John Austin

analytical school(FACTS)

Founder of the analytical school of

jurisprudence– Bentham.
• Father of the analytical school of
jurisprudence- Austin.
• Word positivism was given by Auguste
Compte.
Austin
• Austin defined law as a rule laid down for the
guidance of an intelligent being by an intelligent being
having power over him. Austin defines law in two
parts: Proper Law and Improper Law.
• Then again proper law is divided into two parts:
Firstly, the law set by God to man and Secondly, laws
made by man for man.
Human law is divided into two heads: Positive Law and
Positive Morality. These positive laws are set by
political superiors as such or set by the man not acting
as political superiors but acting in pursuance of legal
rights conferred by the political superiors. Only these
laws are the proper subject matter of jurisprudence.
• According to Austin, the John Austin
law is the command of the
sovereign imposing a duty which
is enforceable by sanction. The study and
analysis of positive law are
based upon the law which is strictly applied by
political superiors to political inferiors.
contribution
• LAW EMANATES FROM SOVEREIGN
• Austin’s most important contribution to legal
theory according to Friedmann was his
substitution of the command of sovereign for
 any ideal justice in the definition of law. The
first jurist to make jurisprudence as a
‘science’ was John Austin who is often
described as Father of jurisprudence.
• According to Austin, the superior may be either
an individual or a body or aggregate of
individuals. Thus, English sovereign for him is
merely the ‘person’ who has the last word in a
particular connection. His conception of
sovereignty asserts that in every human society
where there is law, there is to be found latent
 beneath the variety of political forms, in a
democracy as well as in an absolute monarchy,
a relationship between subjects rendering
habitual obedience and a sovereign who
renders habitual obedience to none
The basic features of Command
theory
• The basic features of Command theory are:
• Command (by political superiors).
 • Duty (imposing duty on political inferiors).
• Sanction.
• Sovereignty.
LAW AS A COMMAND
• LAW AS A COMMAND Austin defines command as “if
you express or intimate a wish that I shall do or
forbear from some act and if you will visit me with an
evil, in case I comply with your wish-it is a command”.
A command is different from other significations of
desire, not by the style in which the desire is signified
but by the power and the purpose of the partly
 commanding to inflict an evil or pain in case the desire
be disregarded. Thus, a command is significance of
desire. But a command is distinguished from other
significations of desire by this peculiarity that the party
to whom it is directed is liable to evil from other, in
case he complies not with the desire

Only General Commands are law:

• However, all the commands are not law, it is only the
general commands, which obliges to a course of conduct, is
law. Exceptions: The general commands are the proper
subject of study of jurisprudence. But according to Austin,
there are three kinds of laws which though not commands,
are still within the province of jurisprudence.
• They are.- Declaratory or Explanatory Laws: - Austin does
not regard them as commands, because they are passed
only to explain laws already in force. Laws to repeal laws:
- These too are not commands but are rather the
revocation of a command. Laws of imperfect obligation:
These laws have no sanction attached to them.
• SANCTION Austin said, “Sanction operate upon the desires and
that men are obliged to do or forbear through the desires. For, he
is necessarily averse from every evil whatsoever. That every
sanction operates upon the will of the obliged is not true. If the
duty be positive, and if he fulfills the duty out of regard to the
sanction, it may be said with propriety that the sanction operates
upon his will. For his desire of avoiding the evil which impends
from the law, makes him do and therefore, will the act which is the
object of the command and duty. But if the duty be negative and if
he fulfills the duty out of regard to the sanction, it can scarcely be
 said with propriety that the sanction operates upon his will. His
desire of avoiding the evil which impends from the law makes him
forbear from the act which the law prohibits

Exceptions of Theory of Austin:

•
Austin says, “every law is a command imposing a duty enforced by
a sanction, however, all the commands are not law”. It is only the
general command which is a law. Austin, though accepts that there
are three kinds of laws which are not commands but may be
included within the purview of law by way of exception. They are:
1. Declaratory/Explanatory laws: They’re not commands because
they are already in existence and are passed only to explain the law
which is already enforced.
2. Law of Repeals: Austin doesn’t treat such laws as commands
because they’re in for the revocation of a command.
 3. Law of Imperfect obligations: They’re not treated as
commands because there’s no sanction to them. Austin holds that
a command to become law must be accompanied by duty and
sanction for its enforcement.

Criticism:
•
Austin’s trilogy implicit in the concept of law has invoked criticism.
1. Customs are overlooked/ignored: Customs are always to regulate
the conduct of human beings and therefore, customs should also be
included in the study of jurisprudence but Austin ignored them.
2. Law conferring privileges: The law which is pure of permissive
character and confers wholly privileges such as ‘The Wills Act’ which lays
down the method of joining testamentary document is not covered by
Austin’s definition of law.
3. No place for judge-made law: Austin avoids the creative function of
judiciary like applying of the precedents and in the interpretation of laws.
 4. Austin theory treats international law as morality: Austin doesn’t treat
international law as it is lacking sanction and this view of Austin neglects
the increasing role of international law in achieving world peace.

Criticism:
• 5. Command Overemphasised: Austin’s theory of law
overemphasizes on command and in modern progressive
democracies, the law is nothing but an expression of the general
will of the people, therefore the idea of command doesn’t apply in
present systems.
6. The interrelation between law and morality is completely
ignored: The greatest shortcoming of Austin’s theory is that it
completely ignores the relationship between law and morality and
law can never be completely divorced from morals and ethics.
7. Sanction alone is not the means to induce obedience:
Auston’s theory that it’s the sanction who alone governs the
 people or induce the persons to obey the law is not correct. There
are so many other factors like fear (of society), reason (of inner
conscience), etc. are helpful to induce a person to obey the law.

contribution
• Apart from these criticisms, Austin’s
contribution of law has been greatly admired
by other thinkers like Bentham, JS Mill, etc.
The merits of Austin’s theory lie in its
simplicity and its clear expression of
separation law and morality. Thus, we can say
that Austin made a great contribution to the
law of Jurisprudence.