DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

JOHN AUSTIN’S THEORY: A CRITICAL ANALYSIS

SUBJECT

JURISPRUDENCE

NAME OF THE FACULTY

Prof.(Mr.) Arvindnath Tripathi

BY

K.VIJAY SRINIVAS
Roll. no. 2018095
3rd Semester
D.S.N.L.U

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 TABLE OF CONTENTS

1) ACKNOWLEDGEMENT…………………………………………………………………………..3
2) RESEARCH METHODOLOGY……………………………………………………………………..4
3) Positivism In Modern Philosophy…………………………………….5
4) Different Aspects Of Analytical Legal Positivism……………………8
5) Austin’s Approach Towards Jurisprudence (Positive Law)…………11
6) Austin’s Analytical Method…………………………………………….13
7) Austin’ Theory Of Imperative Law……………………………………13
8) Austinian Conception Of Law…………………………………………14
9) Austin’s Concept Of Law……………………………………………….15
10) Austins Command Theory………………………………………………16
11) Criticisms………………………………………………………………….19
12) Hart’s Criticisms To Austin’s Theory………………………………….21
13) Conclusion………………………………………………………………24
14) Bibliography……………………………………………………………..25

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 ACKNOWLEDGMENT

Writing a project is one of the most significant academic challenges, I have ever faced. Though
this 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.

First of all I am very grateful to my subject teacher Arvindnath Tripathi without the kind 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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 RESEARCH METHODOLOGY

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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 POSITIVISM IN MODERN PHILOSOPHY

The conflict between those thinkers who construct the world from a priori concepts and ideas
and those who regard matter as prior to ideas, accompanies the history of philosophy.

In this sense “positivism” is as old as philosophy. But as a definite movement in general

philosophy, sociology and jurisprudence it is essentially a modern phenomenon, accompanying
and reflecting the scope and heightened importance of science on one hand, and-in political
philosophy and legal theory-the rise of the modern state on the other hand.

The development of modern science was bound to affect deeply the philosophers’ conception of
the relation between man and universe. The revolution in astronomy, symbolized by the names
of Copernicus, Kepler and Galileo-which would not have been possible without the recently
opened up technical ability of observing the movements of the stars--reduced the earth, and all
on it, to a minor, and after the discoveries of modem astronomy totally insignificant, part of an
inconceivably vast universe, of which neither earth nor man is the centre. The development of
physics and chemistry-again made possible through the perfection of technical instruments
permitting more observation-came to centre more and more around the study of matter, particles,
movements and compounds. At the same time, the study of forms of life (botany, biology and
zoology) eventually led to theories of evolution in which man ceased to be the ready-made centre
of life, but emerged on the contrary as a, provisionally final, product of a long ' process of
evolution of plant and animal life.

Although modern science proceeds through a constant interaction of hypothesis (theory) and
verification (experiment), the study of matter and of phenomena outside the realm of pure ideas
is an inevitable, and indeed a dominant, aspect of modern science.

The philosophical counterpart of the rise of modern science is a method generally described as
“empiricism.” Its first major exponent was Locke.” Locke in the first book of the Essay
argued‘against Plato, Descartes and the scholastics, that there are no innate ideas or principles.

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He considered that ideas are derived from experience, and that the operations of the human mind.
Which Locke called “perceptions,” presuppose experience.

Locke’s empiricism was pushed further by David Hume, whose skepticism destroyed even the
principle of causality as one of necessity, as distinguished from habitual observation of certain
sequences in the world of nature.

Empiricism has exercised a decisive influence on modern philosophy, especially in its negative
aspects, namely the down. Grading of metaphysics in philosophy. The rejection of metaphysics
as the pre-eminent-or even as a relevant-preoccupation of philosophy is common to both
“pragmatism” and “logical positivism.” Both these movements have exercised considerable
inherence on modern legal theory, but from very different angles. While pragmatism emphasizes
the importance of fact study, as against concepts. For law, logical positivism‘is principally
interested in the method of verification. Its basic data are those of mathematics and science.
From which it develops a mathematical logic of language. In the Principia Mathematica of
Russell and Whitehead mathematical logic is expressed in language symbols. This form of
positivism has, through various metamorphoses, led to a renewal of the study of legal concepts in
modern analytical jurisprudence.

Empiricism became important for the law when the scientific study of the external world was
extended from the phenomena of nature to the social order. The study of laws governing social
behavior-in the family, in groups, in the state-became increasingly the object of science
(sociology). An early exponent of this new preoccupation of political philosophy and
jurisprudence with the laws of social behavior was Auguste Comte’s de philosophies positive.
“A more important offspring of the various modern trends is the Way of thinking described as
“pragmatism” or “realism.”

In so far as they are concerned with the response of law to certain social facts. These pragmatic
or realist movements in legal thought must be sharply differentiated from the theories which
from Bentham and Ihering onwards orient the law towards certain purposes. Even though these
theories are not based on Meta. Physical ideals or natural law but state the ends of the law in
terms of social purposes and human want, they are in essence ideological. They are therefore
different in conception and orientation from the pragmatic or sociological interpretations of law,
which treat law as a resultant of certain social facts and forces.’
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Thus. The word “positivism” in philosophy, “while far from having a generally accepted
meaning, appears to comprise at least three different trends: empiricism, pragmatism and logical
positivism.

It is in modem legal theory that “positivism” has acquired major significance and come to
symbolize the dominant trends in contemporary legal thinking. Much it’s most important
manifestation has been “analytical positivism,” scientifically established by Austin and his
successors, and modified in our time by Kelsen and the Vienna school. “

It should, however, be properly understood as comprising at least two major trends in legal
thinking: analytic and pragmatic positivism, both related, though in different ways, to
philosophical empiricism.”

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 DIFFERENT ASPECTS OF ANALYTICAL LEGAL POSITIVISM

As the shift in emphasis from metaphysical to empirical trends in theoretical philosophy

corresponds to the displacement of speculation by observed phenomena and their interpretation
in the World of nature. So the rise of analytical positivism in jurisprudence accompanies the
displacement of a loosely organized secular 0r ecclesiastical-international order by the modern
national state. The emergence of the modern state as the more and more exclusive repository of
political and legal power not only produced a professional class. of civil servants,“ intellectuals
and others, which increasingly gave its loyalties and its talents to the modem national state rather
than to an international church or to a distant and impotent emperor; it also demanded more and
more organization of the legal system, a hierarchical structure of legal authority, and the
systematization of the increasing mass of legal material.

In a recent article, H. L. A. Hart has differentiated five meanings of “positivism,” as they are
“bandied about in contemporary jurisprudence”:

(l) The contention that laws are commands of human beings;

(2) The contention that there is no necessary connection between law and morals or law as it is
and ought to be;

(3) The contention that the analysis (or study of meaning) of legal concepts is

 worth pursuing and

 To be distinguished from historical inquiries into the causes or origins of laws. from
sociological inquiries into the relation of law and other social phenomena, and from the
criticism or appraisal of law whether in terms of morals, social aims, “functions,” or
otherwise;

(4) the contention that a legal system is a “closed logical system” in which correct legal decisions
can be deduced by logical means from predetermined legal rules without reference to social
aims, policies, moral standards

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(5) The contention that moral judgments cannot be established or defended. As statements of
fact can. By rational argument, evidence, or proof (“non-cognitivism” in ethics).

The last of these appears to equate relativistic and non-cognitivist philosophies. Both share the
belief that values cannot be proved, but the former, not the latter, hold that there can and must be
rational argument about moral values and judgments." Of the other four, the contention that a
legal system is a “closed logical system” is closely connected with the more general proposition
of a strict separation between is and ought. Subject to this simplification, the differentiation of
the various aspects of analytical positivism is valuable and important.

The separation, in principle, of the law as it is, and the law as it ought to be, is the most
fundamental philosophical assumption of legal positivism. It represents a radical departure both
from the scholastic hierarchy of values in which positive law is only an emanation of a higher
natural law, and from the fusion of the philosophy of law and the science of law as it is most
notably represented in Hegel’s system. Separation of “is” and “ought” does not imply any
contempt for the importance of values in law, as is evident from the work of Austin, Kelsen and
others. It does assign both to strictly different fields.

With the elimination of the values underlying the legal system, as essentially irrelevant to
analytical jurisprudence, analytical positivists can concentrate their attention on the structure of a
“positive” legal system. This leads positivists to the elaboration of the structure of law in the
modern state, from Austin’s “command of the sovereign” to Kelsen’s hierarchy of norms derived
from a hypothetical Grurnanorm.

In the construction of a modern legal system, tools of legal science are elaborated, and one of the
principal preoccupations of analytical jurists has therefore been the elaboration and classification
of legal concepts. With some, as with Austin, this only forms part of a general analysis of the
province of jurisprudence. Whereas for a large number of nineteenth and twentieth century
jurists the definition and classification of legal concepts became an exclusive Preoccupation.

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In recent years, a new turn has been given to this preoccupation With legal concepts by an
essentially English trend in jurisprudence, which seeks to link the interpretation of legal concepts
with the analysis of ordinary language, as it has preoccupied modern especially English-
philosophers since the work of the Vienna school, Russell and Wittgenstein.

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 AUSTIN’S APPROACH TOWARDS JURISPRUDENCE (POSITIVE LAW)

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
(Posits) 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‘.1 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.‘2

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
endeavor and the endeavor of the human truly refers to the sovereign’s endeavors. As such,
Austin describes the sovereign as a person or an institutions that is factually determinate (in other
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

1
John Austin Lecture VI, The Province of Jurisprudence Determined 1832 pg. 220
2
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

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anything else. Finally, Austin makes it a requirement that the sovereign should be legally
illimitable and indivisible and the sole source of legal authority 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 Austin 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
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.

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 AUSTIN’S ANALYTICAL METHOD

The method, which Austin applied, is called analytical method and he confined 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, analysesalso 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’.

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.173 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 honor or rules of
international law.
 The law set by political superior is the law properly so – called and (b) and (c) are
positive morality.

3
Austin Lecture I, The Province of Jurisprudence Determined 1832, Pg. 86.

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 AUSTINIAN CONCEPTION OF LAW

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 are every law is command, imposing a duty, enforced by sanction.4

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 they 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.

4
John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic) 135

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 AUSTIN’S CONCEPT OF LAW

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.

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 indeterminate body of men, as laws of
fashion or honor. Austin places International Law under this class. In the same way, there are
certain other rules which are called law metaphorically. They too are laws improperly so called.

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 AUSTINS 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:

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:

 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.

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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:

 Acts of the legislature to explain positive laws or which are declaratory of the existing
laws only;
 Repealing statutes (which are revocations of commands);
 Laws of imperfect obligations without an effective sanction like rules of morality or rules
of international law.

Austin, like Bentham was a definitions.5 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 analytical question. Another similarity between Austin and
Bentham is that both jurists believed that the same factual issues (namely of power and
sovereignty6 as well as sanctions 7were key to the understanding of the law, as it is.

5
Elise G. Nalbandia, Early Legal Positivism: Bentham & Austin, www.abyssinialaw.com
6
E. Christodoulidis, L. Farmer and S. Veitch, Jurisprudence: Themes and Concepts, (2007) Routledge Cavndish UK,
p. 12.
7
J.W. Harris, Legal Philosophies, (1997) 2nd Ed. Lexis Nexis, p. 28.

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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
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 Austin 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.

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.
 Sovereignty is absolute, indivisible and unlimited in both the cases: internal and external.
 A society without sovereignty cannot be called a state.
 The determinate human superior is the only law-maker. His commands are laws and
without him the state can have no laws.
 The determinate human has no rival of equal status in the state and nor does he obey the
order of anyone.
 The power of the determinate human superior is sovereignty.
 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.

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 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
criticism by the Historical and Sociological School of Thought. 8 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 substitutes of
law and not law. They only resembled law.
 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.

8
Ankita, Criticism of Austin's Theory of Sovereignty, http://www.preservearticles.com/201106248497/criticismof-
austins-theory-of-sovereignty.

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  Not applicable to Constitutional Law- Constitutional Law defines powers of the
various organs of the state. It comprises of various doctrines 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 constitutional 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 to
justice is imperfect in nature.9 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 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.

9
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

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 HART’S CRITICISMS TO AUSTIN’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
"sanction."10

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 executor 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
can define the scope and limit of their rights, obligations and liabilities.11

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
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 power
conferring rules, the provision for nullity is part of the rule itself.12 For instance, it would be
impossible to conceive of the provisions that govern how to make a valid will without

10
Available at, https://www.scribd.com/document/344381344/kinds-of-ownership-pdf
11
Philosophy 34, Hart‘s Criticisms of Austin and the Realists
http://carneades.pomona.edu/2016Law/04.HartAustin.
12
The Monist, Volume 68, Issue 3, 1 July 1985, Pages 403–418, https://doi.org/10.5840/monist198568330

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conceiving that they 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 power
conferring 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 behavior, 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.

The second basic objection Hart has to Austin is regarding the range of application of laws. 13 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.

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

13
Available at https://www.pravo.unizg.hr/_download/repository/Hart_vs_Austin.pdf

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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 un commanded commander‖ of the society.

Hart argues that habitual obedience, which is merely convergence of behavior, 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 behavior, but also convergence of attitude.
That is to say, rules are viewed as standards of behavior, 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.

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

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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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 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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