Project report on

Study of Austin’s concept of law

Project submitted to
Md. Aamir Khan
(Faculty: jurisprudence)

Project submitted by
Apoorva chandra
ROLL NO. 25
Semester V

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, (C.G)

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ACKNOWLEDGMENTS

I should like to place on record a special thanks to Md. Aamir Khan faculty of Jurisprudence ,
for her personal care, timely suggestions, critical evaluation and creative guidance throughout
this project research and with whose help the practical realization of this project has been
possible.
Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

Apoorva chandra

(Semester V)

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TABLE OF CONTENTS

 Acknowledgements……………………………………………………..2
 Introduction……………………………………………………………..4
 Objectives……………………………………………………………….6
 Research Methodology……………………………………………….....6
 Austin’s Theory of Law………………………………………………... 7
 Description of Austin’s Theory………………………………………….9
 The Significance of the Theory………………………………………....11
 Criticism………………………………………………………………...12
 Conclusion……………………………………………………………....17
 References…………………………………………………………….…18

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INTRODUCTION
John Austin (3 March 1790 – 1 December 1859) was a noted British jurist and published
extensively concerning the philosophy of law and jurisprudence.

Austin served with the British Army in Sicily and Malta, but sold his officer's commission to
study law. He became a member of the Bar during 1818. He discontinued his law practice soon
after, devoted himself to the study of law as a science, and became Professor of Jurisprudence in
the University of London (now University College London) 1826-33. Thereafter he served on
various Royal Commissions. His publications had a profound influence on English
jurisprudence. They include The Province of Jurisprudence Determined (1832), and Lectures on
Jurisprudence.

Law is the command of the Sovereign.

One of the main exponents of this theory which is completely different from the natural law
theory was John Austin who belongs to the analytical school of law and is widely considered to
be the founder of positive law. His concept of law is very closely tied to his understanding of
sovereignty: if a determinate human superior not the habit of obedience to a like superior
receives habitual obedience from the bulk of a given society then that determinate superior is
sovereign in that society, and the society including the superior is a society political and
independent.

Thus, the three elements of law are:

1. A command

2. A sovereign

3. A sanction

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According to Austin, law is not the same as morality. It deals with what is and not with what
should be. It is imperative. It is the command of the king. The coercive force behind law is its
essence.Jurisprudence is not the same as ethics. It is an independent discipline.

The theory has often been criticised for not including moral considerations but this was
apparently not what Hobbes had intended – the way he saw it, such an analysis was preliminary
to critical assessment which was,through utility, to help reveal heretofore unrevealed divine
laws.

OBJECTIVES

1. To study about the Analytical school of law

2. To study about its methods
3. To study the role of John Austin in the Positivism Law

RESEARCH METHODOLOGY

The objective of this project is to understand and define the social development in India and to
define the theories of famous thinkers like Francis f. Power, Freeman and Shomel and so on to
describe social stratification in a new manner from the point of view of the modern theories and
by the new development in the field of rural as well as urban areas.

This Doctrinal research is descriptive and analytical in nature. Secondary and Electronic
resources have been largely used to gather information and data about the topic.

Books and other reference as guided by Faculty of sociology have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been referred.

Footnotes have been provided wherever needed, to acknowledge the source.

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Austin’s particular theory of law is often called the “command theory of law” because the
concept of command lies at is core: law is the command of the sovereign, backed by a threat of
sanction in the event of non-compliance. Legality, on this account, is determined by the source of
a norm, not the merits of its substance (ie it embodies a moral rule). Thus, the answer to the
question “what is law?” is answered by resort to facts not value. On Austin's view, a rule R is
legally valid (i.e., is a law) in a society S if and only if R is commanded by the sovereign in S
and is backed up with the threat of a sanction. The relevant social fact that confers validity, on
Austin's view, is promulgation by a sovereign willing to impose a sanction for noncompliance.

AUSTIN THEORY OF LAW:1

Austin most important contribution to Legal theory was substitution of the command
of the sovereign for any ideal of justice in the definition of law. He, defined law as “a rule laid
down for the guidance of intelligent being by an intelligent being having power over him” law is
strictly diverged from justice. It is based on the power of a superior .this units Austin with
Hobbes and other of sovereignty.
According to Austin laws are two kinds,
 Law Law of God
 Human laws
In Austin positivists of law ,the law of god seems to fulfil too others function then that of serving
As a respectable for Austin utilisation beliefs .the principle of utility is the law of god
Human laws are divisible into
 Law improperly so called
 Laws properly so called (positive law)
Human law are divisible into possible laws and laws improperly so called .the former
are law set by political superiors to political subordinate or laws set by subjects as

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Austin Theory Of Law- Prateek Mishra

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private person in prudence of legal rights granted to them. Laws improperly so called are those
laws which are not set directly or indirectly by a political superior .In this category are diverse
type of rules, such a rules of clubs , law of fashion, laws of natural science ,the rules of so called
international law .Austin gave these the name of positive morality.
Laws improperly so called also included a final category called “laws by metaphor
which covered expression of uniformities of nature.According to Austin positive law has four
elements
 Command
 Sanction
 Duty
 Sovereignty
According to Austin “law is a command of the sovereign “command implies duty and
sanction law properly so called are species of commands. Every law properly so called
flow from a determinate source or emanate from a determine author. The power and purpose to
inflict penalty for disobedience are the very essence of a command .the person liable to the eviler
penalty is under a duty to obey it .the eviler penalty for disobedience is called sanction. However
all the command are not laws, it is only the general command which obliges to a course of
conduct is law.Austin provides some exceptions which though are not commands are still in the
province of jurisprudence.
 Declaratory or explanatory laws
 Laws to repeal law
 Laws of imperfect obligation
Prof. Dias point out that distinction drawn by Austin was entirely arbitrary. He adds that the case
of sanction is not the sole or even the principle motive for obedience. There are many objections
to the association of duty with sanctions. The view of Austin is that it is the sanction alone which
induces men to obey law .This is not a corrective view. According to lord Bryce, the motives
which induces a men to obey law are indolence, deference, sympathy, fear and reason. The last
resort to secure obedience. In the opinion of Duguit, the notion of command is not applicable to
modern social legislation which binds the state rather than the individual. This view is also
accepted by the supreme court of India.

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“The existence of law is one thing; its merit or demerit is another.”2

John Austin (1790-1859) began to study law in 1812 after five years in the army and from 1818
to 1825 practiced unsuccessfully at the chancery bar. His introspection and theory about law
hugely reflected his life as an army personnel, the entire theory of law as a command and the
discipline shows the same. His powers of rigorous analysis and his uncompromising intellectual
honesty deeply impressed his contemporaries, and in 1826, when University College, London,
was founded, he was appointed its first professor of jurisprudence, a subject that had previously
occupied an unimportant place in legal studies. He spent the next two years in Germany studying
Roman law and the work of German experts on modern civil law whose ideas of classification
and systematic analysis exerted an influence on him second only to that of Bentham.

Commonly known as the father of the English Jurisprudence, Austin’s best known work, a
version of part of his lectures, is ‘The Province of Jurisprudence Determined’, published in 1832.
Here, in order to clarify the distinction between law and morality, which he considered to be
blurred by doctrines of Natural Law, he elaborated his definition of law as a species of
command. According to Austin, commands are expressions of desire that another shall do or
forbear from some act and are accompanied by a threat of punishment (the “sanction”) for
disobedience. Commands are laws “simply and properly so-called” when they prescribe courses
of conduct, not specific acts, and are “set” by the “sovereign” (i.e., the person or persons to
whom a society renders habitual obedience and who render no such obedience to others). This is
the mark distinguishing “positive law” both from the fundamental principles of morality, which
are the “law of God,” and from “positive morality,” or manmade rules of conduct, such as
etiquette, conventional morality, and international law, which do not emanate from a sovereign.
Austin is best known for his command theory of law, his controversial perspective on the nature
of sovereignty, and his insistence on the separation of law and morality. His work marks a break
from traditions of historical jurisprudence, which studies the development and evolution of law,

2 ANATOMY OF AUSTINIAN THEORY OF LAW – ANKITA PRADHAN

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and of natural-law theory, which holds that law, to be valid and binding must conform to the
standards of morality.

Austin defines law as “rule laid down for the guidance of an intelligent being by an intelligent
being having power over him.” Here, the intelligent beings who lay down laws are God and
political ruler, or sovereign; the body of rules set by God constitutes the divine law, while rules
set by the sovereign make up the positive law. Thus, Austin was the vital individual who saw law
‘as it is’ and hence his theory came to be called the Positive theory or the Imperative theory and
became a part of the Analytical school of Law, flourished by Jeremy Bentham. Austin classified
law into two; law properly so-called and law improperly so-called. He chiefly focuses on ‘law
properly so-called’ for the reason that he only considers Divine law and Human law as law per
se.

Law as a Command

“Law is commands joined to threads of punishment”

Furthermore, Austin deliberates law as command of the sovereign hence, Command Theory of
Law. Here he tries to expound that command lies at the very core of a sovereign. Law as a
command, is backed by a threat of sanction in the event of non-compliance. Legality, on this
account, is determined by the source of a norm, not the merits of its substance (i.e. it embodies a
moral rule). Thus, the answer to the question “what is law?” is answered by resort to facts not
value. On Austin’s view, a rule R is legally valid (i.e. is a law) in a society S if and only if R is
commanded by the sovereign in S and is backed up with the threat of a sanction. The relevant
social fact that confers validity, on Austin’s view, is promulgation by a sovereign willing to
impose a sanction for noncompliance. A law is always a command that binds persons. A
command contains three elements: (1) a wish (or desire) of a thinking being that another thinking
being must carry out by acting in a certain way or abstaining from action; (2) an evil dealt by the
first being and suffered by the second being in case he does not carry out the wishes of the first
(a sanction); (3) an expression or some way of making others aware of a particular wish by
words or other signs (the form in which the command is given is not essential). Only those

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commands that have a general character can be norms or rules, while commands that impose an
obligation to perform a single action or prohibit a single action do not belong to law. A command
to be a real law, or a binding law (positive law), must in addition be promulgated by a sovereign
for his subjects, the members of an independent political society (a society subject to an authority
who is not at the same time subject to any other authority). The sovereign also brings to life the
positive law of his predecessors, giving it the attribute of sanctions, whereby he recognizes it as
his own, as it were, and demands the same respect for it as he does for his own commands.

The Significance of Austin’s Theory3

Austin’s theory is regarded as the classical form of legal positivism. Legal positivism is treated
as a domain of theoretical knowledge about law. Its conception of law is also described as
analytic jurisprudence (an analysis of legal concepts by formal-dogmatic methods) or as the
utilitarian conception of law (law is a political instrument and a regulator of social law that
carries a benefit).

Austin provided the foundation for a new object of the positive science of the philosophy of law.
The aim of the new science was the precise definition of the object of study and its limits. This
was intended to separate metaphysical discussions (the natural law) from scientific assertion on
law. Austin thought that the conceptual apparatus of the system of common law should be set in
order. He supported a reform of law with the aim of its codification. The major thesis of his
theory: “only norms of conduct established or recognized by the sovereign which he orders to be
observed under pain of punishment are real laws”, became a dogma of contemporary legal
positivism. H. Kelsen, H. L. A. Hart, and L. L. Fuller, among others, have referred to this
principle.

The subjects have the ability to protect themselves against a bad law by refusing obedience to the
sovereign and thereby causing his downfall. They are guided by the calculus of what is most
beneficial for society, whether it be an evil legal order or the anarchy that results from obedience.

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When they undermine one law, they undermine the meaning of the entire system of law. If
resistance to the law and to the whole system who lead to the fall of the governing authority, then
enlightened public opinion must establish whether this resistance is worthwhile. As long as a
sovereign exists who is generally obeyed in society, the laws he promulgates must be observed
by the subjects (his promulgation of laws that strike at the principle of utility cause justified
resistance). However, one must consider the transitional anarchy, which, according to Austin,
will exist after the overthrow of the sovereign. Government (or a sovereign) is necessary to do
good for society.

Criticism of Austin’s Concept of Law4

As regards Austin’s “command” model, it seems to fit some aspects of law poorly (e.g., rules
which grant powers to officials and to private citizens—of the latter, the rules for making wills,
trusts, and contracts are examples), while excluding other matters (e.g., international law) which
we are not inclined to exclude from the category “law.” More generally, it seems more distorting
than enlightening to reduce all legal rules to one type. For example, rules that empower people to
make wills and contracts perhaps can be re-characterized as part of a long chain of reasoning for
eventually imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on
those who fail to comply with the relevant provisions. However, such a re-characterization
misses the basic purpose of those sorts of laws—they are arguably about granting power and
autonomy, not punishing wrongdoing. It should also be noted that Austin’s work shows a silence
on questions of methodology, though this may be forgivable, given the early stage of
jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path.
On matters of methodology, later commentators on Austin’s work have had difficulty
determining whether he is best understood as making empirical claims about the law or
conceptual claims; elements of each sort of approach can be found in his writings.

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The reaction to Austin’s work at the turn of the century was severe. His command theory was
condemned as a misidentification of all law with the product of legislation and a distortion of
many types of legal rule. The severance of a purely analytical jurisprudence from moral criticism
of law was criticized as sterile verbalism obscuring the social function of law and the judicial
process. Some critics consider that Austin’s doctrine of sovereignty confuses the ideas of legal
authority and political power; others hold “legal positivism” responsible for subservience to state
tyranny or absolutism.

Some of these criticisms are well founded, but even so Austin’s work is of permanent value. The
rigor and clarity of his analysis have demonstrated the complexity of many important legal and
political concepts and the perennial need for just such an analytical study as he proposed, and
repeated efforts to show precisely where his simple distinctions between law and morality are
wrong have increased the understanding of both.
If we categorise the Demerits of his theory then these are the heads :

LAW BEFORE STATE:

The definition of law in terms of state has been utilised by jurists belonging to the historical and
sociological schools. According to the school law is prior to and independent of political
authority and enforcement. A state enforces it because it is already law. It is nor correct that it
become law before the state enforce it..
Although Salmon is not a supporter of the imperative theory .he does not accept the criticism of
historical school. He point out that the rule which were in existence prior to the existence of a
political state were not law in the real sense of the terms. They resembled laws. They were
primitive substitutes for law but not laws.Lord Bryce writes,” law cannot be always and
everywhere the creation of state because instances can be ad descend where law existed in a
community before there was any state”
Pollock observes “ not only law ,but law with a good deal of compelling its observance and
induced before there was and regular process of enforcement at all”

GENERALITY OF LAW:
1. According to Austin, law is a general rule of conduct, but that is got practical in every

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sphere of law .law is the sense of legal system can be particular .the requirement that
law should be general is extremely difficult to maintain.
2. There are degrees of generality .some particular precepts may concern especially
important person as king. (e.g.) abdication act .it has to be considered as a part of law.

LAW AS COMMAND
According to Austin, all laws cannot be expressed in terms of command. The greater part of legal
system, consists of laws empower people by certain means to achieve certain results. To regard a
law conferring a power on one person as in fact an indirect to another is to distort in nature.
The term “command” suggests the existence of a personal commander. In modern legal system,
it is impossible to identify any commander in this person sense.Laws differ as they can and do
continue in existence long after the extrinsic of the actual law giver. The notion of an implied or
facet command is suspect. An implied command is no command.The bulk of English law has
been created neither by ordinary legislation nor by delegation legislation, but by the decision of
the courts.

SANCTION
Austin’s definition cannot be applied to a Morden democratic country whose machinery is
employed for the result of the people.The sanction behind law is not the force of the state but the
willingness of the people to obey the same. Force can be used only against a few rebels and not
against the whole society. If law is apposed by all the people, no force on earth can enforce the
same.Sanction is not essential of law. If we accept Austin’s definition, the whole of law will
have to be excluded from the scope of positive law.
The writers of historical, sociological and philosophical school of law criticise the idea of
sanction as international law and conventions are not backed by only authority, yet they are
obeyed like any other law of state Pollock observes “ Law is enforced on account its validity. It
does not become valid merely because it is enforced by the state”.

NOT APPLICABLE TO INTERNATIONAL AND CONSTITUTIONAL LAW

International law is not the command of any sovereign, yet it is considered to be law by all
conserved. It does not apply to constitutional law also. As a matter of fact, constitutional law of

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country defines the power of various organs of the state. Nobody can be said to command
himself.Austin’s definition cannot be applied for Hindu, Mohammed an and the Canon law.
These laws came into existence long before the state began to perform legislative functions.
DISREGARD OF ETHICAL ELEMENTS
The main criticism of Salmond is that the theory disregards the moral or ethical elements of law.
The end of law is justice. Any definition of law without reference to justice is inadequate. The
view of Salmond is that Austin’s definition of law refers to “a law” and not “the law”. The term
“a law” is used in a concrete sense to denote a statute while the term “the law” is used in an
abstract sense to denote legal principles. A good definition of law must deal with both aspects of
law.

PURPOSE OF LAW IGNORED

Austin’s theory of sovereignty ignores the purpose of law. Burkland writes “This at first right,
looks like circular reasoning. Law is law since it is made by the sovereign. The sovereign is
sovereign because he makes the law. But this is not circular meaning. It is not reasoning at all. It
is definition. Sovereign and law have much the same relation as centre and circumference.

SALMOND ON AUSTIN’S THEORY OF LAW

Austin’s theory of law is one sided and inadequate; it does not contain the whole truth. It
eliminates all elements except that of force. Austin has missed the ethical element in law or the
idea of right or justice. Law is the declaration of a principle of justice. As Austin’s theory of law
does not take into consideration the purpose of law, it is not an adequate definition of law.
Austin’s theory not only misses the ethical aspect of law but over emphasises on in
imperative aspect.
According to Salmond, “All legal principles are not commands of the state and those which are
at the same thing and in their essential nature, something more, of which the imperative theory
takes no account”.Law in abstract sense is more comprehensive in its signification than law in
the concrete sense. To quote Salmond “The central idea of juridical theory is not lex but
Jus, in gestez and recht”.

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CONCLUSION

John Austin (1790-1859) was a nineteenth century British legal philosopher who formulated the
first systematic alternative to both natural law theories of law and utilitarian approaches to law.
(Bentham and Mill were utilitarians, advancing the view that there should be a separation
between law and morality, and that law should be about maximizing utility, or personal pleasure
or pain, and the effect or wisdom of a particular policy could be calculated by adding together all
the pleasure and subtracting all the pain it brought everyone.) Austin’s analytic approach to law
offered an account of the concept of law, that is, what law is. This was termed “Legal
Positivism” because it set out to describe “what law is” in terms of what humans posited it was,
thus the link between “positive law” and “Legal Positivism.”
Austin’s theory of law is a form of analytic jurisprudence in so far as it is concerned with
providing necessary and sufficient conditions for the existence of law that distinguishes law from
non-law in every possible world.
The concept Of commands being backed by the threat of sanctions: this explains criminal laws
nicely. But lots of laws empower or enable people to do things. Austin’s theory doesn’t
Seem to notice that many other laws (e.g. wills,trusts,contracts,voting in elections)are“law”but
they don’t have a “sanction”.Other types of laws give power or authority to people,not punish
them. So, Austin’s theory does not describe all law. Only accepting as laws those rules that come
from the sovereign might result in individuals obeying tyrants.His theory assumes that the
sovereign will be a good leader and will make good laws. However,if he/she doesn’t, it doesn’t
leave people with much choice other than to obey the commands.His idea that the sovereign is
one who is always obeyed leads him to refuse to accept as “law” customary law, international
law and a good deal of constitutional law as law.

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BIBLIOGRAPHY
 MAHAJAN V.D.,NATURE OF LAW, IN JURISPRUDENCE & LEGAL THEORY PG- 27-
35(EASTERN BOOK COMPANY ED 5TH 2013)
 SINGH DR. AVTAR. IN INTRODUCTION TO JURISPRUDENCE PG- 123-137(LEXISNEXUS ED 4TH
2013)
 PARANJAPE DR. N.V. IN STUDIES IN JURISPRUDENCE AND LEGAL THEORY PG-20-

22(CENTRAL LAW AGENCY ED 6TH 2012)

WEBSITES REFERRED
 http://lawmanblog.blogspot.in/2012/08/austins-imperative-theory-of-law.html accessed
on 5th October 2014
 http://jurisonline.in/?p=3148 as accessed on 5th October 2014
 http://www.1902encyclopedia.com/L/LAW/law-02.html as accessed on 5th October 2014

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