Austin’s Legal Positivism Theory

Austin and Legal Positivism:

Austin is very famous due to his best views related to positive law and due to his “Legal
positivism” theory and often called the “command theory of law” because the concept of
command lies at is essential: law is the command of the sovereign, backed by a threat of
sanction in the event of non-compliance. Legality, on this account, is determined by the
source of a norm, not the merits of its substance (i.e. it embodies a moral rule).

Austin’s legal positivism theory:

According to John Austin;

“If a determinant human superior, not in a habit of obedience to a like superior,

commands, habitual obedience from a bulk of a society, such a society is politically
organized and independent”.

If we explain his definition then we come with attributes and main focus of Austin theory
which are mentioned as following:

1. General Law is command.

2. Sovereign is the main source of law.
3. Sanction is must to enforce law.
4. Separation between law and morals.

The key terms of Austin theory are explained as following:

1. Sovereign:
According to Austin a sovereign is any person or a body of person who is supreme in
authority and to whom the bulk of political society habitually obeys. On the positive side,
this determinate superior should receive habitual obedience, but on the negative side, this
superior is not in the habit of obedience to others like him. The command from the
sovereign authority must be obeyed by majority of the people. Perfect obedience of the
people is not required to make it a law. Forexample, terrorist do not obey the law. The
sovereign authority must be a political authority, it can be king, parliament etc.

Three main characteristics of Austin’s Sovereign:

1) Unlimited powers – must be habitually obeyed by the bulk of society; not habitually obey
anyone else; not bind itself by law means sovereign power is legally unlimited.

2) Continuous – institution of the sovereign continues.

3) Indivisible – not possible to obey to more than one sovereign and therefore obey a
individual sovereign authority; rare cases can have joint sovereign.
 2. Command:
Law is command and it is compulsory. It is imperative to follow it. The commands are from
superior to inferior and citizens have to follow it and obey it and according to Austin if
inferior have the choice then such the law is not a law and that is the reason imperative law
is the law of the land. Positivism regards law as the expression of the will of the state
through the medium of legislature.

Commands are of two types:

1) General command: Is the first one and issue for whole community.

2) Particular command: The second one is given to particular command which is given to
the particular community or to individual alone.

Only the general commands are consider as the laws.

According to this theory, all laws should be in a general nature of command and command is
different from the request because it is mandatory if it is come from supreme authority of
the state and if we don’t fulfil the request than it never lead to penalties and punishments
as in the case with commands because whenever a duty lies, a command has been signified
and wherever a command is signified, a duty is than imposed. And only a command not
become a law until it come from sovereign like a command from robber to rob and from a
professor is not a law because they are not supreme political authority but a command is
law if they can originate from other bodies to which the sovereign bestows the power to
make law e.g. the courts, administrations, international organizations etc.

3. Sanction:
Sanction is actually means evil and punishment attached to a command which become a law
example: fines, imprisonment, compensations etc and Austin use the word sanction in a
legal term. According to Austin sanction is important for the enforcement of law and
peoples never commit any offence which is against the law because the sanction denotes
the fear that there is a punishment in the case of disobedience of law by anyone. And
according to Austin the whole of law will have to be excluded from the scope of positive law
if there is no sanction with it and for Austin if there is no sanction behind any law than it is
positive morality.

Merits of Austin’s Legal Positivism Theory:

• Merits:
1) Simplicity: The influence of Austin’s theory was great due to its simplicity, consistency
and clarity.
2) Separation of moral and law: Austin theory of positive law separate laws from morals
and in early time laws is confused with religion.
3) Enforcement of law: He clearly says the sanction is the way to enforce the law. Laws are
the command from sovereign and do depend greatly upon the sanction for its enforcement.

His theory has an important and universal truth. Law is created by the State sovereign
power.
Criticism:
• Its basic emphasis is on obligation. It uses the threat of force. Without any reference of it
being legitimate, moral- social obligation.
• Such environment compels the subjects to obey the law meekly even it is unjust and
unfair.

1: Salmond:
• Completely divesting the law from morality and ethics makes the law ineffective or less
effective.

2: Lon fuller:
• Laws in derogation of popular will and needs of society would be short lived. It will not
muster public support.
• Laws are made to regulate conduct. They cannot be devoid of morality.

3: Gustav Radruch:
• It will lead to dictatorship (Nazi Germany)
• So positive law can never be separated from morality.
• Customs are overlooked.
• Precedents are overlooked.
• International law just positive morality.
• Command over emphasized.
• In modern democracies laws is nothing but are expression of general will of the majority
of people. So command aspect has lost its significance.
• Law and morality relationship is overlooked.
• Sanctions alone are the only means to induce obedience (fear, sympathy, reason).

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