John

Austin’s
Positive
Law
Theory
Command
Theory
 John Austin’s theory

What is law?
Positive law as command
Basic features of command theory
Kinds of Command
Exceptions to the above theory
Criticism
 John Austin (1790-1859)

Introduction :-

John Austin was an English legal theorist who

influenced British and American law with analytical approach
to Jurisprudence and his Command theory.
John Austin’s theory

Law

Law properly Law improperly

so called so called

Law of Law of Laws by Laws by

God Human analogy metaphor

Positive Positive
Laws Morality
 John Austin’s theory

Positive law as a 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.
 John Austin’s theory

The basic features of command theory :-

 Sovereign
 Command
 Duty
 Sanction/Punishment
 John Austin’s theory

Kinds of Command :-

1. General Command
2. Particular Command
 John Austin’s theory

Kinds of Command :-

General Command :- A general Command is a law or rule where it

obliges generally to acts or forbearances of a class. All Commands
are not law, it is only the general command, which obliges to a
course of conduct, is law.
 John Austin’s theory

Kinds of Command :-

Particular Command :- it is occasional or particular when it

obliges to a specific individual act or forbearance.
 John Austin’s theory

Exceptions to the above theory :-

Austin say’s every law is a command imposing a duty
enforced by a sanction, however, all the commands are not law;
Austin though accepts that there are three kinds of laws which are
not commands, they are exceptions :-
 John Austin’s theory

Exceptions to the above theory :-

1. Declaratory laws :- They are not commands because they are

already in existence and are passed only to explain the law which is
already enforced.
 John Austin’s theory

Exceptions to the above theory :-

2. Law of Repeals :- Austin does not treat such laws as commands

because they are for the revocation of a command.
 John Austin’s theory

Exceptions to the above theory :-

3. Law of imperfect obligations :- They are not treated as

commands because there is no sanction to them. Austin holds that
a command to become law must be accompanied by duty and
sanction for its enforcement.
 John Austin’s theory

Criticism :-

Sovereign is not only source of law :- Besides sovereign, customs,

usages and religion are also the important source of law.

Judge made law ignored :- Austin did not include judge made law
in his definition of law.

Convention ignored :-
 John Austin’s theory

Criticism :-

International law Ignored :-

Over emphasis on physical Force :-