John Austin's Theory of Law

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Austin defined law as a rule of guidance laid down for one intelligent being by another intelligent being who has the power over the former being. 


Positive law – Aggregate of rules set by man as politically superior to men as politically inferior subjects.


Austin distinguished between two kinds of laws:

  • Law Properly so called – A command proceeding from a determinate source having a sanction and an obligation.
  • Law Improperly so called – Set by opinions and sentiments of an indeterminate public, it lacks force or sanction of the State.

Law Properly so called fits into Austin’s definition of law and can be further divided into:

  1. Laws made by God (Divine Law) – Laws set by God to his human creatures.
  2. Laws by Humans – these are laws set by men for men and are further divided into two categories:
    • a. Positive Law – The law set by political superiors as such or by men not acting as politically superior but acting in pursuance of legal rights conferred by the political superiors. 
    • b. Other Laws – Those laws which are set by superiors to inferiors but the superiors are not political superior or persons acting in pursuance of legal rights conferred by political superiors.

Laws Improperly so called can be divided into two categories:

    • 1. Law by Analogy – Laws of fashion and public opinions if indeterminate body of men. Austin places international law by customs and traditions under this class. Sanction is not necessary in international law. It is similar to a law but not a law.
    • 2. Law by Metaphor – This includes all the laws of the nature. 

Positive Law and Positive Morality


The laws by Superiors to inferiors where the superior is not political superior and the laws by analogy are clubbed under the head of ‘positive morality.’


Austin states that positive morality is devoid of any legal sanctions and the distinction seeks to exclude considerations of good and bad from law. Thus, there is no place for ideal or justness in law and there is separation of law and morals.


Thus, proper and improper laws can be classified in four categories:

    Divine Laws – Positive laws – Positive Morality – Laws metaphorical


Command Theory of Austin


Austin defined political sovereign as any person or body of persons, whom the bulk of the political society habitually obey, and who does not himself obey some other person or persons.


Law is the command of the sovereign and command implies duty and sanction. Laws properly so called are species of commands. Thus, law is a command which imposes duty and failure to fulfil the duty attracts sanction (punishment). 

Thus, law has three main features: Command – Duty – Sanction


Relationship between Command, Duty and Sanction


Command and Duty are co-relative terms. Whenever a duty lies, the command has been signified and whenever a command is signified, duty is imposed.


The power and purpose to inflict penalty for disobedience are the very essence of a command. 


The person liable to the penalty is under the duty to obey it. The penalty is called sanction. So, every law is a command of the sovereign, imposing a duty enforced by sanction. (Coercive in nature)


All commands are not law, only the general commands which obliges to a course of conduct is law. According to Austin there are two species of commands:

    • General Commands (Laws or Rules) – Command obliges generally to act or forbearance.
    • Occasional or Particular Commands – Command obliges to a particular act or forbearance which it determines specifically or individually.

Criticisms:

    • 1. Customs are completely not considered in Austin’s theory as law is a command of sovereign and is not warranted by historical facts. The supporters of Austin’s theory say that his theory takes into consideration law as it exists in a developed society, the rules which existed prior to the existence of state might be the historical sources from which law was derived, but when state comes into existence they continue only by sanction of the sovereign and are given imperative force by him and in this way they are also commands.
    • 2. Law conferring privileges and which is only a permissive character like the Wills Act, also have legal effect but are not covered by Austin’s definition of law. 
    • 3. Judge made law finds no place in Austin’s theory. Austin could not separate legislation from judiciary. According to Austin, judges can’t make laws, they can interpret and execute laws.
    • 4. Rules set by private persons: Austin’s view that positive law includes rules set by those who are not political superiors, is an undue extension because their nature is very vague and indefinite.
    • 5. Austin puts international law under positive morality and treats international law as law improperly so called, which lacks sanction and is not a law. This is hardly tenable in today.
    • 6. Duguit asserts that the notion of command is inapplicable to the modern social legislations because Austin’s command binds others and not himself but modern legislations bind both the state and the others. Further most modern legislations do not command people but confer benefits.

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