Austin Theory - Grade: A PDF

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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 in1 818 after his graduation. He joined as Professor of law in the newly founded Bentahmite University College in London. Austin publishe...

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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 An Analytical alytical

Approach

to

Jurisprudence and Theory of Legal Positivi Positivism sm sm.

 In furtherance of his “Legal Positivism” theory was his notion “Law as a Command”.

 Owing to his works he has been saluted as “Fa “Father ther of English Jurisprudence” Jurisprudence”.

WHAT IS ANALYTICAL APPR APPROACH OACH TO JU JURISPRUDENCE? RISPRUDENCE? Austin set himself the task of making a beginning with the analysis of the principal concepts of English law 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 l aw the authority of the Princeps and later of the Emperor was seen to have been unquestionable.  European wri writers ters had preached in like vein.  Bodin Bodin, for instance, said that sovereignty was the absolute and perpetual power within the state and,  Perhaps most importantly, in the wo work rk 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. approach, too, was an imperative one based on  Bentham’s approach sovereignty. With these influences behind him Austin’s adoption of a similar basis is hardly surprising.

Like Bentham, Austin bellieved that ‘law’ is only an aggregate off individual laws. In his view, all laws arre rules the majority of which regulate behavior. b

Austin’s The Theory ory of Law L : Austin’s most important contribution to legal theory was his sub bstitution of the command of the sovereign for any ideal of justice in the de efinition of law. He defined law as “ a rule l aid down for the guidance of an n in intelligent telligent

being by an inte intelligent lligent bein beiing hav having ing power over him” And This ccan only be accomplished by a determ minate person or body, since an indeterminate body cannot express wishes in the form of commands . Law is strictly divorced from justice. Instead of being based on ideeas of good or bad, it is based on th he power of a superior. This links Austin A with Hobbes and other theoriees of sovereignty.Austin proceeded to distinguish the law as

Laws are divisible into laws properly so called (positive law) and laws improperly so called. Proper L Law aw :- The first division o off 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 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,

Impr Improper oper Law :- Laws improperly so called are those laws Which are not set, directly or indirectly, by a political superior. Laws by ana analog log logyy :- 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 bbyy metaphor 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 Imperat mperative ive 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.,

Comma Comman nds :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 physic physical al force or any other form of com compulsion pulsion.”

 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 co command mmand mmand: 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 comma commands nds are addressed to the community at large and enjoin classes of acts and forbearance; they are also continuing commands.

o A particul particular ar 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 co command mmand of a

sovereign bbacked acked 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 “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 L SANCTION” ● “LEGA

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 :Exceptional 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 Expl Explaanator natoryy laws 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 r epeal .-Austin does not treat such laws as commands because they are in fact the revocation of a command.

3. Laws of imperfect obligat obligation ion .-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 Imperative Theory Theory of Law. 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. Permissi ermissive ve character of law ignored 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 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. Aus ustin’s tin’s theory treats IInternationa nternationa nternationall law as mer meree morality 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. In Inte te ter-rela r-rela r-relationship tionship betw between een Law and Morality complet completely ely ignored 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 m means eans to induce ob obedience edience .-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.

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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 Cus Customary tomary 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.

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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.

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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.

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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.

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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.

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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.

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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.

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Habitually – can law be habit, habit is wrong term used – HLA Hart

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Habit changeable whereas rule is unchangeable

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How long we should habitually follow or obey – is a matter of fact.

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Limited application of this theory

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Unacceptable in modern legal system

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Influenced by English system, no written constitution, rule by statutory law, power of the parliament is unlimited

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Best to British legal system

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Inapplicable for federal system where it is difficult to find sovereign

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“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....