JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

CHANAKYA NATIONAL LAW UNIVERSITY

Submitted to: Prof: Manoranjan Kumar Submitted by: Rishikesh Kumar

Faculty of Jurisprudence Roll- 1366

B.A.LLB (Hons.)

5th Semester (2015-2020)

 JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

Table of Contents

Acknowledgment ............................................................................................................................ 3
1. Introduction ........................................................................................................................... 4
2. Life and works of Austin ...................................................................................................... 6
3. Jhon Austin Theory of Law .............................................................................................. 10
Austins Approach towards Jurisprudence (Positive Law) ................................................ 10
Austins analytical method ..................................................................................................... 12
Austin Theory of Imperative Law ........................................................................................ 12
Austinian Conception of Law ................................................................................................ 13
Austins Concept of Law ........................................................................................................ 13
Austins Command Theory ..................................................................................................... 14
Positive Law as Command .................................................................................................... 14
Law is Command................................................................................................................... 14
Command and Sanction ........................................................................................................ 15
Commands are of two species: ............................................................................................. 15
Command Exceptions............................................................................................................ 15
4. Criticisms to Austins Theory ............................................................................................ 17
Criticisms: ................................................................................................................................ 17
Harts Criticisms to Austins Theory .................................................................................... 19
5. Conclusion ........................................................................................................................... 23
Bibliography ................................................................................................................................. 24

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 JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

ACKNOWLEDGMENT

Writing a project is one of the most significant academic challenges, I have ever faced.
Though this project has been presented by me but there are many people who remained in veil,
who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. Manoranjan Kumar without the kind
support of whom and help the completion of the project was a herculean task for me.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

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 JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

1. INTRODUCTION

John Austin was a noted English legal theorist who strongly influenced British and American
law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing
traditional "natural-law" approaches, Austin argued against any necessary connections between
law and morality. Human legal systems, he claimed, can and should be studied in an empirical,
value-free way.

Austin was born on March 3, 1790, the eldest son of a well-to-do Suffolk miller. After spending
five years in the army during the Napoleonic Wars, Austin turned to law and spent seven
unhappy years practising at the Chancery bar. In 1819, Austin married Sarah Taylor and became
neighbours and close friends with Jeremy Bentham and James and John Stuart Mill. Largely
through Bentham's influence, Austin was appointed professor of jurisprudence at the newly
founded University of London in 1826. Austin's lectures were not well-attended, and he resigned
his university post in 1834. Thereafter, aside from two stints on government commissions,
Austin lived largely on his wife's earnings as a writer and translator. Plagued by ill health,
depression and self-doubt, Austin wrote little after the publication of his major work, The
Province of Jurisprudence Determined (1832). This work was largely ignored during Austin's
lifetime. It became influential only after his death when his wife, Sarah Austin, published a
second edition in 1861. A second book, Lectures on Jurisprudence, was put together by Sarah
from Austin's notes and published in 1863.

Law, according to Austin, is a social fact and reflects relations of power and obedience. This
twofold view, that (1) law and morality are separate and (2) that all human-made ("positive")
laws can be traced back to human lawmakers, is known as legal positivism. Austin argues that
laws are rules, which he defines as a type of command.

This project is an attempt to delve and analyze into the jurisprudence theory propounded by the
John Austin.

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 JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

Aims and Objectives:

The researcher aims to examine the works of John Austin. The main aim of the researcher is to
study the theory of legal positivism by Austin and critically examine it.

Hypothesis:

The researcher assumes that John Austins theory formed the basis of development of
jurisprudence though inapplicable in modern times.

Research Methodology:

The researcher is supposed to take up the doctrinal method in pursuance of the completion of this
project. Also, this project shall while mainly focusing on the doctrinal research shall be
complemented by some empirical findings too.

Sources of Data:

For the purposes of this project, the researcher shall place reliance on both, primary and
secondary sources.

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 JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

2. LIFE AND WORKS OF AUSTIN

John Austin (1790-1859) who is considered the Father of Jurisprudence was born on 3rd march
1790 in Suffolk merchant family.1 In the early days of his life he briefly served in the military
during Napoleanic Wars followed by litigation in the chancery courts (1807 to 1812).2 Later in
1820, he married Sarah Taylor.3 In 1819 they became neighbors to Jeremy Bentham who helped
him in getting appointed as professor of jurisprudence in the newly established university of
London in 1826.4 His life was not satisfactory and unyielding. He lived his entire life plagued by
ill health depression and self-doubt. Since his classes witnessed a consistent fall in the number of
students he resigned from university of London in 1835.

His most prominent work was the province of jurisprudence determined which was published
in 1832. This work gained prominence only after his death. Till his lifetime he did not get much
recognition. His theory of analytical jurisprudence and legal positivism has largely influenced
the british and American jurisprudence. His approach is cited to be very practical and simple. His
entire life was full of adversities but his wife was a constant support to him. She helped him
emotionally as well as economically. The significant posts which he held in his lifetime can be
credited to the generous nature of his influential friends like Jeremy Bentham, James mill john
Stuart Mill. The second edition of the province of jurisprudence was published in 1861 by the
efforts of his wife and his friends.

His works are centralized towards what law is and what law ought to be. In other words he
emphasized his theory upon positive law which he propounded as the province of jurisprudence.

John Austin provided the terminology necessary to analyze the interrelationship between ethics
and proper law that has evolved into the modern field of jurisprudence.5

1
Herbert Lionel Adolphus Hart, John Austin English jurist, Britanica, https://www.britannica.com/biography/John-
Austin last seen on 3/11/2017.
2
Ibid.
3
Ibid.
4
John Macdonell, Austin, John (1790-1859) (DNB00), Wikisource,
https://en.wikisource.org/wiki/Austin,_John_(1790-1859)_(DNB00); see also, Dictionary of National Biography,
1885-1900, Volume 02.
5
Encyclopedia of World Biography, John Austin http://www.encyclopedia.com/people/social-sciences-and-
law/law-biographies/john-austin last seen on 3/11/17.

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 JOHN AUSTINS THEORY: A CRITICAL ANALYSIS

John Austin became well-known for his attempt to provide an easily understandable ethical
framework that could establish the rule of law as distinct from the rule of "God" and morality.
Austin's writings, such as his 1832 work The Province of Jurisprudence Determined, paved the
way for the more recent development of the school of analytical jurisprudence. Austin argued
that law, as opposed to moral imperatives, should be viewed simply as a form of command, made
by an acknowledged and legitimate ruler, which is adhered solely by means of an effective
punishment.6

Career as an Attorney

He joined the bar in 1818.7 But he left the bar in 1825 given lackluster reputation as an attorney.
This lackluster was because of the reason of his lacking rhetorical skills, his bookishness limited
public speaking and his disposition towards illness. His wife was a constant support to him both
in economic and emotional sense. She was able to raise more money than him; as a result he left
the Bar in 1825.

Despite his dull performance as a practicing attorney, Austin's intelligence and his interest in the
analytical aspects of legal theory drew the attention of Jeremy Bentham, an attorney and ethicist.
Bentham's support resulted in Austin's 1826 appointment as the first professor of jurisprudence at
the University of London,8 then just newly established.

Before beginning as a professor at the university, Austin spent two years in Bonn, Germany,
where he undertook the study of the law of ancient Rome. He also became fascinated with the
classification systems and methods of analysis developed by German scholars to organize civil
laws then on the books in the continent. He was influenced by Thomas Hobbes.

Returning to University College in 1828 to begin his classroom teaching, Austin made an early
friend of John Stuart Mill, a Scottish-born ethicist fourteen years Austin's junior who went on to
become the most famous proponent of Utilitarianism. Along with his wife, Austin became close
friends with Mill, as well as Bentham, who died in 1832. While he shared his friends' Utilitarian
bent, he did not share their ambition and their ability to get along well in social settings. As had

6
Supra 4.
7
Overview John Austin (17901859) legal philosopher, Oxford reference,
http://www.oxfordreference.com/view/10.1093/oi/authority.20110810104411571 last seen on 03/11/17.
8
Supra 4.

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been the case while attempting a career as a practicing attorney, Austin found himself still
plagued by a frequent melancholy which prevented him from energetically opposing setbacks to
his career.

Publication

The publication of Austin's most notable contribution to British law, his The Province of
Jurisprudence Determined (1832), was concurrent with its author's departure from academic life.
The volume included excerpts from his lectures on the subject, and in it he attempted to clarify
the difference between proper lawthe law that has its basis in the desire of the governmental
authorityand moral law9. According to Austin, laws can best be interpreted as a type of
command: an expressed desire that another perform or refrain from performing a specific act,
this expression accompanied by the threat of a clearly defined sanction or punishment if not
obeyed.10

To qualify as laws rather than other forms of commands, laws must outline a prescribed course
of conduct rather than a specific act and must be set by a "sovereign" body: a supreme ruler or
governing body to whom an independent society habitually looks for leadership. Sanctions can
be positive or negative, and can include reward or punishment by state agencies; natural
consequences or the dictate of one's conscience are not, in this case, legitimate sanctions. In this
manner, "positive law" is distinguished from the laws of God that take their shape in moral
principles and precepts and such things as social etiquette and international laws such as the
unwritten laws of warfare, which have no source in a sovereign body.

Although his work did not gained influence during his lifetime, Austin's work eventually gained
influence over both English and American law by revolutionizing concepts of ethics as they
relate to the legal system.11 By introducing terminology appropriate to the consideration of
ethical matters within the legal realm, Austin's book facilitated the discussion that culminated in
the establishment of the English analytical school of jurists.

9
Gautam Bhatia, The Command Theory of Law: A Brief Summary, and Hart's Objections, (May 05, 2008),
http://legaltheoryandjurisprudence.blogspot.in/2008/05/command-theory-of-law-brief-summary-and.html last seen
on 09/11/17.
10
Ibid.
11
Supra 1.

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The Providence of Jurisprudence Determined was introductory to an understanding of Austin's

subsequent collection of lectures, compiled in Lectures of Jurisprudence, and published
posthumously by Sarah Taylor Austin in 1863.

Life Ended in Seclusion

In 1834 Austin attempted to make a living by delivering lectures on jurisprudence at the Inner
Temple, but was unsuccessful in this attempt and abandoned teaching altogether. Austin was
appointed to the Criminal Law Commission in 1836 and participated in that body's first two
reports. However, his frustration at not having his ideas incorporated in the commission's
decisions prompted Austin to once more resign.12 An appointment by the British Crown as
commissioner on the affairs of Malta, a group of three islands in the Mediterranean off the south
coast of Sicily, took the Austins abroad once more, and after retiring from his commission the
couple moved to Paris. While attempting to revise his Province several times due to his own
increasingly conservative views on politics and morality, Austin was unable to complete the task,
likely due to the depression that haunted him throughout his life and the incapacity of the
perfectionist.13 During the 1850s Sarah Austin provided for both she and her husband through
her work as a translator and reviewer for English periodicals. In 1848 Austin and his wife
returned to England and purchased a home in Weybridge, Surrey, where he lived until his death
in December of 1859 at the age of sixty-nine. His wife survived him by eight years, dying in
1867.

Although Austin's life was noteworthy as much for its string of defeats, his analysis of proper
law served as the basis for continued study in his field. Later jurists of his own century, such as
the Americans Oliver Wendell Holmes and J. C. Grey, acknowledged Austin's contributions to
legal theory, particularly his ability to draw a distinction between the law and morality. While his
views have been more recently condemned by twentieth-century scholars such as H. L. A. Hart
due to their inflexibility in the wake of changing social priorities, the structure and continuity of
his analytical framework remains a respected standard.

12
John Hostettler, Champions of The Rule of Law, pg.144, (Waterside Press 2011).
13
Supra 5.

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3. JOHN AUSTIN THEORY OF LAW

John Austin was a disciple of Bentham's as he was both a positivist and a utilitarian. Hence,
Austin's work was largely based on Bentham's work and Austin's classification of law and
criticisms of his view of law are indeed necessary for a full understanding of the 19th Century
Early Positivist Theory of Law.

John Austin 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 and devoted some time to the study of Roman Law at it
was taken in Germany. The scientific treatment of Roman Law there made him aware of the
chaotic legal exposition of law in his own country. He took inspiration from it and proceeded to
make scientific arrangement of English Law. The method which he applied was essentially of
English origin. He avoid metaphysical method which is a German character.

AUSTINS APPROACH TOWARDS JURISPRUDENCE (POSITIVE LAW)

Austins approach towards Jurisprudence and Law is found in his work. The Province of
Jurisprudence Determined. The function of jurisprudence, in view of Austin, was to find out
general notions, principles and distinctions abstracted from positive system of law mature and
developed legal system of Rome and England. His first task, therefore, was to separate positive
law from positive morality and ethics. Positive law, according to Austin, was the law as it is
(Positus) rather than law as it ought to be with which he was not at all concerned. His particular
concept of law was, however, imperative being the command of the sovereign. For, Every
positive Law set by a given sovereign to a person or persons in a state of subjection to its
author.14 According to Austin The science of jurisprudence is concerned with positive law or
with laws strictly so called, as concerned without regard to their goodness or badness. The
positive law is characterized by four elements command, sanction, duty and sovereignty.15

14
John Austin Lecture VI, The Province of Jurisprudence Determined 1832 pg. 220.
15
Praglbabh Bhardwaj, Rishi Raj, Legal Positivism: An Analysis of Austin and Bentham, Vol 1 issue 6
International Journal of Law and Legal Jurisprudence Studies, http://ijlljs.in/wp-content/uploads/2014/10/Legal-
Positivism-An-analysis-of-Austin-and-Bentham.pdf last seen on 05/11/17.

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The focus of Austin's theory is such that his conception of the law that needs to be studied can be
and regularly is reduced into one very famous quote:
"Law is a Command of a Sovereign backed by a Sanction."
This quote indicates the three elements that are key to the understanding of law in Austin's terms:
firstly the concept of the Sovereign, then the concept of the Command and finally, the role of
Sanctions in law.
The Sovereign
The sovereign is the source of law in a society and thus is the most important figure that needs to
be understood. Without a sovereign there can be no law as human laws are a result of human
endeavour and the endeavour of the human truly refers to the soveregin's endeavours. As such,
Austin describes the sovereign as a person or an institutions that is factually determinate (in other
words can be clearly and easily identified) and is a common political superior.16 As the common
political superior, this sovereign must also be someone or something that is habitually obeyed by
the majority of the members of a society who must also not be in habitual obedience to anyone or
anything else. Finally, Austin makes it a requirement that the sovereign should be legally
illimitable and indivisible and the sole source of legal authority in any given society.
Commands
A Sovereign as a source of law can only make the laws he/she/they/it wants in the form of a
command. Hence, Austin states that the sovereign's will is expressed in the form of a command
which is an imperative statement establishing the sovereign's wishes. The command is different
from an order in that (as already mentioned above) Austin specifies that commands must be
generally applicable and must not be specific. It is also a specific expression of will or type of
order as anything that is a command in Austinian terms must have a sanction attached to it
should the command not be obeyed.
Sanctions
A sanction is in Austin's terms "even the smallest evil..." which can be any harm or pain which is
part of the threat in the command of the sovereign. This is an important part of law as it provides
the motivation for the subjects to obey the sovereign's commands and a disincentive for the
majority of the society to disobey the law. As such, Austin describes the sanction as having to
have possibility of application as this is a key part of the law in the event of a breach. The

16
Supra 14.

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sanctions can include damages, remedies, compensation, maintenance costs or other types of
punishments which are imposed on by actual bodies founded as institutions to enforce the law.

AUSTINS ANALYTICAL METHOD

The method, which Austin applied, is called analytical method and he confined his his field of
study only to the positive law. Therefore, the school founded by him is called by various names
analytical, positivism, analytical positivism. Some have objected to all three terms. They
say that the word Positivism was started by Auguste Comte to indicate a particular method of
study. Though this positivism, later on, prepared the way for the 19th century legal thought, it
does not convey exactly the same at both the places. Therefore, the word positivism alone will
not give a complete idea of Austins school. In the same way, analysis also did not remain
confined only to this school, therefore, it alone cannot give a separate identity to the school.
Analytical positivism too may create confusion. The Vienna School in its Pure Theory of
Law also applies analytical positivism although in many respect they vitally differ from
Austins school. To avoid confusion and to give clarity which is the aim of classification, Prof.
Allen thinks it proper to call the Austins school as Imperative School. This name he gave on
the basis of Austins conception of law)Law is command.

AUSTIN THEORY OF IMPERATIVE LAW

Law in its most comprehensive and literal sense is a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. 17 This excludes the laws of
inanimate objects (physics, etc.) and the laws of plant or animal growth which are described by
Austin as law improperly so called. Next, Austin recognizes the law of God or divine law which
he regards as ambiguous and misleading. Law properly so called is the positive law, that is law
set by men to men. These are of three types:

Laws set by political superiors to their subjects,

Laws set by men who are not political superiors, and
Rules improperly but by analogy termed law e.g., law of fashion or honour or rules of
international law.

17
Austin Lecture I, The Province of Jurisprudence Determined 1832, Pg. 86.

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The law set by political superior is the law properly so called and (b) and (c) are
positive morality.

AUSTINIAN CONCEPTION OF LAW

Austin defined law as a rule laid for the guidance of an intelligent being by an intelligent being
having power over him. He divides law into two parts, namely, (1) Laws set by God for men,
and (2) Human Law, that is laws made by men for men. He says that positive morality is not law
properly so called but it is law by analogy. According to him the study and analysis of positive
law alone is the appropriate subject matter of jurisprudence. To quote him, the subject
matter of jurisprudence is positive law law simply and strictly so called; or law set by political
superior to political inferiors. The chief characteristics of positive law are command, duty and
sanctions, that is every law is command, imposing a duty, enforced by sanction.18

Austin, however, accepts that there are three kinds of laws which, though, not commands, may
be included within the purview of law by way of exception. They are: -

Declaratory or Explanatory laws; these are not commands because they are already in
existence and are passed only to explain the law which is already in force.

Laws of repeal; Austin does not treat such laws as commands because they are in fact the
revocation of a command.
Laws of imperfect obligation; they are not treated as command because there is no
sanction to them. Austin holds that command to become law, must be accompanied by
duty and sanction for its enforcement.

AUSTINS CONCEPT OF LAW

Austins Definition of Law; Law, in the common use, means and includes things which cannot
be properly called law. Austin defined law as a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him.

18
John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic) 135.

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Law of 2 kinds: (1) Law of God, and (2) Human Laws: This may be divided into two parts: (1)

Law of God Laws set by God for men. (2) Human Laws Laws set by men for men.

Two kinds of Human Laws, Human Laws may be divided into two classes;
1. Positive Law;

These are the laws set by political superiors as such, or by men not acting as political superiors
but acting in pursuance of legal rights conferred by political superiors. Only these laws are the
proper subject matter of jurisprudence.

2. Other Laws;

Those laws which are not set by political superiors (set by persons who are not acting in the
capacity or character of political superiors) or by men in pursuance of legal rights.

Analogous to the laws of the latter class are a number of rules to which the name of law is
improperly given. They are opinions or sentiments of an undeterminate body of men, as laws of
fashion or honour. Austin places International Law under this class. In the same way, there are
certain other rules which are called law metaphorically. They too are laws improperly so called.

AUSTINS COMMAND THEORY

Positive Law as Command

The law properly so called is the positive law depends upon political authority the sovereign.
Every rule, therefore, according to Austin is a command. So laws properly so called are a species
of commands. If you express or intimate a wish that I shall do or forbear from some of your
wish, the expression or intimation of your wish is a command. If I am bound by it, I lie under a
duty to obey it. Command duty are, therefore, correlative terms. Command further implies not
only duty but sanction also.

Law is Command
Positive law is the subject matter of jurisprudence, Austin says that only the positive law is the
proper subject matter of study for jurisprudence. The matter of jurisprudence is positive law:

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law simply and strictly so called: or law set by political superiors to political inferiors.19
Jurisprudence is the general science of positive law.

Command and Sanction

Sanction as an evil which will be incurred if a command is disobeyed and is the means by which
a command or duty is enforced. It is wider than punishment. A reward for obeying the command
can scarcely be called a sanction. A command embraces:

A wish or desire conceived by a rational being to another rational being who shall do or
forbear as commanded;
An evil to proceed from the former to be incurred by the latter in case of non
compliance; and
An expression or intimation of the will by words or otherwise.

Commands are of two species:

Laws or rules, and
Occasional commands.

A command is a law or rules where it obliges generally to acts or forbearances of people. It is

occasional or particular when it obliges to a specific individual for act or forbearance.

Law is a command which obliges a person or persons to a course of conduct. It requires

signification and can, therefore, only emanate from a determinable source or author (a person or
body of persons).

Laws proceed from superiors and bind and oblige inferiors. Superiors are invested with might:
the power of affecting others with pain or evil and thereby of forcing them to conform their
conduct to their orders.

Command Exceptions
The proposition that all laws are commands must, therefore, be taken with limitations for it is
applied to objects which are not commands. These exceptions are:

19
Supra 14.

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Acts of the legislature to explain positive laws or which are declaratory of the existing
laws only;
Repealing statutes (which are revocations of commands);
Laws of imperfect obligations without an effective sanction like rules of morality or
rules of international law.

Austin, like Bentham was a definitionist.20 He wanted to clarify what law was and what it was
not and it was Austin who made the distinction between the terms (which he coined) 'analytical
jurisprudence' - which involves looking at the basic facts of the law, its origins etc- and
'normative jurisprudence' - the question of the goodness of law. For Austin, like Bentham, the
important part of the study was the analystical question. Another similarity between Austin and
Bentham is that both jurists believed that the same factual issues (namely of power and
sovereignty21 as well as sanctions22) were key to the understanding of the law, as it is.

Austin first sets out to clarify the idea that people with power set down rules for others who obey
them to govern their actions. In other words, Austin suggests that law is 'a rule laid down for the
guidance of an intelligent being by an intelligent being having power over him'23 and this is done
so in the form of a command. In short, laws can be understood in Austinian terms as commands
from/by the sovereign. So everything that is law must be a command. But Austin points out that
all commands are not law necessarily as some commands may lack the generality that will
enable them to become a law.
Hence, Austin's theory holds that a command that is directed specifically is a command, but a
command directed generally and over time is law.

20
Elise G. Nalbandia, Early Legal Positivism: Bentham & Austin, www.abyssinialaw.com last seen on 05/11/17.
21
E. Christodoulidis, L. Farmer and S. Veitch, Jurisprudence: Themes and Concepts, (2007)
Routledge Cavndish UK, p. 12.
22
J.W. Harris, Legal Philosophies, (1997) 2nd Ed. Lexis Nexis, p. 28.
23
Supra14.

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4. CRITICISMS TO AUSTINS THEORY

Austins theory can be reduced as in the form of following points:

Sovereignty always resides in the determinate person or in a body of persons. In

determinate person or a body of persons cannot be called sovereign. Nor does it reside in
the General Will or electorate or God.
Sovereignty is absolute, indivisible and unlimited in both the cases: internal and external.
A society without sovereignty cannot be called a state.
The determinate human superior is the only law-maker. His commands are laws and
without him the state can have no laws.
The determinate human has no rival of equal status in the state and nor does he obey the
order of anyone.
The power of the determinate human superior is sovereignty.
The determinate human superior is subject to none or any power. The bulk of the people
obey the sovereigns command as a matter of habit.

CRITICISMS:
Laws before state- It is not necessary for the law to exist if the sovereign exists. There
were societies prior to existence of sovereign and there were rules that were in
prevalence. At that point of time, there was no political superior. Law had its origin in
custom, religion and public opinion. All these so called laws were later enforced by the
political superior. Thus, the belief that sovereign is a requirement for law has received
criticism by the Historical and Sociological School of Thought.24However, the above
mentioned criticism is not supported by Salmond. Salmond said that the laws which
were in existence prior to the existence of state were something like primitive
substitutes of law and not law.25 They only resembled law.

24
Ankita, Criticism of Austin's Theory of Sovereignty, http://www.preservearticles.com/201106248497/criticism-
of-austins-theory-of-sovereignty.html last seen on 07/11/17.
25
Infra 25.

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Generality of Law- The laws are also particular in nature. Sometimes, a Law is
applicable only to a particular domain. There are laws which are not universally
applicable. Thus, laws are not always general in nature.

Law as Command- According to Austin, law is the command of the sovereign. But,
all laws cannot be expressed as commands. Greater part of law in the system is not in the
nature of command. There are customs, traditions, and unspoken practices etc. that are
equally effective.

Sanction- The phrase sanction might be correct for a Monarchical state. But for a
Democratic state, laws exist not because of the force of the state but due to willing of the
people. Hence, the phrase sanction is not appropriate in such situations. Also, there
exists no sanction in Civil Laws unlike Criminal Laws.

Not applicable to International Law- Austins definition is not applicable to

International Law. International Law represents law between sovereigns. According to
Austin, International Law is simply Positive Morality i.e. Soft Laws.

Not applicable to Constitutional Law- Constitutional Law defines powers of the

various organs of the state. It comprises of various doctrines such as separation of power,
division of power etc. Thus, no individual body of a state can act as sovereign or
command itself. Therefore, it is not applicable to constitutional law.

Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it
colour and essence. Justice is considered an end of law or law is considered a means to
achieve Justice. However, Austins theory is silent about this special relationship of
Justice and Law. Salmond said that any definition of law which is without reference
to justice is imperfect in nature.26 He further said Law is not right alone, it is not
might alone, it a perfect union of the two and Law is justice speaking to men by the
26
Siddarth karlek, To What Extent Do Austin and Salmond Differ In The Matter Of the Definition Of Law,
http://www.shareyouressays.com/knowledge/to-what-extent-do-austin-and-salmond-differ-in-the-matter-of-the-
definition-of-law/114731 last seen on 07/11/17.

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voice of the State. According to Salmond, whatever Austin spoke about is a law and
not the law. By calling the law we are referring to justice, social welfare and law in
the abstract sense. Austins definition lacked this abstract sense. A perfect definition
should include both a law and the law.
Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If
we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored
by Austin.

HARTS CRITICISMS TO AUSTINS THEORY

Austin believed that law is a species of command. He further defined a command as an
intimation or expression of a wish to do or forbear from doing something, backed up by the
sanctions to do harm to the actor in case he disobeys. Furthermore, the person to whom the
command is given is under a "duty" to obey it, and the threatened harm is defined as a
"sanction."27

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.28

Hart also considers another variety of laws, laws which define the scope and limitations of
judicial and legislative power, laws which confer jurisdiction upon courts and govern the
functioning of governmental institutions. He argues that it is impossible to view these laws as
mere orders backed by threats either.

Attempts, however, have been made to assimilate power-conferring rules within the broad ambit
of orders backed by threats. According to the first of these theories, the nullity that is a
consequence of not complying with the framework established by power-conferring rules is the

27
Available at, https://www.scribd.com/document/344381344/kinds-of-ownership-pdf last seen on 07/11/17.
28
Philosophy 34, Harts Criticisms of Austin and the Realists http://carneades.pomona.edu/2016-
Law/04.HartAustin.html last seen on 07/11/17.

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Austininan sanction. However, Hart argues that the two are fundamentally different in nature: in
a criminal statute, which is more in the nature of an order backed up by threats, the sanction is
necessarily consequent upon the forbidden action (it is possible, for instance, to conceive of an
order that prohibits something without imposing a sanction); however, in the case of power-
conferring rules, the provision for nullity is part of the rule itself.29 For instance, it would be
impossible to conceive of the provisions that govern how to make a valid will without
conceiving that the will cannot exist without these provisions. Hart has a number of subsidiary
objections as well, such as nullity not always being a source of evil (for instance, to the judge
who rules without jurisdiction).

A second theory argues that power-conferring rules are not genuine laws. This theory views as
all laws as directions to officials to apply sanctions in case of non-compliance. A power-
conferring rule, therefore, would be viewed as a direction to the requisite official not to confer
validity upon a particular transaction if the rules of procedure are not adhered to. Hart argues,
however, that such a theory achieves uniformity at the high price of distorting the true nature of
laws. For instance, the point of criminal law is to establish certain standards of behaviour, which
the citizens are expected to conform to. Sanctions are there only as ancillary measures in case the
system breaks down. It is therefore misleading to consider criminal law as directions to officials
to apply sanctions. The same logic applies to power-conferring rules as well.

The second basic objection Hart has to Austin is regarding the range of application of laws.30 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. In an attempt to respond to this, it has been argued that a
legislator has two personalities: his legislative personality, which gives the command, and his
ordinary personality, as a citizen, which is bound to obey. However, Hart argues that such a
complicated device is unnecessary to explain the self-binding nature of legislation. A legislation
can be viewed as a promise, which creates obligations upon the promisor. And in any event,
much of legislation is done under the ambit of pre-existing rules of procedure, which bind the
legislators.

29
The Monist, Volume 68, Issue 3, 1 July 1985, Pages 403418, https://doi.org/10.5840/monist198568330 last seen
on 07/11/17.
30
Available at https://www.pravo.unizg.hr/_download/repository/Hart_vs_Austin.pdf, last seen on 07/11/17.

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Harts third objection to Austin is with regard to laws such as customary laws, whose mode or
origin excludes them from being treated as commands.31 To this, it has been argued that the
validity of customs depends upon tacit acceptance by the sovereign; that is, if Courts are
implementing customary law, and the legislature does not repeal such laws, then this might be
said to be an implied command that customary law is to be followed. However, Hart argues that
absence of objection does not mean implied consent. It could equally well mean a lack of
knowledge, or a lack of awareness, or numerous other reasons.

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. Harts 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. Why is
the law made by the successor to legislative office already law before even he has received
habitual obedience? To answer this question, it becomes essential to distinguish between a habit
and a rule. Rules require not only convergence of behaviour, but also convergence of attitude.
That is to say, rules are viewed as standards of behaviour, where deviance is considered as
meriting criticism.

Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law
made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually
obey him? Once again, this requires us to replace the notion of habits of obedience with a
concept of rules that delineate rights of succession.

31
Supra 28.

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Harts final objection to Austin is that the sovereign does not possess, as Austin believed, a
legally untrammeled will. Most modern legal systems have legal limitations upon the power of
the sovereign (and this is not inconsistent with his supremacy within the legal system as the
highest known legislative authority). Recognizing such a problem, Austin had argued that in
democracies, it was the electorate that formed the sovereign. However, according to Hart this
leads to the absurd conclusion of the bulk of the society habitually obeys itself. It may be
argued that legislators make rules in their official capacity, rules which then apply to them in
their personal capacity. However, the very notion of official capacity presupposes the existence
of rules that confer such official capacity. This, therefore, is again incompatible with the
Austinian idea of sovereignty.

On all these grounds, therefore, Hart rejects Austins command theory of law as sufficient to
explain the legal systems of modern societies.

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5. CONCLUSION

John Austins work on jurisprudence formed the basis for its development though it is not much
relevant today. Austins life was not very fulfilling and it was only after his death that his works
gained recognition. He propounded that command of the sovereign is law. His sovereign has
illimitable powers. Also his sovereign was the common determinate superior to whom habitual
obedience was rendered, but he was not under habitual obedience to anyone. Also he separated
law from morality and emphasized on positive law.

His theories were very clear in approach and were written in lucid manner. But, his theories have
been criticized widely because of his sovereign who had illimitable powers and his commands
were only laws. In his theories he ignored customs and norms. He weeded out morality
completely from law. His likewise approach can be attributed to his military training and
mindset. HLA Hart criticized him on many front of his theory. But, his contribution in
jurisprudence remains immensely important for it development.

Ultimately it can be concluded that Austins approach or his theory of law lacked or neglected
many aspects which were later pointed out by eminent theorists like Salmond Henry Maine, and
HLA Hart.

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BIBLIOGRAPHY

Books

John Austin, Lectures on Jurisprudence, Bloomsbury 2002.

John Hostettler, Champions of The Rule of Law, pg.144, (Waterside Press 2011)

Websites

www.academicoup.com
http://jstor.org/
www.academia.edu
www.legallyindia.com
www.lawteacher.com
www.scribd.com
www.springer.com
www.researchgate.net
http://shodhganga.inflibnet.ac.in/

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