LAW ACCORDING TO JOHN AUSTIN
Even the defects of his theory have been a source of further enlightenment on subject, Hart says-
“But the demonstration of precisely where and why he is wrong has proved to be constant source of illumination; for his errors are often the mis-statement of truth of central importance for the understanding of law and society”
John Austin is considered as the “Father of English Jurisprudence”. He is the founder of the Analytical school. He was greatly influenced by the scientific treatment of the Roman law and, therefore, he started scientific arrangement of the English law too. He applied the English method and avoided the metaphysical method which was prevalent in Germany and had German characteristics. Like Bentham, Austin believed that “law” is only an aggregate of individual laws. In his view, all laws are rules the majority of which regulate behaviour. These are either directives or those imposed by general opinion. A directive, whether general or particular, is the expression or intimation of your wish “that another shall do or forbear, issued in the form of a command”. Accordingly, a law in its most comprehensive signification is “rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.
AUSTIN’S SCHOOL OF LAW
The school founded by Austin is variously called “analytical”, “positivism”, “analytical positivism”, etc. Jurists defined the first use of the word “positivism” by Auguste Comte to indicate particular type of study. The word “positivism”, thus would alone be insufficient to denote the Austin contribution. Also, the term “analysis” can’t be separated from the given phraseology. Professor Allen thought to call Austin’s school as the “Imperative School”. Salmond has critiqued Austin’s theory of law which completely divests law from morality and held that law to be effective must have in it elements of ethics and justice. Lon Fueller in the USA said that the purpose of law is to subject the human conduct to the governance of rules. The law, therefore, can’t be devoid of morality which includes values, ideals, natural law and notions of justice. The German legal philosopher Gustav Radbruch has asserted that a purposive law can never be separated from justice and morality which are pre-conditions of a good law. Dwarkin has rejected the positive conceptions of law and interpretation and observed instead that, rights are premised upon a comprehensive set of moral precepts that make the individual rights valuable and act as “trumps”.
Austin distinguished between what he called “laws properly so called” and “laws improperly so called” the key to a law “properly so called” lies in the obligation. An obligation exists when another has the power and purpose of inflicting an evil on any actor, who fails to conform to the desired conduct. Laws “properly called” are subdivided by him into laws set by God, Divine Laws, and Laws set by men to men, acting as their political superior. To every law set by men to men, acting as their political superior. To every law set by men he applied the term “positive law” or “law simply and strictly so called” so as to distinguish them from the laws of God.
“Positive laws” are the subject-matter of jurisprudence. Separate from all these are laws set by men to men neither as political superiors, nor in pursuance of rights conferred upon them by such superiors. They are still laws “properly so called” because they are commands, but Austin distinguished them from positive law by giving them the term “positive morality”.
Laws “improperly so called” consist in the first place of “Laws by analogy”, i.e., law set and enforced by mere opinion, also somewhat confusingly termed as “positive morality”- “positive” so as to distinguish them from the Laws of God, “morality” so as to distinguish them from positive law or law strictly so called.
Another subdivision included is “laws by metaphor”, which covered expression by the uniformities of Nature.
Major component in Austinian positive law was on “separation of law from morals”. He distinguished the science of jurisprudence from ethics. Amos defined that a positive law, “as Austin has shown, must be legally binding though it may be unjust.” For him, command was the “key to the science of jurisprudence”.
Every directive is a command, the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obedience. A command may be “particular” or “general”. Particular command is addressed to one person or group of persons whereas general commands are addressed to the community at large and enjoin classes of acts and forbearances. General commands are continuing commands.
Austin divided law as “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. He has divided law into two parts-
1. Laws made by God- These laws include the laws of nature which are drafted by God for the human race for the survival. They can’t be grabbed by any human organisation. They are being with every individual from its birth till the death.
2. Laws made by Men-
Many jurists had criticised the theory on the basis of following points:
1. Sanction- According to him, the sanction alone induces man to obey law which is not correct.
2. Artificial Concept- Austin view makes explanation of law artificial in real life.
3. Relation of law- Austin doesn’t consider the relation of law with morals which makes it an arbitrary command of sovereign.
4. Sources- Sources of law such as judge made laws, conventions, international law, customs, etc. are not taken into consideration in definition of law by Austin, but in reality it plays a very important role for the definition of law.
5. Law conferring privileges- It is also exclude by Austin, but in reality, it plays important role for the immunities granted to many of the sovereigns.
6. Rules by private persons- The consideration hasn’t been taken by Austin, but to maintain a general code of conduct, it should be included within the purview.
1. Avtar Singh, Introduction to Jurisprudence, Lexis Nexis, 2016.
2. G.W. Paton, A Text Book of Jurisprudence, Oxford University Press,2004
3. Friedman, Legal Theory, Columbia University Press, Columbia,1967