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AUSTIN AND HIS ANALYTICAL POSITIVISM

Submitted By – UTKARSH MISHRA

Roll No. – 143070063

Semester – 1ST

DSMNRU (LUCKNOW)
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Table of Contents

Serial No. Title Page No.

01 Abstract 3
02 Title, Objective, Methodology 4
03 Life History 4
04 Austin’s Contribution for Jurisprudence 5
05 Austin’s Positive Law Theory 7
06 Criticisms 8
07 Conclusion 10
08 Bibliography 11
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1. ABSTRACT -
Positive law is treating law as it is; it should not be merged with morality. Positive law
is realistic, scientific, logically sound and consistent. It doesn’t change its nature with
situations. Positive law gives a clear distinction between is and ought. Austin was
known for his analytical positive approach in law. For this reason he is known as
‘Father of English Jurisprudence’.
Austin with his modern thoughts for positivism kept law and morality apart. He said
that law doesn’t have anything to do with morality and ethics. This means a law is law
whether it is good or bad. Goodness or badness should not deciding factor in law. He
was the one who considered jurisprudence as a science. In his theory he said that law
should be followed as a command and that law should be backed by sanction. This
analytical positivism of John Austin will be studied starting from his life history, which
will show his thinking was developed and later on his ideas will be studies plus his
contribution in the field of jurisprudence including his most common command theory
of law. After which his legal theory will be studied along with the criticisms put to his
positive theory of law by various positive morality supporters of that time.
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2. TITLE OF THE RESEARCH -

To study Austin’s Analytical Positivism.

3. METHODOLOGY -
Methodology will include Secondary research through available data sources which
shall involve collection of data, compilation of facts and research of articles from
textbook and other sources. The aim of the research is not to support or criticize Austin
and his theories.

4. LIFE HISTORY –

Austin was the first of the seven children of Jonathan and Anne Austin, Austin was born on 3rd
March 1790 in Ipswich. His mother, the daughter of a yeoman farmer, was well educated,
religious, and melancholic in disposition. His father, a miller and corn merchant profited
greatly from the Napoleonic Wars, was the first in his family to acquire wealth. He had a little
education; Jonathan Austin had a precise mind and disliked exaggeration-characteristics shared
by his eldest son. He was determined to provide better educational opportunities for his
children, several of whom achieved considerable success. It is still not clear whether Austin
really attended school or was tutored at home. In any case, in a burst of anti-Napoleonic
enthusiasm inflamed by the almost continuous wars with France during his childhood and the
presence of military at Ipswich, he enlisted in the army when he was 17. He was later promoted
to lieutenant, Austin saw no military action and fell into a state of boredom. Realising that he
was not fit for military career, he resigned in 1812 and returned to Ipswich. His personality
hampered his striving for success during his life-time; Austin was plagued for the next two
years with indecision about what he should do next. Finally he decided to get into the profession
of law and in 1814 began reading for the bar at the inner temple of London. His aim was clear
right from the starting that he wanted to study and elucidate the principles of law. Formal legal
education was not present at that time. Law was learnt through practice rather than theoretical
grounding, and it was achieved through undirected reading, discussions and observations in
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chambers, law offices and courts. While working as a draftsman at the chambers of equity
Austin got engaged to Sarah Taylor and later on after finishing his legal education Austin
married Sarah in August 1819. Sarah was a perfect match for Austin as she supported him in
all his works and conditions. Shortly before marriage Austin had been introduced to Bentham,
whose work he had long admired. When the newly-wed couple took up residence in Queen
Square Place in London, they became neighbors both of Bentham and Bentham’s principal
disciple, the philosopher James Mill. Austin’s home became a meeting point for the Bentham’s
circle. When Austin shifted to their new house Bentham was 70 and he was England’s most
important political and legal philosophers, the founder of utilitarianism, and a radical social
reformer. He believed that the human condition could be improved through the development
of science of legislation based on the principle of utility or the principle of greatest happiness
for maximum number. This science of legislation aims at determining at what law is instead of
what law ought to be. Austin later became the equity draftsman. He also travelled on the
Norfolk circuit but gave up his one case as he was tongue-tied. Austin had anxiety in public
speaking and this over shadowed his brilliance and resulting he was unsuccessful as a lecturer
in subsequent years. He gave up the practice of law in 1825. Austin’s interest lay in politics
and legal philosophy; therefore he published many articles in which Bentham’s influence was
clearly felt present. In his first article he argued that greatest happiness requires the equal
distribution of wealth through inheritance. In 1826 Austin was appointed professor of
jurisprudence at the law of nations at the newly founded University of London and began the
only philosophically productive period of life.

5. JOHN AUSTIN’S CONTRIBUTION FOR JURISPRUDENCE -

John Austin set a line between natural law and utilitarian approach and came up with the
concept of positive law. He also gave the command theory of law. He was a follower of
Jeremiah Bentham. Natural law was unstable and uncertain and it wasn’t able to prove its
scientific validity as well as tests on the basis of certain set standards. The society was getting
modernized but Natural law was the same. Austin’s broad approach to law was to regard it as
the command of the sovereign. Positive law is laid down by the political to the inferior. Austin
said that there must be determinate person to issue a command and that command is obeyed by
the people due to the threat of sanction in case if that command is not obeyed. Austin wanted
to separate the positive law from morality and social custom rules and also he confined
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jurisprudence to advanced or modern systems. Austin draw a sharp line between morality and
jurisprudence, according to him law should be treated as law and it has nothing to do with
goodness or badness of that law, this separation is one of the most important characteristics of
analytical positivism. Austin’s efforts to treat law systematically gained popularity in the 19th
century among English lawyers who wanted to approach their profession in a very serious and
rigorous manner. It is Austin who for the first time treated jurisprudence as an organ of science.
Austin wanted a conceptual approach towards law which in morally neutral and the judicial
decision making should not be influenced with moral values which was the main idea of
positivism. Positivism says that law should be treated as law i.e. no considerations should be
done on the grounds of ethics or morality. The existence of law is one thin and its merit or
demerit is another thing and in this way Austin found himself criticizing the principles of
natural law. Natural law accordingly changes itself with the comfort and likes of people but
positive law doesn’t change itself accordingly. Positive law cannot be challenged on the
grounds of natural law and this makes positive law very rigid and unchangeable. Austin’s
theory was mainly behind the English legal theory. He is recognized as the father of English
jurisprudence. He also gave the command theory which aimed at telling what law should be
not what law ought to be. In order to explain “what law is” John Austin suggested a command
theory that law should be commanded by an un-commanded commander, just like Hitler who
was an un-commanded command. This theory tells about the commandment of the sovereign.
Austin realised that there should be fixed written commandments, which should be obeyed by
all people. These commandments should be backed with sanctions. For example, if we do not
obey traffic rules, we shall be penalized by the Indian Law. This is how Austin explained that
there should be a sovereign who should form laws and these laws must be followed as
commands. In this definition sovereign somehow refers to a politically superior person who is
respected by fair good amount of people of the society. Also the command is backed by
punishments which make that command functional. This is very similar to a situation where a
gunman is ordering us to do certain things which are against our will and moral values, but in
threat we have to follow the commands of that gunman. Here this gunman has been replaced
by a sovereign person. Now this theory has another special aspect i.e. in a state all the people
should be treated equally, which brings uniformity.
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6. AUSTIN’S POSITIVE LAW THEORY –

Austin’s model of law is the positive law and it is different from the positive morality or other
kinds of laws. The positive morality lacks force, sanction and coercion of the state. Positive
law on the other side describes the rules set by the politically superior to the inferior. For Austin
positive law is the absolute matter of jurisprudence. He rejects the law that ought to be which
Austin decries as science of legislation or utility or positive morality. In this category he
includes different types of rules i.e. rules for clubs, laws of fashion and laws of natural science
and rules of international law. The positive law therefore becomes a distinct and clearly
identifiable feature characterized by four elements – command, sanction, duty and sovereignty.

Austin brings about this distinction between positive law and morality by the analytical and
logical methods which see law with command, duty and sanction. Duty and Sanction are
correlative to each other and the fear of sanction is the motive for obedience. Austin divided
commands into two categories: ‘general command’ and ‘particular command’. A particular
command is addressed to a particular person while general command is addressed to
community at large. He defined law as a rule which is laid down for the guidance of intelligent
being by an intelligent being having power with him, which he further divided into two parts
i.e.

1. Laws set by God for men and

2. Laws set by men for men

The laws set by men for men are further categorized into Positive laws and other laws.

a. Positive laws are the laws laid by political superiors and these laws are the main part of
jurisprudence.
b. Other laws are not set by men or political superiors in pursuance of legal rights.

Austin considered positive law as the main matter for jurisprudence and he said that the chief
characteristics of positive laws are commands, duty and sanction. But he accepts that there are
three kinds of laws which cannot be considered as commands but they should be included in
jurisprudence as an exception. They are:

Declaratory laws - they are not commands but they are already in existence. They explain
the pre existed laws which are in force even at present.
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Laws of repeal - they are nothing but the revocation of command.

Laws of imperfect obligation – these are the laws which have no sanction behind them.

7. CRITICISM’S OF AUSTIN’S THEORY –

Austin’s theory has been criticized by many philosophers. His main criticism has been
discussed below:

Customs ignored- Austin’s command theory hasn’t been backed by historical facts. From
historical times customs are used to regulate or conduct the people. Custom has a very deep
influence in the society and its functions even after the formation of new societies and states
but it was completely ignored by Austin.

Judge made laws and rules set by private persons- judge made laws found no place in Austin’s
theory of positivism as well as rules set by private persons weren’t included in the picture of
Austin’s positive law.

International laws- Austin puts international law with the laws of fashion and law of honour
and places it under positive morality which discarded a very important branch of law from his
model.

Command theory untenable- Professor Olivecrona has denied the applicability of command
theory in the case of wills. He said that ‘command’ and ‘will’ cannot go side by side because
command intends to influence the will of one person by the other which is against the basic
meaning of will. Therefore keeping in mind today’s scenario of Governments, command for
aw is completely untenable.

Austin’s concept of general jurisprudence and particular jurisprudence was very misleading
and confusing. For no law in general can be extended or made for an individual. Only in the
rare of the rarest cases it happens that laws are enacted against individuals who are pretty much
above the pale of law.

Apart from the above points, jurists found out Austin’s theory as artificial and incorrect.
Sanction and immorality made his law unpleasing and therefore it was heavily criticized.
According to the German philosopher Gustav Radbruch law cannot be separated from justice
and morality as they are the preconditions of a good law.
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Salmond criticized Austin’s theory by saying that in order to make a law effective, the law
should have ingredients of ethics and morality in it.

Lon Fuller in United Sates said that the purpose of law is to subject human conduct to the
governance of rules. The law cannot be departed from morality, values, natural laws and ideas.

CONCLUSION –

Austin’s positive law was prevalent in the 19th century. Though it was short lived and criticized
heavily by many jurists. His concepts of general and particular jurisprudence were very
confusing and misleading. But his contribution to Analytical School of Positivism can never
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be overlooked. He opened a new door in the way of approach to law. He was the first who
treated Jurisprudence as a science of law. Therefore this issue is open ended as there are
positive and negative sides of his theory. His theory was further modified by Salmond Gray
and Sir Henry Maine.

BIBLEOGRAPHY –
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Books Referred:

o Edgar Bodenheimer: Jurisprudence the philosophy and method of the law; 6 th edition 2009
o S.N. Dhyani: Fundamentals of Jurisprudence;4th edition 2007
o Avtar Singh: Introduction to Jurisprudence; 3rd edition 2009
o G.W. Paton: A textbook of Jurisprudence; 4th edition 2004
o V.D. Mahajan: Legal theory and Jurisprudence; 5th edition 2008
o Lloyed : Introduction to Jurisprudence;

Web Resources:

o http://plato.stanford.edu/entries/austin-john/
o http://users.rcn.com/rhartzman/Austin.pdf