John Austin

Analytical Jurisprudence

Submitted By: Haritima Singh

40114703817
B.A. LL.B
6B

Submitted To:- Mr. Varun Bansal

About the

Jurist
 JOHN AUSTIN
(1790-1859)
• Austin was born on 3 March 1790 at Creeting St Mary in Mid Suffolk.
• He was called to the Bar in 1818, but he took on few cases, and quit the practice of law in 1825.
• Austin shortly thereafter obtained an appointment to the first Chair of Jurisprudence at the recently established
University of London.
• He prepared for his lectures by study in Bonn, and evidence of the influence of continental legal and political
ideas can be found scattered throughout Austin’s writings.
• He was appointed to the chair of Jurisprudence in the University of London in the year 1826.
• He took series of lecture on Jurisprudence when he returned to England in 1829.
• Lectures from the course he gave were eventually published in 1832 as “Province of Jurisprudence Determined”.
• Austin’s work was influential in the decades after his passing away. E. C. Clark wrote in the late 19th century that
Austin’s work “is undoubtedly forming a school of English jurists, possibly of English legislators also. It is the
staple of jurisprudence in all our systems of legal education.”
• John Austin died on 1 December 1859 in Weybridge.
School of

Thought
 ANALYTICAL SCHOOL OF THOUGHT

• Analytical school is also known as the Austinian school since this approach is established by John Austin.
• It is also called as an imperative school because it treats law as the command of the sovereign.
• Dias terms this approach as “Positivism” as the subject-matter of the school is positive law.
• Nature, reason, supernatural source, justice, utility were some of the bases from which Natural Law was supposed to
be derived.
• The analytical school was a reaction against the airy assumptions of natural law.
• The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray, Hoffield and Hart.
• Austin took a legal system as it is that is positive law and resolved it into its fundamental conception.
• According to Austin, analysis of positive law is to be done by the operation of logic on the law without consideration of
the history of ethical significance.
• Austin ignored social factors as well as in his analysis of law, he emphasized that by the operation of logic, it is
impossible to find out the universal elements in law, for example, notions were common in all mature legal
systems.
Philosophy

of

School
 • According to Austin, the law may be divided into two parts:-

> Law of God: The laws here are set by the god for men.

> Man-made Laws: These laws are set by men for men.

ANALYTICAL • The law is command of the sovereign.

POSITIVISM • There is no necessary connection between law and the

morals.

by • The laws are:-

> “law as it is”

John Austin
> “law ought to be”

• The legal system is a closed logical system

• Moral judgments cannot be accepted or defended by

rational arguments.
 CHARACTERISTICS OF ANALYTICAL POSITIVISM
John Austin

SOVEREIGN COMMAND DUTY SANCTION

 • SOVEREIGN:-
According to Austin, the Sovereign is a determinate
human superior who receives habitual obedience from
bulk of a given society and is not in the habit of
obedience to a like superior.

ANALYTICAL
He divides Sovereign into two i.e. Positive and Negative

• COMMAND:-

POSITIVISM According of Austin law prevails in the form of

command but it must be a command of sovereign.

by • DUTY:-

John Austin As law is a command of sovereign, it is a duty of

everyone to obey it.

• SANCT ION:-
There must be a provision of punishment in case the
law is disobeyed. There cannot be a law without
punishment.
 ANALYTICAL POSITIVISM
John Austin
• Within Austin’s approach, whether something is or is not “law” depends on which people
have done what: the question turns on an empirical investigation, and it is a matter
mostly of power, not of morality.

• Austin is not arguing that law should not be moral, nor is he implying that it rarely is.

• He is merely pointing out that there is much that is law that is not moral, and what
makes something law does nothing to guarantee its moral value.

• Austin accepted that the judicial law-making is highly beneficial and even necessary.
Criticism
 • Customs and convention ignored or overlooked.
• No place for judge made laws i.e. precedent.

Criticism of
• The word “Command” is over- emphasised.
• Sanction alone does not mean to induce
obedience.

ANALYTICAL
• Sometimes the law is based upon religion. This
aspect is not at all considered by Austin.
For eg. Private laws Hindu and Muslim laws are

POSITIVISM
based on religion.
• Austin notion of sovereignty had become falsified
in modern system because sovereignty is split

John Austin
into-
>Legislative sovereignty
>Executive sovereignty
>Judicial sovereignty
• Permissive character of law is ignored.
Indian

Context
 Indian Context of Analytical Positivism
• With the adoption of the Constitution in 1950, Indian legal theory and legal notions acquired new dimension with
Freedom, Liberty, Equality and Social justice as signature tune of the Indian Constitutional jurisprudence.

• The Indian Parliament accordingly embarked on an ambitious legislative programme to give fair deal to weaker
sections and suppressed masses of the society.

• The theory of Legal Positivism has been used by the judiciary in India while deciding landmark cases. Therefore, there
have been cases in India where the judiciary has been influenced by the legal positivist school while giving the
judgement.

• The legal positivist school has played a great role in the Indian perspective also.

• For the certainty of the Law, Law Commissions was adopted positivistic legal rules as enunciated by John Austin. For
examples:
>The Indian Penal Code, 1860,
>The Indian Contract Act, 1872,
>The Indian Evidence Act 1872,
>The Code of Civil Procedure,
>The Code of Criminal Procedure, etc.
Case Laws
 Shankari Prasad v. Union of India
AIR 1951 SC 458

In order to abolish the Zamindari system widely prevalent in India, some State Govts enacted the
Zamindari Abolition Act to acquire huge holding of land that lay with rich zamindars, and
redistribute them among the tenants. But the same was challenged as being unconstitutional
and violative of the Right to Property that was included in the Fundamental Rights.
 A.K. Gopalan v. State of Madras
AIR 1950 SC 27

The petitioner was detained under the Preventive Detention Act. The petitioner challenged the
constitutionality of the said act on the ground that the act infringed Article 19 as well as Article
21 of the Constitution of India. The Supreme Court upheld the validity of the Preventive Detention
Act and stated that law is ̳’lex‘ and not ̳’jus’. Therefore, what is laid down by the legislature is to
be regarded as the law of the land even if it is not just. This judgement clearly reflected the
thinking of the positivist school. In Gopalan Case, the Supreme Court revived the Austinian
Positivism in Indian Constitution
 Maneka Gandhi Case

The Supreme Court found fissure in the Passport Act, 1967 under which Maneka Gandhi‘s
passport was impounded by the Central Government. It was lacking fairness, justness or
morality and accordingly judges declared such an order as void. The apex court upheld
that every law must contain and fulfill the moral as well as procedural criteria within it
otherwise it would not be regarded as law. Further, It held that the mere prescription of
some kind of procedure is not enough to comply the mandate of Article 21. A procedure to
be fair or just must embody the principles of natural justice. Natural justice is intended
to invest law with fairness and to secure justice the Court said: ̳Law should be reasonable
law and not enacted piece of law123‘.
Conclusion
 • Though there are some weaknesses in the
theory of law propounded by Austin, it
has great contribution to the study of
jurisprudence. He approached the
problem of definition of law from point
of view of maintenance of law, order and
security in the society.

Conclusion
• One occasionally sees Austin portrayed
as the first realist, Austin is seen as
having a keener sense of the connection
of law and power, and the importance of
keeping that connection at the forefront
of analysis.

• When circumstances seem to warrant a

more critical, skeptical or cynical
approach to law and government.
Thank You!