SPECIAL PROJECT ON

AUSTIN’S THEORY OF COMMAND AND ITS

APPLICATION IN MODERN TIMES : A CRITICAL
ANALYSIS

SUBMITTED TO
Dr. KAUMUDHI CHALLA
FACULTY, JURISPRUDENCE-I

SUBMITTED BY:
HEMANT VERMA
ROLL NO.-58
V SEMESTER

DATE OF SUBMISSION:
30TH NOVEMBER, 2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH
DECLARATION

I hereby declare that this project titled, ‘AUSTIN’S THEORY OF COMMAND AND ITS
APPLICATION IN MODERN TIMES:A CRITICAL ANALYSIS’ submitted to the
Hidayatullah National Law University, Raipur is a record of word done by me, under the
guidance of my faculty.

Further I would like to state that it has not been previously published or associated with any
other university or association for any purpose whatsoever.
ACKNOWLEDGEMENTS

First and foremost, I am thankful to Dr. Kaumudhi Challa, Faculty of Jurisprudence-I,

HNLU, for allotting me the topic “AUSTIN’S THEORY OF COMMAND AND ITS
APPLICATION IN MODERN TIMES:A CRITICAL ANALYSIS”. She has been very kind
in providing inputs for this work, by way of suggestions and materials.

I would also like to thank my dear colleagues and friends in the University, who have helped
me with ideas about this work. I would also thank the University Administration for
equipping the University with such good library and internet facilities, without which, no
doubt this work would not have taken the shape in correct time. Lastly, I would thank the
Almighty God for providing me the strength and determination to deal with the topic and
work with utmost sincerity on the interesting project.

HEMANT VERMA

ROLL NO.-58
Table of Contents

DECLARATION ................................................................................................................................... 2
ACKNOWLEDGEMENTS ...................................................................................................................... 3
CHAPTER- I – INTRODUCTION ............................................................................................................ 5
Research Methodology ...................................................................................................................... 7
Problem ............................................................................................................................................ 7
Rationale ........................................................................................................................................... 7
Objectives of Study ............................................................................................................................ 7
Hypothesis ........................................................................................................................................ 8
Nature of Study ................................................................................................................................. 8
Sources of Data ................................................................................................................................. 8
Review of Literature .......................................................................................................................... 8
CHAPTER II ........................................................................................................................................ 9
AUSTIN’S THEORY .............................................................................................................................. 9
CHAPTER III – CRITICISM OF THEORY ............................................................................................... 13
CHAPTER IV- APPLICATION OF THEORY IN MODERN TIMES ............................................................. 16
CHAPTER V- CONCLUSION ............................................................................................................... 17
BIBLIOGRAPHY ................................................................................................................................ 18
WEBLIOGRAPHY .............................................................................................................................. 18
CHAPTER- I – INTRODUCTION

Austin belonged to the Analytical school of jurisprudence. The school is also known as the
Austinian school since this approach is established by John Austin. It is also called as an
imperative school because it treats law as command of the sovereign. Dias terms this
approach as “Positivism” as the subject-matter of the school is positive law.

The analytical school gained prominence in the nineteenth century. The distinctive feature of
eighteenth-century juristic thought was Reason. Individualism became the manifestation of
the cult of reason. Writers like Descartes, Locke, Rousseau, Kant advocated Reason as the
last guide and judge in everything. Bentham breaks away from the spirit of the eighteenth
century, rejects natural law and subjective values and emphasizes utility and propounds the
concept of expository jurisprudence which deals with the law as it is. Austin takes over tins
concept of expository jurisprudence and subjects it to a far more detailed, thorough and
searching analysis. Allen has pointed out that Austin does not revolt against 18th-century
individualism but seems to be quite impervious to it. His approach was secular, positivistic
and empirical. In fact, it was Austin who propounded the theory of positive law, the
foundation of which was laid by Bentham.

The Natural law school predominated of the juristic thought up to the beginning of the
eighteenth century. Principles of Natural law were considered supreme and according to
some writers, could override the man-made law. The term Natural law was differently
defined and understood by different writers and no single general acceptable meaning of the
term “Natural law” or the criterion for ascertaining the content of the principles of Natural
Law was there. Nature, reason, supernatural source, justice, utility were some of the bases
from which Natural Law was supposed to be derived. The analytical school was a reaction
against the airy assumptions of natural law. The prominent exponents of the Analytical
school are Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart. 1

As a precursor to Austin’s theory, it would be useful to understand the basic tenets of the
Analytical School, which are as follows:

1
Analytical School of Jurisprudence, Legal Bites (Aug.t 23, 2018), https://www.legalbites.in/analytical-school-
jurisprudence/.
 Difference between law as it is and law as ought to be – This is a trait of all positivism
thinkers for example, Bentham’s Law and Morals have same course but different
circumference. Austin does not deny that moral factors work in the creation of law,
however, he does not allow any place to morals in his theory. To him, positive law
carries its own standard itself. This approach has been criticized by Dias, Hughes,
Paton, Stone, Fuller, etc.
 Concentration of positive law – Analytical jurists look exclusively at the positive law.
They prefer to be concerned only with what is the pure fact of law. Representing to
themselves the whole body of legal precepts that obtain in a given system as made at
one stroke on a logical plan to which they conform in every detail, the analytical
jurists set out to discover the plan by analysis.
 Law in terms of and a product of State – Analytical jurist regards law as something
made consciously by lawmakers, whether legislative or judicial. They emphasize not
the way in which the precepts originate with respect to their content but the fact that
they get the conscious stamp of the authority of the state. Thus the most important fact
is establishment or authoritative recognition by the state, of a rule of law. In this sense
law is a product of conscious and increasingly determinate human will.
 Logic – For studying law, analytical jurist have mainly taken resort of logic and
rejected ethical elements. There is no value of historical or social factors for jurists of
analytical school.
 Statute – Law is that which is made consciously by the state. Statute law is the main
concern of the school.
Research Methodology

This research project is largely based on secondary & electronic sources of data. Books, case
laws, journals & other reference as guided by faculty of Jurisprudence are primarily helpful
for the completion of this project.

Problem

The major issue which this research topic deals with is the descriptive thesis of analyzing
Austin’s theory of command.

Rationale

This research topic on “AUSTIN’S THEORY OF COMMAND AND ITS APPLICATION

IN MODERN TIMES:A CRITICAL ANALYSIS” is an informative & enlightening topic
and it is important as well because it deals with two profound jurist of different Schools of
law and their theories of evolution of law . The research paper also deals with comparison of
their thoeries.

Objectives of Study

 To critically discuss austin’s theory of command.

 To understand the application of theory in modern times.
Hypothesis

Austin’s Theory of command is applicable in modern times.

Nature of Study

This research project is Doctrinal in nature since it is largely based on secondary & electronic
sources of data and also since there is no field work involved while producing this research
and it largely involves study of various theories and comparison from different books, journal
and other online sources thus not being empirical in nature.

Sources of Data

Data that were used for the completion of this research project are all secondary sources of
data ranging from books, journal, articles and other online sources and as far as case laws are
concerned these cannot be said to be primary sources since they are not first-hand
information or judgment reports but a modified form found in books or journals.

Review of Literature

 Studies in Jurisprudence & Legal Theory by Dr. N.V. Paranjape, 6th Edition, 2013 –
This book dealt with providing a biographical insight to the famous 19th-century
jurist and historian.
 Lloyd's Introduction to Jurisprudence by Michael Freeman, 8th Edition, 2007 –
The book deals with a detailed study of Austin’s theory of command and discusses its
various aspects.

 Ancient Law : Its Connection with the early of society, And Its Relation to Modern
Ideas by Henry Summer Maine,1884. The book deals with early life of Austin and its
theories.
CHAPTER II

AUSTIN’S THEORY

About Austin

John Austin’s life (1790–1859) was filled with disappointment and unfulfilled expectations.
His influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and
Thomas Carlyle) were impressed by his intellect and his conversation, and predicted he
would go far. However, in public dealings, Austin’s nervous disposition, shaky health,
tendency towards melancholy, and perfectionism combined to end quickly careers at the Bar,
in academia, and in government service (Hamburger 1985, 1992). Austin was born to a
Suffolk merchant family, and served briefly in the military before beginning his legal
training. He was called to the Bar in 1818, but he took on few cases, and quit the practice of
law in 1825. Austin shortly thereafter obtained an appointment to the first Chair of
Jurisprudence at the recently established University of London. He prepared for his lectures
by study in Bonn, and evidence of the influence of continental legal and political ideas can be
found scattered throughout Austin’s writings.2

In 1819, he married Sarah Taylor a women of great intelligence, energy and beauty. When
the university of London was founded, Austin was appointed as professor of jurisprudence
and he spent the next two years in preparing his lectures. His opening lectures were attended
by john Stuart Mill, Romilly and others .After initial success, Austin failed to attract new
students and he resigned the chair in 1831. Through the efforts of his wife, an expanded
version of the first part of the lectures was published in 1831 under the title of “the province
of jurisprudence determined “Austin repeated the lectures in 1834 but without success .Hence
he gave up gave up teaching jurisprudence altogether. Austin wrote with extreme difficulty.
He imposed on himself .he standards of precision and clarity that made work a torment
.Between 1832 and 1859; he published only a couple of articles and a pamphlet –a plea for
the constitution. The second edition of the province of jurisprudence was published by this
widow in 1861. She also reconstructed from the notes of her husband “lectures on
jurisprudence “or philosophy of positive law” and published them in 1863. Austin is called as
the father of English jurisprudence and the founder of the analytical school. Allan prefers to

2
John Austin, Stanford Encyclopaedia of Philosophy, plato.standford.edu (Feb. 24, 2001),
https://plato.stanford.edu/entries/austin-john/.
call Austin school as the imperative school. It is contented that Austin does not fit exactly
into any of the important schools. 3

Austin’s Theory of Command

“If a determinate human superior, not in the habit of obedience to a like superior, receives
habitual obedience, from the bulk of a given society, that determinate human superior is
sovereign in that society, and that society (including the superior) is a society political and
independent.”

Austin most important contribution to Legal theory was substitution of the command of the
sovereign for any ideal of justice in the definition of law. He, defined law as “a rule laid
down for the guidance of intelligent being by an intelligent being having power over him”
law is strictly diverged from justice.

Commands

Austin thought in trees. He liked to begin with a root concept and then subdivide it into
branches until he had identified the concepts he wished to analyse. So, for example, there are
two branches off of the root concept of “expressions of desire:” requests and commands.
While they are grammatically similar, they are different because commands come with
sanctions. Laws will be one of the sub-branches of commands. 4

According to Austin laws are two kinds: Law of God and Human laws. According to him, the
law of god is equivalent to the law of utility. Human laws are divisible into laws properly so-
called and law improperly so called. The former are laws set by political superiors to political
subordinate or laws set by subjects as private person in prudence of legal rights granted to
them. are law set by political superiors to political subordinate or laws set by subjects as
private person in prudence of legal rights granted to them. Laws improperly so called are
those laws which are not set directly or indirectly by a political superior. In this category are
diverse type of rules, such a rules of clubs, law of fashion, laws of natural science ,the rules
of so called international law. Austin gave these the name of positive morality. 5

According to Austin positive law has four elements

3
Austin’s Theory of Law, http://mbhaa.com/Microsoft%20Word%20-
%20AUSTIN'S%20THEORY%20OF%20LAW.pdf.
4
Id.
5
Id.
  Command
 Sanction
 Duty
 Sovereignty

According to Austin “law is a command of the sovereign “command implies duty and
sanction law properly so called are species of commands. Every law properly so-called flow
from a determinate source or emanate from a determine author. The power and purpose to
inflict penalty for disobedience are the very essence of a command. The person liable to the
eviler penalty is under a duty to obey it. The eviler penalty for disobedience is called
sanction. However, all the command are not laws, it is only the general command which
obliges to a course of conduct is law. Austin provides some exceptions which though are not
commands are still in the province of jurisprudence. Prof. Dias point out that distinction
drawn by Austin was entirely arbitrary. He adds that the case of sanction is not the sole or
even the principle motive for obedience. There are many objections to the association of duty
with sanctions. The view of Austin is that it is the sanction alone which induces men to obey
law. This is not a corrective view. According to Lord Bryce, the motives which induces men
to obey law are indolence, deference, sympathy, fear and reason. The last resort to secure
obedience. In the opinion of Duguit, the notion of command is not applicable to modern
social legislation which binds the state rather than the individual. This view is also accepted
by the Supreme Court of India. 6

Commands, according to Austin, always involve three things :

 a desire concerning someone’s behavior

 an expression of that desire
 a sanction, threatened harm for non-compliance

The first two elements are common between requests and commands while the last one
distinguishes commands from requests. 7 Instructions look like commands, but they do not
meet two of Austin’s criteria: they do not necessarily express the speaker’s desires about
what the person receiving the instruction is going to do and there is no sanction attached.
When a speaker issues a threat, what the speaker means is usually that he or she will do

6
7
Austin’s Command Theory, Philosophy of Law, Pomona.edu (Spring 2018),
http://carneades.pomona.edu/2018-Law/02.Austin.html.
something bad to you if you do X. Here, the author of the instruction manual is just telling
you that you won’t get toast if you don’t follow the instructions. The author isn’t going to
come to your house and take the bread away. Why does this matter? Well, if parts of the law
are more like instructions than they are like commands, the command theory will look like at
best an incomplete theory of what laws are.

Sovereigns

According to Austin, a sovereign is any person or body of persons, whom the bulk of a
political society habitually obeys and who does not himself habitually obeys, some other
persons or persons. A sovereign, according to Austin, is someone that the “bulk” of the
population is in the habit of obeying while not being in the habit of obeying anyone else . So
what happens in a transition from, say, one king to the next? The king is dead, they say, long
live the king. How did the new guy get to be the king? The bulk of the population isn’t in the
habit of obeying him yet. We said that the population is in the habit of obeying the office.
That sounds right. Austin doesn’t say a lot about what an office is or how we could identify
it.8

Characteristics of Sovereign:9

(i) Source of Laws:

Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

(ii) Source of Power:

Prof. Laski says that there are three implications of the definition of sovereignty given by
Austin. The state is a legal order in which there is a determinate authority acting as the
ultimate source of power.

(iii) Indivisible Power:

The power of sovereign is indivisible. It cannot be divided. According to Austin, there can
only be one sovereign in the state. The totality of sovereign is vested in one person or a body
of persons.

(iv) Habitual obedient by People:

8
Philosophy of Law, supra note 8.
9
Austin’s Theory of Law, http://wahabohidlegalaid.blogspot.com/2013/03/austins-theory-of-law.html
The chief characteristic of sovereign lies in the power to exact habitual obedience from the
bulk of the member of the society.

Sanction

In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking
as “highly beneficial and even absolutely necessary”. Nor did Austin find any difficulty
incorporating judicial lawmaking into his command theory: he characterized that form of
lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the
“tacit commands” of the sovereign, the sovereign’s affirming the “orders” by its
acquiescence. It should be noted, however, that one of Austin’s later lectures listed the many
problems that can come with judicial legislation, and recommended codification of the law
instead.10

CHAPTER III – CRITICISM OF THEORY

After having closely studied and critically examined John Austin’s theory of sovereignty, one
can summarise the theory as follows:11

(a) 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.

(b) Sovereignty is absolute, indivisible and unlimited in both the cases: internal and external.

(c) A society without sovereignty cannot be called a state.

(d) The determinate human superior is the only law-maker. His commands are laws and
without him the state can have no laws.

(e) The determinate human has no rival of equal status in the state and nor does he obey the
order of anyone.

10
Supra note 2.
11
8 Criticism Faced by Austin’s Theory of Sovereignty, Political Science,
http://www.politicalsciencenotes.com/theories/8-criticism-faced-by-austins-theory-of-sovereignty/252. (last
viewed November 28, 2018).
As many readers come to Austin’s theory mostly through its criticism by other writers
(prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known than
the theory itself:

First, in many societies, it is hard to identify a “sovereign” in Austin’s sense of the word (a
difficulty Austin himself experienced, when he was forced to describe the British “sovereign”
awkwardly as the combination of the King, the House of Lords, and all the electors of the
House of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the
continuity of legal systems: a new ruler will not come in with the kind of “habit of
obedience” that Austin sets as a criterion for a system’s rule-maker.

Secondly, one could argue that the sovereign is best understood as a constructive metaphor:
that law should be viewed as if it reflected the view of a single will (a similar view, that law
should be interpreted as if it derived from a single will, can be found in Ronald Dworkin’s
work).

Thirdly, one could argue that Austin’s reference to a sovereign whom others are in the habit
of obeying but who is not in the habit of obeying anyone else, captures what a “realist” or
“cynic” would call a basic fact of political life. There is, the claim goes, entities or factions in
society that are not effectively constrained, or could act in an unconstrained way if they so
chose. For one type of example, one could point out that if there was a sufficiently large and
persistent majority among the United States electorate, nothing could contain them: they
could elect Presidents and legislators who would amend the Constitution and, through those
same officials, appoint judges who would interpret the (revised or original) Constitution in a
way amenable to their interests. A different sort of example (and some would say that there
are recent real-life examples of this type) would be a President who ignored the constraints of
statutory law, constitutional law, and international treaty commitments, while the public and
other officials lacked the will or the means to hold that President to the legal norms that
purported to constrain his or her actions.

A different criticism of Austin’s command theory is that a theory which portrays law solely
in terms of power fails to distinguish rules of terror from forms of governance sufficiently
just that they are accepted as legitimate (or at least as reasons for action) by their own
citizens.
Finally, one might note that the constitutive rules that determine who the legal officials are
and what procedures must be followed in creating new legal rules, “are not commands
habitually obeyed, nor can they be expressed as habits of obedience to persons”.12

The reality is that the 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 for the
House of Commons. And the House of Lords is quite ineffective in the absence of the House
of Commons.

12
Supra note 2.
CHAPTER IV- APPLICATION OF THEORY IN MODERN
TIMES

By postulating that sovereign is free from all restraints of any kind of law and that no
sanctions of any nature can be imposed on him. The power of sovereignty according to
Austin is incapable of legal limitation. This means that within his territory a sovereign is
free from all restraints as he is the sovereign. Now a days procedures exist to make state
liable for injuries caused to foreigners in their land. Various other principles of international
law seem to have cored the concept of sovereignty. A sovereign does not have the power to
perpetuate inhumane action against his citizens as the same shall come into great criticism
from the world order and it shall soon have to face the consequences of surviving in a hostile
world atmosphere if it continues to do so.

Austin’s notion that all laws comes from sovereign. But in modern time it is difficult to
establish sovereign as in democracy there are man component which are behind thr
formulation of a law or policy. Legislators, business, politician every pressurize the law
maker to formulator law in their favor.

Similarly Austin's concept of unlimited and indivisible sovereignty is quite inappropriate in

the Indian set up or any democracy. The sovereign does not have the power to command
anything that it desires. It is as much bound by rules and regulation embodied in the
constitution and other laws as any common man. Legislature is bound by the constitution and
in almost all cases court has the power to decide whether an act done by the government is
constitutbal and hence valid otherwise it can be struck down.

Austin’s definition cannot be applied to a Modern democratic country whose machinery is employed
for the result of the people. The sanction behind law is not the force of the state but the willingness
of the people to obey the same. Force can be used only against a few rebels and not against the
whole society.
CHAPTER V- CONCLUSION

In the forgoing discussion an attempt had been made to analyze Austin's notion of
sovereignty vis -a-vis the modern day state. His theory of sovereignty did not seem to be
applicable in modern day democracies. But that in no way undermines the importance of his
excellent work. Auistin's concepts about various legal concepts might not seem true in
modern times but we should not forget that Austin is regarded as one of the noted jurist of all
times as much for his work and theory of law as for the methodology employed to arrive at
his theory. In his case both the ends arrived at as well as the means used to arrive at them
provided a great stimulus to the study of both 'law' as well as 'jurisprudence.' Austin made
numerous effort to establish law and jurisprudence as discipline .He succeed in his attempts
in the year 1839 when the first batch of law graduates passed out from the university. Austin
propagated and established that law can be studied in a scientific manner, in his times science
had a very progressive and promising scope therefore the only way law could be established,
as a discipline was to link it with the scientific methodology. Austin postulated a general
theory of law and studied law with the help of verifiable facts.

Thus we can conclude that with change in times, Austin's views might not appear very true
for the current political and legal order of the world but his greatest contribution of
establishing law as a discipline that can be studies in a scientific manner secure an esteemed
position for him in the canals of jurisprudence.
BIBLIOGRAPHY

 Lloyd's Introduction to Jurisprudence by Michael Freeman, 8 th Edition, 2007

 Lectures In Jurisprudence by N.K Jayakumar, 2nd Edition, 2006, Publisher:
Butterworth Heinemann
 The Authority of Law by Joseph Raz, 16th Edition, 2003, Publisher: Oxford
University Press
 Studies in Jurisprudence & Legal Theory by Dr. N.V. Paranjape, 6 th Edition, 2013,
Publisher: Central Law Agency
 Jurisprudence & Indian Legal Theory by Prof. S.N. Dhyani, 4th Edition, 2011,
Publisher: Central Law Agency
 Jurisprudence & Legal Theory by V.D. Mahajan, 5th Edition, 2011, Publisher: Eastern
Book Company

WEBLIOGRAPHY

 http://www.legalserviceindia.com/articles/juju.htm
 http://www.lawteacher.net/jurisprudence/essays/jurisprudence-legal.php
 http://www.gov.harvard.edu/files/Liviatan-AJICL.pdf
 http://www.missouriwestern.edu/orgs/polanyi/TAD%20WEB%20ARCHIVE/
TAD18-2/TAD18-2-fnl-pg22-32-pdf.pdf