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The Command of the Sovereign: Relevance of Austin's theory of law in the Indian Legal System

Jurisprudence, per se can be said to be the theoretical study of law. It is a subject so wide that over the centuries it has attracted thousands of scholars who have attributed various schools to this particular subject, where each school can be said to be different in one way or the other. One among them is John Austin and his "command of the sovereign" theory, more famously known as the imperative theory of law.

Austin's idea of Jurisprudence

John Austin (1790-1859) was an English legal scholar, whose main idea was premised on the opposition of the school of Natural Law. He vehemently argued against the age old traditional view of law being in consonance with the principles of morality. For him, human legal systems should be studied in an empirical and objective manner, free of subjective interpretations of morality and goodness.

For him, the science of jurisprudence is concerned with "positive law", with laws "strictly" so called. He classified the subject into two broad headings, "general jurisprudence" and "particular jurisprudence". The difference between the two lies not in their meaning but to the extent of the area that they deal with, where general jurisprudence deals with more or less all the established legal systems and particular jurisprudence with any particular legal system or part of it. To take an example, offences against human body is one of the fundamental legal concepts present in all systems of law. General jurisprudence will seek to explain this concept without referring to any specific system whereas particular jurisprudence will explain it with regards to a specific system.

This idea of Austin did not exist without its fair share of criticism. Other legal scholars like Sir Erskine Holland questioned the practicability of his ideas of general jurisprudence on the ground that his idea essentially said that for a matter to be dealt with in general jurisprudence, it had to be common to all systems. Moreover, Holland also mentioned that the slaw itself can never be particular although some specifics maybe.

Austin's theory of Law

"Law is the aggregate of rules set by men as politically superior, or sovereign, to men as political subjects"

To put it in simple words, law has three elements as per Austin, 'command', 'duty' and 'sanction'. Example, any particular statute which lays down certain rules (command) to be followed, which has been brought into force by the sanction of the supreme law making authority like the Queen-in-Parliament (sovereign) and the violations of which attract penalties (sanction), fits Austin's definition.

Commands are expressions of desire given by the politically superior to the politically inferior. This relationship, consists in the power which the superior enjoys over the inferior because logically unless this power relationship is established, there appears to be no command. A command is necessarily an order or a direction which mandatorily has to be followed by the inferior because of the very reason that it is coming from a superior. It must be noted that not all commands will be laws, for example, transitory commands on a parade ground will not be considered law. Laws are general commands, like standing orders of a police barrack which are in force forever.

People have pointed out such a law to be essentially a 'gunman' law because it renders no difference between law and a car thief who forces me to hand over my car keys while pointing a gun at me. To this, one has to take a look at the second requirement of Austin, i.e. the command has to come from a person or body which enjoys sovereign status, something which the car thief will not enjoy.

A sovereign will be someone who enjoys general political obedience. Such a person or body enjoys such a stature that when they give a command, the politically inferior follows that for the fear of sanction i.e. punishment. What is important is that the sovereign must enjoy obedience. Such obedience maybe through conquest, usurpation or democracy, the mode doesn't matter. What matters is that there must be general obedience, without which the command of the sovereign cannot be said to be effective.

As per Austin, law's are particularly of two kinds, divine law and human law. He necessarily does not align with the divine law. Laws made by men for men are his area of interest. Even in this, only the laws which are made by political superiors, they are called positive law. Disobedience of such law attracts sanctions in the form of "evil consequences".

So, to put it simply, as per Austin, law would be law if it came from the sovereign and a sovereign would be sovereign if it made the law. It is this relation that is the center point of Austin's theory.

Austin's theory is not without it's fair share of criticism. Various critiques belonging to the other school's of thought have highlighted specific deficiencies in Austin's theory.
Some of these are:
  1. Doesn't take into account laws which existed before the sovereign State:

    What his theory fails to appreciate is that there were certain laws even before the State came into existence. The source of these were religion, custom or even general public consensus. Basically, the opposing school says that State enforces something because it is law in the sense that it is politically independent. However, Salmond, who is not a part of Austin's school doesn't agree with this criticism. He says that what the rulers used before the State came into existence, that cannot be termed as "law" but something similar to law.
  2. Law doesn't always have to be a command:

    Austin's theory relies on law being a command. However, in the real world, not everything will be command and neither will all orders forbid the doing of something. They also seek to empower people by certain means to achieve certain results. For example, the laws which give right to vote, right to profess any religion, right to reside in any part of the country, are essentially rights and not command although their source of origin is also the political sovereign.

    Moreover, these allow me certain rights but do not necessarily come with a sanction. For example, the sovereign allows me the right to vote but that doesn't necessarily mean that one would attract a sanction for not voting. Austin's theory fails to appreciate this right as a law.
  3. Ethics not considered as a part of law:

    By confining law to anything which is a command of the sovereign, Austin has completely ignored the ethical element of law. He also fails to appreciate that law and justice go hand in hand and that there is absolutely no guarantee that every command of the sovereign is going to be just and fair.

These are just some of the criticism's that Austin has received for his theory of law. However, one still has to appreciate him for trying to separate law from morality and in the end giving us a simple and clear definition.

The big question that remains is whether or not Austin's theory is compatible with the idea of a federal democracy like the one present in India. We shall take a look at some of the aspects of Austin's theory and try to relate them with the Indian scenario in order to try and understand its compatibility.
  1. General obedience from the politically inferior:

    Austin in his theory has assumed that whatever the sovereign commands, the inferiors will obey. This is the basic idea of his theory. However, in a democracy like India, such an assumption is fallacial to say the least. India is a democracy, where people have a right to oppose and show discontent. This right of opposition is the pulse of our democracy and is present even in the Parliament in the form of an adjournment motion. Even today, the very fact that farmers have a right to protest regarding laws which they feel are not beneficial to them, this is something which is not recognized by Austin and his theory but is very well present in India. Hence, this assumption of having blanket obedience is not something that is present in India and hence we cannot align Austin's theory on this parameter.
  2. Law is only that which is made by the Sovereign:

    Austin's definition accrues law to be only that which is laid down by the sovereign. It doesn't give legitimacy to the other sources of law which are per se present in India. It doesn't appreciate sources of law like custom and tradition which for long has received validation in our Legal system. Things like personal laws whose basis lie in the customs and holy books and not the sovereign, they will be outside the purview of Austin's theory. Moreover, by confining itself to the sovereign, Austin's theory would also not appreciate some of the law making powers which are present right till the lower tiers of administration like the Municipalities and the Panchayats. It would also keep outside its purview the power of the Indian judiciary to strike down laws if they are not in order. Hence, this is also something that would go against the idea of a federal democracy, de-centralization and separation of powers as present in India.
  3. Accountability of the sovereign:

    Austin's theory accrues unlimited and unchecked power to the sovereign which is polar opposite to the idea of a co-operative democracy like the one functioning in India. His theory places zero accountability on the sovereign which is again totally opposite to what we have in India. In India, even the government in power is answerable to the people's representatives for every action that they take and by no stretch of the imagination can it be said that they have unlimited power. For every move they are answerable and this in turn keeps their power under check. Hence, even on this parameter, Austin's theory doesn't fit.
  4. Sovereign to legislate, execute and administer:

    Austin's theory places the absolute onus on the sovereign to do everything related to law. This idea is totally opposite to the idea of a federal democracy and the concept of separation of powers where we have individual organs to take care of legislation and execution. In fact, separation of powers has been held to be one of the key provisions of the constitution by the Apex judiciary (Keshvananda Bharati, IC Golaknath etc) in numerous cases. The very fact that Austin's theory does not allow separation of powers renders it incapable of being compatible with the Indian Legal System.

Although Austin's theory of imperative law is well appreciated for a number of reasons, it isn't compatible by any stretch of the imagination with the system of democracy as is followed in India. It's non-acceptance to principles of federalism, co-operation, separation of powers and accountability renders it incapable of fitting into the framework of law and justice of the largest democracy in the world.

Written By: Mr. Saikat Mukherjee, A 3rd year BA LLB student at Symbiosis Law School, Nagpur.
Email: [email protected]

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