Austin's analytical school of jurisprudenceAustin's analytical school of jurisprudence

Austinian Concept of Law

                John Austin (1790-1859) applied analytical method (law should be carefully studied and analysed and the principle underlying therein should be found out) and confined his field of study only to the positive law. Therefore, the school founded by him is called by various names- ‘analytical’, ‘positivism’, ‘analytical positivism’. Austin is considered as the “Father of English Jurisprudence’. His lectures were published under the title ‘The Province of Jurisprudence Determined. The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors.

(Note – The term ‘positive law’ denotes the law that is actually found, positum, as contrasted with what it ought to be.)

                Law in its most comprehensive signification was defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.

  1. as political superiors or in pursuance of rights conferred by such superiors. (Positive law)
  2. not as political superiors, nor in pursuance of rights conferred by such superiors. (Positive Morality)

Note: The aggregate of rules, established by political superiors, is called positive law or laws existing by position.

 : Positive morality are still laws properly so called, because they are commands e.g. those set by a master to a servant or the rules of a club.

: Laws by analogy includes laws set and enforced by mere opinion, such as the laws of fashion, intonational law, etc. Laws by metaphor covers expressions of the uniformities of Nature.

Law as a Command

            Every law or rule, properly so called is a command or a species of command.

            A “command” is an expression of a wish by a determinate person, or body of persons, that another person shall do or forbear from doing some act subject to an evil in the event of disobedience (sanction).

            Being liable to evil…, a person is under a duty (obligation) to obey it. The evil is called a sanction or an enforcement of obedience. Thus, the command or the duty is said to be sanctioned or enforced by the chance of incurring the evil… So every law is a command, imposing a duty, enforced by a sanction. If a law held out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed upon those who shall act accordingly. Thus, it is only by the chance of incurring evil, that one is obliged to compliance.

Commands are of two species-

(a) General Commands (laws or rules), which obliges generally to acts or forbearances of a class;

(b) Occasional or particular commands, which obliges to a specific act or forbearance, or to acts or forbearances which it determines specifically or individually.

Examples

  1. If Parliament prohibited simply the exportation of com, either for a given period or indefinitely, it would establish a law or rule. But an order issued by Parliament to meet an impending scarcity, and stopping the exportation of com then shipped and in port, would not be a law or rule, though issued by sovereign legislature.
  2. An act which is not an offence moves the sovereign to displeasure; sovereign commands punishment for the authors of the act. As enjoining a specific punishment in that specific case, the order is not a law or rule.
  3. Judicial commands are commonly occasional or particular, although the commands which they are calculated to enforce are commonly laws or rules.

         For instance, the law-giver commands that thieves shall be hanged. The judge commands that a specific thief shall be hanged. agreeably to the command of the law-giver. Now the law-giver determines a class or description of acts; prohibits acts of the class generally and indefinitely, thus his command is a law or rule. But, the command of the judge is occasional, for he orders a specific punish- ment, as the consequence of a specific offence.

         The difficulty of drawing a distinct boundary between laws and occasional commands, is clear from the following two points:

  1. Commands which oblige generally the members of given community (or persons of given classes) are not always laws or rules Where the sovereign commands that all corn actually shipped for exportation be stopped, the command is obligatory upon the whole community, but as it obliges them only to a set of acts individually assigned, it is not a law.

             Where the sovereign issue an order, enforced by penalties, for a general mourning on occasion of a public calamity; the order obliges generally the members of entire community, but it is not a law or rule because it obliges to acts which it assigns specifically (instead of obliging generally to acts of a class).

             If the sovereign commanded that black should be the dress of his subjects, his command is a law. But if he commanded them to wear it on a specified occasion, his command is occasional or particular.

  1. Command which obliges exclusively persons individually determined, may amount to a law or rule – For example, a father may set a rule to his child or children; a master, to his slave or servant. And certain of God’s laws were as binding on the first man, as they are binding at this hour on the millions.

             Most of the laws established by political superiors are general in a two-fold manner: as enjoining or forbidding generally acts of kinds or sorts; and as binding the whole community (It is inevitable because to frame a system of duties for every individual of the community is impossible). Laws established by political superiors, and exclusively binding specified or determinate persons (e.g. to a office created by Parliament), are styled privilegia. Thus, a law may be defined as a command which obliges a person/person to a course of conduct.

All laws are NOT commands

The proposition that ‘laws are commands must be taken with limitations. The term law is extremely ambiguous. Taken with the largest signification which can be given to the term properly, laws are a species of commands. But there are objects which have nothing of the imperative character (not being commands) and thus improperly termed laws and yet properly included within the province of jurisprudence: –

(1) Declaratory Laws-Acts on the part of legislatures to explain laws already in force can hardly be called laws. But, they are frequently styled laws. They thus form an exception to the proposition ‘that laws are species of commands’. Declaratory laws are imperative in effect: Legislative interpretation (like judicial interpretation) establish new laws under the guise of explaining the old.

(ii) Repealing laws:- Laws to repeal laws and to release from existing duties, must also be excepted like declaratory laws. They release from duties imposed by existing laws, and named permissive laws or permissions. But, such laws are often imperative. For the parties released from duties are restored to liberties or rights; and duties answering those rights are thus created.

(iii) Imperfect laws (laws of imperfect obligation) :- These must also be excepted. An imperfect law is a law which lacks a sanction and which, therefore, is not binding e.g. a law declaring certain acts as crimes, but annexing no punishment. An imperfect obligation, in the other meaning of the expression, is a religious or moral obligation (duty imposed by positive morality).

           The term denotes that the law imposing the duty is not a law established by a political superior: that it wants that perfect sanction, which is imported by the sovereign or State.

There are also certain laws (properly so called) which may seen not imperative and are thus not commands: –

(1) Laws which merely create rights: – And, seeing that every command imposes a duty, laws of this nature are not imperative. However, every law, really conferring a right, imposes expressly or tacitly a relative duty. For example, if it specify the remedy to be given, in case the right shall be infringed, it imposes the relative duty expressly.

(ii) Customary laws: – Considered as rules of positive morality, customary laws arise from the consent of the governed (i.e. masses), and not from the position or establishment of political superiors. But, considered as moral rules turned into positive laws, customary laws are established by the State e.g. when the customs are incorporated into statutes, when customs are turned into legal rules by judicial decisions, it is tacitly commanded by the sovereign legislature (because a judge is merely a minister, possess only delegated sovereign powers). Thus, the positive law styled customary is established by the State and, therefore, is imperative.

(Note-A command is express, if desire be signified by words – written or spoken. A command is tacit if desire be signified by conduct.)

Criticism against command theory

  1. Association of duty with command- Prof. Olivercona points out that duties are ‘ought’ propositions which are phrased imperatively (‘You must’ or ‘You shall’), and it is a non sequitur to suppose that such phraseology of itself implies command
  2. Idea of command inapplicable in modern society-Command presupposes some determinate person who commands. In modern times the machinery of State remains always changing and it is run by a number of persons. Therefore, law can’t be treated as the command of anyone in particular.
  3. Law and command- The function of a law is to regulate future conduct indefinitely and to serve as a standard by which to judge deviance; a command is more usually directed to a specified individual or individuals with reference to a particular actor forbearance and does not serve as a general standard of judgement.

           Further, there are many laws which are not commands e.g. rule that no action to succeed when the limitation period has expired, or that merely defines what constitutes contract or murder, or power – (or privilege) conferring rules (e.g. power to make a will under the Wills Act, Article 32 of the Constitution, etc.). The term ‘command’ implies coercive character while these laws are of permissive character. Procedural laws, in the same way, do not fit into the Austin’s definition of law. (However, Buckland has tried to defend Austin’s theory by arguing that the statute as such and not a particular provision is a command. Further, declaratory statutes could have been treated as repealing earlier commands, while repealing statutes may be said to create fresh claims and duties by their cancellation of earlier ones and so be said to command. Thus, Austin wrongly concluded that such laws were exceptions).

  1. Inapplicability to modern social legislations- Duguit asserted that the notion of command is inapplicable to modern social legislations, which do not command people but confer benefits, and which binds the State itself rather than the individual.
  2. Conventions of the Constitution These operate imperatively, though not enforceable by court, shall not be called law, according to Austin’s definition, although they are law and are a subject-matter of a study in jurisprudence.
  3. Judge-made law -In Austin’s theory, there is no place for judge-made law. Although he emphasised that the judges act under the power delegated to them by sovereign, therefore, they are commands (tacit) of the sovereign and judgements made by them are thus rules of positive law.

           According to Salmond, judges are not administering or delegates of the crown, but they do create rules of positive law.

          When Austin developed his theory of command, he took into account that legislature is supreme, he couldn’t imagined about the judicial review. Under the present-day context, judicial interpretation of laws has become an inevitable feature. Further, judicial precedents are binding laws while no body has commanded these.

  • Commands of a sovereign – It has been pointed out that even actual commands of a sovereign only acquire the character of laws when certain procedures (parliamentary) have been followed. If these procedures are laws it is difficult to square thern with command. If they are not laws, they are not different from the dictates of etiquette and morals. While they must be different.
  • Sanction is not the only means to induce obedience- According to Austin, it is the sanction alone which induces the man to obey law. It is submitted that it is not a correct view. Various motives such as sympathy, fear, indolence, and reason induce a man to obey law. The power of the State is ratio ultima – the force which is the last resort to secure obedience.
  •  Relation of law and morals over-looked – According to Austin, “the science of jurisprudence is concerned with positive law, or with laws strictly so called, as considered without regard to their goodness or badness.” The basis of law is the power of superior and not the ethics or the principles of natural justice.

          This is not a correct proposition. Ethical and moral elements cannot be excluded from law. Morals have taken important place in the sphere of law in the name of justice, equity, good faith, etc. Morals play important role in restraining powers of legislature because it cannot enact a law against the morals of the society.

Concept of Sovereignty

          The great contrast between positive law and positive morality was, in Austin’s view, the fact that the former was set by a political superior. He elaborated this notion and evolved his theory of sovereignty.

            The superiority which is styled sovereignty, and the independent political society which sovereignty implies, is distinguished from other superiority or might, and from other society, by the following marks or characters, Sovereignty involved two “marks” a positive and a negative one. The positive mark was that the bulk of a given society was in the habit of obedience to a determinate common superior. The negative mark was that the determinate superior was not in the habit of obedience to some other superior. (However, that superior may be influenced by law set by opinions, or he may yield occasional submission).

             Such determinate superior is sovereign in that society, and the society including the superior is society political and independent and other members of that society are subjects and dependent or that superior. The basis of sovereignty is thus the fact of obedience The sovereign’s power is unlimited and indivisible (no division of authority). Austin’s definition of law as the command of the sovereign” suggests that only the legal systems of the civilized societies can become the proper subject-matter of jurisprudence because it is possible only in such societies that the sovereign can enforce his commands with an effective machinery of administration. Austin’s definition ignores customs.

Examples

            To show that union of those two marks renders a given society a society political and independent: –

  1. When obedience is rare or transient and not habitual or permanent, the relation of sovereignty and subjection is not created thereby. For example, in 1815 the allied armies occupied France and the commands of the allied sovereign were obeyed by French Government and through French Government, by the people generally. But since the commands and the obedience were comparatively rare and transient, they were not sufficient to constitute relation of sovereignty and subjection. And the French Government was sovereign or independent.

          Similarly, a feeble (weak) State, in spite of the commands of a powerful State, is a sovereign State.

  1. Unless habitual obedience be rendered by bulk of society to one and the same superior, the given society is either in a state of nature of anarchy or is split into two or more independent political societies. For example, in case a given society be torn by intestine war, and in case the conflicting parties be nearly balanced, the given society is in one of the two positions.
  2. When that certain superior habitually obeys the command of a certain person or body, the society is not independent, although it may be political. For example, a viceroy receives habitual obedience from the bulk of the person inhabiting his province. But, the viceroy and the bulk of its inhabitants, are habitually obedient to the sovereign of a larger society.
  3. International law – The law obtaining between nations is not a positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. International law is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions only (e.g. by fear on the part of nations, of provoking general hostility).

Criticism of Austinian Sovereignty

  1. According to Dias, sovereignty cannot be defined in terms of obedience. It cannot be said that sovereignty of the Crown in Parliament was established by the “habitual obedience” of the judges that established the sovereignty of the Crown in Parliament.
  2. The negative mark of sovereignty is not so much the concern of municipal lawyers as of international lawyers. It makes no difference to municipal lawyers that the law-constituting body obeys some other body in the intemational sphere if in fact in municipal sphere it makes laws.
  3. The attribute of continuity of the sovereign may be questioned by asking” where sovereignty resides during a dissolution of Parliament.” In one place, Austin said correctly that the sovereign body is the Crown, the Lords and the Commons; but elsewhere he asserted that it is the Crown, the Lords and the Electorate. The latter interpretation renders the whole of his conception meaningless. Who, in that case, is the commander and who the commanded?
  4. The attribute of indivisibility has also created difficulty. The question is whether sovereign authority can be vested in more than one body, not whether it may be exercised by more than one. Austin said that its exercise may be delegated to several.

Austinian theory could be applied to the British Parliament which is supreme (there is no division of power in England into different organs of State i.e. legislature, executive and judiciary). However, Austin’s notion that sovereignty is indivisible is falsified by federal Constitutions e.g. India, USA.; old Roman Law, communist power of colonial legislature and West Minister Parliament (a “colony” has power to make law within its territorial limits, but the West Minister Parliament can also legislate for it, thus sovereignty is divided).

The ultimate authority may be vested as to different matters in various bodies. The indivisibility of sovereignty has now been judicially rejected.

  • Illimitability-The question whether the sovereignty can limit or bind itself is an extremely debatable one.

           Sir Matthew Hale had challenged Hobbe’s conception of absolute sovereignty by arguing that sovereign powers accrue to sovereign by certain laws of the kingdom and that there are. therefore, certain qualifications of these powers.

           According to Austin, a sovereign cannot be under a duty, since he cannot command himself. To be under a duty implies that there is another sovereign, above the first who commands the duty and imposes a sanction. In such a case, the first sovereign is not a sovereign.

           It must be admitted that the whole notion of the sovereign being unable to command itself is a wholly unrealistic one, in the ambit of the complex web of modem public law. This unreality is underlined, for instance, by Austin’s treatment of Constitutional law as not being positive law (since it is either mere question of fact as to who is habitually obeyed, or it consists of commands to the sovereign by itself).

          In modern conditions, the exercise of sovereign power may be limited by special procedure. Sovereignty may be divided in such a way that each component has a limited power to prescribe for the other…. this creates self bindingness on a sovereign. Unlimited sovereignty, therefore, can properly only refer to a body being without a superior in the structure of the State, but this implies nothing either logically or legally as to the degree of its freedom of action.

  • Law as the command of a sovereign- This notion of Austin is criticised by the Dias: no one can command at least the rule which entitled him to command. As Olivercona pointed out, the bulk of the law existed before the individuals, who comprise the legal sovereign in England, attained their positions, and they did so by virtue of rules of law. There is no sense in saying that the rules which brought them to these positions are their own commands.

       Further, why should the commands of a former sovereign continue to be “laws” under his successor? Austin reconciled this with the command theory by saying that what the sovereign permits he commands tacit commands”. Hart objected to this by saying that a decision not to interfere with previous commands can’t impart a fresh “law-quality” to something already “law”. It is “law” though it has not been commanded by this sovereign, even tacitly. Continuance of majority of previous sovereign’s laws are due to non-repeal by default which is in no sense an “expression of wish”.

         In modern times, law is nothing but the general will of the people, therefore, law cannot be said to be a mere command of the sovereign. The sovereign cannot stand above and apart from the community giving arbitrary commands, as State itself is a sovereign. The view that law is the command of sovereign’, treats law as artificial and ignores its character of spontaneous growth.

  • International law According to Austin, international law lacks sanctions because there is no sovereign, hence no command which is to be obeyed by the States in mutual dealings.

          But, in the present-day context, nobody will accept that international law is not law (even if it lacks sanctions). The States who violate international law does not deny the existence of international law, rather tries to defend their action within the rules of such law.

Sovereignty under Indian Legal Order/ Constitution

Limitability

The Parliament has unlimited power to amend the Constitution. But the limitation was imposed by the judiciary in Keshavananda Bharati v State of Kerela (AIR 1973 SC 1461) wherein it was held that the Parliament cannot amend any provision of the Constitution which violates the “Basic Structure” of the Constitution.

          The word “unlimited” suffered a serious setback, when the Supreme Court struck down Art.368(4) of the Constitution which reads: “The Parliament has unlimited power to amend the Constitution…”The Supreme Court limited the legislative power, so that the judicial review always remains open.

Indivisibility

According to Austin, there is no division of power of sovereign. But in India, there is a sharp division of powers between legislatures (Union and State); and there are certain provisions in the Indian Constitution wherein even the executive and judiciary can make laws.

For example,

  • Ordinance- making power of President/ Governor (Arts.123 and 213 of the Constitution);
  • Other executives can also make laws (Arts. 107-111-Union; Arts. 196-200 -States);
  • The laws made/ declared by the Supreme Court shall be binding on all courts throughout the country (Art.141).

India: Quasi-federal Constitution

           In a federation, legislative power is divided between the Union and the member States. One of the basic principles of federalism is that the division of powers between Centre and States should not be allowed to be disturbed by the unilateral action of the Centre or States (For example, USA). But, in India, under certain situations, the Centre can transfer to itself any of the powers belonging to States (e.g. legislate for matters enumerated in State list). In times of emergency, the Union Government at the Centre can convert itself into a Unitary State. Thus, Indian Constitution is quasi-federal.

          Sovereignty in India is divided and supremacy is of the Constitution. The executive sovereignty is vested in the President and the legislative sovereignty is vested in Parliament and President. President is the supreme executive, as a Bill (including an amendment Bill) can take effect only when the President gives his assent to it. However, the ‘real’ powers belong to the Prime Minister Can sovereignty be located in the Constitution amending body It may be suggested that sovereignty may be located in the Constitution-amending body in which case it would be unlimited and indivisible as required by Austin’s theory. Indeed, Austin sought to locate sovereignty in USA in this way. Such an attempt, however, has to be abandoned in the Indian Constitution, as it does not prescribe any one procedure for amendment. Some amendments can be made by Parliament itself, while others require the concurrence (or ratification) by the States. Thus, as there is not one Constitution- amending body for all purposes, it is not possible to point to it as the repository of sovereign power. Further, such body functions but rarely and it would be thoroughly artificial to ascribe sovereignty to it.

Conclusions

            In the Constitution of India, there is no legally unlimited indivisible sovereignty as understood by Austin. Sovereignty in the sense of a “supreme power, absolute and uncontrolled within its own sphere” cannot be traced in the Constitution (either in the legislative sovereignty or in the executive sovereignty). The Indian Constitution does not recognise judicial sovereignty, as the powers of Supreme Court can be impaired without its consent. Thus, Austin’s concept of sovereignty does not exist in India.

Sovereignty under Ancient Hindu Law

            In ancient India there was no concept of sovereignty in the sense as it is understood today. Sovereignty under ancient Hindu law lay finally with God but was delegated to the king and to the people. The king was a servant of the people receiving a portion of the taxes as his wages. It was a settled principle of ancient Hindu law that the final sovereignty and ultimate sanction were with the God. The king could neither make or unmake the laws. Nothing was more repugnant to the Brahminical notion than the power of the king to impose laws upon the subjects. It was the duty of the king to give effect to and not to disturb the customs prevailing in a newly conquered territory.

Is Sovereignty essential in modern State?

           According to Austin, in every independent political society there must be some person or group whose will ultimately prevails within that community.

           Salmond agreed with Austin as he observes, “It seems clear that every political society involves the presence of the supreme power. For otherwise all power would be subordinate, and this supposition involves the absurdity of a series of superiors and inferiors ad infinitum.

            Jenks has challenged the notion of essentiality of sovereignty within the State on the ground that law as an all I pervading harm harmony will regulate human existence without the somewhat primitive assistance of organised force applied by the sovereignty. The idea of Jenks hints towards the law of nature or system of pure reason which all man obeys simply because they are precepts of pure reason and not because of force compels them to obey. In reality, this view is not acceptable.

            In modern times some States have grown very strong and supreme. Though there is a growing world-wide demand for the decentralisation of the powers of government. However, sovereignty is essential in the State but today it is not absolute. There are certain limitations upon it.

Austin’s Contribution

       Austin’s method of jurisprudence is proving inadequate in modern times because jurisprudence is to solve many legal problems which have arisen under changed conditions, but, at the same time, when Austin gave his theory, it helped in removing the confusion created by the abstract theories about the scope and method of jurisprudence. His theory opened an era of new approach to law. He helped to propagate the positivist doctrine that it is necessary (to some extent at least) to separate the law as it is from what it ought to be. One of his great critics, Olivercona, acknowledges him as the pioneer of the modem positivist approach to law. Austin’s definition of law fully applies to English law but it has no universal application.

      Salmond and Gray further improved upon Austin’s theory. They differ from Austin in his emphasis on sovereign as law giver. According to Salmond, the law consists of the rules recognized and acted on by the courts of justice. The ‘pure theory of law’ (Kelsen) also owes to Austin’s theory.

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