john austin's theory: a critical analysis

JOHN AUSTIN’S THEORY: A CRITICAL ANALYSIS

CHANAKYA NATIONAL LAW UNIVERSITY

Submitted to: Prof: Manoranjan Kumar

Submitted by: Rishikesh Kumar

Faculty of Jurisprudence

Roll- 1366 B.A.LLB (Hons.) th

5 Semester (2015-2020)

JOHN AUSTIN S THEORY: A CRITICAL ANALYSIS ’

Table of Contents

Acknowledgment ............................................................................................................................ 3 1.

.............................................................................. ........................ 4 Introduction ............................................. ......................................................

2.

Life and works of Austin ...................................................................................................... 6

3.

Jhon Austin’ Theory of o f Law .............................................................................................. 10 Austin’s Approach towards Jurisprudence (Positive Law) ................................................ 10 Austin’s analytical method ..................................................... ..................................................................................................... ................................................ 12 Austin’ Theory of Imperative Law ................................................ ........................................ 12 Austinian Conception Conception of Law .......................................................................... ...................... 13 Austin’s Concept of Law ........................................................................................................ Law ........................................................................................................ 13 Austins Command Command Theory ............................................................................... ...................... 14

Positive Law as Command .................................................... .................................................................................................... ................................................ 14 Law is Command................................................ ..................................................... ................................................................... .............. 14 Command and Sanction ........................................................................................................ 15 Commands are of two species: ............................................................................................. 15 Command Exceptions............................................................................................................ 15 4.

............................................................................................ ........................................ 17 Criticisms to Austin’s Theory .................................................... Criticisms: Criticisms: .................................................... .......................................................................................................... ............................................................................ ...................... 17 Hart’s Criticisms to Austin’s Theory ..................................................... .................................................................................... ............................... 19

5.

Conclusion ........................................................................................................................... 23

Bibliography ................................................................................................................................. 24

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ACKNOWLEDGMENT

Writing a project is one of the most significant academic challenges, I have ever faced. Though thi s project has been presented by me but there are many people who remained in veil, who gave their all support and helped me to complete this project. F irst of all I am very gr ateful to my subject teacher Dr. Manoranjan K umar without the ki nd support of whom and help the completion of the project was a herculean task for me. I am very thankful to the librarian who provided me several books on this topic which proved beneficial in completing this project.

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1. INTRODUCTION

John Austin was a noted English legal theorist who strongly influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing traditional "natural-law" approaches, Austin argued against any necessary connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way. Austin was born on March 3, 1790, the eldest son of a well-to-do Suffolk miller. After spending five years in the army during the Napoleonic Wars, Austin turned to law and spent seven unhappy years practising at the Chancery bar. In 1819, Austin married Sarah Taylor and became neighbours and close friends with Jeremy Bentham and James and John Stuart Mill. Largely through Bentham's influence, Austin was appointed professor of jurisprudence at the newly founded University of London in 1826. Austin's lectures were not well-attended, and he resigned his university post in 1834. Thereafter, aside from two stints on government commissions, Austin lived largely on his wife's earnings as a writer and translator. Plagued by ill health, depression and self-doubt, Austin wrote little after the publication of his major work, The Province of Jurisprudence Determined (1832). This work was largely ignored during Austin's lifetime. It became influential only after his death when his wife, Sarah Austin, published a second edition in 1861. A second book, Lectures on Jurisprudence, was put together by Sarah from Austin's notes and published in 1863. Law, according to Austin, is a social fact and reflects relations of power and obedience. This twofold view, that (1) law and morality are separate and (2) that all human-made ("positive") laws can be traced back to human lawmakers, is known as legal positivism. Austin argues that laws are rules, which he defines as a type of command. This project is an attempt to delve and analyze into the jurisprudence theory propounded by the John Austin.

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Aims and Objectives:

The researcher aims to examine the works of John Austin. The main aim of the researcher is to study the theory of legal positivism by Austin and critically examine it. Hypothesis:

The researcher assumes that John Austin‘s theory formed the basis of development of jurisprudence though inapplicable in modern times. Research Methodology:

The researcher is supposed to take up the doctrinal method in pursuance of the completion of this project. Also, this project shall while mainly focusing on the doctrinal research shall be complemented by some empirical findings too. Sources of Data:

For the purposes of this project, the researcher shall place reliance on both, primary and secondary sources.

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2. LIFE AND WORKS OF AUSTIN

rd

John Austin (1790-1859) who is considered the Father of Jurisprudence was born on 3 march 1

1790 in Suffolk merchant family. In the early days of his life he briefly served in the military 2

during Napoleanic Wars followed by litigation in the chancery courts (1807 to 1812). Later in 3

1820, he married Sarah Taylor. In 1819 they became neighbors to Jeremy Bentham who helped him in getting appointed as professor of jurisprudence in the newly established university of 4

London in 1826. His life was not satisfactory and unyielding. He lived his entire life plagued by ill health depression and self-doubt. Since his classes witnessed a consistent fall in the number of students he resigned from university of London in 1835. His most prominent work was ―the province of jurisprudence determined‖ which was published in 1832. This work gained prominence only after his death. Till his lifetime he did not get much recognition. His theory of analytical jurisprudence and legal positivism has largely influenced the british and American jurisprudence. His approach is cited to be very practical and simple. His entire life was full of adversities but his wife was a constant support to him. She helped him emotionally as well as economically. The significant posts which he held in his lifetime can be credited to the generous nature of his influential friends like Jeremy Bentham, James mill john Stuart Mill. The second edition of the province of jurisprudence was published in 1861 by the efforts of his wife and his friends. His works are centralized towards what law is and what law ought to be. In other words he emphasized his theory upon positive law which he propounded as the province of jurisprudence. John Austin provided the terminology necessary to analyze the interrelationship between ethics 5

and proper law that has evolved into the modern field of jurisprudence.

1

Herbert Lionel Adolphus Hart, John Austin English jurist, Britanica, https://www.britannica.com/biography/JohnAustin last seen on 3/11/2017. 2 Ibid. 3 Ibid. 4 John Macdonell, Austin, John (1790-1859) (DNB00), Wikisource, https://en.wikisource.org/wiki/Austin,_John_(1790-1859)_(DNB00); see also, Dictionary of National Biography, 1885-1900, Volume 02. 5 Encyclopedia of World Biography, John Austin http://www.encyclopedia.com/people/social-sciences-andlaw/law-biographies/john-austin last seen on 3/11/17.

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John Austin became well-known for his attempt to provide an easily understandable ethical framework that could establish the rule of law as distinct from the rule of "God" and morality. Austin's writings, such as his 1832 work The Province of Jurisprudence Determined, paved the way for the more recent development of the school of analytical jurisprudence. Austin argued that law, as opposed to moral imperatives, should be viewed simply as a form of command, made by an acknowledged and legitimate ruler, which is adhered solely by means of an effective 6

punishment .

Career as an Attorney 7

He joined the bar in 1818. But he left the bar in 1825 given lackluster reputation as an attorney. This lackluster was because of the reason of his lacking rhetorical skills, his bookishness limited public speaking and his disposition towards illness. His wife was a constant support to him both in economic and emotional sense. She was able to raise more money than him; as a result he left the Bar in 1825. Despite his dull performance as a practicing attorney, Austin's intelligence and his interest in the analytical aspects of legal theory drew the attention of Jeremy Bentham, an attorney and ethicist. Bentham's support resulted in Austin's 1826 appointment as the first professor of jurisprudence at 8

the University of London, then just newly established. Before beginning as a professor at the university, Austin spent two years in Bonn, Germany, where he undertook the study of the law of ancient Rome. He also became fascinated with the classification systems and methods of analysis developed by German scholars to organize civil laws then on the books in the continent. He was influenced by Thomas Hobbes. Returning to University College in 1828 to begin his classroom teaching, Austin made an early friend of John Stuart Mill, a Scottish-born ethicist fourteen years Austin's junior who went on to become the most famous proponent of Utilitarianism. Along with his wife, Austin became close friends with Mill, as well as Bentham, who died in 1832. While he shared his friends' Utilitarian bent, he did not share their ambition and their ability to get along well in social settings. As had 6

Supra 4. Overview John Austin (1790 — 1859) legal philosopher, Oxford reference, http://www.oxfordreference.com/view/10.1093/oi/authority.20110810104411571 last seen on 03/11/17. 8 Supra 4. 7

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been the case while attempting a career as a practicing attorney, Austin found himself still plagued by a frequent melancholy which prevented him from energetically opposing setbacks to his career. Publication

The publication of Austin's most notable contribution to British law, his The Province of Jurisprudence Determined (1832), was concurrent with its author's departure from academic life . The volume included excerpts from his lectures on the subject, and in it he attempted to clarify the difference between proper law — the law that has its basis in the desire of the governmental 9

authority — and moral law . According to Austin, laws can best be interpreted as a type of command: an expressed desire that another perform or refrain from performing a specific act, this expression accompanied by the threat of a clearly defined sanction or punishment if not 10

obeyed .

To qualify as laws rather than other forms of commands, laws must outline a prescribed course of conduct rather than a specific act and must be set by a "sovereign" body: a supreme ruler or governing body to whom an independent society habitually looks for leadership. Sanctions can be positive or negative, and can include reward or punishment by state agencies; natural consequences or the dictate of one's conscience are not, in this case, legitimate sanctions. In this manner, "positive law" is distinguished from the laws of God that take their shape in moral principles and precepts and such things as social etiquette and international laws such as the unwritten laws of warfare, which have no source in a sovereign body. Although his work did not gained influence during his lifetime, Austin's work eventually gained influence over both English and American law by revolutionizing concepts of ethics as they 11

relate to the legal system. By introducing terminology appropriate to the consideration of ethical matters within the legal realm, Austin's book facilitated the discussion that culminated in the establishment of the English analytical school of jurists.

9

Gautam Bhatia, The Command Theory of Law: A Brief Summary, and Hart's Objections, (May 05, 2008), http://legaltheoryandjurisprudence.blogspot.in/2008/05/command-theory-of-law-brief-summary-and.html last seen on 09/11/17. 10 Ibid. 11 Supra 1.

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The Providence of Jurisprudence Determined was introductory to an understanding of Austin's subsequent collection of lectures, compiled in Lectures of Jurisprudence, and published posthumously by Sarah Taylor Austin in 1863. Life Ended in Seclusion

In 1834 Austin attempted to make a living by delivering lectures on jurisprudence at the Inner Temple, but was unsuccessful in this attempt and abandoned teaching altogether. Austin was appointed to the Criminal Law Commission in 1836 and participated in that body's first two reports. However, his frustration at not having his ideas incorporated in the commission's 12

decisions prompted Austin to once more resign. An appointment by the British Crown as commissioner on the affairs of Malta, a group of three islands in the Mediterranean off the south coast of Sicily, took the Austins abroad once more, and after retiring from his commission the couple moved to Paris. While attempting to revise his Province several times due to his own increasingly conservative views on politics and morality, Austin was un able to complete the task, likely due to the depression that haunted him throughout his life and the incapacity of the 13

perfectionist. During the 1850s Sarah Austin provided for both she and her husband through her work as a translator and reviewer for English periodicals. In 1848 Austin and his wife returned to England and purchased a home in Weybridge, Surrey, where he lived until his death in December of 1859 at the age of sixty-nine. His wife survived him by eight years, dying in 1867. Although Austin's life was noteworthy as much for its string of defeats, his analysis of proper law served as the basis for continued study in his field. Later jurists of his own century, such as the Americans Oliver Wendell Holmes and J. C. Grey, acknowledged Austin's contributions to legal theory, particularly his ability to draw a distinction between the law and morality. While his views have been more recently condemned by twentieth-century scholars such as H. L. A. Hart due to their inflexibility in the wake of changing social priorities, the structure and continuity of his analytical framework remains a respected standard.

12

John Hostettler, Champions of The Rule of Law, pg.144, (Waterside Press 2011). Supra 5.

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3. JOHN AUSTIN THEORY OF L AW ’

John Austin was a disciple of Bentham's as he was both a positivist and a utilitarian. Hence, Austin's work was largely based on Bentham's work and Austin's classification of law and th

criticisms of his view of law are indeed necessary for a full understanding of the 19 Century Early Positivist Theory of Law. John Austin is the founder of the Analytical School. He is considered as the ‗father of English Jurisprudence.‘ He was elected to the Chair of Jurisprudence in the University of London in 1826. Then he proceeded to Germany and devoted some time to the study of Roman Law at it was taken in Germany. The scientific treatment of Roman Law there made him aware of the chaotic legal exposition of law in his own country. He took inspiration from it and proceeded to make scientific arrangement of English Law. The method which he applied was essentially of English origin. He avoid metaphysical method which is a German character.

A USTIN S A PPROACH TOWARDS JURISPRUDENCE (POSITIVE L AW ) ’

Austin‘s approach towards Jurisprudence and Law is found in his work. ‗The Province of Jurisprudence Determined‘. The function of jurisprudence, in view of Austin, was to find out general notions, principles and distinctions abstracted from positive system of law mature and developed legal system of Rome and England. His first task, therefore, was to separate ‗positive‘ law from positive morality and ethics. Positive law, according to Austin, was the law as it is (Positus) rather than law as it ought to be with which he was not at all concerned. His particular concept of law was, however, imperative being the command of the sovereign. For, ‗Every positive Law set by a given sovereign to a person or persons in a state of subjection to its 14

author‘.

According to Austin ‗The science of jurisprudence is concerned with positive law or

with laws strictly so called, as concerned without regard to their goodness or badness. The 15

positive law is characterized by four elements command, sanction, duty and sovereignty.‘

14

John Austin Lecture VI, The Province of Jurisprudence Determined 1832 pg. 220. Praglbabh Bhardwaj, Rishi Raj, Legal Positivism: An Analysis of Austin and Bentham, Vol 1 issue 6 International Journal of Law and Legal Jurisprudence Studies, http://ijlljs.in/wp-content/uploads/2014/10/LegalPositivism-An-analysis-of-Austin-and-Bentham.pdf last seen on 05/11/17. 15

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The focus of Austin's theory is such that his conception of the law that needs to be studied can be and regularly is reduced into one very famous quote: "Law is a Command of a Sovereign backed by a Sanction." This quote indicates the three elements that are key to the understanding of law in Austin's terms: firstly the concept of the Sovereign, then the concept of the Command and finally, the role of Sanctions in law. The Sovereign

The sovereign is the source of law in a society and thus is the most important figure that needs to be understood. Without a sovereign there can be no law as human laws are a result of human endeavour and the endeavour of the human truly refers to the soveregin's endeavours. As such, Austin describes the sovereign as a person or an institutions that is factually determinate (in other 16

words can be clearly and easily identified) and is a common political superior. As the common political superior, this sovereign must also be someone or something that is habitually obeyed by the majority of the members of a society who must also not be in habitual obedience to anyone or anything else. Finally, Austin makes it a requirement that the sovereign should be legally illimitable and indivisible and the sole source of legal au thority in any given society. Commands

A Sovereign as a source of law can only make the laws he/she/they/it wants in the form of a command. Hence, Austin states that the sovereign's will is expressed in the form of a command which is an imperative statement establishing the sovereign's wishes. The command is different from an order in that (as already mentioned above) Austin specifies that commands must be generally applicable and must not be specific. It is also a specific expression of will or type of order as anything that is a command in Austinian terms must have a sanction attached to it should the command not be obeyed. Sanctions

A sanction is in Austin's terms "even the smallest evil..." which can be any harm or pain which is part of the threat in the command of the sovereign. This is an important part of law as it provides the motivation for the subjects to obey the sovereign's commands and a disincentive for the majority of the society to disobey the law. As such, Austin describes the sanction as having to have possibility of application as this is a key part of the law in the event of a breach. The 16

Supra 14.

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sanctions can include damages, remedies, compensation, maintenance costs or other types of punishments which are imposed on by actual bodies founded as institutions to enforce the law.

A USTIN S ANALYTICAL METHOD ’

The method, which Austin applied, is called analytical method and he confined his his field of study only to the positive law. Therefore, the school founded by him is called by various names – ‗analytical‘, ‗positivism‘, ‗analytical positivism‘. Some have objected to all three terms. They say that the word ‗Positivism‘ was started by Auguste Comte to indicate a particular method of study. Though this positivism, later on, prepared the way for the 19th century legal thought, it does not convey exactly the same at both the places. Therefore, the word ‗positivism‘ alone will not give a complete idea of Austin‘s school. In the same way, ‗analysis‘ also did not remain confined only to this school, therefore, it alone cannot give a separate identity to the school. ‗Analytical positivism‘ too may create confusion. The ‗Vienna School‘ in its ‗Pure Theory of Law‘ also applies analytical positivism although in many respect they vitally differ from Austin‘s school. To avoid confusion and to give clarity which is the aim of classification, Prof. Allen thinks it proper to call the Austin‘s school as ‗Imperative School‘. This name he gave on the basis of Austin‘s conception of law)‘Law is command‘.

A USTIN THEORY OF IMPERATIVE L AW ’

‗Law‘ in its most comprehensive and literal sense is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.

17

This excludes the ‗laws‘ of

inanimate objects (physics, etc.) and the laws of plant or animal growth which are described by Austin as law improperly so called‘. Next, Austin recognizes the law of God or divine law which he regards as ambiguous and misleading. Law properly so called is the positive law, that is law set by men to men. These are of three types: 

Laws set by political superiors to their subjects,



Laws set by men who are not political superiors, and



Rules improperly but by analogy termed law e.g., law of fashion or honour or rules of international law.

17

Austin Lecture I, The Province of Jurisprudence Determined 1832, Pg. 86.

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The law set by political superior is the law properly so – called and (b) and (c) are



positive morality.

A USTINIAN CONCEPTION OF L AW Austin defined law as ―a rule laid for the guidance of an intelligent being 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, duty and sanctions, that is every law is command, imposing a duty, enforced by sanction.

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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: 

Declaratory or Explanatory laws; these are not commands because they are already in existence and are passed only to explain the law which is already in force.



Laws of repeal; Austin does not treat such laws as commands because the y are in fact the revocation of a command.



Laws of imperfect obligation; they are not treated as command because there is no sanction to them. Austin holds that command to become law, must be accompanied by duty and sanction for its enforcement.

A USTIN S CONCEPT OF L AW ’

Austin‘s Definition of Law; Law, in the common use, means and includes things which cannot be properly called ‗law‘. Austin defined law as ‗a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.‘

18

John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic) 135.

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Law of 2 kinds: (1) Law of God, and (2) Human Laws: This may be divided into two parts: (1) Law of God – Laws set by God for men. (2) Human Laws – Laws set by men for men. Two kinds of Human Laws, Human Laws may be divided into two classes;

1. Positive Law; 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. 2. Other Laws; Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights. Analogous to the laws of the latter class are a number of rules to which the name of law is improperly given. They are opinions or sentiments of an undeterminate body of men, as laws of fashion or honour. Austin places International Law under this class. In the same way, there are certain other rules which are called law metaphorically. Th ey too are laws improperly so called.

A USTINS COMMAND THEORY Positive Law as Command The law properly so – called is the positive law depends upon political authority – the sovereign. Every rule, therefore, according to Austin is a command. So laws properly so called are a species of commands. If you express or intimate a wish that I shall do or forbear from some of your wish, the expression or intimation of your wish is a command. If I am bound by it, I lie under a duty to obey it. Command – duty are, therefore, correlative terms. Command further implies not only duty but sanction also. Law is Command Positive law is the subject – matter of jurisprudence, Austin says that only the positive law is the proper subject – matter of study for jurisprudence. ―The matter of jurisprudence is positive law: 14

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law simply and strictly so called: or law set by political superiors to political inferiors.‖

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Jurisprudence is the general science of positive law. Command and Sanction Sanction as an evil which will be incurred if a command is disobeyed and is the means by which a command or duty is enforced. It is wider than punishment. A reward for obeying the command can scarcely be called a sanction. A command embraces: 

A wish or desire conceived by a rational being to another rational being who shall do or forbear as commanded;



An evil to proceed from the former to be incurred by the latter in case of non – compliance; and



An expression or intimation of the will by words or otherwise.

Commands are of two species: 

Laws or rules, and



Occasional commands.

A command is a law or rules where it obliges generally to acts or forbearances of people. It is occasional or particular when it obliges to a specific individual for act or forbearance. Law is a command which obliges a person or persons to a course of conduct. It requires signification and can, therefore, only emanate from a determinable source or author (a person or body of persons). Laws proceed from superiors and bind and oblige inferiors. Superiors are invested with might: the power of affecting others with pain or evil and thereby of forcing them to conform their conduct to their orders. Command Exceptions The proposition that all laws are commands must, therefore, be taken with limitations for it is applied to objects which are not commands. These exceptions are:

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Supra 14.

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

Acts of the legislature to explain positive laws or which are declaratory of the existing laws only;

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Repealing statutes (which are revocations of commands);

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Laws of imperfect obligations without an effective sanction like rules of morality or rules of international law. 20

Austin, like Bentham was a definitionist. He wanted to clarify what law was and what it was not and it was Austin who made the distinction between the terms (which he coined) 'analytical jurisprudence' - which involves looking at the basic facts of the law, its origins etc- and 'normative jurisprudence' - the question of the goodness of law. For Austin, like Bentham, the important part of the study was the analystical question. Another similarity between Austin and Bentham is that both jurists believed that the same factual issues (namely of power and 21

22

sovereignty as well as sanctions ) were key to the understanding of the law, as it is.

Austin first sets out to clarify the idea that people with power set down rules for others who obey them to govern their actions. In other words, Austin suggests that law is 'a rule laid down for the 23

guidance of an intelligent being by an intelligent being having power over him' and this is done so in the form of a command. In short, laws can be understood in Austinian terms as commands from/by the sovereign. So everything that is law must be a command. But Austin points out that all commands are not law necessarily as some commands may lack the generality that will enable them to become a law. Hence, Austin's theory holds that a command that is directed specifically is a command, but a command directed generally and over time is law.

20

Elise G. Nalbandia, Early Legal Positivism: Bentham & Austin, www.abyssinialaw.com last seen on 05/11/17.

21

E. Christodoulidis, L. Farmer and S. Veitch, Jurisprudence: Themes and Concepts, (2007) Routledge Cavndish UK, p. 12. 22

nd

J.W. Harris, Legal Philosophies, (1997) 2 Ed. Lexis Nexis, p. 28. Supra14.

23

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4. CRITICISMS TO AUSTIN S THEORY ’

Austin‘s theory can be reduced as in the form of following points: 

Sovereignty always resides in the determinate person or in a body of persons. In determinate person or a body of persons cannot be called sovereign. Nor does it reside in the General Will or electorate or God.

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Sovereignty is absolute, indivisible and unlimited in both the cases: internal and external.

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A society without sovereignty cannot be called a state.

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The determinate human superior is the only law-maker. His commands are laws and without him the state can have no laws.

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The determinate human has no rival of equal status in the state and nor does he obey the order of anyone.

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The power of the determinate human superior is sov ereignty.

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The determinate human superior is subject to none or any power. The bulk of the people obey the sovereign‘s command as a matter of habit.

CRITICISMS : 

Laws before state - It is not necessary for the law to exist if the sovereign exists. There

were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior . Law had its origin in custom, religion and public opinion. All these so called ‗laws‘ were later enforced by the political superior. Thus, the belief that sovereign is a requirement for law has received 24

criticism by the Historical and Sociological School of Thought. However, the above

mentioned criticism is not supported by Salmond. Salmond said that the laws which were in existence prior to the existence of state were something like primitive 25

substitutes of law and not law .

They only resembled law .

24

Ankita, Criticism of Austin's Theory of Sovereignty, http://www.preservearticles.com/201106248497/criticismof-austins-theory-of-sovereignty.html last seen on 07/11/17. 25 Infra 25.

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

Generality of Law - The laws are also particular in nature. Sometimes, a Law is

applicable only to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature.



Law as Command - According to Austin, law is the command of the sovereign . But,

all laws cannot be expressed as commands. Greater part of law in the system is not in the nature of command. There are customs, traditions, and unspoken practices etc. that are equally effective.



Sanction - The phrase ‘sanction’ might be correct for a Monarchical state. But for a

Democratic state, laws exist not because of the force of the state but due to willing of the people. Hence, the phrase ‗sanction‘ is not appropriate in such situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.



Not applicable to International Law - Austin‘s definition is not applicable to

International Law. International Law represents law between sovereigns . According to Austin, International Law is simply Positive Morality i.e. Soft Laws.



Not applicable to Constitutional Law - Constitutional Law defines powers of the

various organs of the state. It comprises of various d octrines such as separation of power, division of power etc. Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not applicable to con stitutional law.



Disregard of Ethical elements - The moment law is devoid of ethics, the law loses it

colour and essence. Justice is considered an end of law or law is considered a means to achieve Justice. However, Austin‘s theory is silent about this special relationship of Justice and Law. Salmond said that any definition of law which is without reference 26

to justice is imperfect in nature . He further said ‘Law is not right alone, it is not

might alone, it a perfect union of the two’ and Law is justice speaking to men by the 26

Siddarth karlek, To What Extent Do Austin and Salmond Differ In The Matter Of the Definition Of Law, http://www.shareyouressays.com/knowledge/to-what-extent-do-austin-and-salmond-differ-in-the-matter-of-thedefinition-of-law/114731 last seen on 07/11/17.

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voice of the State . According to Salmond, whatever Austin spoke about is ‘a law’ and

not ‗the law’. By calling ‗the law‘ we are referring to justice, social welfare and law in the abstract sense. Austin‘s definition lacked this abstract sense. A perfect definition should include both ‗a law’ and ‗the law’. Purpose of law ignored - One of basic purposes of Law is to promote Social Welfare. If



we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by Austin.

H ART S CRITICISMS TO A USTIN S THEORY ’

’

Austin believed that law is a species of command. He further defined a command as ―an intimation or expression of a wish to do or forbear from doing something, backed up by the sanctions to do harm to the actor in case he disobeys.‖ Furthermore, the person to whom the command is given is under a "duty" to obey it, and the threatened harm is defined as a 27

"sanction."

According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain modern legal systems. Modern legal systems have laws governing the formation and implementation of contracts, of wills, marriages and other executory instruments. Hart calls these types of laws ―power conferring rules,‖ and argues that they are less in the nature of orders backed by threats, and more in the nature of rules creating a framework within which individuals 28

can define the scope and limit of their rights, obligations and liabilities.

Hart also considers another variety of laws, laws which define the scope and limitations of judicial and legislative power, laws which confer jurisdiction upon courts and govern the functioning of governmental institutions. He argues that it is impossible to view these laws as mere orders backed by threats either. Attempts, however, have been made to assimilate power-conferring rules within the broad ambit of orders backed by threats. According to the first of these theories, the nullity that is a consequence of not complying with the framework established by power-conferring rules is the

27

Available at, https://www.scribd.com/document/344381344/kinds-of-ownership-pdf last seen on 07/11/17. Philosophy 34, Hart‘s Criticisms of Austin and the Realists http://carneades.pomona.edu/2016Law/04.HartAustin.html last seen on 07/11/17. 28

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Austininan sanction. However, Hart argues that the two are fundamentally different in nature: in a criminal statute, which is more in the nature of an order backed up by threats, the sanction is necessarily consequent upon the forbidden action (it is possible, for instance, to conceive of an order that prohibits something without imposing a sanction); however, in the case of power29

conferring rules, the provision for nullity is part of the rule itself. For instance, it would be impossible to conceive of the provisions that govern how to make a valid will without conceiving that the will cannot exist without these provisions. Hart has a number of subsidiary objections as well, such as nullity not always being a source of evil (for instance, to the judge who rules without jurisdiction). A second theory argues that power-conferring rules are not genuine laws. This theory views as all laws as directions to officials to apply sanctions in case of non-compliance. A powerconferring rule, therefore, would be viewed as a direction to the requisite official not to confer validity upon a particular transaction if the rules of procedure are not adhered to. Hart argues, however, that such a theory achieves uniformity at the high price of distorting the true nature of laws. For instance, the point of criminal law is to establish certain standards of behaviour, which the citizens are expected to conform to. Sanctions are there only as ancillary measures in case the system breaks down. It is therefore misleading to consider criminal law as directions to officials to apply sanctions. The same logic applies to power-conferring rules as well. 30

The second basic objection Hart has to Austin is regarding the range of application of laws. As Hart points out, the word ―command‖ implies a top-down stable hierarchy of men, with rules being purely other-regarding. However, this is not true in modern legal systems, as legislations often have a self-binding force. In an attempt to respond to this, it has been argued that a legislator has two personalities: his legislative personality, which gives the command, and his ordinary personality, as a citizen, which is bound to obey. However, Hart argues that such a complicated device is unnecessary to explain the self-binding nature of legislation. A legislation can be viewed as a promise, which creates obligations upon the promisor. And in any event, much of legislation is done under the ambit of pre-existing rules of procedure, which bind the legislators. 29

The Monist, Volume 68, Issue 3, 1 July 1985, Pages 403 – 418, https://doi.org/10.5840/monist198568330 last seen on 07/11/17. 30 Available at https://www.pravo.unizg.hr/_download/repository/Hart_vs_Austin.pdf, last seen on 07/11/17.

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Hart‘s third objection to Austin is with regard to laws such as customary laws, whose mode or 31

origin excludes them from being treated as commands. To this, it has been argued that the validity of customs depends upon tacit acceptance by the sovereign; that is, if Courts are implementing customary law, and the legislature does not repeal such laws, then this might be said to be an implied command that customary law is to be followed. However, Hart argues that absence of objection does not mean implied consent. It could equally well mean a lack of knowledge, or a lack of awareness, or numerous other reasons. On the three grounds of content of laws, range of application, and mode of origin, Hart rejects the idea that law is merely an amalgamation of coercive orders backed up by threats.

The third important prong of the Austinian definition is the term ―sovereign.‖ Austin defines a sovereign as ―someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of obedience to anyone.‖ Hart‘s criticism is directed both at the idea of ―habitual obedience,‖ and at the idea that the sovereign is an ―uncommanded commander‖ of the society.

Hart argues that habitual obedience, which is merely convergence of behaviour, is inadequate to explain the continuity of laws. Mere habits of obedience to orders given by one legislator cannot confer on the next legislator any right to succeed the old, or to give orders in his place. Why is the law made by the successor to legislative office already law before even he has received habitual obedience? To answer this question, it becomes essential to distinguish between a habit and a rule. Rules require not only convergence of behaviour, but also convergence of attitude. That is to say, rules are viewed as standards of behaviour, where deviance is considered as meriting criticism. Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually obey him? Once again, this requires us to replace the notion of habits of obedience with a concept of rules that delineate rights of succession.

31

Supra 28.

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Hart‘s final objection to Austin is that the sovereign does not possess, as Austin believed, a ―legally untrammeled will.‖ Most modern legal systems have legal limitations upon the power of the sovereign (and this is not inconsistent with his supremacy within the legal system as the highest known legislative authority). Recognizing such a problem, Austin had argued that in democracies, it was the electorate that formed the sovereign. However, according to Hart this leads to the absurd conclusion of the ―bulk‖ of the society habitually obeys itself. It may be argued that legislators make rules in their official capacity, rules which then apply to them in their personal capacity. However, the very notion of official capacity presupposes the existence of rules that confer such official capacity. This, therefore, is again incompatible with the Austinian idea of sovereignty. On all these grounds, therefore, Hart rejects Austin‘s ―command theory of law‖ as sufficient to explain the legal systems of modern societies.

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5. CONCLUSION

John Austin‘s work on jurisprudence formed the basis for its development though it is not much relevant today. Austin‘s life was not very fulfilling and it was only after his death that his works gained recognition. He propounded that command of the sovereign is law. His sovereign has illimitable powers. Also his sovereign was the common determinate superior to whom habitual obedience was rendered, but he was not under habitual obedience to anyone. Also he separated law from morality and emphasized on positive law. His theories were very clear in approach and were written in lucid manner. But, his theories have been criticized widely because of his sovereign who had illimitable powers and his commands were only laws. In his theories he ignored customs and norms. He weeded out morality completely from law. His likewise approach can be attributed to his military training and mindset. HLA Hart criticized him on many front of his theory. But, his contribution in jurisprudence remains immensely important for it development. Ultimately it can be concluded that Austin‘s approach or his theory of law lacked or neglected many aspects which were later pointed out by eminent theorists like Salmond Henry Maine, and HLA Hart.

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BIBLIOGRAPHY

Books  

John Austin, Lectures on Jurisprudence, Bloomsbury 2002. John Hostettler, Champions of The Rule of Law, pg.144, (Waterside Press 2011)

Websites         

www.academicoup.com http://jstor.org/ www.academia.edu www.legallyindia.com www.lawteacher.com www.scribd.com www.springer.com www.researchgate.net http://shodhganga.inflibnet.ac.in/

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john austin's theory: a critical analysis

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