SCHOOL OF LAW

PROJECT ON JOHN AUSTIN LEGAL THEORY

NAME- AKANSHA SOKAL

ROLL NO. – 14
SAP ID- 500060533
GUIDED BY- Dr. SAM BABU KC
 INDEX
 JOHN AUSTIN’S LEGAL THEORY

 JOHN AUSTIN’S POLITICAL THEORY

 JOHN AUSTIN’S THEORY ON SOVEREIGNTY

 JOHN AUSTIN’S CONTRIBUTION

 JOHN AUSTIN’S CRITICISM

 JOHN AUSTIN’S LEGAL THEORY
As per john Austin, positive law has three principle highlights :it is a sort of order.
It is set around a political sovereign. It is enforceable to authorize.

The relationship of better than sub-par for Austin in the power which the previous
appreciate over the other i.e… .,his capacity to rebuff him for defiance .authorize
is worked in Austin thought of charge. There are orders which are laws and
summons which are not law. Austin recognize law from different summons by
their all inclusive statement, laws are general orders. However there can be
special cases. There can exist laws, for example, demonstrations of attainder
which do not have the character of all inclusive statement.

As per Austin law will be law just on the off chance that it is powerful and it must
be for the most part complied. Culminate dutifulness isn't fundamental without
general compliance ,the summons of official are void as dialect which is for the
most part never again talked ,what is adequate for a lawful scholar is that
submission exist.

As indicated by Austin laws are of two sorts divine law and human law ,divine law
was given to god by men and human laws are set by men for men.

Human laws are two sorts: certain laws are set up political bosses and are sure
law and there are other which are not set up political bosses. The second
classification willful affiliation and clubs.

As indicated by Austin laws entirely alleged are one specific types of set guidelines
and comprise of just those which are set by a sovereign energy to individual from
a free political society wherein that individual or body is sovereign or preeminent.

A charge is wish/want to another so he should do a specific thing or cease from

doing a specific thing in the event of rebelliousness with order ,he needs to for
insidious outcomes ,the endorse behind law is the shrewd which is to be
impacted if there should arise an occurrence of defiance.

John Austin was conceived in 1790. In 1818 he was called to the bar for a long
time ,hepractised law yet without progress. In 1819, he wedded Sarah Taylor a
ladies of extraordinary knowledge, vitality and magnificence. At the point when
the college of London was established, Austin was delegated as teacher of law
and he put in the following two years in setting up his addresses.

His opening addresses were gone to by john Stuart Mill, Romilly and others .After
starting achievement, Austin neglected to draw in new understudies and he
surrendered the seat in 1831. Through the endeavors of his better half, an
extended form of the initial segment of the addresses was distributed in 1831
under the title of "the area of statute decided "Austin rehashed the addresses in
1834 yet without progress .Hence he surrendered showing law by and large.

Austin composed with outrageous trouble. He forced on himself .he principles of

exactness and lucidity that made work a torment .Between 1832 and 1859; he
distributed just two or three articles and a leaflet – a request for the constitution.

The second version of the territory of law was distributed by this dowager in
1861. She likewise recreated from the notes of her significant other "addresses on
statute "or rationality of positive law" and distributed them in 1863.

Austin is called as the father of English law and the organizer of the logical school.
Allan wants to call Austin school as the basic school. It is placated that Austin does
not fit precisely into any of the critical schools.

Austin most essential commitment to Legal hypothesis was substitution of the

order of the sovereign for any perfect of equity in the meaning of law.

As per Austin laws are two sorts, Law of God Human laws
In Austin positivists of law ,the law of god appears to satisfy too others work then
that of filling in As a respectable for Austin use convictions .the standard of utility
is the law of god.

Human laws are distinguishable inti two:- laws appropriately alleged and laws
despicably supposed. Human law are detachable into conceivable laws and laws
disgracefully supposed .The previous are law set by political bosses to political
subordinate or laws set by subjects as private individual in judiciousness of lawful
rights allowed to them.

Laws shamefully supposed are those laws which are not set specifically or by
implication by a political predominant .In this class are different sort of guidelines,
such a tenets of clubs , law of form, laws of characteristic science ,the principles
of purported worldwide law .Austin gave these the name of positive ethical
quality.

Laws disgracefully purported likewise incorporated a last class called "laws by

similitude which secured articulation of consistencies of nature.

As per Austin positive law has four components

Summon

Endorse

Obligation

Power

As indicated by Austin "law is an order of the sovereign "charge suggests

obligation and endorse law appropriately purported are types of orders. Each law
legitimately supposed spill out of a determinate source or radiate from a decide
creator.

The power and reason to deliver punishment for defiance are the very substance
of a charge .the individual at risk to the eviler punishment is under an obligation
to obey it .the eviler punishment for noncompliance is called authorize.
However all the order are not laws, it is just the general charge which obliges to a
course of lead is law. 13. Austin gives a few special cases which however are not
summons are still in the territory of statute.

Prof. Dias bring up that qualification drawn by Austin was altogether self-
assertive. He includes that the instance of endorse isn't the sole or even the
standard thought process in submission. There are numerous protests to the
relationship of obligation with sanctions

The perspective of Austin is that it is the authorize alone which actuates men to
obey law .This isn't a restorative view. As per ruler Bryce, the intentions which
incites a men to obey law are inactivity, yielding, sensitivity, dread and reason.
The final fall back on secure compliance.

In the assessment of Duguit, the thought of order isn't relevant to present day
social enactment which ties the state instead of the person. This view is likewise
acknowledged by the preeminent court of India. Faultfinders call attention to that
law isn't a discretionary order as brought about by Austin yet development of
natural nature. Law has not development because of visually impaired power but
rather because of cognizant endeavors for unequivocal finishes.

JOHN AUSTIN’S THEORY OF

POSITIVISM

Positivism is being defined as:-

1. Law is the command of human beings

2. Law is as it is
3. Law is not to be derived from nor there is to be any relationship between
law and enquiries.
4. Legal system is a close logical system(no external aspects can be allowed to
be considered in law)
 5. Law is a matter of fact and it can be defended or justified unlike moral
statements.

Characterstics of positivism are :-

1. Certainity and predictability of law

2. Scientific study of legal system
3. Definite and verifiable source
4. Sanction
5. Bindingnesseminates from state
6. Distinction between law as it is and law ought to be
7. Law can only be studied with the help of logic

Austin defined law as a rule laid for guidance of an intelligent being by an

intelligent being having power over him.

For distinguishing law properly so called from laws improperly so called ,

Austin gave four characterstics of law properly so called:

1. Command
2. Sanction
3. Duty
4. Sovereignty

Each constructive or each law basically and entirely supposed said by a

soverign or sovereign group of people wherein that individual or body is
preeminent.

1.Command-summon is in a type of request issued by a better than

substandard and not a desire , want or demand.

2.Sanction-if law isn't obeyed there is the dread of discipline.

3.Duty-man to whom arrange is given has a legitimate obligation to obey it

if there should arise an occurrence of noncompliance discipline is given.
Legitimate positivism does not suggest a moral avocation for the substance
of the law, nor a choice for or against the dutifulness to law. Positivists
don't pass judgment on laws by inquiries of equity or mankind, however
just by the courses in which the laws have been made. This incorporates
the view that judges make new law in choosing cases not falling
unmistakably under a legitimate run the show. Working on, choosing or
enduring certain practices of law can each be viewed as a method for
making law.

The components of this hypothesis were briefly depicted by Austin in his

meaning of order. He noted in the Province of Jurisprudence Determined
(1832), "On the off chance that you express or private a desire that I might
do or ancestor some demonstration, and in the event that you will visit
upon me some insidiousness on the off chance that Icomply not with your
desire, the articulation or suggestion of your desire is a charge. " To this he
included a somewhat intriguing note the talk and nature of power to be
specific, "On the off chance that you are capable and willing to hurt me on
the off chance that I agree not with your desire, the statement of your
desire adds up to a summon, despite the fact that you are incited by a soul
of courtsey to absolute it in the state of a demand."

This thought of order turns out to be significantly more tenuous in the

works of H.L.A. Hart who, for every one of his disparities with Austin's
hypothesis (which he considered erroneous in numerous perspectives),
contrasted the charge of the sovereign with be practically equivalent to the
danger of a firearm. This order hypothesis of legitimate positivism
wassubject to feedback by Ronald Dworkin in "The Model of Rules I," in
which he contended that laws must have a basic good substance and can't
just be a formal articulation of pressure and command.This thought of
charge turns out to be significantly more thin in the compositions of H.L.A.
Hart who, for every one of his disparities with Austin's hypothesis (which he
 considered wrong in numerous perspectives), contrasted the order of the
sovereign with be practically equivalent to the risk of a weapon.

Austin contends that laws are rules, which he characterizes as a sort of

charge. All the more absolutely, laws are general charges issued by a
sovereign to individuals from a free political society, and moved down by
trustworthy dangers of discipline or other unfavorable results ("sanctions")
in case of resistance. The sovereign in any lawful framework is that
individual, or gathering of people, constantly obeyed by the main part of
the populace, which does not routinely obey any other person.

A charge is a proclaimed wish that something ought to be done, issued by a

predominant, and joined by dangers in case of resistance. Such orders offer
ascent to legitimate obligations to comply. Note that all the key ideas in this
record (law, sovereign, order, authorize, obligation) are characterized as far
as observationally evident social certainties. No ethical judgment, as
indicated by Austin, is ever important to figure out what the law is —
however obviously profound quality must be counseled in figuring out what
the law ought to be. As an utilitarian, Austin trusted that laws ought to
advance the best joy of society.

JOHN AUSTIN’S TEORY OF

SOVEREIGNTY
In the nineteenth century the hypothesis of power as a lawful idea was
consummated by Austin, an English Jurist. He is viewed as a biggest example of
Monistic Theory. In his book 'Territory of Jurisprudence Determined (1832) Austin
watched' 'if a determinate human prevalent, not in the propensity for dutifulness
to a like predominant, gets routine submission from the greater part of a given
society, that determinate unrivaled is sovereign in that society and that society
(counting predominant) is a general public political and free.' To Austin in each
state there exists a specialist to whom a huge mass of resident show consistence.
This expert is total, boundless and inseparable

Austin's hypothesis of sway depends for the most part upon his view on nature of
law. As indicated by Austin 'Law is an order given by a better than mediocre' the
principle fundamentals of Austin's hypothesis of power are as per the following-

a.Sovereignty is a man or group of people. It isn't vital that sovereign ought to be

a solitary individual. Power may dwell in numerous people moreover. Austin
clarifies that a 'Sovereign isn't really a solitary individual, in the advanced western
world he is once in a while so; however he should have such an extensive amount
the properties of a solitary individual as to be a determinate.' To Austin state is a
legitimate request, in which there is an incomparable specialist, which is
wellspring of all forces. Sway is worried about man, and each state must have
human prevalent who can issue orders and make laws. Human laws are the
correct subjects of state movement.

b. Sovereign power is resolute. Division of power prompts its demolition. It can't

be partitioned

c.The charge of sway is better than over all people and affiliations. Sovereign will
undoubtedly comply with anybody's request. His will is preeminent. There is no
doubt of right or wrong, just or treacherous, every one of his charges are to be
complied.

d. Austin's hypothesis says that the submission to sovereign must be constant. It

implies that compliance ought to be constant. He additionally incorporates that
isn't fundamental that compliance should originate from the entire society. It is
adequate, on the off chance that it originates from the lay greater part of
individuals. Compliance should originate from majority of the general public
generally there is no sovereign.
Like every other hypothesis of power Austin's hypothesis is additionally not free
from feedback. The principal feedback is with respect to power dwelling in a
determinate predominant. Indeed, even sovereign's demonstrations are molded
by such huge numbers of different impacts, for example, ethics, qualities and
traditions of the general public.

Sir Henry Maine gives the case of Maharaja Ranjit Singh. He brought up that the
Maharaja 'could have ordered anything. The littlest noncompliance to his charge
would have been trailed by death or mutilation.' despite this, the Maharaja never
'once in all his life issued an order which Austin could call a law. The guidelines
which managed the life of his subjects were gotten from their immemorial
utilization.'

Besides Austin says that the sovereign is had of boundless forces, which is again
not satisfactory. It is conceivable just in principle not by and by. Laski calls
attention to that 'no sovereign has anyplace had boundless power and endeavor
to apply it has dependably brought about the foundation of protections.

Besides Austin says that the sovereign is had of boundless forces, which is again
not adequate. It is conceivable just in principle not practically speaking. Laski
brings up that 'no sovereign has anyplace had boundless power and endeavor to
apply it has dependably brought about the foundation of protections.

It is by all accounts that Austin's hypothesis may not be acknowledged as

legitimate for political theory. His lawful hypothesis of sovereign. limits 'the
importance of essential terms.' It should, however be conceded that as an
investigation of entirely lawful nature of sway. Austin's hypothesis is clear and
consistent.

JOHN AUSTIN’S CONTRIBUTION

John Austin, (conceived March 3, 1790, Creeting Mill, Suffolk, Eng.— passed on
December 1859, Weybridge, Surrey), English law specialist whose
compositions, particularly The Province of Jurisprudence Determined (1832),
upheld a meaning of law as a types of order and tried to recognize positive law
from ethical quality. He had little impact amid his lifetime outside the hover of
Utilitarian supporters of Jeremy Bentham. His power came after death.

Austin's best known work, a rendition of part of his addresses, is The Province
of Jurisprudence Determined, distributed in 1832. Here, keeping in mind the
end goal to clear up the qualification amongst law and profound quality, which
he thought to be obscured by principles of Natural Law, he expounded his
meaning of law as a types of charge. As per Austin, orders are articulations of
want that another might do or forgo from some demonstration and are joined
by a danger of discipline (the "authorize") for insubordination. Charges are
laws "basically and legitimately purported" when they recommend courses of
lead, not particular acts, and are "set" by the "sovereign" (i.e., the individual or
people to whom a general public renders ongoing dutifulness and who render
no such compliance to others). This is the check recognizing "positive law"
both from the essential standards of profound quality, which are the "law of
God," and from "positive ethical quality," or artificial guidelines of lead, for
example, decorum, regular ethical quality, and universal law, which don't
radiate from a sovereign. The Province likewise contains a rendition of
Utilitarianism in which "utility" is viewed as the list of God's summons and the
trial of the ethical nature of general standards of direct as opposed to of
specific activities.

Austin saw the precepts in The Province as "only prefatory" to the

investigation that he named "general statute": the article and examination of
the key thoughts shaping the structure of all develop lawful frameworks. He
committed the principle part of his addresses (distributed in 1863) to an
investigation of such "overrunning ideas" as those of right, obligation, people,
status, delict, and wellsprings of law. Austin recognized this general, or logical,
law from the feedback of lawful organizations, which he called the
"exploration of enactment"; he thought both were vital parts of legitimate
instruction.

As per Austin, orders are articulations of want that another might do or shun
from some demonstration and are joined by a risk of discipline (the
"authorize") for defiance. Summons are laws "basically and appropriately
alleged" when they endorse courses of direct, not particular acts, and are "set"
by the "sovereign" (i.e., the individual or people to whom a general public
renders routine dutifulness and who render no such acquiescence to others).
This is the check recognizing "positive law" both from the basic standards of
profound quality, which are the "law of God," and from "positive ethical
quality," or artificial guidelines of direct, for example, behavior, customary
profound quality, and global law, which don't exude from a sovereign. The
Province additionally contains a rendition of Utilitarianism in which "utility"
is viewed as the list of God's summons and the trial of the ethical nature of
general principles of direct instead of specific activities.

CRITICISM OF AUSTIN’S THEORY OF

LAW
LAW BEFORE STATE: 1. The meaning of law as far as state has been used by legal
scholars having a place with the verifiable and sociological schools. As indicated
by the school law is preceding and free of political specialist and authorization. A
state upholds it since it is as of now law. It is nor remedy that it move toward
becoming law before the state uphold it.. 2. Albeit Salmon isn't a supporter of the
basic hypothesis .he doesn't acknowledge the feedback of verifiable school. He
call attention to that the lead which were in presence preceding the presence of a
political state were not law in the genuine feeling of the terms. They looked like
laws. They were primitive substitutes for law yet not laws. 3. Ruler Bryce
composes," law can't be dependably and wherever the making of state since
occurrences can be advertisement plummet where law existed in a group before
there was any state" 4. Pollock watches " law ,as well as law with a decent
arrangement of convincing its recognition and prompted before there was and
normal procedure of implementation by any stretch of the imagination"

Sweeping statement OF LAW: 1. As indicated by Austin, law is a general lead of

direct, yet that is got down to earth in each circle of .law is the feeling of lawful
framework can be specific .the prerequisite that law ought to be general is to a
great degree hard to keep up. 2. There are degrees of all inclusive statement
.some specific statutes may concern particularly imperative individual as lord.
(e.g.) resignation act .it must be considered as a piece of law.

Proclamation 1. Law is a charge and that must be conveyed to individuals by

whom it is intended to be obeyed or taken after. This perspective of Austin isn't
valid. 2. Proclamation is normally depended on yet isn't basic for the legitimacy of
govern of law. 3. Chinese adage – "Let the general population maintain, however
not be named of the law". 4. Till 1870, in Japan – no declaration to individuals.

LAW AS COMMAND 1. As per Austin, all laws can't be communicated regarding

summon. Most of legitimate framework, comprises of laws enable individuals by
specific intends to accomplish certain outcomes. To respect a law giving a power
on one individual as in actuality a roundabout to another is to twist in nature. 2.
The expression "charge" recommends the presence of an individual
administrator. In current lawful framework, it is difficult to distinguish any leader
in this individual sense. 3. Laws contrast as they can and do proceed in presence
long after the outward of the real law supplier. The thought of a suggested or
feature order is suspect. A suggested charge is no summon. 4. The greater part of
English law has been made neither by standard enactment nor by assignment
enactment, however by the choice of the courts.

Endorse 1. Austin's definition can't be connected to a Morden just nation whose

hardware is utilized for the aftereffect of the general population. 2. The authorize
behind law isn't the power of the state yet the eagerness of the general
population to comply with the same. 3. Power can be utilized just against a couple
of revolutionaries and not against the entire society. On the off chance that law is
connected by every one of the general population, no power on earth can
authorize the same. 4. Authorize isn't fundamental of law. On the off chance that
we acknowledge Austin's definition, the entire of law should be barred from the
extent of positive law. 5. The journalists of verifiable, sociological and
philosophical school of law condemn authorize as global law and traditions are
not sponsored by just expert, yet they are obeyed like some other law of state
Pollock watches " Law is implemented on account its legitimacy. It doesn't wind
up plainly legitimate simply in light of the fact that it is implemented by the
state".

NOT APPLICABLE TO INTERNATIONAL AND CONSTITUTIONAL LAW 1. Worldwide

law isn't the order of any sovereign, yet it is thought to be law by all rationed. 2. It
doesn't have any significant bearing to established law too. Indeed, sacred law of
nation characterizes the energy of different organs of the state. It's not possible
for anyone to be said to charge himself. 3. Austin's definition can't be connected
for Hindu, Mohammed an and the Canon law. These laws appeared well before
the state started to perform administrative capacities.

Carelessness OF ETHICAL ELEMENTS 1. The primary feedback of Salmond is that

the hypothesis dismisses the good or moral components of law. The finish of law
is equity. Any meaning of law without reference to equity is deficient. 2. The
perspective of Salmond is that Austin's meaning of law alludes to "a law" and not
"the law". The expression "a law" is utilized as a part of a solid sense to signify a
statute while the expression "the law" is utilized as a part of a conceptual sense to
indicate lawful standards. A decent meaning of law must manage the two parts of
law