JOHN AUSTIN
· JOHN AUSTIN ( 1790 – 1859 ), who was a Prof. in London University, is the founder of the Analytical School. He is considered as the Father of English Jurisprudence. He was elected to the chair of Jurisprudence in the University of London in 1826. Then he proceeded to Germany & devoted some time to the study of Roman Law. Austin, a disciple of Bentham, is a positivist & concerned with ‘what law is’ & ‘not what law ought to be’. ‘Positus’ means ‘as it is’.
The first six (6) lectures were published in 1832 under the title ‘The Province of Jurisprudence Determined’, while rest were published posthumously in 1861. He avoided metaphysical method, which is a German characteristic. The method, which Austin applied, is called analytical method & he confined his field of study only to ‘positive law’. Therefore, the school founded by him is called by various names – ‘Analytical’, ‘Positivism’, & ‘Analytical Positivism’. Prof. Allen thinks it proper to call the Austin’s school as ‘Imperative School’ on the basis of is conception of law, i.e., ‘Law is Command’.
For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply & strictly so called’ or ‘law set by political superiors to political inferiors’. He believed that ‘Law’ is only an aggregate of laws & defined ‘law’, “As a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. To him, law is the command of a sovereign requiring his subjects to do or forbear from doing something. There is an implied threat of ‘sanction’ if the command is not obeyed.
L A W
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Law properly so called Law improperly so called
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Law by God Law by humans Law by analogy
or Divine Law / Laws set by Law by metaphor
men for men
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Law by political Law by superiors Law of fashion All the laws
superiors to to inferiors, but & public opinion, of nature, i.e.,
political inferiors the superiors r not i.e., international law of motion,
political superiors law, customs & gravitation,
traditions etc.
This is calledPositive Law --------------------------
Positive Morality
He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’. The former r general commands addressed to the community at large & enjoined classes of acts & forbearance. They r divided into laws set by God / divine law / law of God & laws set by men to men. Laws set by men to men also fell into 2 categories – the first consisted of laws set by political superiors to political inferiors. This was termed by Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject matter of jurisprudence. Thus, law properly so-called must hv 3 elements– (i) command, (ii) sanction & (iii) sovereign. The second category consisted of laws set by men to men neither as political superiors nor in pursuance of rights conferred upon them by such superiors, e.g., those set by a master to a servant or the rules of a club. They r still laws properly so called because they r commands, but he distinguished them from positive law by giving them the term ‘positive morality’.
Analogous to the laws of the latter class r a number of rules to which the name ‘laws improperly so called’ is given. They are opinions or sentiments of an undeterminate body of men & laws of fashion or honour. He places intl. law under this class. In the same way, there r certain other rules which r called law metaphorically – laws of nature. They are laws improperly so called.
‘Positive law’ (law simply & strictly so called or law set by political superiors to political inferiors) is the only proper subject matter of jurisprudence. Jurisprudence is the general science of positive law.
Laws properly so called are species of commands. But being a command, it flows from a determinate source or emanates from a determinate author. For whenever a command is expressed of intimated, one party signifies a wish that another shall do or forbear & the latter is obnoxious to an evil which the former intends to inflict in case the wish is disregarded. The key to understanding law properly so called lies in duty which is created by the command of a sovereign. Duty & sanction are correlative terms – whenever duty lies, a command has been signified & whenever a command is signified, a duty is imposed.
In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which r inextricably linked & can’t be separated. According to him, there r 3 kinds of laws, which, though not commands, r still within the province of jurisprudence:
(i) Declaratory of Explanatory Laws : Austin does not regard them as commands because they r passed only to explain laws already in force, e.g., General Clauses Act.
(ii) Laws to Repeal Laws : These too r not commands but r rather the revocation of a command. They release from duties imposed by existing laws & r named permissive laws.
(iii) Laws of Imperfect Obligation : These laws have no sanction attached to them. Thus, there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s, etc.
Criticisms of Austin’s Theory :
(i) Customs ignored : For Austin, law is the command of sovereign. In the early times, not the command of any superior, but customs regulated the conduct of the people. Even after coming of State into existence, customs continued to regulate the conduct. Therefore, customs should also be included in the study of jurisprudence, but he ignored them. Customs have been in existence since old times. Customs hv also bn an important source of law. As per Austin, customs can only be a law if the sovereign accepts them as law, while customs provide the basis on which the law can be based. Thus, even if the sovereign does not recognise them as law, customs hv always bn an important source of law & can’t be ignored.
(ii) Judge-made law : There is no place for judge-made law. In the course of their duty (while applying precedents & interpreting the law), judges make law. Though an Austian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts r the commands of the sovereign. However, in modern times, judges perform a creative function & Austin’s definition of law does not include it.
(iii) Command theory untenable : Command presupposes a commander. No indeterminate party can command, expressly or tacitly or can receive obedience or submission. The question is whether he can be discovered, who might be regarded as having commanded the whole corpus of law. In democratic system, it is not possible that one person commands.
(iv) Sanction is not the only means to induce obedience : As per Austin, it is the sanction alone which induces the man to obey law, while it is open to criticism from many points of view as there r many other considerations such as reasoning, logic, love, etc. due to which people obey.
(v) International Law : Austin put Intl. Law under positive morality a/w the law of honour & law of fashion. The so-called law of nations consists of opinions or sentiments. It, therefore, is no law properly so called. The main ingredient of law lacking in Intl. Law is sanction, but this alone will not deprive from being called law. Now-a-days, Intl. Law is playing an important role &, thus, it can’t be totally negated. Hence, nobody will accept that Intl. Law is not law. Therefore, according to Austin, a very imp. branch of law shall be excluded from the study of jurisprudence.
(vi) Relation of law & morals overlooked : To Austin, law isn’t concerned with morals but this isn’t correct proposition. Law is not an arbitrary command, but it is a growth of an organic nature. Moreover, law has not grown as a result of blind forces, but it has been developed consciously & has been directed towards a definite ends. It isn’t completely devoid of ethical & moral elements. Any law, which is devoid of ethics or morality, can’t withstand the test of time. People don’t accept it whole-heartedly because of it being unethical. Hence, morals hv always bn an integral part of law.
(vii) Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure Code, etc. He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity Act, etc.
Applicability of Austin’s Theory In India :
(1) We don’t hv a legally unlimited or indivisible sovereign. Our constitution is supreme, though it can be amended, but basic structure can’t be.
(2) Though there is separation of powers, yet sometimes judiciary makes law (Art. 141 – Vishakha’s case & D.K Basu’s case).
(3) Ordinance making power of the Governor & the President (Art. 123 & 213);
(4) We have quasi-federal system. Though the President has the supreme power, but the same is exercised by the Prime Minister.
(5) DPSP r not positive law as per Austin. Though DPSP r non-justiciable, yet they r important as they govern the guidelines for the society. Thus, the principle of ‘is’ & ‘ought’ fails.
Comparison of Bentham & Austin :
(i) Bentham provided a deeper & more adaptable theory. His concept of sovereignty was flexible as it avoided indivisibility & illimitability. He was, thus, able to accommodate the division of authority b/w organs as in a federation or division in certain areas as well as restrictions of authority.
(ii) His concept of law was broader than Austin’s. He avoided the absurdity of ‘law properly so called’.
(iii) His sanction was both wider & less important than Austin’s sanction. Laws are still laws even though supported by moral or religious sanctions or they may even be accompanied by rewards. He, thus, had no need to resort to a sanction by nullity.
ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW