In this article we are going to discuss the theory propounded by John Austin, called as the law is the command of the sovereign, analytical theory, positivism, analytical positivism, command theory, etc. Here we will discuss Austin’s life in brief, his role in the law, his theory, etc. and also discuss the criticism of Austin’s theory of law as a command of the sovereign by the different jurists. Let’s get the start.
Austin applied the analytical method and he confined his field of study only to the positive law. The school founded by him is called by various names, – analytical, positivism, analytical positivism. They say that the word ‘positivism’ was started by Augusta Comte to indicate the particular method of study. It is called Command Theory. Roscoe Pound called Austin theory as ‘threat theory’. Prof. Allen called Austin’s theory as ‘Imperative school’.
Who is John Austin:-
John Austin is the founder of the Analytical school and father of the English Jurisprudence. He was born in 1790. He was elected to the chair of Jurisprudence at the University if London in 1826. His lectures delivered in the London University were published in 1832 under the title ‘the Province of Jurisprudence Determined’.
Austin’s definition of law:-
Austin defined law as ‘a rule laid down for the guidance of intelligent being by an intelligent being having power over him’.
Kinds of law:-
Austin classified the law in two parts;
1. Law of God (Divine law) and
2. Human laws
Law of God:-
Austin declared no realistic or juristic significance because of Austin himself reject the relationship of law to goodness or badness, the law of God never fulfills any function other than satisfying subjective utility of individual.
Human laws may be classified into two classes or category;
Laws properly so-called (positive law):-
They are set by the political superiors, it may be Supreme or subordinate to political subordinates such as statutes and by-laws or laws set by the private persons also. Only these laws are the proper subject matter of jurisprudence.
Laws improperly so-called:-
In case of laws improperly so-called, which are not set by the political authority directly or indirectly or by men in the pursuance of legal rights. It covers voluntary Association and club, the law of fashion, the law of natural science, etc.
Law is the command of the sovereign:-
There are two elements, command and sovereign. Command indicates power and authority. It is neither request nor will nor the expression of desire, and it means that which is to be obeyed compulsorily and essentially. A sovereign can issue a command because he or they have authority. People/subjects should obey the law and it is not applicable to the sovereign command indicates power which is to be exercised by the individual or body of individuals.
Only general commands are laws:-
However, all the commands are not law, it’s the only general command to which applies to the course of conduct, is laws.
Exception to the above definition:-
According to Austin, there are three kinds of laws which, though not commands, are still within the province of the jurisprudence. They are as follows:-
Declaratory of Explanatory laws:-
Austin doesn’t regard them as commands, because they are passed only to explain laws already in force.
Law to repeal laws:-
These too are not commands but are rather to revocation of a command.
Law of imperfect obligation:-
These laws have no sanctioned attached to them.
Criticism of Austin theory of law:-
Australians theory has been criticized by a number of jurist points of the criticism against Austin theory of law which are as follows:-
1. Custom ignored:-
As per the Australian theory we founded that law is the command of the sovereign. Austin mainly focuses on the commands that are given by the sovereign are the laws. But in the earlier times, not the command of any superior but custom regulates the conduct of the people. Continue to regulate the conduct of the people, even after coming of the state into existence. Some jurists are in favour of the customs as laws and they say that laws are not the command of the sovereign but the custom followed by the people for a long time. But Austin in his theory of law emphasized only the law as the command of the sovereign and ignored the custom as a law.
2. Judge made law:-
Austin in his theory has not provided any place for judge-made law. In the course of their duty judges make law by applying precedents and interpreting the law. Though an Austinan would say that judges act under the powers delegated to them by the sovereign, therefore, their acts are the commands of the sovereign body, in modern times, will deny that judge perform a creative function and Austin’s definition of law does not include it.
3. As against the command:-
Austin believes that the determination of human superiority is the only law-maker and its commands are laws. But with other historic jurists, Sir Henry Main criticized Austen’s theory of sovereignty and condemned it. Sir Henry Men believes that sovereignty does not exist in the determination of human superiority. According to him, “a large population of influences, which we can call for a lesser ethic, which permanently shapes, limits or prohibits the real direction of forces by its sovereign”.
4. This theory makes the sovereign completely absolute:-
This theory makes the sovereign completely absolute, but in practice, it is not possible to be completely absolute. In the ancient and medieval era, there were absolute monarchs. But the monarchs could not remain completely absolute in his actions and behavior. They were subject to ethics theory, code of conduct, and investigation of religion. If he tried to violate established moral, ethical, and religious canons, he was in danger of facing rebellion.
5. This theory is not even applicable to Europe:-
Austin has claimed that the King-in-Parliament is sovereign in England. But legally, this claim is not right because neither the king nor the parliament can go to the extent of becoming completely absolute. Always have to pay attention to the wishes of the public. The reality is that the public is the ultimate source of power. It is public which empowers Parliament. This is the reason why elections are held every five years after the House of Commons. And in the absence of the House of Lords, the House of Lords is quite ineffective.