John Austin (1790-1859) was a lawyer who, by his analytical approach to
law-making and legal positivism theory, developed Legal Systems worldwide. The
reader need not be concerned with such heavy sentences, since they will be
covered in the next chapters. His concept of "law as a command" was already in
the promotion of his philosophy of "legal positivism." He was greeted as 'The
Father of English Jurisprudence' because of his works.
Elaborate concept of analytical approach to jurisprudence?
Analysis" breaks a dilemma into smaller issues, so that they can be
independently resolved. A general approach to analysis is a process by which a
large subject in order to address the challenges, perform studs or fix
uncertainties is narrowed down to specific subjects and subtopics. In the
Analytical Approach by Austin, he is committed to accurately and thoroughly
interpreting fundamental legal theories.
He wishes to remove any external
interference because, regardless of his 'good' or 'religious worthiness,' he is
entirely entitled to enter the first rules of the constitution, as he is. This
method leads to the lecture of Laws such as Laws or Postum, which Austin
proposed in his Theory of Legal Positivism, and not the perfect law. From now on
we have a good understanding of the theoretical method of Austin that brings us
the principle of juridical positivity.
Positive legislation is essentially human law. The Acts of Parliament or the
laws and policies of the human entity shall be used. Positive law is described
by Black's Law dictionary as "real and expressly enforced law for an organized
society government or adopted by proper authority." That is mostly how Austin
encapsulates his idea of law, which constitutes for him inherently positive
What Austin mean by the term 'LAW'
"Law is the aggregate of rules set by men as politically superior, or sovereign,
to men as politically subject."
In other words, he says, laws are man-made rules by sovereign imposed upon the
society it governs. He equates a law to a "command" by a body which is
Thus we have following essentials:
- Sovereign, which makes a
- Command, which imposes a
- Duty, which IF NOT followed calls for
- Legal sanction.
Each political institution has, according to Austin, a sovereign force which
people in society usually obey. Just a single individual or party may be a ruler
of society. It is the only source of authority and author of legislation, and
therefore its power cannot be limited by statute and "de jure." There can also
be "de facto" and physical limitations as there are functional restrictions to
the degree of the arbitrary power of the orders and their compliance.
A popular De Lolme quote is a good example: 'The British parliament should do
something more than turn a woman into a male and a man into a woman.'
Physical limitations are the only restrictions of sovereign power. If you read
an actual case, it applies to legislation, laws or parallel entity which the
citizens must comply with, irrespective of what the Statute is.
It is often referred to as 'command theory' or 'imperative law theory.'
"Imperative Law is a rule that prescribes a general plan of action by a
jurisdiction which, either by the physical force or some other means of
coercion, implements it through superior power
The order imposes a "legal obligation" on those legally subject to the sovereign
"commander." Each task involves a sovereign order to establish the sovereign.
This sovereign has the right to punish or penalize for failure to observe rules.
It is inferred by theory. This sentence is considered a legal sanction. This
penalty is levied. The fear of judicial punishment is the motivation for
self-compliance, which is a malicious result in the event of disobedience.
How is it helpful to us?
Analytical Jurisprudence takes for account that the history and evolution of the
legal system are separate from all external considerations and is concerned in
terms of fundamental principles such as the legal system. It saves the reader
from outdated facts that could confuse his opinion.
The report provides a systemic account of real legal and merely legal evidence.
The first task is to develop a system to carry out the research. The legislation
is then broken down to pieces, each of which is explained separately. The exact
sense of the statute is determined by having them separate from religious
considerations, ethics and justice.
The method also contributes to the development of a more lucid and fundamental
partnership between various or more ideas.
It is also praised for the fact that this approach brings precise, simple and
clear legal ideas. The vocabulary is straightforward, definitive and scientific.
He deleted several misleading ideas that have obscured the significance of legal
He also made it clear that the law is, after all, a matter of mercy, not god,
faith, or even morals, but a state all-power us and condescending.
Relevance in Indian politics and legal society
- Preconceived notions about the subject
Austin's sovereignty theory assumes that citizens can follow precisely what the
sovereign order commands that is not valid in India's political scenario today.
His ideas placed ordinary obedience at the heart of philosophy by subject. Many
who consider the sovereign fit will gladly follow. People who think that a
sovereign is defective will follow in the fear of overcoming the bad of
submission by the evil of their opposition. And the uncertain will obediently
obey sovereign. Austin's hypothesis also assumes that people are politically
- Doesn't give room to common law other law-making bodies
Customs are not a basis of legislation, and are thus invalid according to
Austin's definitions. Church rule, the law of the dealers and several other
customary and personal rules, such as Hindu law, Islamic law, etc., which exists
before that principle, while they are not recognized, but regulating the
day-to-day conduct of the bulk of the populace and are implemented by the State,
none of these will be law according to the concept of Austin. Austin was also
therefore unaware of the common law that laid the basis in the government in
- Ignorance of human elements and basic constitutional principles
In the concept of sanction, we are able to see that Austin neglected human
elements such as shared knowledge and harmony between the State and the
subjects, while on the other, on subjects such as regular conformity he has made
ambiguous presumptions, which is an exceedingly unusual occurrence in the modern
world. It did not strike the right balance between the position and ties between
the state and people. Austin's theory has however completely neglected the
principles and ethics of freedom of opinion, equality of position, etc. unsigned
in the preamble and which constitute the foundations of the Indian constitution.
- Absolute, unrestricted and indivisible powers to sovereign
Austin postulated that the sovereign is free of all restrictions and that there
should be no sanction of any sort. Sovereignty is superior to groups and
organisations in general. Null responsibility in Austin's philosophy puts the
nation and its citizens to the hands of a single person who, due to his mood and
personal whims, will settle about someone's life and death. Often, since no one
body is independent, it is more likely to hit and to contribute to political
unrest outside interference from abroad.
In Golaknath v. State of Punjab it was clearly stated that the separation of
power is uncompromisable provision of the constitution by C.J. Subba Rao
The government's three institutions must perform their duties in accordance with
a number of constitutional prejudices. The Constitution sketches minutely the
authority of the three organs and requires them to be exercised without
exceeding their respective powers. In the realms assigned to the constitution
all organs shall act. There is no central power established by the constitution.
The Indian constitution is sovereign and any government shall act under the
supreme law of the country, i.e. the constitution.
- Not internationally recognized
In the modern times, a country has to comply with numerous foreign rules.
International Rules are important because there are now mechanisms that hold the
State to account for injury to foreigners in its territory. The value of
international law should be appreciated.
The definition of sovereignty seems to have coreated many other concepts of
international law. A ruler has no power to perpetuate inhumane action against
its people, as the international order criticizes him and, if he does, he will
soon face the costs of survival in a violent world environment
Thus, from these facts we might conclude that in the new globalized world and
the power of foreign bodies, such as the UN Security Council (UNSC), the
International Monetary Fund (IMF) and the United Nations Human Rights Commission
principle of Austin is a little unpractical (UNHRC).
- As Austin says that sovereign is the rule maker, he neglects the
fact that it is based on common awareness of people who are
customary and thus often disregards customs law which has already
been generally respected and observed.
Personal rules such as Hindu, canon law and Muslim law prevailed even before the
sovereign started legislating, yet not only have these laws been recognized but
have been practiced with overwhelming dedication.
Secondly, as applicable to the administration of justice by the Court of Legal
Affairs, the legal character of the statute becomes apparent. Also legal
sanctions are used in the courts, albeit created by the sovereign. Courts can
misunderstand or dismiss a tradition. The court also sets down rulings or cases
that are frequently monitored religiously in subsequent cases.
- The philosophy of Austin is not applicable to constitutional
law. Any sovereign is subject to the Constitution regardless of his
might and the latter can't be equated to a state's "order." The
notion of saying that the Constitution, the rule of the sovereign,
would guide the sovereign would, in essence, be an insane one.
Moreover, the Constitution is mostly the highest legislation which
falls before the state. The Constitution. It defeats the pretension
of Austin that the Supreme establishes the constitutional rule.
- The term applies mostly to the State of the Monarchical Police
that is author of the law and authorizes those who do not respect to
do wrong. There are authorizing and encouraging laws in the modern
world, which give the people rights. They are strictly permissive
and grant the client discretion. In their true meaning, they can't
be considered an order.
For example, the legislation that grants me my voting right does not tell me how
I am going to vote.
I am not penalized in the legislation that grants me the freedom to write a
Legislation is founded on the principle of immunity from untouchability or
- The sanction is not the only reason behind compliance, as
opposed to what is considered. It is valued for prudence and
religious reasons as well. Normally, during the lives of the first
partner one does not enter into a second marriage relationship
because he fears punishment, but also because of love and affection.
Furthermore, if each individual wishes to defy the sovereign's rule,
they must fall... Practical restrictions on civil penalties.
- It is not acknowledged by Austin that international law is not
established by a government, but is still recognized and valued as a
law by most countries. In the International Arena there is no body
that can enact or sanction international obligations. However, the
adherence to them is mostly awaited.
- Law does not necessarily apply to all in general. It is also
planned specifically for certain individuals or scenarios.
For example, divorce laws only apply to divorce seekers.
There are statutory rules or centric positions.
In its description, Austin does not consider these specialized or specific
- Law, above all, is a tool for achieving judiciary. Any meaning
is insufficient if it does not recognize that justice is the end of
- The aversion of legal elements determining the statute is
another constraint. In order to grasp the essence and requirements
of the Statute, an ethic on which a law is construed is necessary.
It is important to remember that Austin's philosophy, considering its legitimate
critique, remains one of the most important theories of law and still has some
significance in some respects.
A number of thought- and lawyers contrasted Austin's opinions with Bentham's,
concluding that the latter in western society are more fitting. The notion of
Austin's positive law and positive philosophy was criticized extensively and
western society excluded their applicability and validity. However, several key
points of ethical methodological positivism have emerged.
In the light of this discussion it is clear that Austin's theory is less
relevant in contemporary India than it does because it does not take into
account many factors such as international law, power separation and democratic
governance that have enabled India to maintain its integrity, unity and
prosperity and to thrive from the British colonial rule to the greatest d
Intelligence over time. In addition, given the immensity of India's cultural and
religious heritage and its youth, not everything can be achieved under drastic
legislative circumstances in line with nearly 150 years of theory.
Written By: Anmol Gupta
- P.S.A. Pillai Edition, Jurisprudence and Legal Theory, 3rd edition
- K. Llewellyn (1960) Book Review, University of Chicago Law Review, P. 254
- E. Nalbandian (2010) "Sociological Jurisprudence � General Introduction to Concepts" Vol. 3 Mizan Law Review, No. 6
- VD Mahajan, Jurisprudence and Legal Theory, 5th edition
- 1967 SCR (2) 762
- M. Freeman & D. Lloyd (2001) Lloyd's Introduction to Jurisprudence, 7th Ed. Sweet & Maxwell
, Jindal Global University