John Austin’s Contribution to

Jurisprudence: A Critical Analysis

Project Submitted on Jurisprudence-I

Submitted to:
Mr. Mohammad Atif Khan
Assistant Professor of Law
Faculty of Jurisprudence

Submitted By:

Shubham Nahata
Roll No. 157, Semester V, Section A
B.A. LL.B. (Hons.)

Submitted on: September 3, 2019

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Atal Nagar, Chhattisgarh (492002)
 Acknowledgements

I, Shubham Nahata, would like to take up this opportunity to thank all those who have stood
by me throughout the duration of this project and helped me in completing it.

Foremost my teacher and mentor Mr. Mohammad Atif Khan. I thank him for his faith in me to
provide me with such a topic of research. His constant guidance at every step and keen attention
to detail has been elementary in the completion of this project.

The college administration and staff had no less a part in this job. The value of their support
cannot be expressed in mere words.

Finally, I would like to thank God for his benevolence and grace in enabling me to finish this
task. I express my heartfelt gratitude to everyone involved,

Thank You,

Shubham Nahata

Semester – V (A), Batch XVII,

Roll No. – 157

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 Contents
Acknowledgements .............................................................................................................. ii

Introduction......................................................................................................................... 1

Research Methodology ........................................................................................................ 3

Objectives of the Study ...................................................................................................... 3
Review of Literature .......................................................................................................... 3
Nature & Methodology of the Study .................................................................................. 4
Hypothesis......................................................................................................................... 4
Problem of the Study ......................................................................................................... 5
Rationale of the Study........................................................................................................ 5
Organization of the Study .................................................................................................. 5
Mode of Citation ............................................................................................................... 5
Scope & Limitations of the Study ....................................................................................... 5

Analytical Positivism ........................................................................................................... 6

Austin’s Theory of Law .................................................................................................... 11

Austin’s Utilitarianism .................................................................................................... 11

Criticisms ........................................................................................................................... 14

Conclusions & Suggestions ............................................................................................... 17

Bibliography ...................................................................................................................... 18

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 Introduction
John Austin’s life (1790–1859) was filled with disappointment and unfulfilled expectations. His
influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas
Carlyle) were impressed by his intellect and his conversation, and predicted he would go far.
However, in public dealings, Austin’s nervous disposition, shaky health, tendency towards
melancholy, and perfectionism combined to end quickly careers at the Bar, in academia, and in
government service.1

Austin was born to a Suffolk merchant family, and served briefly in the military before beginning
his legal training. He was called to the Bar in 1818, but he took on few cases, and quit the practice
of law in 1825. Austin shortly thereafter obtained an appointment to the first Chair of
Jurisprudence at the recently established University of London. He prepared for his lectures by
study in Bonn, and evidence of the influence of continental legal and political ideas can be found
scattered throughout Austin’s writings.

Lectures from the course he gave were eventually published in 1832 as “Province of Jurisprudence
Determined” (Austin 1832).2 However, attendance at his courses was small and getting smaller,
and he gave his last lecture in 1833. A short-lived effort to give a similar course of lectures at the
Inner Temple met the same result. Austin resigned his University of London Chair in 1835. He
later briefly served on the Criminal Law Commission, and as a Royal Commissioner to Malta, but
he never found either success or contentment. He did some occasional writing on political themes,
but his plans for longer works never came to anything during his lifetime, due apparently to some
combination of perfectionism, melancholy, and writer’s block. His changing views on moral,
political, and legal matters also apparently hindered both the publication of a revised edition of
“Province of Jurisprudence Determined,” and the completion of a longer project started when his
views had been different.

Much of whatever success Austin found during his life, and after, must be attributed to his wife
Sarah, for her tireless support, both moral and economic (during the later years of their marriage,
they lived primarily off her efforts as a translator and reviewer), and her work to publicize his
writings after his death (including the publication of a more complete set of his Lectures on

1
LOTTE & JOSEPH HAMBURGER, TROUBLED LIVES: JOHN AND SARAH AUSTIN (1985, University of Toronto Press.)
2
JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, W. RUMBLE (1995).

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Jurisprudence) (Austin 1879). Credit should also be given to Austin’s influential friends, who not
only helped him to secure many of the positions he held during his lifetime, but also gave
important support for his writings after his death.

Austin’s work was influential in the decades after his passing away. E. C. Clark wrote in the late
19th century that Austin’s work “is undoubtedly forming a school of English jurists, possibly of
English legislators also. It is the staple of jurisprudence in all our systems of legal education.”
(Clark 18833: pp. 4–5) A similar assessment is made by H.L.A. Hart, looking back nearly a century
later: “within a few years of his death it was clear that his work had established the study of
jurisprudence in England” (Hart 1955: p. xvi)4. As will be discussed, Austin’s influence can be
seen at a number of levels, including the general level of how legal theory, and law generally,
were taught, and the use of an analytical approach in legal theory. At such levels, Austin’s impact
is felt to this day. Hart could write that “Austin’s influence on the development of England of
[Jurisprudence] has been greater than that of any other writer,” (Hart 1955: p. xvi)5 even while
Austin’s particular command theory of law became almost friendless, and is today probably best
known from Hart’s use of it (1958, 1994) as a foil for the elaboration of Hart’s own, more nuanced
approach to legal theory. In recent decades, some theorists have revisited Austin’s command
theory (and other works), offering new characterizations and defences of his ideas (e.g., Morison
1982,6 Freeman & Mindus 2013).7

3
E. C. CLARK, PRACTICAL JURISPRUDENCE: A COMMENT ON AUSTIN, (1883,Cambridge University Press).
4
H.L.A. HART, INTRODUCTION TO JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, H.L.A. HART
(ED.), LONDON: WEIDENFELD & NICOLSON vii-xxi (1954).
5
Id.
6
W. L. MORISON, JOHN AUSTIN, (1982, Stanford University Press).
7
MICHAEL FREEMAN, THE LEGACY OF JOHN AUSTIN’S JURISPRUDENCE (2013, Springer).

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 Research Methodology
Objectives of the Study

Set in the above perspective, the broad objectives of this study are to answer the various questions
that arise about this whole scenario and its concepts.

The specific set of objectives being:

• Study of John Austin’s theories in jurisprudence
• Critical analysis of Austin’s Positivism.
• Study of the Analytical Positivism as a contrast

Review of Literature

• V.D. Mahajan's Jurisprudence and Legal Theory – V.D. MAHAJAN: V.D. Mahajan’s
work is a legal classic and has gone into several editions and reprinted a number of times.
Written in a very simple and clear language it covers the subjects of Jurisprudence and
Legal Theory thoroughly. The author has been successful in achieving his aim of
providing an elementary book in a simple and understandable language. Index and the
suggested readings, given separately at the end of each chapter, for further material on the
topics discussed, add to its utility and supply additional food for study and thought about
law and legal science. There is a dearth of writing by Indian authors on jurisprudence and
legal theory. V.D. Mahajan's book makes a valuable contribution in filling up this gap.
While discussing each theory the author has authenticated the subject with reference to all
important writers and theoreticians on each of them. The wide ranging references on each
topic are valuable for any further study on the subject.

• The Legacy of John Austin’s Jurisprudence – MICHEAL FREEMAN: This is the first
ever collected volume on John Austin, whose role in the founding of analytical
jurisprudence is unquestionable. After 150 years, time has come to assess his legacy. The
book fills a void in existing literature, by letting top scholars with diverse outlooks flesh
out and discuss Austin’s legacy today. A nuanced, vibrant, and richly diverse picture of
both his legal and ethical theories emerges, making a case for a renewal of interest in his
work. The book applies multiple perspectives, reflecting Austin’s various interests –

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 stretching from moral theory to theory of law and state, from Roman law to Constitutional
Law – and it offers a comparative outlook on Austin and his legacy in the light of the
contemporary debate and major movements within legal theory. It sheds new light on
some central issues of practical reasoning: the relation between law and morals, the nature
of legal systems, the function of effectiveness, the value-free character of legal theory, the
connection between normative and factual inquiries in the law, the role of power, the
character of obedience and the notion of duty.

• Jurisprudence & Legal Theory - N.V. PARANJAPE: This work has endeavoured to bring
out the Indian perspective of legal theory latest developments in Indian Jurisprudential
Thought. An attempt has also been made to evaluate the contemporary changes in other
parts of the world; notable USA, UK and European Countries without losing sight of
corresponding developments in Indian legal setting.
• Jurisprudence: Philosophy and Method of Law – Edgar Bodenheimer: This work written
by Edgar Bodenheimer is considered to be one on of the classic works written in the realm
of jurisprudence. It analyses the aspect of analytical positivism from an historical
perspective and gives a detailed account of Austin’s view on jurisprudence and his ideas
on analytical positivism.

Nature & Methodology of the Study

This project work is descriptive analytical in approach and has been done taking the help of
secondary data i.e. websites, articles, journals, books, etc. To construct this project, the help of
dictionaries, websites as well as foreign journals and books on the said case has been taken. The
points as discussed in this project include the study of different sources on the topic as well as the
points guided by the faculty. Footnotes have also been provided for acknowledging the sources as
and where needed.

Hypothesis

The working hypothesis is that legal positivism of John Austin has been talked about frequently
in the study of jurisprudence therefore the same has had impacts upon modern day law. The study
aims at uncovering those contributions of Austin by way of his philosophical musings and
theories.

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Problem of the Study

This project research deals with the contributions of John Austin to the subject of jurisprudence.
The project aims at explaining the same in two folds of critical analysis of Austin’s Theories and
the criticism offered to his theories along with a contract to analytical positivism and revisionist
philosophies, and their impacts on modern jurisprudence.

Rationale of the Study

The rationale behind the research is the argument of what has John Austin contributed to modern
jurisprudence and what has been the impact of it. This project is a study upon the same.

Organization of the Study

The study is organized into 3 sections:

1. The first section deals with analytical positivism and legal positivism’s contrasting
theories.

2. The second section deals with Austin’s theory of law.

3. The third section deals with the criticisms.

Mode of Citation

Sources and authors have been cited according to Bluebook 19th edition mode of citation.

Scope & Limitations of the Study

The study is set in Austin’s concept and theories of Positivism and the surrounding Criticism and
the subsequent debate around the same. The study does not delve into any other tangential or
linked perspectives or topics and clarifies the theories of Austin by way of conceptualising the
comparative analysis between that and analytical positivism about the topic on which most jurists
have been divided in their opinions.

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 Analytical Positivism
French mathematician and philosopher Auguste Comte is considered to be the founder of
positivism. According to him evolution of human psychology can be divided into three stages.
The first stage is the theological stage in which everything is attributed to the supernatural and the
divine, the second stage is the metaphysical stage in which thought has the recourse to ultimate
principles and ideas, which are conceived as being existing beneath the surface of things and
construed as real moving forces of evolution of mankind. The third stage is the positivist stage in
which all hypothetical knowledge is rejected and human being restrict themselves to observation
and connection of facts under the guidance of methods used in natural sciences.8

Positivism is considered to be a scientific attitude that discards lofty ideals and hypothetical
speculations and is based on data experience. It mainly focusses on the analysis of the “given” so
as to reach a conclusion. Positivism rejects all dogmatic and speculative assertions of philosophy.
Legal positivism with positivistic theory disregards all metaphysical speculations in search of
ultimate principles.9 Similarly, analytical positivism takes its starting point a given legal order and
distils from it by a predominantly inductive method certain fundamental notions, concepts and
distinctions of other legal orders to ascertain some common elements. Julius Stone has termed
analytical positivism as, “logical interrelations of legal propositions”.10

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham’s
utilitarianism is evident (though with some differences) in the work for which Austin is best
known today. On Austin’s reading of utilitarianism, Divine will is equated with Utilitarian
principles: “The commands which God has revealed we must gather from the terms wherein they
are promulgated. The command which he has not revealed, we must construe by the principle of
utility”11. This particular reading of utilitarianism, however, has had little long-term influence,
though it seems to have been the part of his work that received the most attention in his own day.
Some have also seen Austin as being one of the early advocates of “rule utilitarianism.” (e.g.,
where Austin urges that we analyse not the utility of particular acts, but that of “classes of action”).

8
EDGAR BODENHEIMER, JURISPRUDENCE-THE PHILOSOPHY AND METHOD OF LAW (1962).
9
Id.
10
JULIUS STONE, THE PROVINCE AND FUNCTION OF LAW (1961, Cambridge University Press).
11
AUSTIN, JOHN, 1832, THE PROVINCE OF JURISPRUDENCE DETERMINED, W. RUMBLE (1995,Cambridge
University Press).

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Austin’s importance to legal theory lies elsewhere—his theorizing about law was novel at four
different levels of generality. First, he was arguably the first writer to approach the theory of law
analytically (as contrasted with approaches to law more grounded in history or sociology, or
arguments about law that were secondary to more general moral and political theories). Analytical
jurisprudence emphasizes the analysis of key concepts, including “law,” “legal right,” “legal
duty,” and “legal validity.” Though analytical jurisprudence has been challenged by some in
recent years, it remains the dominant approach to discussing the nature of law. Analytical
jurisprudence, an approach to theorizing about law, has sometimes been confused with what the
American legal realists (an influential group of theorists prominent in the early decades of the 20th
century) called “legal formalism”—a narrow approach to how judges should decide cases. The
American legal realists saw Austin in particular, and analytical jurisprudence in general, as their
opponents in their critical and reform-minded efforts.12 In this, the realists were simply mistaken;
unfortunately, it is a mistake that can still be found in some contemporary legal commentators.13

Second, Austin’s work should be seen against a background where most English judges and
commentators saw common-law reasoning (the incremental creation or modification of law
through judicial resolution of particular disputes) as supreme, as declaring existing law, as
discovering the requirements of “Reason,” as the immemorial wisdom of popular “custom.” Such
(Anglo-American) theories about common law reasoning fit with a larger tradition of theorizing
about law the idea that generally law did or should reflect community mores, “spirit,” or custom.

In general, one might look at many of the theorists prior to Austin as exemplifying an approach
that was more “community-oriented”—law as arising from societal values or needs, or expressive
of societal customs or morality. By contrast, Austin’s is one of the first, and one of the most
distinctive, theories that views law as being “imperium oriented”—viewing law as mostly the
rules imposed from above from certain authorized (pedigreed) sources. More “top-down” theories
of law, like that of Austin, better fit the more centralized governments (and the modern political
theories about government) of modern times.14

12
ANTHONY J. SEBOK, LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE (1998,Cambridge University Press).
13
Brian H. Bix, Positively Positivism, 75 Virginia Law Review, 1613–1624 (1999).
14
ROGER COTTERREL, THE POLITICS OF JURISPRUDENCE: A CRITICAL INTRODUCTION TO LEGAL PHILOSOPHY (2ed.
LexisNexis).

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Third, within analytical jurisprudence, Austin was the first systematic exponent of a view of law
known as “legal positivism.” Most of the important theoretical work on law prior to Austin had
treated jurisprudence as though it were merely a branch of moral theory or political theory: asking
how should the state govern? (And when were governments legitimate?), and under what
circumstances did citizens have an obligation to obey the law? Austin specifically, and legal
positivism generally, offered a quite different approach to law: as an object of “scientific” study,15
dominated neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside,
Austin’s efforts to treat law systematically gained popularity in the late 19th century among
English lawyers who wanted to approach their profession, and their professional training, in a
more serious and rigorous manner.16

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral
descriptive (or “conceptual”—though this is not a term Austin used) theory of law. (The main
competitor to legal positivism, in Austin’s day as in our own, has been natural law theory.) Legal
positivism does not deny that moral and political criticism of legal systems is important, but insists
that a descriptive or conceptual approach to law is valuable, both on its own terms and as a
necessary prelude to criticism.

The term “legal positivism” is sometimes used more broadly to include the position that we should
construct or modify our concept of law to remove moral criteria of legal validity; or to include a
prescription that moral values should not be used in judicial decision-making.

There were theorists prior to Austin who arguably offered views similar to legal positivism or who
at least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with
his amoral view of laws as the product of Leviathan, David Hume, with his argument for
separating “is” and “ought” (which worked as a sharp criticism for some forms of natural law
theory, those that purported to derive moral truths from statements about human nature);17 and
Jeremy Bentham, with his attacks on judicial law-making and on those commentators, like Sir
William Blackstone, who justified such law-making with natural-law-like justifications.18

15
JOHN AUSTIN, LECTURES ON JURISPRUDENCE, OR THE PHILOSOPHY OF POSITIVE LAW, (4ed. 2002).
16
COTTERRELL, ROGER, supra note 14.
17
DAVID HUME, A TREATISE OF HUMAN NATURE (2000, Oxford University Press).
18
JEREMY BENTHAM, 1789, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION ( 1789, J. H.
Burns & H.L.A. Hart).

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Austin’s famous formulation of what could be called the “dogma” of legal positivism is as follows:

“The existence of law is one thing; its merit or demerit is another. Whether it be
or be not is one enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry. A law, which actually exists, is a law, though
we happen to dislike it, or though it vary from the text, by which we regulate our
approbation and disapprobation.”19

Andrew Halpin20 has argued that Austin shaped the nature of modern analytical jurisprudence and
legal positivism by his choice to exclude legal reasoning from his discussion of “jurisprudence.”
A greater focus on legal reasoning, Halpin argues, would have made it harder to claim a clear
separation of law “as it is” and law “as it ought to be.” Halpin points out that prominent later legal
positivists have followed Austin, either in speaking little about legal reasoning (Hans Kelsen, and,
to some extent, H. L. A. Hart), or speaking about the topic at length, but treating the issue as
sharply separate from his theory of (the nature of) law.

Fourth, Austin’s version of legal positivism, a “command theory of law”, was also, for a time,
quite influential. Austin’s theory had similarities with views developed by Jeremy Bentham,
whose theory could also be characterized as a “command theory.” Bentham, in a posthumously
published work, defined law as an:

“assemblage of signs declarative of a volition conceived or adopted by the

sovereign in a state, concerning the conduct to be observed in a certain case by
a certain person or class of persons, who in the case in question are or are
supposed to be subject to his power: such volition trusting for its
accomplishment to the expectation of certain events which it is intended such
declaration should upon occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those whose conduct
is in question.”21

However, Austin’s command theory was more influential than Bentham’s, because the latter’s
jurisprudential writings did not appear in an even-roughly systematic form until well after Austin’s

19
JOHN AUSTIN, 1832, THE PROVINCE OF JURISPRUDENCE DETERMINED, (1995, W. Rumble).
20
ANDREW HALPIN, AUSTIN’S METHODOLOGY? HIS BEQUEST TO JURISPRUDENCE 15-40 (2013, Springer).
21
JEREMY BENTHAM, 1789, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION, (1996, J. H.
Burns & H.L.A. Hart).

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work had already been published, with Bentham’s most systematic discussion only appearing
posthumously, late in the 20th century.

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 Austin’s Theory of Law
Austin’s Utilitarianism

John Austin’s utilitarianism, has been the part of his work that received the most attention in his
own day. The primary source of moral rules, as per Austin, was the law of God as revealed in the
scriptures. Like Thomas Aquinas, Austin also opined that there is a part of the law of God that is
unrevealed and must be discovered by resorting to reasoning. As it is understood clearly that God
wills the greatest happiness of all his creatures, reason brings us to the principle of utility. Austin
believed that proper purpose or end of the government was the greatest possible advancement of
human happiness” and he insisted that principle of utility should be the guiding rationale behind
forming of laws by the legislature.22

Austin noted that we have to infer the laws of god which is not expressed or revealed in any
manner from the probable effects of our actions on the greatest happiness of all, or even from the
tendencies of actions of the humans which are to increase or diminish that aggregate. He believed
that utility is the index for the discovery of divine pleasure.

It has to be understood that Austin, much like Bentham, also reasoned that aggregate happiness is
served by identifying the law with sovereign will. Austin however, included moral dictates of the
scriptures in the category of ‘law’. This led him to create a subset of ‘laws properly so called’ –
which was named subsequently as ‘positive law’. This was done primarily to signify laws made
by the sovereign and its delegates.

Austin attempted to classify all that he opined was the proper subject of jurisprudence. Adding to
the laws of political sovereign, this was inclusive of divine law, moral law, customary laws, laws
of private associations, laws of households, and also international law.

As per Austin, only some of these laws are what he called ‘laws properly so called’. While the
others are laws by analogy meaning laws only in the figurative sense, the criteria for a law to be
‘properly so called’ is that it derives from authority.

Austin believed that laws by analogy are not law per se but are positive morality. This is inclusive
of rules which are of non-obligatory nature such as rules of social etiquette, moral rules etc. It also

22
Supra note 11.

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known as the imperative theory of law. According to Austin, positive law has three main features:
it is a type of command. It is laid down by a political sovereign. It is enforceable to sanction.

The relationship of superior to inferior consist for Austin in the power which the former enjoys
over the other i.e., his ability to punish him for disobedience, the idea of sanction is built in Austin
in notion of command.

There are commands which are laws and commands which are not law. Austin distinguish law
from other commands by their generality. Laws are general commands. However, there can be
exceptions. There can exist laws such as acts of attainder which lack the character of generality.

According to Austin, law is law only if it is effective and it must be generally obeyed. Perfect
obedience is not necessary without general obedience, the commands of law maker are empty as
language which is no longer spoken. What is sufficient for a legal theorist is that obedience exists.

According to Austin laws are of two kinds –divine law and human law. Divine law was given by
god to men. Human laws are set by men for men.

Human laws are two kinds: certain laws are set up political superiors and are positive law and
there are other which are not set up political superiors. The second category covers voluntary
association and clubs.

According to Austin, laws strictly so called are one particular species of set rules and consists of
only those which are set by a sovereign power to a member of an independent political society
wherein that person or body is sovereign or supreme.

Command signifies a wish by a superior to an inferior to do or forbear to do a certain act. It is

distinguished from other forms of desire on the basis of the power and the purpose of the party
commanding to inflict evil or pain in the case desire be disregarded.

Bentham and Locke considered sanctions or “enforcement of obedience” as something that is

applicable to both conditional good and conditional evil, which implies that it could be used as a
reward as well as a punishment. On the contrary Austin believed that reward should be you
considered as a motive for inducement and it should not be confused with a command that signifies
an obligation. Austin defined command in following manner:

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 “It appears, then, from what has been premised, that the ideas or notions
comprehended by the term command are the following: 1. A wish or desire
conceived by a rational being, that another rational being shall do or forbear.
2. An evil to proceed from the former, and to be incurred by the latter, in case
the latter comply not with the wish. 3. An expression or intimation of the wish
by words or other signs.”23

Sanction could be considered as an evil that could be incurred when a command is

disobeyed or a duty is broken. The evil to be incurred by disobedience is also termed as
punishment. But as punishments strictly so called, are only class of sanctions and the
terms is too narrow to express the meaning adequately.

According to Austin, law is a general rule of conduct, but that is got practical in every sphere of
law. Law is the sense of legal system can be particular. The requirement that law should be general
is extremely difficult to maintain.

23
JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, (1995, W. Rumble).

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 Criticisms
As many readers come to Austin’s theory mostly through its criticism by other writers, the
weaknesses of the theory are almost better known than the theory itself:

First, in many societies, it is hard to identify a “sovereign” in Austin’s sense of the word (a
difficulty Austin himself experienced, when he was forced to describe the British “sovereign”
awkwardly as the combination of the King, the House of Lords, and all the electors of the House
of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the continuity
of legal systems: a new ruler will not come in with the kind of “habit of obedience” that Austin
sets as a criterion for a system’s rule-maker.

A few responses are available to those who would defend Austin. First, some commentators have
argued that Austin is here misunderstood, in that he always meant “by the sovereign the office or
institution which embodies supreme authority; never the individuals who happen to hold that
office or embody that institution at any given time”24; there are certainly parts of Austin’s lectures
that support this reading.

Secondly, one could argue25 that the sovereign is best understood as a constructive metaphor: that
law should be viewed as if it reflected the view of a single will (a similar view, that law should be
interpreted as if it derived from a single will, can be found in Ronald Dworkin’s work).26

Thirdly, one could argue that Austin’s reference to a sovereign whom others are in the habit of
obeying but who is not in the habit of obeying anyone else, captures what a “realist” or “cynic”
would call a basic fact of political life. There is, the claim goes, entities or factions in society that
are not effectively constrained, or could act in an unconstrained way if they so choose. For one
type of example, one could point out that if there was a sufficiently large and persistent majority
among the United States electorate, nothing could contain them: they could elect Presidents and
legislators who would amend the Constitution and, through those same officials, appoint judges
who would interpret the (revised or original) Constitution in a way amenable to their interests. A
different sort of example (and some would say that there are recent real-life examples of this type)
would be a President who ignored the constraints of statutory law, constitutional law, and

24
COTTERRELL, ROGER, supra note 14.
25
2, J.W. HARRIS, “THE CONCEPT OF SOVEREIGN WILL,” ACTA JURIDICA (ESSAYS IN HONOUR OF BEN BEINART,
1-15 (1977).
26
RONALD DWORKIN, LAW’S EMPIRE (1986, Cambridge).

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international treaty commitments, while the public and other officials lacked the will or the means
to hold that President to the legal norms that purported to constrain his or her actions.

As regards Austin’s “command” model, it seems to fit some aspects of law poorly (e.g., rules
which grant powers to officials and to private citizens—of the latter, the rules for making wills,
trusts, and contracts are examples), while excluding other matters (e.g., international law) which
we are not inclined to exclude from the category “law.”

More generally, it seems more distorting than enlightening to reduce all legal rules to one type.
For example, rules that empower people to make wills and contracts perhaps can be re-
characterized as part of a long chain of reasoning for eventually imposing a sanction on those who
fail to comply with the relevant provisions. However, such a re-characterization misses the basic
purpose of those sorts of laws—they are arguably about granting power and autonomy, not
punishing wrongdoing.

A different criticism of Austin’s command theory is that a theory which portrays law solely in
terms of power fails to distinguish rules of terror from forms of governance sufficiently just that
they are accepted as legitimate (or at least as reasons for action) by their own citizens.

Finally, one might note that the constitutive rules that determine who the legal officials are and
what procedures must be followed in creating new legal rules, “are not commands habitually
obeyed, nor can they be expressed as habits of obedience to persons”27

Austin was aware of some of these lines of attack, and had responses ready; it is another matter
whether his responses were adequate. It should also be noted that Austin’s work shows a silence
on questions of methodology, though this may be forgivable, given the early stage of
jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path.
On matters of methodology, later commentators on Austin’s work have had difficulty determining
whether he is best understood as making empirical claims about the law or conceptual claims;
elements of each sort of approach can be found in his writings.

When H.L.A. Hart revived legal positivism in the middle of the 20th century, he did it by
criticizing and building on Austin’s theory: for example, Hart’s theory did not try to reduce all
legal rules to one kind of rule, but emphasized the varying types and functions of legal rules; and
Hart’s theory, grounded partly on the distinction between “obligation” and “being obliged,” was

27
H.L.A Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593–629.

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built around the fact that some participants within legal systems “accepted” the legal rules as
reasons for action, above and beyond the fear of sanctions. Hart’s “hermeneutic” approach,
building on the “internal point of view” of participants who accepted the legal system, diverged
sharply from Austin’s approach to law.

Some modern commentators appreciate in Austin elements that were probably not foremost in his
mind (or that of his contemporary readers). For example, one occasionally sees Austin portrayed
as the first “realist”: in contrast both to the theorists that came before Austin and to some modern
writers on law, Austin is seen as having a keener sense of the connection of law and power, and
the importance of keeping that connection at the forefront of analysis. One commentator wrote:

Austin’s theory is not a theory of the Rule of Law: of government subject to law. It is
a theory of the ‘rule of men’: of government using law as an instrument of power.
Such a view may be considered realistic or merely cynical. But it is, in its broad
outlines, essentially coherent.28

When circumstances seem to warrant a more critical, sceptical or cynical approach to law and
government, Austin’s equation of law and force will be attractive—however distant such a reading
may be from Austin’s own liberal-utilitarian views at the time of his writing, or his more
conservative political views later in his life.29

28
COTTERRELL, ROGER, supra note 14.
29
LOTTE & JOSEPH HAMBURGER, TROUBLED LIVES: JOHN AND SARAH AUSTIN (1985).

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 Conclusions & Suggestions
Legal Positivism, as we have already seen, is one of the most influential schools in the
jurisprudence of law and relies on the law as a fact. The jurists of this school only analyse the law
as it is and do not consider how it should have been. According to the views of great jurists such
as John Austin and Jeremy Bentham, the moral principles do not determine the law of the land.

However, there are certain positivists who do believe in the existence of the principles of ethics
and morality and moreover, they are of the opinion that these moral principles are responsible, to
some extent, in shaping the laws. Therefore, it can be clearly seen that although the overall idea
of the jurists of this school is similar, but certain differences in their thinking does exist. The
common notion of all the jurists belonging to the Legal Positivist School is that law is what is laid
down by the superior and backed by sanctions. Moreover, they are of the common opinion that
the moral principles are not to be taken into account while judging the validity of laws. All laws
are valid which flow from the determinate superior and is backed by sanctions.

However, there are certain shortcomings of the Legal Positivist School such as it fails to elucidate
upon any kind of legal system and sees sanctions as the only basis of law. Moreover, the concept
of absolute sovereignty given by John Austin is challenged by International Law as well as
fundamental rights that are available with the individuals. Although there are certain limitations,
Legal Positivism is regarded as the most influential school of thought in jurisprudence.

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 Bibliography
• John Austin,1832, The Province of Jurisprudence Determined, W. Rumble (ed.),
Cambridge: Cambridge University Press, 1995.
• Edgar Bodenheimer,1962, Jurisprudence- The Philosophy and Method of Law, Harvard
University Press.
• Brian H. Bix., 1999, “Positively Positivism,” Virginia Law Review, 75: 1613–1624.
• E.C. Clark, 1883, Practical Jurisprudence: A Comment on Austin, Cambridge:
• Ronald Dworkin, 1986, Law’s Empire, Cambridge, MA: Harvard University Press.
• Michael Freeman, 2013, The Legacy of John Austin’s Jurisprudence, Dordrecht:
Springer.
• Lotte & Joseph Hamburger, 1985, Troubled Lives: John and Sarah Austin, Toronto:
University of Toronto Press.
• H.L.A. Hart, 1954, Introduction to John Austin, The Province of Jurisprudence
Determined, H.L.A. Hart (ed.), London: Weidenfeld & Nicolson, pp. vii-xxi.
• H.L.A. Hart, 1958, “Positivism and the Separation of Law and Morals,”Harvard Law
Review, 71: 593–629.
• ThomasHobbes, 1651, Leviathan, Richard Tuck (ed.), Cambridge: Cambridge
University Press, 1996.
• John Stuart Mill, 1863, “Austin on Jurisprudence,” Edinburgh Review, 118 (October):
439–82 [U.S. edition, 118: 222–244].
• W. L. Morison, 1982, John Austin, Stanford: Stanford University Press.
• V.D. Mahajan, Jurisprudence and Legal Theory, 5thed, Eastern Book Company,
Lucknow.
• Michael Freeman – The Legacy of John Austin’s Jurisprudence, Law & Philosophy
Library 2013.
• N.V. Paranjape, Jurisprudence and Legal Theory.
• W. E. Rumble, 1995, John Austin: The Province of Jurisprudence Determined.

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