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
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:
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 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
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.
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
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.
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.
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]