AMITY LAW SCHOOL

JURISPRUDENCE

Submitted to: Kushal Gurjar

Assistant Professor

Amity Law School, AUR

Submitted by: Aryan Singh

BA.LLB(H)

4th Semester
AUSTINS THEORY OF LAW

Introduction

John Austin1 was born in 1790. He joined the Army at the age of 16 and served as a Lieutenant
in Malta, and Sicily up to 1812. He resigned from his commission in the Army and started
studying law. In 1818, he was called to the Bar. He practiced law for 7 years and later after his
marriage, he became neighbors with Sir Jeremy Bentham.

When the University of London was founded, Austin was appointed as Professor of
Jurisprudence and he spent the next two years preparing his lectures. His opening lectures in
1828 were attended by J.S.Mill, Romillie, 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"2. Austin repeated his lectures in 1834 without success. Hence, he gave up the
teaching of jurisprudence altogether. Austin died in 1859. Between 1832 and 1859 he published
only a couple of articles. The second edition of 'The Province of Jurisprudence' was published
by his widow in 1861. She also reconstructed from her husband’s notes, "Lecturers on
Jurisprudence" or "The Philosophy of Positive Law" and published them in 18633.

Austin is called the father of English Jurisprudence and the founder of the Analytical School
of Jurisprudence. Austin's theory of law is also known as the Imperative Theory of Law.

1
“Chronology of John Austin's life” (1995) Austin: The Province of Jurisprudence
Determined, pp. xxviii-xxix. Available at:
https://doi.org/10.1017/cbo9780511521546.003.

2
“The province of Jurisprudence determined” (no date) The SHAFR Guide Online [Preprint].
Available at: https://doi.org/10.1163/2468-1733_shafr_sim030300046.

3
“4. Positive law in the analytical positivism of John Austin” (2017) The Philosophy of
Positive Law, pp. 169–211. Available at: https://doi.org/10.12987/9780300138016-008.
Austin’s Theory of Law

Austin's theory of law, also known as legal positivism, is one of the most influential theories
of jurisprudence. According to Austin, laws are of two kinds, viz. divine law and human law.
Divine law was given by God to men. Human laws are set by men for men. Human laws are of
two kinds. Certain human laws are set by political superiors and are called Positive laws and
others are not set by political superiors.

The second category belongs to the rules of a club or any other voluntary association.

According to his positive law, the law is made by a sovereign individual or a sovereign body.
He said that law is the product of the sovereign and if there is no sovereign there can be no law,
if there is law there is a sovereign.

The feature of positive law is that it is made by a determinate and definite sovereign political
authority. The Sovereign political authority may be vested in a single person or body of persons.
The sanction behind the law is the coercive authority of the state. People obey the law because
of their fear of punishment, which results from the breach of the law.

Every positive law consists of "commands set as general rules of conduct by a sovereign to a
member or members of the independent political society wherein the author of the law is
supreme.

Law is made up of general commands issued by the sovereign to the subjects. It is the command
of a determinate human superior to an inferior and is accompanied by a sanction. If the law is
not obeyed, the force will be employed against the person who violates it. Law is obeyed
because of the fear of punishment. Law and state are indissolubly linked together.

He defined law as "a rule laid down for the guidance of an intelligent being by an intelligent
being having power over them".
According to Austin, the law has four elements they are (1) command4, (2) sanction5, (3) duty,
and (4) sovereignty. Law is the command of a sovereign backed by a sanction. Duty and
sanction are relative terms. The fear of sanction supplies the motive for obedience.

Austin also argued that legal norms are distinct from moral norms. While there may be some
overlap between the two, they are fundamentally different types of norms. Legal norms are
created by the sovereign and enforced by the threat of sanctions, while moral norms are based
on ethical principles and social conventions.

One of the key ideas in Austin's theory is the idea that law is a matter of social fact. This means
that the validity of a law is not based on its moral or ethical value, but rather on its existence
as a positive law. In other words, the fact that a law exists and is enforced by the sovereign is
what makes it valid, regardless of whether it is morally right or wrong.

Austin's theory has been both influential and controversial in the field of jurisprudence. Some
scholars have criticized his emphasis on the role of the sovereign and the exclusion of moral
and ethical considerations in the law. They argue that the law should be guided by principles
of justice and fairness and that legal norms should be subject to moral scrutiny.

Despite these criticisms, Austin's theory remains an important contribution to the field of
jurisprudence. His emphasis on the importance of the sovereign in determining the validity of
law helped to establish legal positivism as a dominant school of thought, and his work has
influenced many subsequent legal thinkers.

CRITICISMS BY MAJOR JURISTS

HENRY MAINE

4
Mittal, M. (2022) “John Austin’s theory of Command Law: Its practicality in today’s
world,” SSRN Electronic Journal [Preprint]. Available at:
https://doi.org/10.2139/ssrn.4157659.

5
“Austin’s sanction theory” (2011) Legality, pp. 51–78. Available at:
https://doi.org/10.2307/j.ctvjnrsd5.5.
Sir Henry Maine, the main exponent of Historical School criticized Austin's theory of law on
the ground that law is not invariably linked with the sovereign. In early community rules which
regulated life was derived from immemorial usages and these rules were administered by
domestic tribunals in families or village communities. Therefore, Austin's insistence on
sovereignty as an essential pre-requisite of law is d carries no weight. So, also there are rules
of customary law which are "what habitually obeyed by the people though they are not
emanated from norm sovereign. In his book "Ancient Law" he identified the importance of
using as followed in India and Rome. It became a classical work in the name of Sir Henry
Maine.

SALMOND

According to Salmond, Austin’s theory of law missed the ethical aspect of the law, the idea of
right or justice which inheres in any complete conception of law. The imperative theory does
not take note of the purpose of law and cannot, therefore, be accepted as providing an adequate
definition of law.

Salmond keeps the view that all legal Principles are not commands of the State. According to
Salmond, there can be law even though it is not a command of the sovereign.

Any principle which is recognized and applied by the courts in the administration of justice
can be treated as law.

HLA HART

H.L.A. Hart: Hart, who is a prominent legal philosopher, criticized Austin's theory for being
too focused on the sovereign and for failing to take into account the role of legal norms in
shaping legal systems. Hart argued that legal systems are shaped not only by the commands of
the sovereign but also by the internal norms and practices of the legal community.

Austin proposed several key elements in the field of jurisprudence, including:

Law as Command: Austin argued that law is essentially a command issued by a sovereign or a
political superior to a subject or a political inferior. According to Austin, the fundamental
characteristic of law is its coercive nature, backed by the threat of punishment for non-
compliance.

Positivism: Austin's jurisprudence is often associated with legal positivism, which holds that
law is a social construct created by human beings and is not inherently based on natural law or
moral principles. Austin emphasized the importance of positive law, i.e., a law that is created
and recognized by human authorities, as opposed to divine or natural law.

Separation of Law and Morality: Austin argued that law and morality are distinct and separate.
He rejected the idea that law is necessarily based on morality or that moral principles are
inherent in the law. According to Austin, the law should be studied and analyzed as a separate
discipline from morality.

Sovereignty: Austin emphasized the concept of sovereignty, which refers to the supreme power
or authority of a political entity to make laws that are binding on its subjects. He argued that
the source of law ultimately lies in the sovereign's command, and the sovereign's will is the
final authority in determining what is legally valid.

Legal Validity: Austin discussed the concept of legal validity, which refers to the quality of
being legally recognized and enforceable. He proposed that for a rule to be legally valid, it
must be created by a sovereign or a recognized legal authority, and it must be backed by the
threat of punishment for non-compliance.

Legal Obligation: Austin emphasized the idea of a legal obligation, which refers to the duty or
requirement to obey the law. According to Austin, a legal obligation arises from the command
of a sovereign and is enforced through the threat of punishment. He argued that individuals
have a moral duty to obey the law due to the legal obligation it imposes, regardless of their
personal opinions or moral beliefs about the law.

Command Theory of Law: Austin's jurisprudence is often associated with the command theory
of law, which posits that the essence of law is a command issued by a political superior to a
political inferior. Austin argued that legal rules are essentially commands backed by sanctions,
and the key characteristic of law is its coercive nature, which distinguishes it from other social
norms or rules.

Legal Certainty: Austin emphasized the importance of legal certainty in his jurisprudence. He
argued that laws should be clear, definite, and predictable so that individuals can know what is
expected of them and how to conform to their behavior accordingly. According to Austin, legal
certainty is essential for the proper functioning of a legal system and for individuals to have
confidence in the law.

Criticisms: Austin's theories have been subject to various criticisms over time. Some scholars
have criticized his emphasis on the command theory of law, arguing that law is more than just
commands and involves other elements such as social norms, values, and judicial
interpretation. Others have criticized his separation of law and morality, arguing that morality
can play a role in shaping and influencing the law. Additionally, Austin's narrow focus on
positive law and his exclusion of moral or natural law considerations have been debated and
criticized by other legal theorists.

Influence: Despite the criticisms, Austin's work has had a significant influence on the
development of jurisprudence and legal philosophy. His ideas have been widely discussed and
debated, and have contributed to the understanding of the nature of law, legal obligation, and
the relationship between law and morality. Austin's work has also influenced subsequent legal
theorists, including figures such as H.L.A. Hart and others who have built upon or challenged
his theories.

CONCLUSION

In conclusion, Austin's jurisprudence revolved around the concepts of law as the command,
legal positivism, separation of law and morality, sovereignty, legal validity, legal obligation,
command theory of law, legal certainty, criticisms of his theories, and his lasting influence on
the field of jurisprudence. His ideas have shaped legal thought and continue to be relevant in
contemporary legal and philosophical discussions. However, it's important to note that
jurisprudence is a complex and evolving field, and Austin's conclusions have been subject to
criticisms, debates, and further developments by subsequent scholars.