Austin’ s Command theory Amaresh Patel BASICS OF LAW Mon, Mar 30, 2020, at ,07:06 PM The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of modern state. The first six lectures the most influential part of his work were published in 1832 under the title of "The province of jurisprudence Determined" and the rest was published posthumously in 1861. After his death he achieved greater fame and became the founder of what was popularly called the Analytical School. John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London. He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK. He confined his field of study only to the positive law. Prof. Allen thinks that it is proper to call the Austin's School as imperative school. This name he gave on the basis of Austin's conception of law - "Law is Command". Austin's initial task to be a critical analysis of the law as it is. In his first six lectures he sought to elucidate law and his concept of law is an imperative one which is based on sovereignty. According to him law is only an aggregate of individual laws. In his views all laws are rules the majority of which regulate behaviour. Austin define : Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Austin defines law in two parts: Proper Law and Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to man and Secondly, laws made by man for man. Human law is divided into two heads: Positive Law and Positive Morality. These positive laws are set by political superiors as such or set by the man not acting as political superiors but acting in pursuance of legal rights conferred by the political superiors. Only these laws are the proper subject matter of jurisprudence. Law is of two kinds : (a) Law of God - Laws set by God for men (b) Human Laws - Laws set by men for men. Two kinds of Human laws (1) Positive Law : These are the laws set by political superiors as such or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence. (2) Other laws : Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights. Austin proceeded to distinguish between what he called - (1) "Laws properly so called." (2) "Laws improperly as called". (1) Laws properly so called : are those laws which are commands. Divine laws or the laws of the God, which are set by God to his human creature are the laws properly so called. (2) Laws improperly so called : are those laws which are not command. Eg. Laws by analogy as laws of fashion, laws by metaphor i.e. laws of gravity. Human laws : These are those laws which are not set by men as political superior or in pursuance of a legal right Eg. positive morality - Positive moral rules, International law. Positive law is the subject matter of jurisprudence : Austin says that only positive law is the proper subject matter of jurisprudence - law simply and strictly so called or law set by political superiors to political inferiors. Jurisprudence is the general science of positive law. Law is Command : According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors. Law as a "rule laid down for the guidance of an intelligent being having power over him. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands. The basic features of Command theory are: • Command (by political superiors). • Duty (imposing duty on political inferiors). • Sanction. • Sovereignty. Law is command of sovereign which implies (a) Duty (b) Sanction Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. The key to a law properly so called lies in obligation. Every wish with regard to conduct is favourable to conduct which is desired and unfavourable to the conduct which is not desired. Such wishes may emanate from directions or from general opinion, but wishes which are directives are distinguishable in that they render conduct obligatory. General opinion cannot create obligations. Every Directive then is a command; the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obligation. Opening a new era approach - (1) Austin laid down many of his propositions as deduced from English law as it was during his time. The credit goes to Austin for opening a new era approach. (2) Austin was intimate to great thinkers and philosophers of his time like Benthan and Hill and he wiped out many false notions which had obscured the true meaning of law and legal terms. (3) Austin's classification and analysis of the concepts of English law has served as a guide for better English analytical jurists. (4) Austin's theory attains the notion of simplicity consistency and clarity of exposition. Austin's method is described as characteristic of English jurisprudence. (5) Austin's theory was widely accepted in English and American jurisprudence. Later on his theory received increasing attention and respect from the Continent and Germans. (6) Later Analytical theories have improved upon Austin's theory and have given a more practical and logical basis. Jurists like Salmond and Gray have improved upon it and considerably modified the analytical postivist approach. The Vienna school of law is the outbreak of Austin's theory. (7) Even the defects of Austin's theory is the constant source of illumination; for his error's are often the mis-statement of truths of central importance for the understanding of law and society. (8) Austin as a jurist kept himself free from the rival political ideologies of nationalism and internationalism. Even one of the great critics, Olivecrona, also acknowledges him as the pioneer of modern positivist approach to law. Thus Austin made great contribution to jurisprudence. Exceptions of Theory of Austin: Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law. Austin, though accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception. They are: 1. Declaratory/Explanatory laws: They’re not commands because they are already in existence and are passed only to explain the law which is already enforced. 2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command. 3. Law of Imperfect obligations: They’re not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement. Criticism: Austin’s trilogy implicit in the concept of law has invoked criticism. 1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human beings and therefore, customs should also be included in the study of jurisprudence but Austin ignored them. 2. Law conferring privileges: The law which is pure of permissive character and confers wholly privileges such as ‘The Wills Act’ which lays down the method of joining testamentary document is not covered by Austin’s definition of law. 3. No place for judge-made law: Austin avoids the creative function of judiciary like applying of the precedents and in the interpretation of laws. 4. Austin theory treats international law as morality: Austin doesn’t treat international law as it is lacking sanction and this view of Austin neglects the increasing role of international law in achieving world peace. 5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in modern progressive democracies, the law is nothing but an expression of the general will of the people, therefore the idea of command doesn’t apply in present systems. 6. The interrelation between law and morality is completely ignored: The greatest shortcoming of Austin’s theory is that it completely ignores the relationship between law and morality and law can never be completely divorced from morals and ethics. 7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction who alone governs the people or induce the persons to obey the law is not correct. There are so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to induce a person to obey the law. Apart from these criticisms, Austin’s contribution of law has been greatly admired by other thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and its clear expression of separation law and morality. Thus, we can say that Austin made a great contribution to the law of Jurisprudence. The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of modern state. The first six lectures the most influential part of his work were published in 1832 under the title of "The province of jurisprudence Determined" and the rest was published posthumously in 1861. After his death he achieved greater fame and became the founder of what was popularly called the Analytical School. John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London. He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK. He confined his field of study only to the positive law. Prof. Allen thinks that it is proper to call the Austin's School as imperative school. This name he gave on the basis of Austin's conception of law - "Law is Command". Austin's initial task to be a critical analysis of the law as it is. In his first six lectures he sought to elucidate law and his concept of law is an imperative one which is based on sovereignty. According to him law is only an aggregate of individual laws. In his views all laws are rules the majority of which regulate behaviour. Austin define : Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Austin defines law in two parts: Proper Law and Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to man and Secondly, laws made by man for man. Human law is divided into two heads: Positive Law and Positive Morality. These positive laws are set by political superiors as such or set by the man not acting as political superiors but acting in pursuance of legal rights conferred by the political superiors. Only these laws are the proper subject matter of jurisprudence. Law is of two kinds : (a) Law of God - Laws set by God for men (b) Human Laws - Laws set by men for men. Two kinds of Human laws (1) Positive Law : These are the laws set by political superiors as such or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence. (2) Other laws : Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights. Austin proceeded to distinguish between what he called - (1) "Laws properly so called." (2) "Laws improperly as called". (1) Laws properly so called : are those laws which are commands. Divine laws or the laws of the God, which are set by God to his human creature are the laws properly so called. (2) Laws improperly so called : are those laws which are not command. Eg. Laws by analogy as laws of fashion, laws by metaphor i.e. laws of gravity. Human laws : These are those laws which are not set by men as political superior or in pursuance of a legal right Eg. positive morality - Positive moral rules, International law. Positive law is the subject matter of jurisprudence : Austin says that only positive law is the proper subject matter of jurisprudence - law simply and strictly so called or law set by political superiors to political inferiors. Jurisprudence is the general science of positive law. Law is Command : According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors. Law as a "rule laid down for the guidance of an intelligent being having power over him. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands. The basic features of Command theory are: • Command (by political superiors). • Duty (imposing duty on political inferiors). • Sanction. • Sovereignty. Law is command of sovereign which implies (a) Duty (b) Sanction Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. The key to a law properly so called lies in obligation. Every wish with regard to conduct is favourable to conduct which is desired and unfavourable to the conduct which is not desired. Such wishes may emanate from directions or from general opinion, but wishes which are directives are distinguishable in that they render conduct obligatory. General opinion cannot create obligations. Every Directive then is a command; the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obligation. Opening a new era approach - (1) Austin laid down many of his propositions as deduced from English law as it was during his time. The credit goes to Austin for opening a new era approach. (2) Austin was intimate to great thinkers and philosophers of his time like Benthan and Hill and he wiped out many false notions which had obscured the true meaning of law and legal terms. (3) Austin's classification and analysis of the concepts of English law has served as a guide for better English analytical jurists. (4) Austin's theory attains the notion of simplicity consistency and clarity of exposition. Austin's method is described as characteristic of English jurisprudence. (5) Austin's theory was widely accepted in English and American jurisprudence. Later on his theory received increasing attention and respect from the Continent and Germans. (6) Later Analytical theories have improved upon Austin's theory and have given a more practical and logical basis. Jurists like Salmond and Gray have improved upon it and considerably modified the analytical postivist approach. The Vienna school of law is the outbreak of Austin's theory. (7) Even the defects of Austin's theory is the constant source of illumination; for his error's are often the mis-statement of truths of central importance for the understanding of law and society. (8) Austin as a jurist kept himself free from the rival political ideologies of nationalism and internationalism. Even one of the great critics, Olivecrona, also acknowledges him as the pioneer of modern positivist approach to law. Thus Austin made great contribution to jurisprudence. Exceptions of Theory of Austin: Austin says, “every law is a command imposing a duty enforced by a sanction, however, all the commands are not law”. It is only the general command which is a law. Austin, though accepts that there are three kinds of laws which are not commands but may be included within the purview of law by way of exception. They are: 1. Declaratory/Explanatory laws: They’re not commands because they are already in existence and are passed only to explain the law which is already enforced. 2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the revocation of a command. 3. Law of Imperfect obligations: They’re not treated as commands because there’s no sanction to them. Austin holds that a command to become law must be accompanied by duty and sanction for its enforcement. Criticism: Austin’s trilogy implicit in the concept of law has invoked criticism. 1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human beings and therefore, customs should also be included in the study of jurisprudence but Austin ignored them. 2. Law conferring privileges: The law which is pure of permissive character and confers wholly privileges such as ‘The Wills Act’ which lays down the method of joining testamentary document is not covered by Austin’s definition of law. 3. No place for judge-made law: Austin avoids the creative function of judiciary like applying of the precedents and in the interpretation of laws. 4. Austin theory treats international law as morality: Austin doesn’t treat international law as it is lacking sanction and this view of Austin neglects the increasing role of international law in achieving world peace. 5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in modern progressive democracies, the law is nothing but an expression of the general will of the people, therefore the idea of command doesn’t apply in present systems. 6. The interrelation between law and morality is completely ignored: The greatest shortcoming of Austin’s theory is that it completely ignores the relationship between law and morality and law can never be completely divorced from morals and ethics. 7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction who alone governs the people or induce the persons to obey the law is not correct. There are so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to induce a person to obey the law. Apart from these criticisms, Austin’s contribution of law has been greatly admired by other thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and its clear expression of separation law and morality. Thus, we can say that Austin made a great contribution to the law of Jurisprudence. Author ANJALI DIXIT ANJALI DIXIT ASSISTANT PROFESSOR FACULTY OF JURIDICAL SCIENCES RAMA UNIVERSITY, KANPUR