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CRITICAL ANALYSIS OF JOHN AUSTINS

THEORY OF COMMAND

NATIONAL LAW UNIVERSITY, JODHPUR


SUMMER SEMESTER
(JAN-MAY 2015)
Submitted By:

Submitted To:

Shivani Chaturvedi

Mr. S.K. Kaushik

1240

Faculty Of Jurisprudence

BA, LL.B
Semester III

ACKNOWLEDGEMENT

Upon the completion of this project, I would like to acknowledge the help rendered by various
people. Without them, it would have been extremely difficult for me to bring this endeavour to a
meaningful end.
First and the foremost, I would like to express my overwhelming gratitude to my teacher, Mr.
S.K. Kaushik, Faculty of Jurisprudence, for his constant support and incessant encouragement
throughout the course of this project.
I would also like to thank the IT Department at National Law University, Jodhpur for providing
all the necessary resources. I am also thankful to the Library staff for their help and assistance at
all times.
I would be failing in my duties if I forgo this opportunity to thank my friends especially
Abhilasha Gupta for helping me , colleagues and my parents who have been a constant source of
encouragement and the real driving force behind this work.

Shivani Chaturvedi

RESEARCH METHODOLOGY
SUBJECT: Jurisprudence
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TOPIC: Critical Analysis of John Austins Theory of Command

The research methodology opted by me to complete this project work was doctrinal research
from primary and secondary sources. The major sources were articles and books written on the
topic by various scholars. Various web databases have also been referred to for case laws,
commentaries and articles.

SCOPE OF THE PROJECT


This project seeks to critically analyze the theory given by John Austin. To highlight the positive
and the negative aspects of the theory.

TABLE OF CONTENTS

ACKNOWLEDGEMENT...............................................................................................................2
RESEARCH METHODOLOGY....................................................................................................3
SCOPE OF THE PROJECT............................................................................................................4
introduction......................................................................................................................................6
about john austin..............................................................................................................................7
Life...............................................................................................................................................7
Work.............................................................................................................................................8
theory of command..........................................................................................................................8
crticisms faced by the theory.........................................................................................................13
positive aspects of the theory.........................................................................................................16
bibliography...................................................................................................................................17

INTRODUCTION

John Austin is considered by many to be the creator of the school of analytical jurisprudence, as
well as, more specifically, the approach to law known as legal positivism. Austin's particular
command theory of law has been subject to pervasive criticism, but its simplicity gives it an
evocative power that continues to attract adherents.
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 governed 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. Subtle
jurisprudential questions aside, Austin's efforts to treat law systematically gained popularity in
the late 19th century among English lawyers who wanted to approach their profession, and their
professional training, in a more serious and rigorous manner.1
Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally
neutral descriptive (or "conceptual" -- though this is not a term Austin used) theory of law. (The
main competitor to legal positivism, in Austin's day as in our own, has been natural law theory.)
Legal positivism does not deny that moral and political criticism of legal systems is important,
but insists that a descriptive or conceptual approach to law is valuable, both on its own terms and
as a necessary prelude to criticism.
There were theorists prior to Austin who arguably offered views similar to legal positivism or
who at least foreshadowed legal positivism in some way. Among these would be Thomas
Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume,
with his argument for separating "is" and "ought" (which worked as a sharp criticism for some
forms of natural law theory, which purported to derive moral truths from statements about human
nature) (Hume 2000); and Jeremy Bentham, with his attacks on judicial lawmaking and on those,
1 Cotterrell 1989: pp. 79-81
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like Sir William Blackstone, who justified such lawmaking with natural-law-like justifications
(Bentham 1970, 1996).
Austin's famous formulation of what could be called the "dogma" of legal positivism is as
follows:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A
law, which actually exists, is a law, though we happen to dislike it, or though it vary from the
text, by which we regulate our approbation and disapprobation

ABOUT JOHN AUSTIN2


John Austin was born on March 3, 1790 in Creeting Mill, Suffolk England. He was an
renowned English jurist whose writings, especially The Province of Jurisprudence
Determined (1832), advocated a definition of law as a species of command. The book tried to
seek the difference between positive law and morality. His works gained the popularity after his
death.

LIFE
Austin had a brief stint of five years in the army after which he began to study law in the year
1812. From the year 1818 to 1825 he practiced unsuccessfully at the chancery bar. His powers of
rigorous analysis and his uncompromising intellectual honesty deeply impressed his
contemporaries, and in 1826, when University College, London, was founded, he was appointed
its first professor of jurisprudence, a subject that had previously occupied an unimportant place
in legal studies. He spent the next two years in Germany studying Roman law and the work of
German experts on modern civil law whose ideas of classification and systematic analysis
exerted an influence on him second only to that of Bentham. Both Austin and his wife, Sarah,
2 http://www.britannica.com/biography/John-Austin
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were ardent Utilitarians, intimate friends of Bentham and of James and John Stuart Mill, and
much concerned with legal reform. Austins first lectures, in 1828, were attended by many
distinguished men, but he failed to attract students and resigned his chair in 1832. In 1834, after
delivering a shorter but equally unsuccessful version of his lectures, he abandoned the teaching
of jurisprudence. He was appointed to the Criminal Law Commission in 1833 but, finding little
support for his opinions, resigned in frustration after signing its first two reports. In 1836 he was
appointed a commissioner on the affairs of Malta. The Austins then lived abroad, chiefly in Paris,
until 1848, when they settled in Surrey, where Austin died in 1859.

WORK

Austins most successful work is the book called the Province of Jurisprudence Determined
which was published on 1832. He elaborated his definition of law as species of command in
order to clarify the distinction between law and morality because he considered that the concept
was blurred by the doctrines of Natural Law. According to Austin, commands are expressions of
desire that another shall do or forbear from some act and are accompanied by a threat of
punishment for disobedience. The book is the mark of distinguishing positive law both from the
fundamental principle of morality, which are the law of God and from positive morality, or
manmade rules of conduct, such as etiquette, conventional morality and international law, which
do emanate from a sovereign. The Province also contains a version of Utilitarianism in which
utility is regarded as the index of Gods commands and the test of the moral quality of general
rules of conduct rather than of particular actions. Austin distinguished this general, or analytical,
jurisprudence from the criticism of legal institutions, which he called the science of legislation;
he thought both were important parts of legal education

THEORY OF COMMAND
Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's
utilitarianism is evident (though with some differences) in the work for which Austin is best
known today. On Austin's reading of utilitarianism, Divine will is equated with Utilitarian
principles: The commands which God has revealed we must gather from the terms wherein they
are promulgated. The command which he has not revealed, we must construe by the principle of
utility3
In his book the Province of Jurisprudence Determined he stated that his purpose is to distinguish
between the positive law from objects by which they are connected by ties of resemblance and
analogy namely by determining the essence or nature which is common to all laws that are laws
properly so called.4 Austin promotes a command theory of law with the aim to precise the
definition of law and tp p[rove that the study of law is a province of legal enterprise. According
to Austin A law is a command which obliges a person or persons, and obliges generally to acts
or forbearances of a class or a course of conduct 5. Yet the law is not equivalent to any
command, but constitutes a subtype of the concept of command. A command furthermore,
always expresses or intimates of the wish being presented by a superior to his inferiors- it, in
other words demands a theory of sovereignty, or of legal personality. By the word superior
Austin does not mean some form of precedence or excellence, he relates it more raw notion of
domination. According to Austin superiority signifies might: the power of affecting others with
evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to ones
wishes.6 This is a highly hierarchical conception of law, according to which it is impossible to
establish a proper legal horizontal agreements among people with equal status because the
superior authority sanctioning the agreement and possessing the power to punish non compliance
is absent. Then the most important question arises; who or what entity, is endowed with the
3 Austin 1873: Lecture IV, p. 160
4Austin 1873: Lecture I, p 2
5 Austin 1873: Lecture I, p 24
6 Id.
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authority to legally bind the subordinates- to in other words impose upon them an obligation to
obey the command or face the threat of sanction?
Austin gives two reasons for this question.
Firstly he says that laws set by men to men are embraced within his command definition of law.
In recognizing the sovereign authority of a monarch, or sovereign number to lay a general
command to a person or persons in a state of subjection to its author, Austin follows the
Hobbesian tradition of conceptualizing the state as possessing a corporate personality whose
legal basis is not contingent a priori upon the consent of its subordinate.
As such Austin traces the authority of a command to its apex- in the British case, to the sovereign
Parliament. It is for this reason that Austin defends judicial commands as laws properly so called,
for a subordinate or subject judge is merely a minister. The portion of the sovereign power
which lies at his disposition is merely delegated. All judge made laws are the creation of the
sovereign or state. Also Austin has rejected the notion that some laws merely bestow rights
without any corresponding duties or obligations, according to Austin if an individual wants to
seek out a remedy from public officials for the violation of their rights, then the law imposes
duty upon the perpetrator of the violation to provide restitution or to face the states sanction,
depending on the transgression7
Secondly, Austin says that laws set by God for his human creatures known as laws of nature are
also embraced within the definition of command. These may either be directly revealed via the
word of God, the medium for which is human language which is uttered by the God directly, or
by servants whom he sends to announce them In this endeavor, Austin takes a rather empirical
approach: the object of jurisprudence is to leverage our God-given intellectual faculties for
observing individual behavior to subsequently answer the following question: If acts of the
class were generally done, or generally forborne or omitted, what would be the probable effect
on the general happiness or good? (pg. 38). When the effects would be pernicious, we must
conclude that he enjoins or forbids them, and by a rule which probably is inflexible (pg. 41). As
such, the calculus promoted by Austin is one that takes social behavior, rather than individual
7 Austin 1832: Lecture I, p 29

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action, as the requisite signal to reveal the natural law. The logic, as applied to a contemporary
example, would unfold as follows: to evaluate, say, whether homosexuality is against the natural
law, we should not apply the principle of utility to assess the proper treatment of a gay person in
a single case; rather, we should ask whether the general welfare would be improved or depressed
by endowing LGBT persons with equal treatment. If the latter is the case, then the prohibition of
homosexuality is revealed to be part of Gods law.
Also Austin clarifies that the social norms concerning ethical principles which he terms as
positive morality to distinguish it from the law of God are only improperly but by close analogy
related to law.
Therefore Austins basic approach was to ascertain what can be said as laws. Austin articulates
his methodology and objective, it is a fairly traditional one, and he endeavored to resolve a law
into the necessary and essential elements of which it is composed.8
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:9
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.
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).
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.
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)
8 Austin 1832: Lecture V, p. 117
9 Austin 1832: Lecture I
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person or institution. Austin thought that all independent political societies, by their nature, have
a sovereign.
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 wanted to include 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 lawslaws prescribing action but
without sanctions (a concept Austin ascribes to Roman [law] jurists).10
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.
The flow chart given below now clearly summaries Austins theory of Command:
Jurisprudence Normative v. Analytic
Positive Law v. Non-Positive Law (e.g. Divine Law)
Laws properly so-called v. Laws not properly so-called (e.g. rules of honour & etiquette)
Political Superior (sovereign) v. Non-Political superior (e.g. school yard bully & Professor)
Laws
(Determinate Source/ Rule/General Command/Sanction/ Oblige/Obligation-Duty)
God

Sovereign

(Divine Law)

Other Human Beings

(President of NHL (i.e. the Count);

10 Austin 1832: Lecture I, p. 36


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University Senate)

Command

General

vs

Particular

Rule

Positive Law
Non-Laws Within the Province of Jurisprudence (appear to be laws but are not)
1) Declaratory Laws
2) Laws to Repeal Laws
3) Imperfect Laws

Laws that appear not to be Commands, and hence not laws (but are laws
1) Laws granting rights
2) Customs
Sovereign: General commands are habitually obeyed by the bulk of the population; not in the
habit of obeying any other determinate human person(s).

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CRTICISMS FACED BY THE THEORY

The weakness of John Austins theory is better known than the actual theory itself. The most
prominent writers who criticised John Austins theory were HLA Hart and Hans Kelsen.
1) Theory is against the popular sovereignty:
This theory is completely against the concept of General Will which is the very basis of
democracy. Austins idea of sovereignty includes a political superior and everybody else who are
subordinate to this superior.
Austin vests all the powers with this superior and makes him absolute completely negating the
concept of democracy in which the ultimate power lies with the people of the country. Thus the
theory propounded by Austin is not applicable in a democratic set up.
2) It ignores the power of public opinion and political sovereignty:
Austins concept of sovereignty ignores the claim of public opinion and political sovereignty.
According to him the human sovereign is superior to all. This human sovereign has all the
powers and is absolute. He completely ignores the massive influence of the electorate, public
opinion and political sovereignty.
3) Law is not the command of the sovereign:
According to Austin the determinate human superior is the only law maker and whatever
commands are given by that determinate political superior are laws. But many jurists have
severely criticised this view of sovereignty does not reside with a determinate political superiorr.
Many are of the opinion that John Austin laid unnecessary emphasis on only one element i.e. the
order of the sovereign and ignored many other elements. Austins definition of law as command
given by a superior to an inferior is not accepted by most of the political thinkers.
4) Sovereignty does not reside with a determinate person in the federation:

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In a federal state sovereignty does not reside with a determinate person. It is impossible to
discover sovereign in a federal state. For example, in India sovereignty does not reside with
Prime Minister, nor the President.
5) Force is not the only sanction behind laws:
Force is not the only sanction behind the laws. The will of the public is also a sanction behind the
law. Hence, Austins concept of sovereignty is wrong. In the modern times, laws are framed by
the representatives of the people and not by the will of the sovereign. Also one more bigger
criticism of the theory is that it portrays law solely in terms of power and fails to distinguish
rules of terror from the forms of governance sufficiently just that they are accepted as legitimate
by their own citizens.
6) The theory makes the sovereign completely absolute;
Another major criticism of the command theory is that it makes the sovereign completely
absolute, but in reality it is not all possible to become completely absolute at all.even in the
medieval times when there were absolute monarchs they could not remain completely absolute.
Even they were subject to morality, code of conduct and scruples of religion. And when they
tried to violate the establish moral, ethical and religious canons, they were in danger of facing the
revolt.
7) The theory is only applicable on the criminal law
As regards Austins command model, it seems to fit some aspects of law poorly for 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.\
The theory 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 sort of laws- they are arguably about granting power and autonomy, not
punishing wrongdoing.

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8) This theory is not even applicable to Europe


Austin in his theory asserted that the King-in-Parliament is the sovereign in England. But in
reality this assertion is not correct because neither the King nor the Parliament can go to the
extent of becoming completely absolute. Always they have to pay due attention to the will of the
public.
In reality public is the ultimate source of power. It is public that empowers the Parliament. This
is the reason why elections are conducted after every five years.
9) No separation of powers
Austin has not separated the powers properly. Judiciary has been made subordinate to the law
makers. If at all there is a separation of powers then the possibility of conflict between the
legislature and the executive is not too remote. According to Austin it is the sovereign which
delegates the power to take decisions to the court. The sovereign has the power to reverse the
decision taken by the judiciary. Also according to Austin the no suit can be instituted against the
sovereign. Therefore this concept completely goes against the concept of judiciary.
10) Non inclusion of customary laws.
The theory does not provide for customs as a source of laws. Laws such as uncodified
Mohammedan Law and customary International Law have no validity. International Law has
expressly been regarded as a law improperly named so.Dias has criticised the theory heavily on
the grounds of non inclusion of International Law as law by Austin. In India, customs have been
identified as laws [Article 13].

POSITIVE ASPECTS OF THE THEORY


Though there are various shortcomings in the theory which was given by the Austin but stiil it
has certain positive aspects to it.

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The theory given by Austin was the first ever attempt to define the system called law. It can be
said to be quite relevant for the time when it was made and the theory though full of
shortcomings was used for a long time.
The theory tried to rule out the possibility of arbitrariness by saying that the commands that are
given ceremoniously and after due deliberation shall be laws.
However, it fails to recognise the possibility of arbitrary commands being given ceremoniously
and after deliberation.
Also Austinian theory can be used to explain why states divide or break and with the growth of a
parallel sovereign, having an equivalent obedience defeats the definition of sovereign as given by
Austin. Thus, to accommodate such parallel sovereigns, the state splits.

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BIBLIOGRAPHY

Web links:
http://stanford.library.usyd.edu.au/archives/spr2004/entries/austin-john/
http://www.britannica.com/biography/John-Austin
http://plato.stanford.edu/entries/austin-john/#AnaJurLegPos
http://www.politicalsciencenotes.com/theories/8-criticism-faced-by-austins-theory-ofsovereignty/252
http://tommasopavone.yolasite.com/resources/Austin-%20The%20Province%20of
%20Jurisprudence%20Determined%20(Critical%20Review).pdf

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