INTRODUCTION

John Austin, English jurist whose writings, especially ‘The Province of Jurisprudence’
advocated a definition of law from morality. He had little influence during his lifetime
outside the circle of the circle of Utilitarian supporters of Jeremy Bentham. His authority
came posthumously. Austin began to study law in 1812 after five years in the army and from
1818 to 1825 practiced unsuccessfully at the chancery bar. His powers of rigorous analysis
and his uncompromising intellectual honesty deeply impressed his contemporaries, and in
1826, University College, London, was founded, he was appointed its first professor of
jurisprudence, a subject that had previously occupied an unimportant place in legal studies.
He spent the next two years in Germany studying Roman law and the work of German
experts on modern civil law whose idea of classification and systematic analysis exerted an
influence on him secondly only to that of Bentham. Both Austin and his wife, Sarah, were
ardent Utilitarian, intimate friends of Bentham and of James and John Stuart Mill, and much
concerned with legal reform. Austin’s first lectures in 1828 were attended by many
distinguished men, but he failed to attract students and resigned from his chair in 1832. In
1834, after delivering shorter but equally unsuccessful version of lectures, he abandoned the
teaching of jurisprudence. He was appointed to the Criminal Law Commission in 1833 but
finding little support for his opinions, he resigned in frustration after signing two reports. In
1836, he was appointed as a commissioner on the affairs of Malta. Austin then lived abroad,
chiefly in Paris, until 1848, when they settled in Surrey, where Austin died in 1859.

Austin’s best known work, a version of part of his lectures is The Province of Jurisprudence
Determined, published in 1832. Here, in order to clarify the distinction between law and
morality, which he considered to be blurred by doctrines of Natural Law, he elaborated his
definition of law as species of command. According to Austin, commands are expressions of
desire that another shall do or forbear from some act and are accompanied by threat of
punishment for disobedience. Commands are laws “simply and properly so called” when they
prescribe courses of conduct, not specific acts, and are set by the ‘sovereign’ (i.e. the person
or persons to whom a society renders habitual obedience and who render no such obedience
to others). This is the mark distinguishing “positive law” both from the fundamental
principles of morality, which are the laws of God, and from positive morality or manmade
rules of conduct, such as etiquette, conventional morality and international laws which do not
emanate from a sovereign. The Province also contains a version of Utilitarianism in which
‘Utility’ is regarded as index of God’s commands and the test of moral equality of general
rules of conduct rather than of particular actions.

Austin viewed the doctrines in The Province as merely prefatory to the study that he termed
“general jurisprudence”: the exposition and analysis of the fundamental notions forming the
framework of all mature legal systems. He devoted the main part of his lectures to an analysis
of such “pervading notions” as those of right, duty, persons, status, delict, and sources of law.
Austin distinguished this general, or analytical, jurisprudence from the criticism of legal
institutions, which he called “the science of legislation”; he thought both were important parts
of legal education.

RESEARCH METHODOLOGY
1. Research Design

Doctrinal research has been followed for the study of the given topic. The research started in
the library of the university. Textbooks related to the topic have been referred to. Several
primary sources such as judgments and case laws have been well used and are cited
appropriately by the researcher. Different amendments made in the principle have also been
discussed by the researcher in order to establish the facts which are legally verified in an
attempt to derive to coherent logical conclusions. Another set of secondary sources have also
been extensively used. These include books of eminent authors and research papers and
scholarly articles pertaining to the topic. Another major source of information for the
researcher was internet. Technological advancement has made it possible for the researcher to
conduct a study which is statistically quite reliable and is well articulated. Various websites
with substantial information about the topic have also been referred to. The most important
source of information for the study and research were books and internet.

2. Objectives of Research

 To understand the concept and relevance of Austin’s theory of law in the present
scenario of the legal system.
 To analyze critiques of this theory by different philosophers.
 To critically analyze the role of such theories in current scenario of Jurisprudence
4. Review of Literature

Various articles and books have been referred by the researcher in an order to come out with
an authentic research and better results. One of the prime books referred by the researcher is
‘Oxford’s G.W. Paton on Jurisprudence’. This discusses about almost all the sections of the
topic and has widely discussed the relating critiques of the Austin theory of law. The book
has also discussed the fundamentals and origin of the principle and has helped the researcher
to understand the topic. The other book that the researcher reviewed to is ‘N.V. Paranjape’s
Studies in Jurisprudence and Legal Theories’ which gave a very clear and comprehensive
idea of the topic to the researcher. The book has a very simple understanding of the topic and
has vastly discussed all the segments of the topic This books very vastly discusses the cases
related to the topic and also has given its own review about those cases which helps to
understand different loopholes in the Principle of Remoteness of Damages and what
amendments are required to be made.

5.Scope and Limitations

The researcher has attempted to cover all kinds of topics coming under the Austin’s Theory
of Law. The researcher has systematically and thoroughly discussed various acts which
comes under this topic. Various books and articles have been referred for the same. This has
enabled the research conducted to be coherent and well articulated. The researcher has also
referred to leading and landmark cases to support the arguments and conclusions made.
While, the topic in itself is self sufficient but the researcher had to face various obstacles
which in turn became the limitations of the study. Well versed books and articles directly
pertaining to the topic were unavailable. The researcher had to take another step of drawing
analogy in an order to formulate the conclusions. While, the study comes with the enlisted
scope and limitations, the researcher has still tried to come up with logical and unbiased
conclusion and to critically analyze each quoted case to bring out the most coherent nuance.

Austin’s Theory of Law

Also 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 consists for Austin in the
power which the former enjoy 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 consist
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. A command is wish/desire to
another so that he shall do a particular thing or refrain from doing a particular thing .in case
of non-compliance with command, he has to for evil consequences .the sanction behind law is
the evil which is to be influenced in case of disobedience.
Austin most important contribution to Legal theory was substitution of the command of the
sovereign for any ideal of justice in the definition of law. He defined law as “a rule laid down
for the guidance of intelligent being by an intelligent being having power over him” law is
strictly diverged from justice. It is based on the power of a superior .this units Austin with
Hobbes and other of sovereignty. According to Austin laws are two kinds,
1. Law of God
2. Human laws
In Austin positivists of law, the law of god seems to fulfill too others function then that of
serving as a respectable for Austin utilization beliefs .The principle of utility is the law of
god. Human law is divisible into possible laws and laws improperly so called: the former are
law set by political superiors to political subordinate or laws set by subjects as private person
in prudence of legal rights granted to them. Laws improperly so called are those laws which
are not set directly or indirectly by a political superior .In this category are diverse type of
rules, such a rules of clubs , law of fashion, laws of natural science ,the rules of so called
international law .Austin gave these the name of positive morality. Laws improperly so called
also included a final category called “laws by metaphor which covered expression of
uniformities of nature.
According to Austin positive law has four elements
· Command
· Sanction
· Duty
· Sovereignty
According to Austin “law is a command of the sovereign “command implies duty and
Sanction law properly so called are species of commands. Every law properly so called flow
from a determinate source or emanate from a determine author. The power and purpose to
inflict penalty for disobedience are the very essence of a command .the person liable to the
eviler penalty is under a duty to obey it .The eviler penalty for disobedience is called
sanction. However all the command are not laws, it is only the general command which
obliges to a course of conduct is law. 13. Austin provides some exceptions which though are
not commands are still in the province of jurisprudence.
· Declaratory or explanatory laws
· Laws to repeal law
· Laws of imperfect obligation
Prof. Dias point out that distinction drawn by Austin was entirely arbitrary. He adds that the
case of sanction is not the sole or even the principle motive for obedience. There are many
objections to the association of duty with sanctions. The view of Austin is that it is the
sanction alone which induces men to obey law .This is not a corrective view. According to
Lord Bryce, the motives which induces a men to obey law are indolence, deference,
sympathy, fear and reason. The last resort is to secure obedience. In the opinion of Duguit,
the notion of command is not applicable to modern social legislation which binds the state
rather than the individual. This view is also accepted by the supreme court of India. Critics
point out that law is not an arbitrary command as conceived by Austin but growth of organic
nature. Law has not growth due to blind force but due to conscious efforts for definite ends.
Kelson’s Critique to Austin’s Thoery of Law
In this respect, there is some affinity with John Austin's 'command' theory of law. But
Kelsen's approach is quite different from Austin's. Austin finds the defining characteristic of
law on the plane of the signifier, in imperative utterances. Kelsen has almost no interest in the
signifier but focuses on the signified: a 'norm' is an utterance that, whatever its grammatical
form, has the meaning 'ought (Sollen)'.Austin and Kelsen also differ in that, for Kelsen, legal
norms are addressed primarily to officials. Officials are directed to apply sanctions to
individuals when the individuals' behaviour does not conform to a pattern specified in the
norm. It is anticipated that individuals, in choosing how they will behave, will take into
account the possibility that an official will apply the sanction. In that way, norms and the
orders to which they belong can be effective. However, most if not all jurists now accept
H.L.A. Hart's point in The Concept of Law, though directed principally against Austin, that
not all legal norms are coercive - some, and some of the most important, are facilitative. The
Pure Theory of Law can accommodate this by accepting that what matters most is not
whether particular legal norms are coercive but whether, by containing coercive norms, the
legal order as a whole is coercive - which Hart does not deny.
Kelsen insists that morality is no part of law. Law has no moral content: there are no mala in
se but only mala prohibita delict is not outside law or a rejection of law but is within law as
the condition for imposing a sanction. Nor is law as such intrinsically good: to hold that it is,
subjects the positive legal order to a new iusnaturalism and thereby provides an ‘uncritical
legitimation’ of the order. Indeed, if one were to give up ‘the solidly fixed frontier over
against the concepts of morality and politics’, and count moral and political principles and
policies into law, one would have to count in every factor influencing the creation of law—
including the interests of party and class.
Kelsen extends the concept of sanction beyond the concept of reaction to specific behaviour,
to include reactions to circumstances that the state finds undesirable—arrest on suspicion,
protective custody, internment, expropriation of property in the public interest. All these,
even committal to an extermination camp, ‘cannot be considered as taking place outside the
legal order’. But the concept of a law of law is not extended likewise. Here Kelsen is tense.
Within his philosophical positivism, on one side his strong sense of morality and justice is
subject to an insistence that justice be relative, a justice of tolerance which among other
things is a social precondition for the practice of science. However, he identifies and
subscribes to the modern appearance of law as mere technique. He characterises law as ‘a
specific social technique for the achievement of ends determined by politics’ and the legal
scientist as a mere ‘technician’, not concerned with the political aims of the legal order being
serviced. This position is vulnerable to the Frankfurt School’s critique of philosophical
positivism’s privileging of technical or instrumental rationality. The ‘scientific’ approach is
privileged as ‘objective’, while the practically rational reasons for adopting and pursuing it
are always-already removed from argument by characterising all evaluation as merely
emotional. In this perspective, Kelsen privileges in the name of science the instrumentalism
whose extreme consequences as law he abhors and of which he was nearly a victim.
Hart’s Criticim to Austin’s Theory of Law
The starting point for the discussion is Hart's dissatisfaction with John Austin's "Command
Theory": a jurisprudential concept that holds that law is command backed by threat and is
meant to be ubiquitous in its application. Hart likens Austin's theory to the role of a gunman
in a bank and tries to establish the differences between the gunman's orders and those made
by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey
him. Presumably, obedience to the law comes with a different feeling.)Hart identifies three
such important differences: content, origin, and range. In terms of content, not all laws are
imperative or coercive. Some are facilitative, allowing us to create contractsand other legal
relations.

Austin believed that every legal system had to have a sovereign who creates the law (origin)
whilst remaining unaffected by it (range), such as the bank scene's gunman, who is the only
source of commands and who is not subject to other's commands. Hart argues that this is an
inaccurate description of law, noting that laws may have several sources and legislators are
very often subject to the laws they create.
Hart argues that the command theory cannot account for the variety of laws in a legal system:
In particular, legal systems contain “power-conferring” rules as well as “duty-imposing” and
“liberty conferring” rules He argues that the command theory cannot account for these
distinct power-conferring rules and criticizes arguments of Austin and Kelsen that attempt to
assimilate them into the model of commands or coercive norms. A “power”, as Hart uses the
term, is an ability to bring about a legal change intentionally. Examples are: abilities to make
a will, to enter a contract, to make a by-law, to enter a judgment.
•Note: Rules can confer powers: eg the power to make a will. Rules can also restrict an
existingpower
·By limiting the persons who can exercise it
· By limiting the manner in which it must be exercised
· By limiting the circumstances under which it can be exercised-

Austin attempted to explain rules that limit powers by saying nullity is a “sanction” Hart points out
nullity is merely a logical consequence of failure to exercise a power:
· It is automatic, not a sanction imposed thereafter
· The person who fails is not a wrongdoer
· The nullity may not be unwelcome