Austin’sviews on international law by Hart, which states that

“to argue that international law is notthe obligation due to lack of scheduled
penalties is a willingness to accept… that lawit is actually a matter of orders
supported by threats. ”Penalties are notthere is a need for legitimacy of the
law, as outlined in the preceding paragraph. conclusion
that cannot be proved by evidence of deep thinking.
A final analysis of the concept of Austin's mandate is its connection to royalty.
Thisif the monarchy, as described by Austin, exists, but the order does not
exist? This is the line of
controversy raised by Sir Henry Maine. Maine used the example of Maharaja
Ranjit, a prominent Austrian philosopher, but “never once in his lifeissued an
order that Austin could call law… The laws that governed his lifesubjects
were taken from their ancient uses and these rules were observed
by local courts, families or rural communities. ”Maine's argument stands
outthe complex nature of the law; it is more than just the decrees of the
kingsreaches across cultural, cultural and general perspectives; things Austin
can invent
to be so-called laws incorrectly. The consequences of this simplification of the
law as we are Some of Austin's disabilities are explored in the next section.

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 3. THE CONSEQUENCES OF AUSTIN
THEORY

There are two possible outcomes of Austin's command line view. Firstreveals
itself when Austin's opinion is accepted, the second if rejected. If Austin's the
definition of a law accepted as correct would mean that there are a few rules, if
any,
it is so called in today's world. His extremely simple vision failed to see the
way tothe complex legal systems that exist today as governed by good law,
leave manymodern legal systems without the will of the law where they would
be seenworks with some good ideas. This decrease in the legal rate is opposed
bymembers of the Austin camp itself. Defender of official positivism,
Matthew H Kramer, summoned"In order for the word 'law' to be used more
broadly", emphasizes good legal hatredAustin's decline. While students at the
Austrian School of thought could look at his own
a simple belief like asking for modernization, its simplicity is not profitable.
Athe complex legal system should prefer a simpler one than Austrian, as the
latter cannot imagine the difficulties of interpersonal relationships.
and the state. Austin's view looks at the world through the lens of society in
particular,failure to address many political and legal issues weighing
onconstruction of a legal system. The law is beyond the order ofto rule
influence another equally.
The second possible result is that Austin's view has failed, in itself, aslegal
belief positivism. It does not examine “the [visible] way of governingsystem
”and“ does not constitute useful concepts in practical analysis and
understandinglegal systems ”; its purpose as described by Julius Stone, Robert
N. Moles, and
Michael Lobban. This effect is very real, as many view his view that it does
not"Some internal value". It is no longer used as just a legal name,and the
following ideas contradict his views, removing his work.

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 5. CONCLUSION
In conclusion, Austin created a limited idea of performance;
features are too obvious to be used in making, or their old translationthey are
not essential to today's legal system. He does little to clarify the elements of
propagandaactual legal frameworks. This, along with the theoretical
arguments that have crept into itcontent, casts doubt on its effectiveness as a
respected legal theory.
legal philosophers are engaged in their efforts to articulate the meaning of the
law. The study of
Jurisprudence is by no means the only way to have clear questions and
answers, as they are
includes various schools of thought that philosophers may find difficult to
adapt toone integrated view. However, an investigation into the nature of the
law is important. Austin's work
it should not act as a barrier to future efforts, but be a challenge to do better.

BIBLIOGRAPHY
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Anghie A, Imperialism, Sovereignty and the Making of International Law (Cambridge
University Press 20015) 124, 127-131

Austin J, ‘The Province of Jurisprudence’ in Rumble W E (ed), The Province of

Jurisprudence Determined (Cambridge University Press, 1995) 18, 19

Bryce J, Studies in History and Jurisprudence (Oxford: Clarendon Press, 1901) 538

Collins R, ‘Classical Legal Positivism in International Law Revisited’ in Kammerhofer J and

D’Aspremont J (eds)

International Legal Positivism in a Post-Modern World (Cambridge

University Press, 2014) 39, 41, 42

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