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Austin Analytical School

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Austin’s theory of law / positivism

Questioned asked in exams.


1. Critically Austin’s concept of law and discuss the criticism against
Austin’s theory of law.
2. Law is a command of sovereign to be obeyed by the bulk of the human
society. Discuss the Austinian concept in the context of Indian legal
system.
3. Give a detailed account of Betham and John Austin’s theory of
positivism.
4. Critically examine Austin’s concept of law and discuss the criticism
against Austin’s theory of law.

Synopsis
Introduction
Definition’s explanation.
Relevance in Indian context.
Criticism of Austin theory.

Analytical school
Analytical school of jurisprudence is deals with law as it exists in the
present form It seeks to analyses.
They treat law as a command emanating from the Sovereign, namely,
the State.
The advocates of this school are neither concerned with the past of the
law nor with the future of it, but they confine themselves to the study of
law as it actually exists i.e., positus. It is for this reason that this school
is also termed as the Positive School of Jurisprudence.
Also called imperative schools and systematic schools Austinian School.
This school tends to exclude many things from law such as the history,
customs, religious or divine law beside this also exclude morals. As for
the explanation for the exclusion of morals, morals are considered to be
subjective in nature according to jurist of analytical school and law
cannot be subjective rather is objective in nature.
While Bentham, Holland, Austin and Salmond are major proponents of
this school, Austin is considered as a father of the Analytical school.
The Analytical school views law as a sovereign’s mandate. It
emphasised the importance of legislation as a source of law.
Analytical approach is of breaking a given problem into smaller part
and solving them individually Analytical jurisprudence’s role is to
accept these premises and break them down into their ultimate atomic
constituents in a well-organised legal framework.

Bentham’s work
History
Jeremy Bentham was born in 1748 in Landon. He was the son of a
wealthy London Attorney. He was a talented person having the capacity
and acumen of a jurist and a logician. He started a new era in the history
of legal thought in England. He is considered to be the founder of
positivism in the modern sense of the term. Austin was inspired by
Bentham, and on many points, his arguments are just a paraphrasing of
Bentham’s theory.
Important book- The limits of jurisprudence defined 1782.
Work
Bentham contrasted expositorial jurisprudence (that is, what the law is)
from censorial jurisprudence (that is what the law ought to be). This
differentiation justified the separation of morality from the law as
morality is a subjective standard of what the law ought to be.
His definition of law which was basis for the Austin’s definition is.
“Law is an assemblage of signals, affirmations of intention conceived or
chosen by a sovereign in a State.” 
Bentham ‘legal philosophy is called utilitarian individualism.
he supported the economic principle of “Laissez-faire”. which meant
minimum interference of the State in the economic activities of
individuals.
According to this theory, that the main object of legislation is the
carrying out of the principle of utility, in other words the proper end of
every law is the promotion of the greatest happiness of the greatest
number.

John Austin
History
John Austin ’was the greatest exponent of this School, who is the father
of English Jurisprudence. He was born in 1790. At a very age he entered
the army in which he served for five years. In1826, he appointed to the
Chair of jurisprudence in the University of London. His lectures
delivered in London University were published under the volume
entitled “The Province of Jurisprudence Determined”.
John Austin commonly known as Austin was a disciple of Jeremy
Bentham and like him, he was also a utilitarian because he focused on
the greater happiness of people; as per his views, he considered that the
main purpose of sovereign is to ensure the greatest happiness of his
subjects. 

Austin’s classification of law

Law

law
law properly
improperly so
so called
called

law of Gods Humans law

Positive laws Other laws

Classification of law: -
According to Austin law are two type –
1) Laws properly so called 2) Laws improperly so called.

1) Laws properly so called: - These laws are commands which are


backed by sanctions of the state, are called law properly so called.
Law properly so called is the positive law, which means law “as it is”
rather than law “as it ought to be” with which he is not at all
concerned. It is divided in two parts.
A) Laws of God
B) Human laws
A) Laws of God: -these are the laws which are made by God for men.
Al the law mentioned in the divine books are considered as the
divine laws and are not backed by any sanction but when not
followed are criticized by the fellow follower and are deemed to be
punish by God either through karma or in the divine world once
entered. Natural laws are also divine laws.

B) Human laws: -These are the laws which are made by one human
being for other human beings. They may be further divided into two
parts.
a) Positive Laws b) Other Laws

a) Positive Laws: - These are the laws set by political superiors as


such, or by men not acting as political superiors but acting in
pursuance of legal rights conferred by political superiors, only these
laws are the proper subject matter of jurisprudence. These are the
regular laws such as the constitution governing the society.

b) Other Laws: - Other laws is known as positive Morality, other


laws which are not set by political superiors or by men in pursuance
of legal rights. This class includes International Law.

2) Laws improperly so called: -These laws are not commanding and


thus, are not backed by sanctions. These laws are not obligatory.
Customs are not commanded by any superior or there no sanctions
as such other than the rejection of the member of the societies hence,
referred by the Austin as improper law.

This classification of law helped Austin to further talk specifically


about the positive law in his theory called,

Positive theory of law, Command theory, Imperative theory of law.


In broad sense of law Austin defined law as “a rule laid down for the guidance
of an intelligent being by an intelligent being having power over him”
Whereas specifically talking about the positive law he defined them as a
“Command of the sovereign which is backed by sanction”.
Austin noted that every law, properly referred to as such, must have three
elements, namely, command, sanction, and sovereign authority thereby
intending to say that “law is the mandate of a sovereign, ordering his subjects
to do or refrain from specific actions. If the command is not followed, there is an
implied threat of punishment”.
So, a proper law according to Austin must have these 4 aspects that are.
Sovereign, Command, Duty and Legal sanction.
1. Sovereign
According to Austin, every political set up has a sovereign power which
is habitually obeyed by the people in the society. There is only one
sovereign in the society, and it can be a single person or a group. An
individual or group of people to whom the entire population obeys but
he does not obey to anyone. The only boundaries of sovereign power
are physical limits.
There are certain characteristics of a sovereign to identify one.

 Unlimited Power
 Indivisible
 Continuous
2. Command
There is aspect of command which must be followed as
 A desire concerning someone's behaviour.
 An expression of that desire
 A sanction which is also threatened harm for the non-compliance.
Here if there is no sanction on it then the desire will merely be
request/instruction and not amount to command.
command, sanction, and duties are interconnected because receiving
command becomes a duty to follow otherwise there will be a threat of
sanction.

3. 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.

4. Sanctions
In his sense of sanction, Austin differed from Bentham who considered
that sanction could even be moral or religious. He did not considered
command to be a law without sanction because as per him it was the
fear of sanction which induced a man to obey the law. It is implied in
the theory that this sovereign has with itself a power to punish or
penalize for noncompliance of laws. 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.

There are three exceptions as per Austin which though are not commands but they are
still within the sphere of jurisprudence:

 Declaratory or Explanatory Law:


Austin said that it is not proper to consider them as commands because they are just
made in order to explain those laws which are at present in force.

 Laws of Repeal:
As per Austin, these are not commanding rather, they are the laws made in order to
revoke the existing laws.

 Law of imperfect obligation:


He said that these laws do not have active sanction; they could be law of morality or
international laws.

Criticism of Austin

1.  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.
Thus, it overlooks,
Customary 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.
 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.
2. 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.

3. The concept of command, according to Duguit, is inapplicable to


modern social/welfare law, which does not order individuals but
confers advantages, and which binds the State rather than the
person. Law does not only issue instructions, but it also
sometimes grants rights, such as the right to form a will. As a
result, Austin’s legal idea is manifestly inapplicable in today’s
democratic welfare state. In India, for example, it is impossible
to find a single sovereign who can be said to have
unrestricted and absolute power to establish laws.

4.  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.

5.  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.

6. Austin’s difference between positive law and positive


morality, according to Justice Holmes, is to keep notions of virtue
and badness out of the sphere of law. According to Austin’s
positive law, there is no place for ideals or justice in law,
because “the existence of law is one thing, its merit and demerit
another. A law that actually exists, is a law, even if we happen to
dislike it or if it differs from the text by which we regulate our
approval or disapproval.” Thus, it makes laws which are
completely against the norm of justices’ acceptable law this could
be seen in the Hart vs fuller debate where the question of the
law made during the nazi regime have all the ingredient of
law as per Austin’s requirement but are against the general
principle of justice thus even accepting these as acceptable
laws.

Austin’s positivism: Relevance in India.

If we examine Austin's definition, we might conclude that orders issued by


sovereign authority are always supreme and unalterable. Yet since there is
no monarchy, no sovereign power or authority, and only democracy
exists in India, that portion of the term is not valid there because it is in
conflict with constitutional rules. In India, elected representatives of the
people, such as M.P. and M.L.A., are in charge of forming a partially sovereign
government. The constitution's bounds must be respected by government
decisions. As a result, we can conclude that the assumption of habitual
obedience, which forms the cornerstone of Austin's sovereign theory, cannot
be upheld in the current political and legal landscape of India.

If we examine this portion of Austin's definition, we may conclude that while


the entire kingdom must obey the sovereign's directives, the sovereign is not
answerable to anyone. The Sovereign will enact laws, carry them out, and
serve as the only person to administrate them. In that section, the concepts of
democracy and Indian federalism are opposed. Law-making in India is not
the responsibility of a single person like the sovereign because laws are
formed by the Legislature, by Ordinance, by the delegation of power, by
the authority, and in every step of the process an institution or apparatus is
involved. As Austin's theory doesn't accommodate the fundamental concepts
of democracy, constitutionalism, decentralization, and separation of powers,
we might deduce that it is incompatible with the contemporary political and
social environment of India.
1. Austin's thesis is entirely built on the concept of the "Sovereign,"
however India lacks a monarchy and hence there is no concept of the
sovereign. Here, the President of India, who is indirectly elected and
obligated to act within the bounds of the Constitution, is the head of the
institution.

2. It has been established in the present period that "Sanction" is a


component of "Law" but that the idea that "Only sanction" is a
component of the Law is incorrect.

3. Because of its rigidity, short-sightedness, and disregard for the


fundamental principles of democracy, Austin's theory is not applicable
in the contemporary political and legal Indian culture.

4. Because Austin's theory promotes political instability, anarchy, and


social disorder, it is not appropriate for the contemporary Indian
political and legal environment.

5. His view disregards a number of factors, including democracy,


international law, the separation of powers, etc.

H L A Hart

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