THEORY OF LEGAL POSITIVISM: JURISPRUDENTIAL DEVELOPMENT

AND AUSTIN

Prenkesha Menia
Brief Biography of John Austin
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John Austin was a 19 century philosopher who set out to define ‘Law’. He was born in 1790.
He joined army at the age of 16 and served as a lieutenant in Malta and Sicily up to 1812. He
resigned his commission in the army and started studying law. In 1818, he was called to the Bar. For
seven years, he practised law but without success. In 1819, he married Saeah Taylor, a woman of
great intelligence, energy and beauty. After their marriage, the Austins became neighbour of Bentham
and the Mills in London.

When the University of London was founded, Austin was appointed Professor of
Jurisprudence and he spent the next two years in preparing the lectures. His opening lectures in 1828
were attended by John Stuart Mill, Romilly and others. After initial success, Austin failed to attract new
students and he resigned the Chair in 1832. Through the efforts of his wife, an expanded version of
the first part of the lectures was published in 1832 under the title The province of Jurisprudence
Determined. Austin was the most influential figure in English jurisprudence for the last third of the
nineteenth century and for much of this century.

During his lifetime, he was a prophet without honor. He published his one completed work on
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jurisprudence, The Province of Jurisprudence Determined in 1832.Austin repeated the lectures in
1834 but without success and hence gave up the teaching of jurisprudence altogether. In 1836, he
was appointed Commissioner to advice on the legal and constitutional reform of Malta. For the next
ten years, he lived abroad in Germany and in Paris. In 1848, the Austin went back to England and
lived their in retirement. Austin died in 1859. Austin wrote with extreme difficulty. He imposed on
himself standards of precision and clarity that made work a torment. Between 1832 and 1859, he
published only a couple of articles and pamphlet A Plea of the Constitution. The second edition of The
province of Jurisprudence Determined was published by his widow in 1861. She also reconstructed
the notes of his husband Lectures on Jurisprudence or The Philosophy of Positive law and published
them in 1863.

Austin is called the father of English jurisprudence and the founder of the Analytical School. However,
the title of Analytical School is misleading as it suggests that analysis is the exclusive property of this
school instead being the universal method of jurisprudence. Allen prefers to call Austin’s school as the
imperative school. However, it is contended that Austin doesn’t fit exactly into any of the important
schools. In some ways, he was the precursor of the pure science of law as he drew somewhat
narrowly the boundaries of jurisprudence. He was not unmindful of the part played by ethics in the
evolution of law. As a matter of fact, he devoted several lectures to the theory of utility. Finding work
on jurisprudence full of confusion, he decide to confine jurisprudence to a study of law as it is, leaving
the study of ideals forms of law to the science of legislation or philosophic jurisprudence. One of the

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1
AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF THE
STUDY OF JURISPRUDENCE (1954) [hereinafter cited as PROVINCE]. Austin's lectures on jurisprudence
were published posthumously. See J. AUSTIN, LECTURES ON JURISPRUDENCE OR THE
PHILOSOPHY OF POSITIVE LAW "(5th ed. R. Campbell 1885) (1st ed. 1863) [hereinafter cited as
LECTURES]. For bibliographies of Austin, see Hart, Bibliographical Note, PROVINCE, supra, at xix;
Rumble, Divine Law, Utilitarian Ethics, and Positivist Jurisprudence: A Study of the Legal Philosophy of
John Austin, 24 AM. J. JURIS. 139 n.1 (1979).
standard criticisms of John Austin's work is that his portrayal of law, as essentially the command of a
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sovereign to its subjects.

Austin was the intellectual successor of Jeremy Bentham. Austin followed Bentham’s lead
and tried to work out for himself what ‘Law’ was as a positivist. He tried show what ‘Law’ really was
without alluding to moral notions of what it ought to be. He stressed that there is a big difference
between the law is, and what the law ought to be. The central part of his theory of law is the notion of
law as a command of the sovereign. His theory accepts that law is something posited by positivism.
Austin’s theory is an oversimplified and crude reflection of what law really is. His command theory
purports to analyze the qualities of ‘Law’.

Austin Theory of Imperative Law

‘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. 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;

1. Laws set by political superiors to their subjects,

2. Laws set by men who are not political superiors, and
3. Rules improperly but by analogy termed law e.g., law of fashion or honour or rules of international
law.

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

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

2
John Austin, The Province of Jurisprudence Determined, ed by W Rumble (Cambridge: John Austin, The
Province of Jurisprudence Determined, ed by W Rumble (Cambridge:Cambridge University Press, 1995) [first
published, 1832]; John Austin, Lectures on Jurisprudence, or The Philosophy of Positive Law, ed by R
Campbell, 4th ed (London: John Murray, 1879) [Bristol, UK: Thoemmes Press reprint, 2002].
(a) A wish or desire conceived by a rational being to another rational being who shall do or forbear as
commanded;
(b) An evil to proceed from the former to be incurred by the latter in case of non – compliance; and
(c) An expression or intimation of the will by words or otherwise.

Commands are of two species:

(a) Laws or rules, and
(b) 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:

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

(b) Repealing statutes (which are revocations of commands);

(c) Laws of imperfect obligations without an effective sanction like rules of morality or rules of
international law.

CLASSIFICATION OF LAW BY AUSTIN

Austin’s Classification of law- there are two types of laws: ‘laws properly so called’ and ‘laws not
properly so called’. Laws not properly so called are of two kinds: ‘laws by analogy’ and ‘laws by
metaphor’.

Laws by analogy
 Rules of fashion, dictates of honour, rules imposed upon gentlemen by opinions current
among gentlemen, and also international law.- These are laws to be followed, they are a species of
command, but the repercussions of breaching these laws would be limited to gaining the disapproval
of other members of the group.

Laws by metaphor- laws that govern the growth and decay of vegetables and animals, or laws that
govern the movement of inanimate masses. These laws are not a species of command and it is
difficult to imagine how these laws can be broken.

‘Laws properly so called’ – These are rules laid down for the guidance of an intelligent being
by another intelligent being who has power over him. These laws too are of two kinds: ‘God’s laws’
and ‘human Laws’. Human Laws are 2 types: ‘Laws strictly so called’ and ‘Laws set by men, not as
political

superiors’

As per Austin, Law is a command, given by a determinate common superior (sovereign) to

whom the bulk of a society is in the habit of obedience, and who is not in the habit of obedience to a
determinate human superior, enforced by sanctions. The elements of ‘command’ and ‘sanctions’ play
a pivotal role in Austin’s theory.

According to Austin, judicial law making is permitted as long as there is no objection to it by

the common superior (sovereign) and as long as there is acquiescence. This type of laws were
classified as ‘tacit commands’. Austin was not opposed to morality in law. What he said was for a
command to be a valid law, its moral content was not material. What was important was whether the
command (law) was given by the proper authority (common superior).

Austin, in his early lectures, accepted judicial lawmaking as “highly beneficial and even
absolutely necessary”. Nor did Austin find any difficulty incorporating judicial law making into his
command theory: he characterised that form of law making, along with the occasional judicial
recognition of customs by judges, as the tacit commands of the sovereign, the sovereign’s affirming
the “orders” by its acquiescence. It should be noted, however, that one of Austin’s later lectures listed
the many problems that can come with judicial legislation, and recommended codification of the law
instead.

“The most pernicious laws, and therefore those which are most opposed to the will of God,
have been and are continually enforced as laws by judicial tribunals”

Austin was also a staunch Malthusian, a strong believer in the truths of the "inestimable science of
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political economy," and, by the end of his life, an arch-conservative.

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J. Austin, A Plea For The Constitution, 63(1859).
 Austin discusses the nature of sovereignty at length in his lectures. As the commands (laws)
are issued by the sovereign, it is important to Austin’s most important contribution to legal theory was
his substitution of the command of the sovereign for any ideal of justice There are several salient
features as per Austin: The common superior (person or body) must be ‘determinate’. It could be a
person with specific characteristics such as a King. Or it could also be a body of persons such as a
Parliament and the society must be in the habit of obedience to the common superior. This means,
either by respect, acceptance or whatever reason, the society must habitually obey the common
superior. However, there can be sporadic and isolated incidents of disobedience, but these do not
erode the authority of the common superior and the habitual obedience of the society must be given
to the one and the same determinate common

superior (person/body).

The common superior to whom habitual obedience is rendered, must not himself be habitually
obedient to a determinate human superior. This does not mean occasional obedience to a more
powerful authority, but permanent obedience. The power of the sovereign is incapable of legal
limitation. According to Austin, the sovereign is not even subject to the constitution.

Austin’s basic approach was to ascertain what can be said generally, but still with interest,
about all laws. Austin’s analysis can be seen as either a paradigm of, or a caricature of, analytical
philosophy, in that his discussions are full of distinctions, but are thin in argument. He endeavoured to
resolve a law into necessary elements of which it is composed.

As to what is the core nature of law, Austin’s answer is that laws are commands of sovereign.
He clarifies the concept of positive law by analyzing the constituent concepts of his definition, and by
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distinguishing law from other concepts that are similar.

John Austin was the founder of the analytical school of thought. There were three main aims
of Austin:

-his first goal was to distinguish the law from values

-secondly, to define the law in such a way that it should be free of values and universally acceptable.

-thirdly, to analyze the law in broad sense and to present the general view of law.

According to him, positives law has three main features: command, sovereign and sanction.

Therefore, law is a command issued by a sovereign, the commands are backed by the threat of
sanction and the sovereign is one who is habitually obeyed.

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J. Austin, The Province of Jurisprudence Determined, ed. By W Rumble, 23(1995)
 Austin’s theory of law: Austin’s most important contribution to legal theory was his 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 an intelligent being by an intelligent being having power over him”.
Law is strictly divorced from justice. instead of being based on ideas of good or bad, it is based on the
power of a superior. This links Austin with Hobbes and other theories of sovereignty. The first division
of law is that into laws set by God to men. In Austin’s positivist system, the law of God seems to fulfil
no other function than that of serving as a receptacle for Austin’s utilitarian beliefs. The principle of
utility is the law of God.

Human laws are divisible into laws properly so called (positive law) and laws improperly so
called. According to Austin, positive law has four elements viz., command, sanction, duty and
sovereignty. In the words of Austin: “Laws properly so called are a species of commands. Being a
command, every law properly so called flows from determinate source. Whenever a command is
expressed or intimated, one party signifies a wish that another shall do or forbear and the latter is
obnoxious to an evil which the former intends to inflict in case the wish is disregarded. Every sanction
properly so called supposes a command by which it is created and duty properly so called is
obnoxious to evils of the kind. The science of jurisprudence is concerned with the positive laws, or
with laws strictly so called, as considered without regard to their goodness or badness. All positive law
is deduced from a clearly determinable law-giver as sovereign. 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”.

Positive law should also be contrasted with “laws by a close analogy”(which includes positive
morality, laws of honor, international law, customary law and constitutional law) and “laws by remote
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analogy”.

Command involves an expressed wish that something be done, combined with a willingness
and ability to impose “an evil” if that wish is not compiled with. Rules are general commands as
contrasted with specific or individual commands. Positive law consists of those commands laid down
by a sovereign, to be contrasted to other law-givers, like God’s general command.

Prof. Dias points out that distinctions drawn by Austin were entirely arbitrary. Although Austin
didn’t so specifically, he fashioned his concept out of the material of English Law with an occasional
sprinkling of Roman law, but he proceeded to use it as a criterion of law in general and so excluded
international law. he was also misguided in applying the epithet “proper” to what was, after all, his own
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stipulative definition of “law”.

According to Austin, a law is a command of the sovereign backed by sanction. Duty and
sanction are correlative terms, the fear or sanction supplying the motive for obedience. Prof. Dias
criticises this view. His view is that the fear of sanction is not the sole oe even the principal motive for
obedience. There are many objections to the association of duty with sanction. Another weakness is
that Austin found himself compelled to treat nullity as a sanction in order to accommodate.

Austin defines sanction as harm, evil, or pain that is conditional upon the failure to obey the
command.

5 st
Ross, A., On Law and Justice, Stevens & Sons Ltd.,72 (1 ed., 1958)
6
Dias, R.W.M., Jurisprudence, Butterworths, London, 17(1976)
 The view of Austin is that it is the sanction alone which induces men to obey law. this is not a
correct view. According to Lord Bryce, the motives which induce a man to obey law are indolence,
deference, sympathy, fear and reason. The power of the State is the ratio ultima. Force is the last
resort to secure obedience.

Austin put international law under positive morality and not law as it lacked the main element
of sanction. However, nobody will accept the view that international law is not a law. The definition of
Austin excludes a very important branch of law.

The sovereignty is defined by Austin thus:, “if a determinate human superior, not in habit of
obedience to a like superior, receives habitual obedience from the bulk of a given society, that
determinate superior is sovereign in the society and the society is a society political and
independent”. The sovereign may be an individual or a body or aggregate of individuals.

Sovereignty has a positive mark and a negative mark. The former is that a determinate
human superior should receive habitual obedience from the bulk of a given society and the latter is
that superior is not in the habit of obedience to a like superior.

It is contended that Austin that de facto sovereign or the body that receives obedience, with
the de jure sovereign or the law-making body. When Austin referred to the uncommanded
commander who makes laws, he was referring to the de jure sovereign. The “negative mark” is not so
much the concern of municipal lawyers as of international lawyers. For the municipal lawyers, the
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question is whose enactments constitute “laws”. It is a matter of indifference to them that the law-
maker obeys some other body in the international sphere. It has been questioned whether it is
necessary to have a sovereign in a state. The answer depends upon the meaning of “necessary” and
of “state”. A sovereign may be “necessary” because definition has made it so. In another sense, the
question is whether a sovereign is necessary as a practical matter. As regards the State, there is no
need for only one law-making body, though in practice that is convenient.

According to Austin, the sovereign must be illimitable, indivisible and continuous. As regards
illimitability, Austin denied that his sovereign could be limited. Substantial areas of constitutional law
didn’t consist of laws but of positive morality. 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 sovereign is defined as a person who receives habitual obedience from the bulk of the
population, but who doesn’t habitually obey any other person or institution. Austin thought that all
independent political societies, by their nature, have a sovereign.

The view of the Austin was that a sovereign can have no claim as a claim has to be conferred by a
sovereign on someone. To say that one sovereign confers a claim on another is to deny the

7 th
Austin, I lectures on Jurisprudence,93(4 ed., 1876)
sovereignty of the latter. The Crown-in-Parliament is the sovereign in the Austinian sense and not the
crown alone. According to Austin, another attribute of sovereignty is indivisibility.

Another attribute of Austinian sovereignty is continuity. The question is asked where

sovereignty resides during a dissolution of Parliament. The view of Austin was the sovereignty lies
with the Queen, the members of the House of Lords and the electorate. This is contrary to another
view of Austin that sovereignty lies with the Queen, the House of Lords and the House of Commons.
The question is who in this case is the commander and the commanded.

Notion of sovereignty as understood in India

The Constitution of India provides for three different entities viz., the Union, the States and the
Union Territories. It also creates three major instruments of power viz., the legislature, the executive
and the judiciary. It also demarcates their separate jurisdiction minutely and expects them to exercise
their powers without overlapping their limits. In short, the scope of the powers and the manner of their
exercise are regulated by law. The result is that no authority created under the Constitution is
supreme. It is the Constitution that is supreme and all authorities function under this supreme law of
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the land. In a federation like India the powers ate divided that a particular reform may be carried out
only through the cooperation of the Union of India and the States. There may be some powers which
cannot be achieved even by their cooperation. Sovereignty in the Austinian sense is not to be found
in India. Sovereignty in India is not unlimited, illimitable and indivisible. It could not be otherwise as
India is confederation. It is true that the Directive Principle of State Policy cannot be enforced in a
Court of law, but they are nevertheless fundamental in the governance of the country. Even if they are
not justiciable, they occupy a place of prominence in the hierarchy of Indian jurisprudence by laying
down the governing norms of Indian society. No government can ignore them. Even the Supreme
Court has to take them into consideration while interpreting the validity of the fundamental rights.
They lay down the direction in which the government of the country is to be carried and also the
limitation on their exercise.

Austin’s method of Jurisprudence

Austin Method: analysis; This method can be applied only in civilized societies. The name of
this school – ‘analytical’ itself indicates the method. Austin considered analysis as the chief instrument
of jurisprudence. Austin’s definition of law as the “command of the sovereign” suggests that only the
legal systems of the civilized societies can become the proper subject – matter of jurisprudence
because it is possible only in such societies that the sovereign can enforce his commands with an
effective machinery of administration. Law should be carefully studied and analyzed and the principle
underlying therein should be found out. This method is proving inadequate in modern times because
jurisprudence is to solve many legal problems which have arisen under changed conditions and it has
to make constructive suggestions also, but, at the time, when Austin gave his theory, it helped in
removing the confusion created by the abstract theories about the scope and method of
jurisprudence.

JOSEPH RAZ ON AUTHORITY OF LAW

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M.V. Pylee, Constitutions of the World, 23(4th ed.)
 Joseph Raz is one the more estimable modern moral, political and legal philosophers. His
work covers a range of topics, from the relationship between law and morality, to conceptions of
authority, to theories of practical reason and morality. I must confess, I find a lot of his work dull in the
extreme, but it’s certainly well-regarded and people have been telling me to read more Raz for ages.

“Authority, Law, and Morality”-

The argument is based on a particular conception of authority, and a particular view about the
relationship between legal directives and that kind of authority. It is one of the most widely-discussed
and important arguments in political and legal philosophy. In this post, and the next,
The argument defends what Raz calls the “Sources Thesis”. This is one of three competing theses
about the relationship between law and morality that Raz mentions three at the outset of his article:

Sources Thesis: All law is source-based, i.e. its existence and content can be determined by
reference to social facts alone.

Incorporation Thesis: All law is either source-based or entailed by source-based law (e.g. if the law
says “There shall be no unfair discrimination” then the content of that prescription can be determined
solely by reference to social facts or whatever is entailed by those social facts).

Coherence Thesis: The law consists of source-based law together with the morally soundest
justification of source-based law (Ronald Dworkin’s view of law).

These descriptions might look a little odd to those who are not familiar with contemporary views in
jurisprudence (and, indeed, they may look a little odd to those who are familiar with such views since
Raz’s labels are somewhat idiosyncratic). Their significance for the law/morality debate is as follows: if
the Sources Thesis is true, then law is a matter of non-moral social fact; if the Incorporation Thesis is
true, then law might be a matter of social fact but might also include some moral facts (if they are
entailed by the source-based law); and if the Coherence Thesis is true, then morality plays a very
significant role in determining the content of the law.

Raz argues that if law claims authority, then the Sources Thesis must be true. He develops this
argument in three distinct phases.

First, by sketching a general conception of authority.

Second, by outlining a way of arguing for the Sources Thesis based on this conception.

And third, by defending the key premises of that argument.

Whether we are morally obligated to obey the law is the central question addressed by
Joseph Raz in his most recent work entitled, The Authority of Law. It is a question which divides
positivists from natural law adherents. Professor Raz, a self-proclaimed positivist, concludes that
“there is no general moral obligation to obey [the law], not even in a good society.” Rather, for Raz
individual must obey the law only if he respects it. “His respect,” says Raz, “is the source of
obligation”, leading one to conclude that for Raz the authority of law is the individual.
The question of whether we are morally bound to obey the law is not a novel one; foremost among
those who have addressed it are Plato, Aristotle and Aquinas. Each does so, it is important to note, in
terms of the distinction between legitimate and illegitimate forms of government, which, in turn, is
based upon a correct understanding of the nature of man and human happiness. The law of an
illegitimate government, argues St. Thomas, “since it is not in accordance with reason, is not a law
absolutely speaking, but rather a perversion of law.”

CONTRIBUTION OF AUSTIN

No impartial observer can deny the great contribution made by Austin to the Study of
jurisprudence. English jurisprudence has been and still is predominantly analytical in character and
other influences are merely secondary. It is true that there is little originality in Austin and he was
inspired above all by Bentham from whom he inherited hatred of mysticism and unreality and a
passion for classification, legislation and codification. It is also true that the main doctrines of Austin
can be identified in his predecessors. His definition of law, sovereign and political society can be
found in the works of Hobbes and Bentham. However, the achievement of Austin lay in the fact that
he was able to segregate those doctrines from the political and philosophical discussions in which
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they are embedded. He also restated them with a new firmness, grasp of detail and precision. Both
lawyers and political thinkers could not only understand them but also use them to dispel the haze
which still blurred the distinction between law, morality and religion and obstructed a rational criticism
of legal institutions. Likewise, it was who Austin who first demonstrated to English lawyers in their own
idiom how the understanding even of unsystematised English law, with its forest of details, could be
increased and its expansion improved by the use of a theoretical structure and precise analysis.

Austin was intimate with great thinkers and philosophers of his time like Bentham and J.S. Mill
and he was praised by Mill. Austin removed many false notions which had obscured the true meaning
of law and legal terms. His stand was to expel from the mind all ethical notions while considering the
nature of positive law. he gave a death blow to the theory of natural law. The view of Sir Henry Maine
was that “no conception of law and society has ever removed such a mass of undoubted delusions”
as was done by Austin and his works are indispensable, if for no other object, for the purpose of
clearing the head”.

The influence of the Austinian theory of law was great due to it simplicity, consistency and
clarity of exposition. Gray writes: “if Austin went too far in considering the law as always proceeding
from the State, he conferred a great benefit on jurisprudence by bringing out clearly that law is at the
mercy of the State”.

He was the intellectual successor of Jeremy Bentham. Bentham and Austin together laid the
foundation of modern legal positivism. He stressed that there is a big difference between what the law
is, and what the law ought to be. The positive law is different from other uses of the concept of law.

9
Austin, Lectures, vol 2 at 1107-08.
 10
Prof. Allen observes: “for a systematic exposition of the methods of English jurisprudence,
11
we will have to turn to Austin”.

He influenced other legal positivists such as HLA Hart and Joseph Raz. His contribution to
jurisprudence is Analytical Jurisprudence, Positivism and Platform for Hart to build his concept of Law.

Austin’s command theory of law became the starting point for subsequent analytical theories
of great importance. Austin succeeded in delimiting law and legal rules from religion, morality,
convention and custom.

Austin’s approach towards Jurisprudence and Law is found in his own 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 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 positive law is characterized by four elements command,
sanction, duty and sovereignty.’

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 bias of Austin’s conception of law )’Law is command’).

The influence of Austin’s theory was great due to its simplicity, consistency and clarity of
exposition. That is why Gray remarked: “If Austin went too far in considering the law as always
proceeding from the state, he conferred a great benefit on jurisprudence by bringing out clearly that
the law is at the mercy of the state.” Austin’s method in described as characteristics of English
jurisprudence. Prof. Allen says: “Far a systematic exposition of the methods of English jurisprudence
we will have to turn to Austin.” The same is true about American also because Austin’s method was
greatly adopted there Austin’s theory had little influence in the continent for the time being, and
especially Germans, who always mixed metaphysical notions with jurisprudence, were least
appreciate of it. But of late years Austin has received an increasing attention and respect from the
jurists of the Continent also. Germans also have come round the Austin’s view and many of them are
abjuring all ‘micnt positivisches Rechet.’

11
Allen, C.K., Law in the making,39 (7th ed., 1964)
 The latin analytical theories have improved upon Austin’s theory and have given a more
practical and logical basis. Holland, though accepted the ‘command’ theory, made a slight variation.

He says:- “A law, in the proper sense of the term is, therefore, a general rule of human action,
taking cognizance only of external acts, enforced by determinate authority.”

Later Jurists improved upon his theory, Salmond and Gray further improved upon it and considerably
modified the analytical positivist approach. They differ from Austin in his emphasis on sovereign as
law giver. According to Salmond, the law consists of the rules recognized and acted on by the court of
justice. Gray defines law what has been laid down as a rule of conduct by the persons acting as
judicial organs of the state. This emphasis on the personal factor in law, later on, caused the
emergence of the ‘Realist’ school of law.

The ‘Vienna School’ of law which is known as ‘pure Theory of Law’ (which we shall discuss
later on) also owes to Austin’s theory.

Austin’s Followers

Austin’s influence upon English legal thought has been profound and continuing. He has been
followed and emulated by many English jurists like Amos, Mark by, Holland, Salmond and Hart – the
last of the two partly reject Austin’s concept of law. Both for Salmond and Hart positive law cannot be
divorced from justice or morality. In the United States Gray, Hohfield and Kocourek and the
distinguished exponents of Analytical School of Jurisprudence in one or the other way. In the
continent Hans Kelson has been the most influential jurist whose theory of ‘pure law’ has attracted
worldwide attention.

CRITICISM

There are many objections to the association of duty and sanction. Austin found himself
compelled to treat nullity as a sanction in order to accommodate. Though the definition of Austin
applies to certain portions of law such as criminal law, the greater part of a legal system consists of
laws which neither command nor forbid things to be done, but which empower people by certain
means to achieve certain results.

Austin’s insistence of sanctions as a mark of ‘Law’ oversimplifies and misrepresents what a ‘Law’ is-
Sanctions place an undue amount of importance of the element of fear as the reason for the
acceptance of the law. Bentham relied less on sanctions as a mark of law.

Not all laws are commands backed by sanctions- The nature of Austin’s laws are that they are
orders backed by threats. But this is not the case with all laws. Laws that prescribe how to make wills,
contracts, marriage, do not compel people to behave in a certain way under the threat of a sanction.

According to Austin, the lawmaker (common superior) is not bound by the commands he
gives. His commands are directed at the subjects. Although there may be certain dictatorial regimes
that reflect this character, this approach has no universal application. Most societies today, bind the
lawmaker as well.
 Mode of origin of laws in Austin’s theory is Problematic. According to Austin, an order backed
by a threat occurs at a specific time/date and through a deliberate act of the common superior.
However, this model does not take into account customs that are treated as laws.

The habit of obedience by the bulk of the population is notionally deficient. Austin’s notion of
‘legally unlimited’ sovereignty is deficient. Consider, modern Constitutions, International criminal Law,
Human Rights Law, EU.

The term command suggests the existence of a personal commander. In modern legal
systems, the procedures for legislation may be complex as to make it impossible to identify any
commander in this personal sense. This is particularly so where sovereignty is divided as in federal
States.

Command conjures up the picture of an order given by one particular occasion to one
particular recipient, but law can and does continue in existence long after the extinction of the actual
law-giver. An argument was put forward that laws laid down by a former sovereign remain law only
insofar as the present sovereign is content that they should continue. What the sovereign permits, he
impliedly or tacitly commands. However, it is not always true that the present sovereign can repeal
any law. in certain states, the law making powers of the sovereign are limited by the Constitution
which prevents the repeal by ordinary legislation of the entrenched clauses. In such cases, the
question of the present sovereign allowing or adopting doesn’t arise. Moreover, the notion of an
implied command is suspect. An implied command seems not to be a command at all. It is better to
accept the possibility of laws which are not commanded by the present sovereign and to give up the
notion of command and adopt the analogy of the rule of a religious order which can continue in force
long after the death of its founder.

The bulk of English law has been created neither by ordinary nor by delegated legislation, but
by the decisions of the courts. The argument of Austin is that judges are the delegates of Parliament
which has conferred upon them law-making powers. It is true that judges are appointed in England by
a Government answerable to Parliament and there are parliamentary procedures for their removal,
but to describe the judges as delegates is wholly misleading. The fact that Parliament can always
overrule any judicial decision of the courts doesn’t entail that judicial law-making is of a delegated
12
nature. This would confuse subordinate powers with derivative powers.

There are laws which are not commands. Buckland points out that declaratory statute may be
said to create fresh claims and duties by their cancellation of earlier one and hence can be called
command. However, this view is not accepted by Prof. Dias.

Prof. Dias raises the question whether a determinate person or body of persons can be
discovered who might be regarded as having commanded the whole corpus of the law. His answer is
that such a person or a group of persons was not discoverable at any point in history. It is not possible
13
to say who commanded the rule that precedents shall be binding. A sovereign is a sovereign within
a State which is legally defined organisation consisting of territory, population, government and a
measure of independence in external relations. It is not possible to say who commanded those

12
M.V. Pylee, Constitutions of the World, 73(4th ed.)
13
Dias, R.M.W., Jurisprudence, Butterworth, London, 63(1976)
requirements. It might be thought that the present monarch and members of both Houses of
Parliament can command any law they please.

However, Prof. Olivercrona points out that the individuals who comprise the sovereign body
have attained their positions by virtue of the rule of law. the question is who commanded those rules.
Whoever commanded them in turn owed their authority to command to observance of those rules.
There is no sense in saying that rules which brought them to their positions were their own
commands. Even if the crown in Parliament is taken as the uncommanded commander, a study of
the events of 1688-89 shows that this body in no sense commanded the rule that its command shall
be law. It was the acceptance of it as the supreme commander, particularly by the judges, that entitled
it to command henceforth. It is artificial to pretend that any member of Parliament believes that the
law of the land has emanated from his commands. The fact is that the vast majority of the laws
existed before he was born. To attribute commands to people who neither commanded nor believe
that they had commanded, is a fantasy. Although the Crown in Parliament was accepted in 1689 as
the Austinian commander, the bulk of the common law and much legislation was already in existence
and continued to exist unaffected. Even if it is assumed that those laws had emanated from earlier
commands, the question is why and how the commands of a former sovereign continue to be laws
under his successor. Austin’s reply was that this comes about by virtue of “tacit command” which
means what the sovereign permits, he commands and decides not to interfere with them.

Prof. Hart has demolished the whole idea of “tacit command”. Tacit command fails to explain
14
why the laws remain in force until repealed.

Prof. Dias concludes that if tacit command is rejected, as it must be, what remains is the
proposition that laws remain in force until repealed.

Even the actual commands of sovereign acquire the character of laws when certain
procedures have been followed and not otherwise. Even if the Queen and the members of the House
of Lords and the House of Commons unanimously assent to a measure at a garden party in the
Buckingham Palace, it wouldn’t become a law as the procedures are laws, they cannot be called
command. If they are not laws, they are indistinguishable from the dictates of etiquettes and morals.
This shows inadequacy of the view that law is a command. The view that law is a command of the
sovereign suggests as if the sovereign is standing just above and apart from the community giving his
arbitrary commands. This view treats law as artificial and ignores its character of spontaneous growth.
The sovereign is an integral part of the community or State and his commands are the commands of
the organised community. Most of the theories regarding State in modern times say that sovereignty
doesn’t remain in the shape in which it was conceived by the writers in the past. The State itself is a
sovereign and law is nothing but the general will of the people. This means that law cannot be a
command.

The view of Austin is that it is sanction alone which induces men to obey law. This is not a
correct view. According to Lord Bryce, the motives which induce a man to obey law are indolence,
deference, sympathy, fear and reason. The power of the State is the ratio ultima. Force is the last
resort to secure obedience.

14
Hart, H.L.A., The Concept of Law, Oxford, 47(1961, reprinted, 1975)
 Critics point out that law is not an arbitrary command as conceived by Austin but a growth of
an organic nature.

Dr. J. B points out that even the most despotic of legislators cannot think or act without
availing himself of the spirit of his race and time. Moreover, law has not grown as a result of blind
force but has developed consciously and has been directed towards a definite end.

In the opinion of Duguit the notion of command is not applicable to modern social legislation
which binds the State itself rather than the individual. This view is also accepted by the Supreme
Court of India.

Lord Hyrce found in Austin’s definition of sovereignty a confusion between the notions of
unlimited power of final authority which, even in the case of the United Kingdom to which his analysis
was best suited, obscured the essential features.

The chief defect in the conclusions of the Analytical School lay in ignoring the social aspects
of law and its ethical basis and emphasizing the capacity for its coercive enforcement and its
enunciation by the sovereign political authority. The Analytical School denied entirely the claim of
customary law to be recognised as law in the strict sense of the term.

At the end it can be concluded that, analytical school of jurisprudence consider that the most
important aspect of law is its relation to the State. The School is, therefore also called the imperative
school. The school received encouragement in United States from distinguished jurists like Gray,
Hohfeld and Kocourck and in the European continent from Kelson, Korkunov and others.

Analytical Jurisprudence is that approach of method which considers law as a body of actual
interrelated principles and not merely a haphazard selection of rule inextricably interwoven with a
transcendental Law of Nature. It seeks to define all laws, classify all laws, discover the essential
features of every law and get a yardstick by which all laws can be measured.

Positivism is something which is morally neutral and based on empiricism (experiment and
observation). It was the reaction to the vagueness of Natural law. So Austin was the important theorist
from positivist law. He was the founder monist sovereignty who believes in the rule of power in one
authority. This is also an attempt made by the researcher to describe the legal theory of sovereignty
which received its logical analysis at the hands of john Austin, an English jurist. Austin’s conclusion
formed the basis of the prevailing system of jurisprudence and they exercised immense influence of
political thought in England and the United States of America. Till recently, sovereignty has been
viewed as absolute internal sovereignty and complete internal sovereignty and complete external
independence. The pluralists, the recent school of thought, reject outright the concept of absolute
authority of the state and plead for division of sovereignty between the state and various other
associations like various other associations with a specific purpose to perform. The function of the
state are well defined and it has no rightful claim to eminence. The pluralists, in brief, maintain that
sovereignty is divisible and the state is not supreme and unlimited in its authority.
 On emphasising the evolution of concept of sovereignty, researcher can say that the juristic
analysis of sovereignty has a history stretching back to the Roman Empire. In modern times the
development of theory of sovereignty conceded roughly with the growth of the state in power,
functions and prestige. But in 1832 when Austin published his lectures titled ‘province of
jurisprudence’ then the concept of sovereignty reached to its climax. The theory of sovereignty mainly
depends upon his view of the nature of law. Law, according to Austin is a command given by a
superior to an inferior. From this definition of law he develops his theory of sovereignty in the following
words, “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 human superior is sovereign in
that society, and that society (including the superior) is a society political and independent.”

Austin’s doctrine of sovereign may be reducing to the following propositions:- That there is, in
every political and independent community, some person or body of persons who exercise sovereign
power, that the sovereign is a determinate person or body of persons. That such a determinate
human superior must not himself obey any other higher authority.

Therefore, In brief, Austin’s analysis of sovereignty embraces the existence of the supreme
power which is determinate, absolute illimitable, inalienable, indivisible all-comprehensive and
permanent. It is subject to no limitation or command by any other superior.

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