CRITICISMS OF AUSTIN’S

THEORY OF LAW
Presented by:
Rinkey Sharma
Assistant Professor of Law
IILS
• 1. LAW BEFORE STATE
• It was contended by the jurists belonging to Historical school
that laws were in existence even before the existence of the
State. They said that it has its source in custom, religion or
public opinion.
• However, Austin said that the source of law was a Sovereign
in a state. Thus, this view was criticised by the jurists.
• They said that state enforces it because it is already a law. It
is not correct to say that it becomes law because the state
enforces it.
• Hence, law cannot always and everywhere the creation of the
State.
• Example: Hindu Marriage ceremonies, right of way
• 2. GENERALITY OF LAW
• According to Austin, law is a general rule of
conduct, but that is not practicable in every
sphere of law. In fact, there are some laws that are
particular in nature.
• Example: Constitutional law: General law;
Hindu/Muslim law: Particular law.
• 3. PROMULGATION
• According to Austin, law is a command and that
command has to be communicated to the people
by whom it is meant to be obeyed or followed.
This view of Austin is not rational.
• 3. LAW AS COMMAND
• According to Austin, law is a command of the
Sovereign but all laws cannot be expressed in
terms of law.
• There are large number of laws which are
neither command nor forbid things to be done
rather they empower people with some rights.
• Example: right to vote, law relating to
contract, law relating to sale of property, law
relating to making of will etc.
• 5. EXISTENCE OF PERSONAL
COMMANDER
• The definition of law given by Austin suggests that
there should be personal commander who is giving
the law to the people. however, in modern legal
system, it is impossible to identify any commander
in this personal sense. In other words, laws are not
always coming from determinate superior.
• 6. LAW – MAKING POWER OF SOVEREIGN
IS LIMITED
• Austin said that power of sovereign is unlimited. It
cannot be accepted.
• 7. SANCTION
• Austin said that it is the sanction (fear of
punishment) which gives enforceability to all
laws. However, sanction does not compel the
people to obey the law but they obey the laws
because they wanted to obey them i.e., it is the
willingness of the people to obey the law gives
force to the law in actual sense.
• Force is the last resort to secure obedience.
• Hence, it can be said that the theory of Austin
may be true in monarchical police state.
• 8. NOT APPLICABLE TO
INTERNATIONAL LAW
• International laws are not command of any
sovereign, yet it is considered to be law by all
concerned.
• He regarded international law as positive
morality i.e., not a law in proper sense.
However, this view of Austin shall not be
accepted by anyone. His definition excludes
the very important branch of law.
• 9. NOT APPLICABLE TO CONSTITUTIONAL
LAW
• Austin’s definition of law is not applicable to
Constitutional law.
• Constitutional law basically set out the powers of
the different organs of the state.
• Sovereign needs to be abide by the Constitution. He
needs to function within the parameters set by the
Constitution.
• Constitutional law is not the outcome of Sovereign’s
command rather it is the Constitution which creates
the Sovereign.
• 10. DISREGARD OF ETHICAL
ELEMENTS
• The major defect in Austin’s theory of law is
that he totally separate morality (justice) from
law.
• He said whether law is good or bad, it has to
be accepted by the people. however, this view
cannot be accepted because law without
justice is inadequate. In fact, the main of law is
to ensure justice to people.