AUSTIN’S THEORY OF LAW

Presented by:
Rinkey Sharma
Assistant Professor of Law
IILS
 AUSTIN’S IMPERATIVE THEORY OF
LAW
• Austin is known as father of English jurisprudence.
• According to him, Jurisprudence are divided into two categories:
1. General Jurisprudence: it is also known as General
Expositorial. According to him, study of General jurisprudence
deals with:
i. Principles and distinctions which are common to various system.
ii. Exposition of the principles, notions and distinctions which are
common to the different systems of law.
Example: the concept of rights &Duties, ownership, possession,
personality comes under the province of general jurisprudence.
2. Particular jurisprudence: it is also known as particular
expositorial. It is a study of particular system of law. Its
field is confined to one particular country and is,
therefore, sometimes termed as national jurisprudence.
• General jurisprudence has a wider scope than particular
jurisprudence.
• It may, however, be noted that the meeting ground of
Austin’s general and particular jurisprudence is positive
law, in so far as in each case matter comes out of positive
law. While in the former case positive law common to all
system is taken into consideration, in the latter case we
are concerned with particular system of (positive) law.
 AUSTIN’S DEFINITION OF LAW

• According to Austin “law is aggregate of rules

set by men politically superior or sovereign to
men as politically subject.”
• He defined law as “rule laid down for the
guidance of an intelligent being by an
intelligent being having power over him.”
 LAW

LAW SET BY MEN

LAW SET BY GOD TO TO MEN (HUMAN
MEN (LAW OF GOD) LAWS)

LAW
LAW PROPERLY IMPROPERL
SO CALLED Y SO
CALLED

RULES
WHICH
LAW SET BY LAW SET BY ARE NOT
POLITICAL SUPERIOR SUBJECTS AS SET
TO POLITICAL PRIVATE PERSON DIRECTLY/
SUBORDINATE IN PURSUANCE OF INDIRECTL
LEGAL RIGHTS Y BY A
• According to Austin, positive law has four element,
namely, Command, Sanction, Duty Sovereignty.
• He believed that every law is a command given by
a Sovereign, imposing a duty, enforced by sanction.
• Thus, he strongly believed that law is sovereign’s
command carrying with it threat of evil which is
called sanction, and the party commanded and
threatened is under an obligation (duty) to obey it.
• Austin’s theory of law is known as Imperative
theory of law.
 ELEMENTS OF LAW
• 1. COMMAND
• Definition:
 According to Austin, commands are expressions of desire by superiors
to inferiors.
 Non – compliance results in evil.
 Declaration of a will in a directive manner.
• Division of command
 He divided command into two categories:
1. General command: they are given for the guidance of whole
community.
2. Particular command: they are issued for the guidance of a particular
or specific individual.
• Example: suppose the lawgiver commands
that thieves shall be hanged. This is a general
command.
• Now suppose A committed theft and the judge
commands that the thief i.e., A shall be hanged
in accordance to the command given by the
Sovereign. This is a Particular command.
• According to Austin, only general commands
are law.
• In other words, he said that:
i. Laws are general commands.
ii. General command must be continuous
Exception
• However, Austin accepts that there are three kinds of law which,
though not commands, may be included within the purview of
law by way of exception. They are:
i. Declaratory or Explanatory Laws: these laws are passed
merely to explain the law which is already in force. Hence these
are not command.
ii. Laws of repeal: he does not treat such laws as commands
because they are in fact the revocation of a command.
iii. Laws of imperfect obligation: are those obligation where its non
– fulfillment does not result in sanction.
Example: Charity, gratitude etc.
2. SANCTION
• Non obedience of command will result in
sanction i.e., punishment (evil consequences).
• Sanction is necessary to enforce law.
3. DUTY
• All subjects inferior to Sovereign are under
obligation to obey the command of the sovereign.
• Duty is compulsory in nature.
• Sovereign himself is under no obligation to
follow his.
4. SOVEREIGN
• He defined Sovereign as if a determinate
human Superior, not in the habit of obedience
to a like 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, the sovereign must be
illimitable, indivisible and Continuous.