Syeda Kanwal Zehra

LLB-II

JURISPRUDENCE
Assignment 1
Austin's theory of law maybe sociologically relevant but as a work of
legal philosophy it is without merit. Critically discuss.
This statement requires a comprehensive discussion regarding the premise of John Austin's
theory of law. To analyze the question critically we will be looking at the province of
analytical jurisprudence laid down by Austin. Also, we will look at how Austin responded to
the question of what is law and why laws are obeyed. The revolution of positive law in
jurisprudence has been developed by the famous jurist John Austin because he thought that
the matter of jurisprudence is positive law. He is the torchbearer of analytical jurisprudence.
He tried to say what law in general not what the laws is of here and there. His theory of law
known as the command theory has attracted by the criticism of many jurists but it can be
said that Austin command theory cannot be ignored because of its evocative power.
Much of his legal philosophy is heavily indebted to earlier writers. It represents the
packaging of a set of ideas distilled from a long tradition of political theory concerned with
the concept of sovereignty, together with a selective plundering of legal theory of Austin's
original mentor, Jeremy Bentham. Austin's lectures presuppose the doctrine of utility as
elaborated by Bentham and warmly, even fanatically, defend it. But Austin's course was
devoted to the theory of law as it is (which he called the science of law) and not the theory
of law as it should or might be (which he termed the science of legislation). In the particular
context of Austin's lectures, therefore, the science of legislation is subordinate to the science
of law.
He considered all laws as command or species of command. He expressed that law is a
command by sovereign (a political body or person) to political inferiors backed by a sanction
(threat of harm) in the event of non-compliance with the command. The focus seems to be
on the sovereign, its command, and sanctions. In short, this is known as the orders backed
by threats theory of law.
From one viewpoint, the most valuable consideration of Austin's legal theory is its attempt to
distinguish clearly law from other phenomena (eg. Moral rules, social customs etc) with
which it could be confused. Austin introduced the concepts of positive law and positive
morality. Austin distinguished laws 'properly so called' from phenomena improperly labelled
as law. There are two classes of laws properly so called: divine law(set by God for
humankind) which he defined as dictates of utility-i.e. laws to be designed to promote the
greatest happiness of the greatest number of people and the second being human laws(set
of human beings for human beings). Human laws were further subdivided into positive law
and positive morality.
Positive law is defined as laws set by political superiors acting as such or by people acting in
pursuance of legal rights conferred on them by political superiors (that is, acting as the
delegates of the political superiors in making laws). On the other hand, positive morality
consists of rules laid down by persons having power over others but not as political superiors

or in pursuance of legal rights-for example, priests or religious leaders, employers, teachers,

parents- to control or influence the actions of their followers, guardians or those in their
charge. Austin clearly regarded rule making in such cases as significant in shaping the
attitudes, opinions or moral sentiments of individuals or groups. Positive morality also
contains another category of rules: those without particular creators but set by the opinion
or sentiment of an indeterminate body of people-Austin called these rules authorless rules
laws 'by analogical extension'; they are not laws 'properly so called' even though we
sometimes talk of laws of fashion, etiquettes or honor.
As explained above, the most important facet of Austin's theory is a command. "A command
is distinguished from other significations of desire, not by the style in which the desire is
signified, but by the power and purpose of the party commanding to inflict an evil or pain in
case the desire is disregarded" (Austin 1832:21). Hence the party who has actually been
commanded is under a duty to obey it, failing which a sanction is imposed. For our purposes
we are concerned with the nature of sanction and the power to inflict it and also the
question of whose commands will constitute law.
Another important aspect of his theory is the role of sanctions. Since, sanctions are
essentials to the existence of commands; they are, for Austin, essential to the existence of
law. However, there is difference of opinion on the nature of sanctions between Bentham
and Austin. Although Bentham and other writers have included both rewards (positive
sanctions) as well as penalties (negative sanctions), Austin on the other side have rejected
the possibility of positive sanctions as he stressed that a reward held out for compliance
would indicate a promise or inducement but not a command. This view of Austin was later
criticized by Terence Daintith, he has written of government's powers of imperium-much like
Austin's coercive commands- being supplemented or supported by its dominium powerspowers to distribute benefits of many kinds as inducement to promote compliance with its
policies. Law's sanctioning techniques may involve complex combinations of both imperium
and dominium.
Despite the soundness of the theory, there are problems which have challenged its stability.
The most serious problem for Austin's conception of relationship between laws and sanctions
is usually considered to be that of so-called power conferring rules. These include legal rules
enabling people to make wills or contracts, or enter into other desirable transactions or
arrangements that would lack security without legal guarantee (private power-conferring
rules). They also include rules giving power to officials (public power-conferring rules). A
standard criticism of Austin emphasized that these kinds of rules cannot be assimilated to
coercive commands. They often facilitate desirable activities and are not concerned
primarily to impose duties supported by penalties. However, Austin has dealt with the issue
of private and public power conferring rules and sees nullity of transaction as a sanction
because it leads to the loss of an unexpected transaction. Critics have considered that such
'sanctions' are quite different from others Austin had recognized (damages, imprisonments
or fines) and that to equate them distorts the radically social functions of power-conferring
and duty-imposing rules. Austin's prominent critic, H L A Hart identified the problem that to
force all legal rules into a single coercive model denies the variety of kinds of laws.
Another remonstration is made on the Austin's theory of sovereignty. Austin has adapted his
theory from Hobbes' political philosophy and, to a lesser extent, from Bentham's
commentaries. His theory of the Sovereignty runs like this if a determinate human superior,
not in the habit of obedience to a like superior, receives habitual obedience from the bulk of
given society that determinate human superior is the sovereign and that society (including
the superior) is a society political and independent. Every positive law or every law simple or
strictly so called, is set directly or circuitously by an independent political society where in

that person or body is sovereign or supreme." One of the most common critiques subjected
upon this aspect of his theory is that it does not sit fit in a democratic society; in fact it
conflicts with the very essence of a democratic society. In Austin's terms the sovereign is the
only superior and the public at large is subordinate to the sovereign. Emphasizing on what
characteristics his sovereign possess. His sovereign is common that is its the only sovereign
in the society and it is indivisible but could have components and it is determinate (that is
the sovereign must be ascertainable. Even in a democracy the law is not made by the public
at large but by the parliament, sovereign in this scenario. Austin states that the public is in a
habit to obey the sovereign, irrespective of what party takes over the masses are
accustomed to follow the authority. As Cottrell clarified that the phrase determinate person
should not be taken literally, it is an abstract concept which may include an office or an
institution which embodies supreme authority but it must be ascertainable.
Austin's sovereign is an abstraction, the location of ultimate power that allows the creation
of law in a society; however, he is criticized for describing sovereignty and the source of
legal authority in 'personal' terms. This is the why it is sometimes difficult to identify a
sovereign while looking at different political setups. A further characteristic has produced
more controversy than any other aspect of Austin's conception of sovereignty. This is that
the sovereign is illimitable by law. This follows directly from Austin's definition of law. Every
law is the direct or indirect command of the sovereign of an independent political society.
But a sovereign cannot issue enforceable commands to itself-or at least, even if such an idea
is conceivable, the sovereign can abrogate them at any time. And no laws other than the
sovereign's own commands can exist to bind it. Many critics have considered that Austin's
view of sovereignty conjures up the image of despotic monarch, an archaic and wholly
inappropriate way of thinking on which to found an analysis of the authority of law in modern
Western societies. It is considered that Austin's conception of indivisible and legally
illimitable sovereign runs into the most serious analytical difficulties as soon as one seeks to
identify the sovereign in particular societies.
Another issue, which is raised in regard to Austin's theory, is human rights, freedom of
speech and all other liberties given to human beings are disregarded in his theory. Thus, for
him these areas of freedom are only what the legally directed power of the states defines
them to be through the imposition of duties on people. For him the emphasis is not on the
freedoms themselves but on the coercive structure surrounding them, on which they are
wholly dependent. This rationale of Austin undermines the importance of an individual and
gives unlimited power to the state.
In conclusion, I would disagree with the statement provided, Austin's theory of law may be
sociologically relevant but it is not without merit. Austin is seen as having a keener sense of
the connection of law and power, and the importance of keeping that connection at the
forefront of analysis. However, Austin's theory has been subjected to a number of criticisms
even though the theory sits in the most complex aspects of law as explained above and
should be given the deserved merit.