AMITY UNIVERSITY

RAJASTHAN

AMITY LAW SCHOOL

JURISPRUDENCE

CRTITICAL ANALYSIS OF JOHN AUSTINS THEORY OF LAW

Submission Date: 7th April 2023

Submitted to: Submitted by:

Prof. Khushal Gurjar GOPALDEV
Professor Enrolment no. A21521521001
Jurisprudence B.B.A., LL.B. (Hons.)
ALS - AUR Semester-IV
 AUSTINS THEORY OF LAW

John Austin was born in 1790. He joined

the Army at the age of 16 and served as a
Lieutenant in Malta, and Secily 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.
Austin spent the following two years preparing for his lectures after being named Professor of
Jurisprudence at the University of London. J.S. Mill, Romillie, and others attended his
inaugural lectures in 1828. After experiencing initial success, Austin was unable to draw in
new pupils, and in 1832 he resigned as Chair.
The first portion of the lectures was enlarged and published in 1832 under the title "THE
PROVINCE OF JURISPRUDENCE DETERMINED" thanks to the efforts of his wife.
Austin unsuccessfully attempted to replicate his talks in 1834. As a result, he completely
stopped teaching jurisprudence. In 1859, Austin died. He only had a few publications
published between 1832 and 1859. In 1861, his widow released the second edition of "The
Province of Jurisprudence." Additionally, she recreated "Lecturers on Jurisprudence" or "The
Philosophy of Positive Law" from her husband's notes and published them in 1863.
The Analytical School of Jurisprudence was founded by Austin, who is referred to be the
father of English Jurisprudence. The Imperative Philosophy of Law is another name for
Austin's legal philosophy.
Austin's theory of law, also known as legal positivism, is one of the most influential theories
of jurisprudence.
Austin asserts that there are two different types of laws: divine law and human law. God gave
humans the divine law. Men create rules for men in the world. There are two types of human
laws. Positive laws are those established by political superiors; negative laws are those not
established by political superiors.
Club or other voluntary association guidelines fall under the second category.
His positive law states that a sovereign person or sovereign entity creates the law. He said
that as the law is the result of the sovereign, there can be no law without a sovereign, and vice
versa if there is the law.
Positive law has the distinctive quality of being created by a specific and well-defined
sovereign political power. A single individual or group of people may be granted sovereign
political authority. The state's ability to impose coercion serves as the penalty for the law. Due
to their dread of the consequences of breaking the law, people obey the law.
Each positive law is composed of "commands established as general rules of conduct by a
sovereign to a member or members of the independent political society where the author of
the law is supreme."
The basic directives that the sovereign issues to his or her subjects make up the law. It is an
order given by a certain human superior to a lower being, along with a penalty. The force will
be used against those who break the law if it is not obeyed. Because of the threat of penalty,
people obey the law. State and law are inextricably intertwined.
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) command, (2) sanction, (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 likewise asserted that moral and legal standards are different. Although there could be
some similarities between the two, they are two quite distinct kinds of standards. Legal
standards are established by the sovereign and upheld via the fear of punishment, whereas
moral norms are founded on moral values and social customs.
The notion that laws are a matter of social fact is one of the main concepts of Austin's theory.
This indicates that a law's legitimacy is determined by its presence as a positive law rather
than by its moral or ethical worth. In other words, whether a law is morally acceptable or bad,
it is only legal if it is there and is being upheld by the sovereign.
In the area of jurisprudence, Austin's theory has been both important and contentious. His
focus on the role of the sovereign and the removal of moral and ethical factors from the law
has drawn criticism from certain academics. They contend that moral considerations should
be given to legal standards and that the law should be governed by just and fair principles.
Despite these objections, Austin's theory continues to make a significant contribution to the
study of law. His focus on the role of the sovereign in establishing the applicability of the law
contributed to the rise of legal positivism as the preeminent school of thought, and his work
has inspired several other legal philosophers in the years thereafter.

LANDMARK CASE WHERE AUSTINS THEORY WAS APPLIED

A.K. Gopalan v. State of Madras (AIR 1950 SC 27), a case from the early 1950s when the
petitioner was held in custody according to the Preventive Detention Act of 1950, lends
credence to Austin's argument. The Supreme Court ruled that law is "lex" and not "jus" when
the Act's legality was contested, upholding the Act's legitimacy. Therefore, even if a law is
unjust, it must be treated as the law of the country since it was established by the legislature.
This is in keeping with Austin's view that the law is what it is, not what it should be. The
Indian criminal justice system, which punishes those who break the law, is one situation in
which Austin's theory might be shown to be applicable.
CRITICISMS BY MAJOR JURISTS
HENRY MAINE
Austin's conception of law was criticized by Sir Henry Maine, the principal proponent of the
Historical School, on the grounds that law is not always associated with sovereignty. The
laws that governed life in early societies were derived from ages-old customs, and domestic
tribunals in families or village groups enforced these regulations. Austin's assertion that
sovereignty is a prerequisite for the law is thus unfounded. Additionally, there are laws
known as customary law that, although not coming from a sovereign authority, are routinely
followed by the populace. He noted the significance of applying the practices used in India
and Rome in his book "Ancient Law". In the name of Sir Henry Maine, it became a classic
work.
SALMOND
The ethical component of the law, the notion of right or justice that is inherent in any full
definition of law, was overlooked by Salmond in accordance with Austin's theory of law.
Since the imperative view ignores the goal of the law, it cannot be seen as offering a
sufficient definition of law.
Salmond continues to hold the position that not all legal principles are edicts of the state.
Salmond contends that even though the law is not a sovereign command, it can nonetheless
exist.
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, a well-known legal philosopher, criticized Austin's theory for being overly
centered on the sovereign and for neglecting to take into account how legal norms affect how
legal systems are developed. According to Hart, internal norms and practices inside the legal
community also have an impact on how legal systems are developed, in addition to the
sovereign's orders.
Austin’s theory of sovereignty significance in the modern era:
Austin's theory of sovereignty assumes that subjects would always do what their sovereign
directs, which is untrue in the context of Indian politics today.[5] According to his views, the
fundamental tenet of philosophy is a constant submission by the subject. People will submit
freely if they believe the sovereign is appropriate. Those who distrust the sovereign will
submit out of fear that their opposition will do more harm than submission. And those who
are unsure will submit to the ruler out of habit. Additionally, Austin's thesis assumes that
everyone has perfect political education.[6]
However, given the current situation, that is untrue. People who don't trust the government
criticize, demonstrate, and oppose it and its policies. Sometimes, as was the case in 1975
when Indira Gandhi (the country's then-prime minister) declared an emergency, this even
results in a complete breakdown of the constitutional apparatus. There are several such
instances in India alone when individuals like Anna Hazare, Ramdev, and Kejriwal have
organized marches and protests against the administration, calling for changes to the way it is
organized or the adoption of new laws or amendments to existing ones. Additionally, it would
be dangerous and dishonest to assume that the majority of the public is politically informed in
a nation like India, where around 35 million people—or one-third of the population—cannot
read or write and where people may kill one another due to fake news and propaganda.
As a result, we may conclude that the assumption of habitual obedience, which forms the
cornerstone of Austin's sovereign theory, cannot be upheld in the current political and legal
landscape of India.
Doesn’t give room to common law and other law-making bodies.
Austin claims that the only orders that are truly laws are those that are issued by a sovereign,
or political superior. He has tried to define the law more in terms of where it came from than
how it works. Although judges' decisions are subtly accepted as law (precedents), unless they
conflict with the sovereign's laws, they are not suitable in any way.
As the guardian of the constitution of India, the Supreme Court has the authority to nullify
any legislation that violates any of the constitution's tenets, safeguarding the nation's citizens'
basic rights. Austin, however, contends that courts and judges are just secondary sources of
law, and as such, they are subject to the limitations imposed by the sovereign. Additionally,
because statutory instruments are the accepted source of law, executive entities like the CBI,
police, and MCDs—which are in close contact with the people and better understand their
needs—cannot establish laws for the benefit of that group. All of this may result in major
disruption and destabilize the nation if it were applied to the present world.
Additionally, Austin's definitions state that customs are not a source of law and are therefore
not relevant. None of these would be considered law by Austin's definition, even though they
govern most of the population's daily behavior and are upheld by the state. These include the
law of the church, the law of merchants, and numerous other personal and customary laws
like Hindu law, Muslim law, etc. that were in existence long before Austin's theory, even
though they have not been acknowledged. As a result, Austin was also ignorant of the
common law, which serves as the cornerstone of many nations' administrative structures.
According to Austin, the sovereign is exempt from all legal restrictions of any form, and no
penalties of any kind may be placed on him. Individuals and organizations cannot compete
with the command of sovereignty. According to Austin's view, the sovereign has zero
responsibility, leaving the entire nation and its citizens at the whim of a single individual who
may determine someone's life or death based on his or her mood or personal preferences.
Additionally, because there is only one sovereign authority, it is more vulnerable to outside
pressure and assaults, which might result in political instability.
By granting sovereigns total authority, Austin seemed to introduce anarchy into the global
system and was likely providing a justification for the greatest excesses of 19th-century
sovereigns such Nazi Germany, the extermination of Jews, the First World War, etc. A
Sovereign is not required to follow orders from anybody. All his instructions must be
followed, regardless of whether they are good or wrong or just or unjust. Once more, pure
power at its height may corrupt utterly. If such things exist in any nation today, that nation
will be considerably more open to rebellion, riots, and perhaps full-fledged war.
Additionally, Austin's thesis said that the sovereign's powers are unassignable, meaning that
the sovereign will only be able to administer the law. The sovereign will create the laws and
execute them. Additionally, this mindset runs counter to both the principles of democracy and
the federal government of India.
In Golak Nath v. State of Punjab, it was laid down that separation of power is the
uncompromisable provision of the constitution by C.J. Subba Rao the following words: –

The three branches of government must carry out their duties while considering some
constitutionally mandated intrusions. The constitution clearly defines the boundaries of the
three organs' authority and calls on them to execute it within the confines of their respective
mandates. Every organ must operate within the parameters set forth by the Constitution.
There is no supreme authority established by the Constitution. The Indian Constitution is the
ultimate law of the nation, and all authorities must operate in accordance with it.
In light of the foregoing discussion, we can conclude that Austin's theory is not really
applicable to India in the modern era because it does not take into account numerous factors
like international law, the separation of powers, the democratic form of government, etc. that
have allowed India to flourish over time from colonial British rule to the largest democracy in
the world. Additionally, the almost 150-year-old theory developed under strict legal
constraints cannot account for everything due to India's extensive cultural and religious past
and the country's high young population.
However, it is certain that Austin's work has significantly influenced the development of the
study of law and jurisprudence. Austin was one of the jurists who was able to explain the law
simply and plainly, paving the path for subsequent jurists to develop their work into what it is
today.