AUSTIN

• The nature and meaning of law has been described by various jurists. However, there is
no unanimity of opinion regarding the true nature and meaning of law. The reason for lack
of unanimity on the subject is that the subject has been viewed and dealt with by different
jurists so as to formulate a general theory of legal order at different times and from
different points of view, that is to say, from the point of view of nature, source, function
and purpose of law, to meet the needs of some given period of legal development.
Therefore, it is not practicable to give a precise and definite meaning to law which may
hold good for all times to come. However, it is desirable to refer to some of the definitions
given by different jurists so as to clarify and amplify the term ‘law’. The various definitions
of law propounded by legal theorists serve to emphasize the different facets of law and
build up a complete and rounded picture of the concept of law.
• The branch of jurisprudence that is concerned with the question of ‘what is the nature of
law’ is the branch of legal theory.
• Various theories of Law advanced by the legal theorists are of particular value to unravel
the confusions and ambiguities surrounding the concept of law and the nature of law
• One such school of thought is the Positivist – leading proponents of this school include
John Austin, HLA Hart, Hans Kelsen, Jeremy Bentham.
• Legal positivists are primarily reacting against a view of the nature of law called natural
law theory, according to which something counts as a law at all only if it meets certain
moral standards. Austin was interested in separating two questions: What is law? and
What laws should we have? He thinks we can make progress by considering the first
question independently of the second, and that we should address the first question
before tackling the second. Thinking about what the law is does not require moral
reasoning, but rather involves analysis or observation.
• So: what is law?
• The Command Theory of Law Austin argues that laws are a species of command: Laws are
the (general) commands of the sovereign to his subjects. –
o Commands are expressed wishes that something be done, with a known “evil” or
sanction to be imposed if the wish is not complied with.
 o The sovereign is a person, or a determinate body of persons, who the bulk of the
population is in the habit of obeying, but who is not in the habit of obeying anyone
else.
o An independent political society is the largest group of persons (subjects)
governed by a sovereign.
• The proper subject of jurisprudence, according to Austin, is positive (or man-made) law;
but he finds his theoretical framework useful for understanding other phenomena
sometimes described as laws: Divine Law (commands of God, which are backed by threats
of punishment), “positive morality” – the moral norms accepted by a particular society,
laws of honor or etiquette, specific orders.
▪ Divine law is not positive law because it does not have a human source. –
▪ Positive morality is not law because it is not issued by a determinate
superior. –
▪ Laws also differ from specific orders in their generality: they aim to
preclude a class of actions, rather than an individual action, and generally
govern a class of people rather than a single person
• Austin - “Law is the aggregate of rules set by man as politically superior, or sovereign, to
Natural Positivistic Historical Sociological Realistic men as political subject.” In other words,
law is the “command of the sovereign”. It obliges a certain course of conduct or imposes
a duty and is backed by a sanction. Thus, the command, duty and sanction are the three
elements of law.
• Austin is known for the Command Theory of law. Austin differentiated between ‘Law
properly so called’ and ‘laws improperly so called’ and said that laws properly so called are
general commands but not all of it is given by men for men. A specie of Laws properly so
called are given by political superiors to political inferiors.
• According to Austin law is the command of sovereign that is backed by sanction. Austin
has propagated that law is a command which imposes a duty and the failure to fulfill the
duty is met with sanctions (punishment). Thus Law has three main features:
o 1. It is a command.
o 2. It is given by a sovereign authority.
o 3. It has a sanction behind it.
• In order to properly appreciate Austin’s theory of law, we need to understand his
conception of command and sovereign.
• Command - It is an expression of wish or desire of an intelligent person, directing another
person to do or to forbear from doing some act, and the violation of this wish will be
followed by evil consequences on the person so directed. Command requires the presence
of two parties- the commander (political superior) and the commanded (political inferior).
Command is an authoritative desire which leaves no option but to obey it and has an
inbuilt notion of sanction i.e. should the desire be disobeyed sanction follows
automatically
• Sovereign commands may be express or tacit (tacit commands).
• Command does not envisage reward: A command cannot be understood in terms of
reward because reward confers an eventual right in favour of the person who complies
with the expression of desire while its violation goes unaddressed. In this way the
command loses its imperativeness.
• Sovereign - In Austin’s theory, sovereign is politically superior. He has defined sovereign as
an authority that receives habitual obedience from the people but itself does not obey
some other authority habitually. According to Austin, the sovereign is the source of all laws.
• Sanction - Is the evil consequence that follows on the violation of a command. To identify
a law, the magnitude of the sanction is not relevant but the absence of sanction disentitles
an expression of the sovereign from being a law in Austinian sense. Sanction should not
also be confused with a reward that might be on offer if a given conduct is followed or
refrained from. Reward confers a positive right whereas a sanction is a negative
consequence.
• Austin’s theorizing about law was novel at 4 different levels of generality.
• First, he was arguably the first writer to approach the theory of law analytically (as
contrasted with approaches to law more grounded in history or sociology, or arguments
about law that were secondary to more general moral and political theories).
• Second, Austin’s work should be seen against a background where most English judges
and commentators saw common-law reasoning (the incremental creation or modification
of law through judicial resolution of particular disputes) as supreme, as declaring existing
law, as discovering the requirements of “Reason,” as the immemorial wisdom of popular
“custom.”
• Such (Anglo-American) theories about common law reasoning fit with a larger tradition of
theorizing about law (which had strong roots in continental European thought—e.g., the
 historical jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that
generally law did or should reflect community mores, “spirit,” or custom.
• In general, one might look at many of the theorists prior to Austin as exemplifying an
approach that was more “community-oriented”—law as arising from societal values or
needs, or expressive of societal customs or morality.
• By contrast, Austin’s is one of the first, and one of the most distinctive, theories that views
law as being “imperium oriented”—viewing law as mostly the rules imposed from above
from certain authorized (pedigreed) sources. More “top-down” theories of law, like that
of Austin, better fit the more centralized governments (and the modern political theories
about government) of modern times
• Third, within analytical jurisprudence, Austin was the first systematic exponent of a view
of law known as “legal positivism.” Most of the important theoretical work on law prior to
Austin had treated jurisprudence as though it were merely a branch of moral theory or
political theory: asking how should the state govern? (and when were governments
legitimate?), and under what circumstances did citizens have an obligation to obey the
law? Austin specifically, and legal positivism generally, offered a quite different approach
to law: as an object of “scientific” study, dominated neither by prescription nor by moral
evaluation.
• Fourth, Austin’s version of legal positivism, a “command theory of law”, was also, for a
time, quite influential. Austin’s theory had similarities with views developed by Jeremy
Bentham, whose theory could also be characterized as a “command theory.”
• However, Austin’s command theory was more influential than Bentham’s,

HIS THEORY

• Austin’s basic approach was to ascertain what can be said generally, but still with interest,
about all laws. Where Austin does articulate his methodology and objective, it is a fairly
traditional one: he “endeavored to resolve a law (taken with the largest signification which
can be given to that term properly) into the necessary and essential elements of which it
is composed”
• As to what is the core nature of law, Austin’s answer is that laws (“properly so called”) are
commands of a sovereign. He clarifies the concept of positive law (that is, man-made law)
by analyzing the constituent concepts of his definition, and by distinguishing law from
other concepts that are similar:
 o “Commands” involve an expressed wish that something be done, combined with
a willingness and ability to impose “an evil” if that wish is not complied with.

o Rules are general commands (applying generally to a class), as contrasted with

specific or individual commands (“drink wine today” or “John Major must drink
wine”).

o Positive law consists of those commands laid down by a sovereign (or its agents),
to be contrasted to other law-givers, like God’s general commands, and the
general commands of an employer to an employee.

o The “sovereign” is defined as a person (or determinate body of persons) who

receives habitual obedience from the bulk of the population, but who does not
habitually obey any other (earthly) person or institution. Austin thought that all
independent political societies, by their nature, have a sovereign.

o Positive law should also be contrasted with “laws by a close analogy” (which
includes positive morality, laws of honor, international law, customary law, and
constitutional law) and “laws by remote analogy” (e.g., the laws of physics).

• Austin also included within “the province of jurisprudence” certain “exceptions,” items
which did not fit his criteria but which should nonetheless be studied with other “laws
properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws
prescribing action but without sanctions (a concept Austin ascribes to “Roman [law]
jurists”)

• In the criteria set out above, Austin succeeded in delimiting law and legal rules from
religion, morality, convention, and custom. However, also excluded from “the province of
jurisprudence” were customary law (except to the extent that the sovereign had, directly
or indirectly, adopted such customs as law), public international law, and parts of
constitutional law.

• Within Austin’s approach, whether something is or is not “law” depends on which people
have done what: the question turns on an empirical investigation, and it is a matter mostly
of power, not of morality.

• In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial
lawmaking as “highly beneficial and even absolutely necessary. Nor did Austin find any
 difficulty incorporating judicial lawmaking into his command theory: he characterized that
form of lawmaking, along with the occasional legal/judicial recognition of customs by
judges, as the “tacit commands” of the sovereign, the sovereign’s affirming the “orders”
by its acquiescence. It should be noted, however, that one of Austin’s later lectures listed
the many problems that can come with judicial legislation, and recommended codification
of the law instead

PROPER LAWS

• Proper laws derive from authority, and there are two kinds of authority in Austin’s legal
universe: the authority of the Christian scriptures and the authority of the political
superior. The scriptures are the source of the divine law – that which is set by God for his
creatures. The political superior is the direct or circuitous source of human law properly
so called, which Austin termed ‘positive law’. Austin excluded the unrevealed part of the
law of God from the class of laws properly so called

IMPROPER LAWS

• In Austin’s theory, not all norms are proper laws,

• The common denominator of this class is that they are based on opinion and not authority.
They resemble proper laws to varying degrees. Austin made a broad distinction within
laws improperly so called. Some of them resemble proper laws closely and are called laws
with reason. Others are only remotely analogous and are called law by ‘caprice of the
fancy’. They are laws only in the figurative sense. Austin termed the former ‘laws by
analogy’ and the latter ‘laws by metaphor’.

AUSTIN’S POSITIVE LAW

• Positive law, according to Austin, comprises the commands of a political sovereign

supported by sanctions on those who disobey. There are three key elements of this
concept of law: (1) a political sovereign, (2) command, and (3) sanction.
• In Austin’s theory a society that does not have a political sovereign does not have law in
the strict sense of positive law. It will have what Austin termed ‘laws improperly so called’
or positive morality. Austin regarded the political sovereign as a necessary feature of an
independent political society Where there is no sovereign, there is no independent
political society, and vice versa.
SOVEREIGN

• Austin said that this aspect of law being command of sovereign, is present, only if there is
presence of independent political society. In other words, according to him, law exists only
in an independent political society. According to him, independent political society is one
that has (i) determinable territory (ii) definite population - This society must be divided
into two sections – Political Superior and Political inferior. The Superior gives the order and
the inferior has to obey. These orders of political superior are ‘laws’. (iii) Sovereign –
Political Superior in this society is called Sovereign.
• For the Question who is a sovereign, Austin divided population into two categories, which
we can say is, Political Superiors and Political Inferiors/Subject. So, this division is also
about a hierarchy within this independent political society, one or few of whom assume
the post of the Commander and the rest being the subjects are the subordinates. The
Political superior are the sovereign and attributed three characteristics to it:
• Determinate human superior – The sovereign, according to Austin, is a determinate
human superior. It may consist of a single person, as in an absolute monarchy, or a group
of persons, such as the Crown, Lords and Commons in the United Kingdom. In every case,
one or many, the persons who make up the sovereign must be identifiable. This is one of
the main reasons for Austin’s view that customary law is not positive law. Customary law
is the product of generally held opinion of an indeterminate community of persons. The
persons who create customary law and the persons who are obliged by customary law are
to a large extent the same individuals. The sovereign must not only be determinate, it
must be human. The law of God as revealed in the scriptures, according to Austin, is law
properly so called but is not positive law, as it is not promulgated by a human superior.
• Something which gives the qualification to the sovereign, i.e., Whom the bulk of the
society yields habitual obedience - . It is an indispensable condition of a stable and
functioning society that its rules are observed by most of the members most of the time.
Widespread disobedience of the law usually means that political authority and the legal
system have become ineffective. Such a state, according to Austin, is the state of nature.
There is no Austinian positive law until the supremacy of one faction or the other is
established.
• The sovereign is not in the habit of obedience to any other human superior - But who
himself does not yield such obedience to a like superior. The monarch of a kingdom within
 an empire, or the government of a state or province within a federation, will not be
sovereign, according to Austin’s definition, because its authority is subject to the will of a
superior.
• Sovereign’s power cannot be legally limited - It cannot be limited by positive law, although
it may be constrained by positive morality. Austin maintained that constitutional rules are
rules of positive morality that the sovereign may disregard. He thought that a legally
limited sovereign was a contradiction in terms. His sovereign, by definition, has no superior.
If a sovereign’s power is limitable it is because there is a superior power that can impose
limits. In that case the superior power is the real sovereign. Yet we know that political
authority in some countries is effectively limited by constitutional provisions enforced in a
variety of ways, including judicial review by courts having power to invalidate
unconstitutional acts of the legislature and the executive. As Herbert Hart pointed out in
his blistering criticism of the command theory of law, even the British sovereign (the
Crown in Parliament) is constituted by the law, including the law of royal succession. Law
is thus prior to sovereignty (Hart 1997, 54).
• Sovereignty is indivisible - The final attribute of Austin’s sovereign is indivisibility:
according to him, the notion of a divided sovereign is absurd. However, in many modern
states power is divided among the legislative, executive and judicial branches of
government. Power is also divided territorially in the case of federations. There is much
overlap and power sharing among the branches, and under the constitutions of many
countries no one branch appears supreme. In Austinian theory judicial and executive
actions are simply different ways of executing sovereign commands. Officials and judges
are mere delegates or ministers of the ultimate law making body, the legislature. This is
not the reality in countries where there are written constitutions and where courts have
full powers of judicial review.

COMMAND, DUTY, SANCTION

• Positive law, according to Austin, is produced by a sovereign’s command. A command is

not a request but an imperative that creates a duty by the presence of a sanction.
 • A command involves: (1) a wish or desire conceived by a rational being that another
rational being shall do or forbear; (2) an evil in case of non- compliance; and (3) intimation
of the wish by words or other signs
• A command cannot be separated from duty and sanction. They are aspects of a single
event. Where there is a duty there is a command, and where there is a command there is
a duty. In each case the duty arises from the existence of a sanction for breach.
• Laws producing commands may be general, in the sense that they constitute rules of
conduct applying to classes of persons or events. The rules of criminal law are general
commands. They are impersonal and are not directed to particular individuals. Commands
may also be occasional or particular. A command by which an individual’s property is
appropriated to the state is a particular command. In each case the command creates
positive law.

• Austin noted three kinds of commonly termed laws that are not imperative. These are not
laws properly so called, but may be justifiably included within jurisprudence.

o (1) Declaratory laws do not create new duties but clarify or interpret existing legal
relations. Austin conceded that imperative rules may be enacted under the guise
of a declaration.
o (2) Laws to repeal law are not imperative commands. It should be noted that the
repeal of some laws may create new duties or revive old ones. The repeal of a law
exempting some part of a person’s income from tax creates a liability to the tax.
o (3) Laws of imperfect obligation lay down rules without attaching a sanction for
their breach. The statutory duty of the city council to keep the streets clean will
fall within this category. It must be noted that laws that create rights and liberties
in individuals are imperative, and hence, by Austin’s definition, are laws properly
so called. They are imperative because they create correlative duties on the part
of another. Thus, a law that grants me the liberty to drive my car brings about a
whole range of duties on the part of others to respect my liberty.

CRITICISMS
• The main criticism of AUSTIN’s Definition of Law comes from HLA Hart, another Legal
Positivist.
• First, in many societies, it is hard to identify a “sovereign” in Austin’s sense of the word (a
difficulty Austin himself experienced, when he was forced to describe the British
“sovereign” awkwardly as the combination of the King, the House of Lords, and all the
electors of the House of Commons). Additionally, a focus on a “sovereign” makes it difficult
to explain the continuity of legal systems: a new ruler will not come in with the kind of
“habit of obedience” that Austin sets as a criterion for a system’s rule-maker.
• Secondly, one could that the sovereign is best understood as a constructive metaphor:
that law should be viewed as if it reflected the view of a single will
• As regards Austin’s “command” model, it seems to fit some aspects of law poorly (e.g.,
rules which grant powers to officials and to private citizens—of the latter, the rules for
making wills, trusts, and contracts are examples), while excluding other matters (e.g.,
international law) which we are not inclined to exclude from the category “law.”
• More generally, it seems more distorting than enlightening to reduce all legal rules to one
type. For example, rules that empower people to make wills and contracts perhaps can be
re-characterized as part of a long chain of reasoning for eventually imposing a sanction on
those who fail to comply with the relevant provisions. However, such a re-characterization
misses the basic purpose of those sorts of laws—they are arguably about granting power
and autonomy, not punishing wrongdoing.
• Finally, one might note that the constitutive rules that determine who the legal officials
are and what procedures must be followed in creating new legal rules, “are not commands
habitually obeyed, nor can they be expressed as habits of obedience to persons”
• When H.L.A. Hart revived legal positivism in the middle of the 20 th century, he did it by
criticizing and building on Austin’s theory: for example, Hart’s theory did not try to reduce
all legal rules to one kind of rule, but emphasized the varying types and functions of legal
rules; and Hart’s theory, grounded partly on the distinction between “obligation” and
“being obliged,” was built around the fact that some participants within legal systems
“accepted” the legal rules as reasons for action, above and beyond the fear of sanctions.
Hart’s “hermeneutic” approach, building on the “internal point of view” of participants
who accepted the legal system, diverged sharply from Austin’s approach to law.
• According to Austin the sovereign does not have to obey anyone but the modern states
have their powers limited by national and international laws and norms. For example, the
 Government of India cannot make laws that are violative of the provisions of the
Constitution of India.
• Austin does not provide for judges made laws. He said that judges work under the tacit
command of the sovereign but in reality judges make positive laws as well.
• Since the presence of sovereign is a pre-requisite for a proposition to called law, Austin did
not recognize international laws as such because they are not backed by any sovereign.

HART’S CRITICISM OF AUSTIN

• In his work “The Province of Jurisprudence Determined” John Austin formulated what has
come to be known as the “command theory” to describe the nature of law. Summarised
at its simplest form Austin states that law is in essence command
• The existence of law is hence like a gunman ordering a clerk in a bank to hand over the
money. This description of law has been famously rejected by HLA Hart in “A Concept of
Law” in which he sought to differentiate that ‘gunman situation’ from legal obligations.
• In distinguishing the nature of law from the ‘gunman situation’ Hart brings forward four
central arguments in Chapter II and III. I will call these general application argument,
‘standing order’ argument, continuous authority argument and variety argument.
• Firstly, Hart argues law differs from orders by a gunman because law is of general
application. A legal system functions by directing standard generalised orders at a public
at large and individual direction play an ancillary role only. Unlike in the case of the
gunman who directs his order at one person (the clerk) legal rules prescribe a standard
mode of acceptable conduct for a general class of persons. In reality there is no real
parallel to the face-to-face situation of the gunman even in criminal statutes that resemble
most closely the concept of law being orders backed by threats.
• Hart’s second argument is that of the lack of what he calls “standing orders” in the gunman
scenario. Laws generally have a ‘standing’ or persistent characteristic, i.e they are meant
to be valid over a longer period of time. The order of the gunman on the other hand is a
one-off direction and there is no continuing relationship between the parties “except the
short-lived coercive order”. After the gunman has left and removed the clerk form the
threat of his gun, his order will cease to have any force. Expanding on his previous point
Hart then points out that laws have a somewhat continuous authority, i.e. persons subject
to them will generally obey them habitually and thereby those who make the law.
 Lawmakers unlike orders by the gunman have long-lasting authority conferred on them by
the habit of general obedience to their directions.
• Hart’s last and most powerful argument is that the gunman fails to account for the variety
of law. While is approximates a penal statute the same is not true for any other variety of
law. The ‘variety argument’ is sub-divided into three objections to the gunman scenario.
• The three objections concern firstly the content of law, secondly the range of application
and lastly the source of law.
• The content of laws is different to orders by a gunman because some laws unlike orders
confer powers on individuals are a class of people. Laws do not just impose duties but also
facilitate the creation of legal rights and duties (through contract, wills, trust etc.)
• According to Hart, the idea that law consists merely of orders backed by threats is
inadequate to explain modern legal systems. Modern legal systems have laws governing
the formation and implementation of contracts, of wills, marriages and other executory
instruments. Hart calls these types of laws ―power conferring rules,‖ and argues that they
are less in the nature of orders backed by threats, and more in the nature of rules creating
a framework within which individuals can define the scope and limit of their rights,
obligations and liabilities.
• The second point is in essence that laws in most modern legal systems are not orders given
to others but legal duties are also imposed on those who make the rules. As Hart points
out, the word ―command‖ implies a top-down stable hierarchy of men, with rules being
purely other-regarding. However, this is not true in modern legal systems, as legislations
often have a self-binding force.
• Hart’s last objection concerns the source of law and emphasises that some laws originate
not from conscious-decision making but from custom and there is therefore no
‘commander’ obliging compliance with his orders.
• Having identified these deficiencies of the gunman model Hart develops his notion of e
legal obligation in Chapter V. In his view “being obliged” and “having an obligation” are
essentially different. The former connotes compulsion whereas it is perfectly possible that
a person has an obligation and feels no pressure to fulfil it. Hart illustrates the difference
with reference to the gunman situation. The clerk feels obliged to hand over the money in
the face of the threat but it would certainly be wrong to say that he had an obligation to
do so
• On the three grounds of content of laws, range of application, and mode of origin, Hart
rejects the idea that law is merely an amalgamation of coercive orders backed up by
threats. The third important prong of the Austinian definition is the term ―sovereign.‖
Austin defines a sovereign as ―someone to whom the bulk of the given society are in a
habit of obedience; and he is not in a habit of obedience to anyone.‖ Hart‘s criticism is
directed both at the idea of ―habitual obedience,‖ and at the idea that the sovereign is
an ―uncommanded commander‖ of the society. Hart argues that habitual obedience,
which is merely convergence of behaviour, is inadequate to explain the continuity of laws.
Mere habits of obedience to orders given by one legislator cannot confer on the next
legislator any right to succeed the old, or to give orders in his place
• For Hart laws have to be seen against the background of a social situation “that, unlike the
gunman situation, includes social rules." Legal rules prescribe a certain mode of conduct
in the social situation. They differ from mere habits through the way they are regarded by
the persons subject to the rules. These persons have internalised them as reasons for
acting in a particular way and refer to them when criticizing deviation from the standard.
The belief that one ought to act in a certain manner and not merely the fear of adverse
consequences motivates the adherence to legal rules.
• he simply rejection that notion that the nature of law could be described as being no more
than command by a sovereign (a person habitually obey by others but not habitually
obeying anyone). Rejecting the command theory does not mean asserting that coercion
and sanctions cannot be elements of law and that certain legal rules are not frequently
obeyed (only) because of the prospect of sanctions.
• Yet, if one seeks to describe the essential features of law encompassing all legal rules, the
command theory appears to fail. It can simply not adequately describe power-conferring
laws and account for the diverse motivations people may have when obeying the law. It is
however one thing to say that law is not only command and yet another attributing only
minor significance (or no significance at all) rather than a central role to coercion and
sanctions.
• Austin defines rule as the command of the sovereign and in case of disobedience, evil
consequence or punishment ensues. Hart argues Centrality of the obedience of the rule is
not punishment, it is a respect for the law, because of which it is obeyed.
• For Austin, source of law is the Sovereign (a determinate human superior). So, he divided
society in two segments, Political Superior, who issues commands, and political inferiors,
 subjects who follow the commands. Hart says there is no difference between Commander
and sub-alter. For him, the source of law is not a human superior, but rules. Everyone has
duty to obey the rule.
• Every rule cannot be understood in relation to the sanction (Where Constitution of India
gives power to Parliament to enact laws, where is the question of Punishment).
• For Hart, every individual does critical analysis of a rule before adhering to it. He also says,
tacit command as provided by the Austin does not reflects the true legal position in the
society. When Judiciary decided Keshavanada Bharti, did Parliament or State legislature
gave the command, no they did not. Hence, every time Austin’s theory of tacit command
does not reflects reality.

APPLICABILITY AND RELEVANCE IN PRESENT DAY

• Presuming the Discipline part

According to Austin, there is a sovereign body and there are a number of subjects who oblige
what is put forward. This is the case of modern day governance where a well-placed Government
releases rules for its citizens. However, there are slight changes. For Austin, questioning the
sovereign body was never an option which is not the case with the modern day governance.
People do strike, revolt against the government if a derogatory act or rule is passed. There are
many other examples in India only where we have seen people like Anna Hazare, Ramdev and
Kejriwal protesting and organizing marches against the government and demanding changes.

• Excludes common or imperfect laws

Austin’s definition and theories do work well but when it comes to the general laws or common
laws, it does not extend the same importance as attached to the command. However, the same
should not be the case. For a country like India where there are a lot of quasi-judicial bodies, such
an aspect cannot be followed. For instance, for people involved in army have a martial court. Any
law or judgment or bye-law emerging from the martial court is valid and enforceable on the Army
person, even though it does not come under the definition put forward by Austin.

• Not giving much attention to fundamental values

Fundamental values have been avoided by Austin in his definitions because at the time when the
analytical school thoughts were spread, the nations did not know of a concept of democracy.
There was no value given to the fundamental rights and directive principles. Also, India because
of its religious and cultural diversity, has not been considered as a federal state where all the
power is with sovereign by the constitution-makers. It has been beautifully made as a “Union of
states” and overcame the short sightedness of Austin’s definition of rights and duties which was
limited to an extent.

• Excess power to the sovereign

If Austin’s theories were to be applied to the everyday present day governance, the government
would have been a very powerful body. Austin always believed in a sovereign body which was the
supreme body and had the maximum power. Though, it cannot be denied that this is true to an
extent, yet in the modern day government, the ministers and leaders themselves are elected by
people. So if the government is strong, so are the citizens who are a part of it. This was reiterated
as a principle of theory of separation of powers and was explained by the apex court in Golak
Nath vs. State of Punjab .

• Undermining value of international law

Austin’s theory do not values international laws. It was valid at a time which was completely
dominated by rulers and dictators. However, for a period which is modern and under a democracy,
to not obey international law in itself is an offense. Austin’s theory though valid, the extension of
the definition attached to even the international bodies cannot be ignored.

• Law emanating only from the sovereign may be fit for a totalitarian regime (which is soon
becoming a rare phenomena in present world order) where the government can use its
monopoly of law making and executive powers for the re shaping of laws in disregard of
the democratic processes, but in a democratic country like India the same is not possible.
• public opinion on vital issue is expressed through the elected representatives in the house,
and also through public discussion in press , radio, public lectures .it can thus be concluded
that legislative practices in our country provide for opportunities to the public to
participate in the legislative activities of those to whom these powers are delegated.
• Austin postulates a political superior in a political society who is habitually obeyed by the
majority of the population. This means that sovereign is the highest authority , the
strongest authority in a political system. But the issue is that how can one determine the
'highest authority' in a democratic country like India , to identify the strongest power
would involve an investigation of a lot of legal as well as well extra legal forces which
 determine how a state shall operate. Who is the highest authority, is it the masses who
chose the government, is the legislators who finally make laws, is it the judiciary that has
the power to strike down laws made by the parliament, is it the executive as laws that are
enforced are selected by administrators today Who do we call supreme. Besides these
forces there are other socio - economic forces that have the power to exert a lot of
pressure to finally determine what laws are formulated and most often have the final say
• Austin 's theory that law emanate only from the sovereign authority in India as much as it
would fail in other common law countries. There are various other very important sources
of law which cannot be ignored at all. His theory would fit only one portion of law that is
the law made by the legislative body. But the word law is of wilder amplitude and includes
not only laws but bye-laws, notifications, customs which are not made by the state.
Another important category that Austin does not include in his definition of law is Judge
made laws , in this era of judicial activism where judiciary does not only interpret law but
also makes law this category cannot be ignored. principles of justice, equity, good
conscience are important principles that are always kept in mind while implementing any
law none of them.
• Similarly Austin's concept of unlimited and indivisible sovereignty is quite inappropriate in
the Indian set up or any democracy. The sovereign does not have the power to command
anything that it desires. It is as much bound by rules and regulation embodied in the
constitution and other laws as any common man. Legislature is bound by the constitution
and in almost all cases court has the power to decide whether an act done by the
government is constitutional and hence valid otherwise it can be struck down.
• Thus we can say that the notion of sovereignty in India at present certainly not what Austin
would define as sovereignty, the concept of sovereignty is under restraint which is very
justified as the concept of an unlimited illimitable and indivisible sovereignty is a
superfluity that debases the very cannon of Indian Jurisprudence.