1.

INTRODUCTION

John Austin was a prominent legal philosopher of the 19th century, known for his influential
theory on command and sovereignty. His theory centers on the concept that law is a command
issued by a sovereign authority and that the validity of law is derived from the command of a
recognized sovereign, often a government or ruling body. This theory had a significant impact on
the development of modern legal philosophy and continues to influence discussions about the
nature of law and the relationship between law and authority.

1.1.JOHN AUSTIN (1790-1859)

 John Austin was born in 1790. He Joined the army and served as an Army officer for five
years until 1812. He was called to the bar in1818 after his graduation.
 He joined as Professor of law in the newly founded Bentahmite University College in
London.
 Austin published Province of Jurisprudence determined in 1832. In 1833. He died in
1859 and his works were later published by his wife Sarah Austin in 1861.
 John Austin was a Legal Expert who greatly shaped Legal Systems all over the world
through his Analytical Approach to Jurisprudence and Theory of Legal Positivism.
 In furtherance of his “Legal Positivism” theory was his notion “Law as a Command”.

 Owing to his works he has been saluted as “Father of English Jurisprudence”.

2.LEGAL POSITIVISM

The word positivism is derived from the English word ‘posit’ which means put something firmly,
or imposing something on somebody. The idea is that since positivists believe that law is made by
an authority and imposed on the people for obedience, the name positivism comes from this root
word1.

Legal positivism is the study of law. The term Legal Positivism means the attempt to establish
Law as a true science. Legal positivism school was dominant in England. Because of this reason,
it is

1
. Seema Rani, Legal positivism and Indian Constitution an analytical study, Shodhganga: a reservoir of Indian
theses, (Oct. 29, 2023, 10:04 AM), https://shodhganga.inflibnet.ac.in:8443/jspui/handle/10603/260852.

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2. Dr. B N Mani Tripathi, Jurisprudence Legal Theory, 19 (19 ed., Allahabad Book Agency, 2018).

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also known as English School. The Imperative theory of law is based on an understanding of Law
which is free of moralistic notions and merely a collection of empirical rules. Austin makes a
distinction between “What Law is” and “What law should be”2.

For Austin, the second question is not the concern of law. Law consists of the body of rules or
“commands” which are definite and objective.

Legal positivism is concerned with the law as it is and not the law as it ought to be.

3.DEFNITION OF LAW

According to Austn “law is rule laid down for the guidance of an intelligent being by an
intelligent being having power over them”. Here law is made by superior authority for the people
and people have to obey the law . There is twofold classificaton of law- law of god and human
law. Law of god is law set by god for human being, and human law means law made by human
for human.

4.POSITIVE LAW

Positive laws are those laws established by political superiors as such or by individuals not acting
as political superiors but acting in accordance with legal rights granted by political superiors.
Only these laws are the proper subject matter of jurisprudence. The term 'positive' refers to the
concept of law being laid down in a specific manner. It could potentially apply to divine law,
which Austin conceives as God's command. However, Austin wants to reserve the term "positive
law" for human laws established by or under the authority of political superiors – the true subject
of legal science. Therefore, the term 'positive' indicates the establishment of rules by human
creators3.

4.1.Proper Law - The first division of law is that into:

1. Laws set by God to men (law of God) and

2. Laws set by men to men (human laws).

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3
. Supra note 1.

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4.2.Law of God- In Austin’s positivist system, the law of God seems to fulfill no other function
than that of serving as a receptacle for Austin’s utilitarian beliefs. The principle of utility is the
law of God

4.3.Law by Man - These are either laws set by o political superiors to political subordinates or o
laws set by subjects, as private persons, - in pursuance of legal rights granted to them.every
enforceable private right must fall within this category

Example, - The rights of a guardian over his ward. As the legal nature of such rights derives from
the indirect command of the superior who confers such right on the guardian,

4.4.Improper Law - Laws improperly so called are those laws Which are not set, directly or
indirectly, by a political superior.

5.OTHER LAW

Other laws are those laws not established by political superiors but rather by individuals who do
not act in the capacity or character of political superiors or individuals exercising legal rights.
Many of these rules may not be commonly regarded as laws by lawyers, although Austin has no
doubt that the term 'law' can be used here 'with absolute precision or propriety.' Since he uses the
word 'power' in a general sense, it seems to encompass the authority of any authoritative figures.
According to Austin, these rule-making instances are important for shaping the attitudes and
opinions of individuals or groups. This, in his view, is part of what he calls positive morality. This
distinction leads to a separation between law and morality.

6.AUSTIN’S THEORY OF SOVEREIGNTY EXPLAINED

The definition of law according to Austin was, “Law is a command of the sovereign backed by a
sanction.”4 Breaking this definition into its fundamentals: –

1. Command, of

2. Sovereign, which if not followed attracts

3. Sanction.

4
. VD Mahajan, Jurisprudence and Legal Theory, 145 (5th ed., Eastern Book Company, 2016).
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Now in order to fully understand Austin’s theory of Legal positivism, let us explain these
elements in a concise and comprehensive manner.

6.1.COMMAND: Commands are expressions of desire given by superiors (sovereign) to

inferiors (general public). There are commands which are laws and which are not, Austin
distinguishes law from other commands by their generality. Laws are general commands, unlike
commands given on parade grounds and obeyed there then by the troops5.

Forms of command:

1. Desire or wish of sovereign

2. Request of sovereign

3. Hope of sovereign

4. Order of sovereign

 Command has to be expressed or intimated, communicated

 A command may be particular (addressed to one person or group of persons) or general.

General commands are addressed to the community at large and enjoin classes of acts and
forbearance; they are also continuing commands.

A particular command is effective when the commanded person or group obeys; a general
command is effective when the bulk of a political society habitually obeys it.

A commander, who receives ‘habitual obedience from the bulk of a given society’, is sovereign in
that society. It is not necessary for general Opinion to authorise the issue of commands, since a
person can command and threaten without such authority.

Observation: From the above definition we can conclude that Austin’s definition of commands
gives the sovereign authority status of ultimate supreme, and imply that the authority of the
sovereign is absolute which is the opposite of the constitutional framework which prevails in
India, and for that matter in any peaceful democracy. This definition expresses that the sovereign,
that is,

5
. Supra note 4.
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the person/people in power is politically superior, but in democratic countries, it is not true. Every
citizen has the same right same that of a President/Prime Minister/Chief Justice.

It also disregards other sources of law, like laws made by judges (considered as mere delegates) in
form of precedents, laws made by the executive as statutory instruments, etc which hinders the
growth of not only the jurisprudence of the country but also of the society, government and
private institutions and economy.

6.2.SOVEREIGN: 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
persons6.

“DUTY” The command levies a “legal duty” on those who are politically subject to the
“commander” who is sovereign. Every duty supposes a command by a sovereign by which it is
created.

Observation: From the above definition of the sovereign, we can conclude that according to John
Austin, the sovereign is not accountable to anyone but the whole realm has to follow whatever the
sovereign dictates which are in stark contrast with the idea of democracy and Indian federalism.
Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e.
sovereign will make laws, the sovereign will execute the laws and the sovereign only will
administer the law. This philosophy is also in contravention with the idea of democracy and the
Indian federal structure.

6.3.SANCTION: This term is derived from Roman Law. According to Salmond “Sanction is the
instrument of coercion by which any system of imperative law is enforced. Physical force is the
sanction applied by the state in the administration of justice7.

Observation: From the above definition of Austin, we can conclude that sanction is the force/evil
which follows to if the individual if he/she fails to obey the command of the sovereign. His
theories have put sanctions as more of a physical force state uses to suppress the non-abiders,
which is very autocratic and narcist per say. This definition does not give room to people
participation in government and we can say that having a difference of opinion (which is very
crucial for the
7
.Supra note 4.
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6
. P.S.A. Pillai, Jurisprudence and Legal Theory, 18 (3rd ed., Eastern Book Company, 2019).

7
.Supra note 4.
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development of any country socially, politically and economically one can be subject to the
sanction too.

In a modern democracy, people don’t abide by laws merely out of the fear of sanctions, but they
do so voluntary as well out of morality and responsibility. This leads to the cooperation between
the state and the subjects and this cooperation and understanding between the people and the
state helps in the effective execution of the law and smooth introduction of social change. Also,
we should not ignore the fact that in the modern era, even the sovereign can’t implement
everything on brute strength or influence, especially in a country like India which is so diverse in
its every facet.

Even Austin has himself admitted in his book, Province of Jurisprudence, that his philosophies
are very objective and separates the law from morality, ethics, values or any other social norm
and see the law as it is and not as it ought to be. The same can be observed in his definition of
law, where he has outrightly ignored the subjective but very important elements of the law (like
voluntary obedience of law, mutual understanding between state and subjects, beliefs and
disbelief of people regarding law and its implementation) which applies on the humans who are
themselves subjective beings.

Though Austin’s work has received criticism from other schools of law as well but the simplicity
of Austin’s work has continued to attract adherents. What is unique about Austin’s work is it
separates law form justice, morality, ethics, values or any other kind of social norms. The same is
the reason for the simplicity and spontaneity of his work. Also, we have to be cognizant of the
fact that Austin has formulated these theories when England was going under great legislative
reforms.

7.CRITICISM OF AUSTIN’S IMPERATIVE THEORY OF LAW8

Austinian theory of law and analytical positivism has been criticised by jurist like Bryce,
Olivecrona and others. Bryce characterises Austin’s work as full of errors which hardly has any
significance in juristic thought. Austin’s theory has been criticised on the following grounds :

7.1.Customs overlooked: Austin’s view that ‘law is the command of sovereign’ is not supported
by historical evolution of law when customs played a significant role in regulating human
conduct.
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8
. Francis Ocado, Austin Theory, SCRIBD, (Oct. 29, 2023, 12:01 PM),
https://www.scribd.com/document/486906482/AUSTIN-THEORY-pdf.

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Further, customs still continue to be a potent source of law even after the coming into existence of
the State.

7.2.Permissive character of law ignored: Austin’s theory does not take notice of laws which are
of a permissive character and confer privileges e.g. the Bonus Act, or the law of Wills etc.

7.3.No place for Judge-made law: Judge-made law has no place in Austinian conception of law
although the creative function of judiciary as a law-making agency has been accepted in modern
times all over the world.

7.4.Austin’s theory treats International law as mere morality: Austin does not treat
international law as ‘law’ because it lacks sanction. Instead, he regards international law as mere
positive morality. This view of Austin is hardly tenable in the present time in view of the
increasing role of international law in achieving world peace.

7.5.Command over-emphasised: The Swedish Jurist Olivecrona has denounced Austin’s theory
of law because of its over-emphasis on ‘command’ as an inevitable constituent of law. In modern
progressive democracies law is nothing but an expression of the general will of the people.
Therefore, command aspect of law has lost its significance in the present democratic set-up where
people’s welfare is the ultimate goal of the state.

It is unrealistic to think that sovereign in modern times is something separate from the community
and is capable of giving arbitrary commands. The fact is that sovereign is an integral part of the
community and in making of laws, he is guided by public opinion.

7.6.Inter-relationship between Law and Morality completely ignored: Perhaps the greatest
shortcoming of the Austin’s theory is that it completely ignores the relationship between law and
morality. Law can never be completely divorced from ethics or morality which provide strength to
it. The legal concepts such as ‘right’, ‘wrong’, ‘duty’. ‘obligation’ etc. themselves suggest that
there is some ethical or moral element present in them. Commenting on inter-relationship between
law and morality, Dr. Jethro Brown observed, “even the most despotic legislator cannot think of
or act without availing himself of the spirit of his race and time.”

7.7.Sanction alone is not the means to induce obedience: Austin’s view that it is sanction alone
which induces a person to obey law, is not correct. There are many other considerations such as

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fear, deterrence, sympathy, reason etc. which may induce a person to obey law. The power of the
state is only the last force to secure obedience of law.

8.CONCLUSION

John Austin, a famous legal thinker from the 1800s, is best known for his theory that law comes
from a command by those in charge, and it's separate from morality. In his view, laws are like
orders from the top, and they're valid because the people in power say so. He said law is basically
a "command of the sovereign backed by a punishment."

But this theory has its critics. They say it's too simple and leaves out important stuff. For example,
it ignores the role of customs in shaping the law and doesn't account for laws that give people
special rights. Austin's theory also doesn't make room for laws created by judges or international
rules that are essential in today's world.

Moreover, Austin's idea of law being completely separate from morals doesn't sit well with many.
They argue that law and morality are connected because terms like "right" and "wrong" are part of
the legal world.

In summary, John Austin's theory highlighted the power of those in charge in making laws, but
it's been criticized for being too basic and ignoring important aspects like customs, judge-made
law, and the connection between law and morals. Modern legal thinking has become more
inclusive and complex, considering how law and society interact.

9.BIBLIOGRAPHY

o Dr. B N Mani Tripathi, An introduction to Jurisprudence Legal Theory, (Allahabad Law

Agency, Allahabad,2013)
o Shodhganga
o iPleaders
https://blog.ipleaders.in/austin-sovereignty-theory/
o J.Salmond, Jurisprudence(Sweet & Maxwel, 12th Edn. 1966)
o Scribd

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