The proponent of analytical school of jurisprudence reflected that the utmost
significant facet of law is its relation to the State. They see law as a command
stemming from the sovereign, namely the State. It is for this reason that
this school is also termed as the Positive School of Jurisprudence.
John Austin commonly known as Austin was a disciple of Jeremy Bentham and like
him he was also a utilitarian because he focused on the greater happiness of
people; as per his views, he considered that the main purpose of sovereign is to
ensure the greatest happiness of his subjects. Austin is also considered to have
propounded the analytical school and he limited his studies to the positive law
only. Analytical school is also known as positive school, analytical positivism
etc. it is also called imperative School by Allen and Roscoe Pound also
considered it to be a threat theory.
Austin also termed as father of English jurisprudence was born in 1790. His
works had a great impact on English and American jurisprudence. As per his
definition of law, it was command of a political superior to his political
inferiors which we in general call it as the command of sovereign backed by
sanction or it is a guidance of an intelligence being to an intelligent being
having power over him.
Though his works were based on Bentham�s work but it differs in a sense as
according to Bentham it was not always necessary that the sanction must be there
in Austin�s sense for a command to be a valid law, but moral or religious
sanction could also suffice.
Austin had a particular way of thinking, we can say that his thoughts resembled
a tree i.e.; it started from roots and then it bifurcated into branches. To
illustrate further his expressions of desire subdivided into request and
command. We can infer that his theory revolved mainly around three terms that is
command, sovereign and sanction.
Command consists of three things as per Austin:
- A desire concerning someone's behaviour
- An expression of that desire
- A sanction which is also threatened harm for the non-compliance.
As mentioned above that his is desire divided into request and command but it is
important know that request lacks the last ingredient of command that is a
sanction or threatened harmed for non-compliance. Therefore, it is the sanction
which makes request different from command. Similarly, instruction differs from
command and lacks the ingredients of command. As per Austin, command, sanction
and duties are interconnected because receiving command becomes a duty to follow
otherwise there will be a threat of sanction.
Sovereign by the name suggests an individual to whom the entire population obeys
but he does not obey to anyone. He did not mention as to how to identify the
office of the sovereign or about what his office looked like.
He also stated the
three characteristics of sovereign:
- Unlimited Power
In his sense of sanction, Austin differed from Bentham who considered that
sanction could even be moral or religious. He did not considered command to be a
law without sanction because as per him it was the fear of sanction which
induced a man to obey the law.
Austin even regarded customary laws as judge made laws and he related it to
sovereign by stating that it was the sovereign who gave the authority to judges
to make laws.
Austin states that there are two kinds of laws namely:
- Law of God (Divine law)
- Human laws.
Law of God: He rejected this contention by stating that there was no realistic
or juristic significance attached to it and there was no relation of law with
goodness or badness. As per him, other than satisfying the subjective utility of
the individuals, the law of God never fulfils any other functions.
Human Laws: It can be classified as:
- Law properly so-called (Positive Law)
- Law improperly so-called.
Law properly so-called: As per Austin, this is the appropriate subject matter of
jurisprudence. These laws are established by the political superiors which may
be supreme or subordinate to political subordinates such as statutes, by-laws
Law improperly so-called: It is not made directly or indirectly by any political
authority. It can cover voluntary association and club, law of fashion etc.
There are three exceptions as per Austin which though are not commands but
they are still within the sphere of jurisprudence:
- Declaratory or Explanatory Law:
Austin said that it is not proper to consider them as commands because they
are just made in order to explain those laws which are at present in force.
- Laws of Repeal:
As per Austin, these are not commands rather, they are the laws made in
order to revoke the existing laws.
- Law of imperfect obligation:
He said that these laws do not have active sanction; they could be law of
morality or international laws.
Austin's theory of command where he states that threat or sanction is the main
reason because of which people follow the command of the sovereign is a highly
criticized one. Hart says that it is less about habit more about authority and
less about punishment which was missed by Austin. Kelsen criticized Austin in
two ways firstly he rejected command because it will put a psychological element
in law which should be pure and secondly he rejected sanction because as per
Austin there was something outside law imparting validity to it according to
Kelsen it was inadequate and a confused statement.
Since Austin stated that the command, sanction and duties are interconnected but
in reality it diverges from our ordinary view because sometimes it may be so
that there is no threat but it might be our duty to follow. Similarly, at times
it may happen vice- versa and there may be no duty but a threat.
said that there was a sovereign but he did not mention anything as to how to
identify the office of the sovereign or what that office looked like and also he
ignored the customary aspect of laws. His concept will also not be applicable on
international laws where there is no sovereign and it is bound by treaties,
Despite of this theory being a highly criticized one, it holds an immense
important position today in legal and academic field and he was also one of the
earliest philosopher who defined law in concrete sense and established a clear
flowing relation between sovereign and people.
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