John Austin

Austin, a renowned English legal scholar, was born on 3 March 1790 in England. He served in the army during the Napoleonic Wars for five years before turning his attention to the study of law. Jeremy Bentham, a prominent legal philosopher, was Austin's mentor, and his teachings significantly influenced Austin's work. In 1826, he was appointed Professor of Jurisprudence at the newly-established University College London, where he became famous for creating the analytical school of jurisprudence. Despite being Bentham's student, he is often referred to as the 'father of the analytical school' because his book was published before Bentham's. Later, he was appointed as the chairperson of jurisprudence at London University, earning him the title of 'father of English jurisprudence'. He traveled to Germany to study Roman law after that. Austin's major works include The Province of Jurisprudence Determined, Lectures on Jurisprudence, and Plea to the Constitution.

Command Theory of Law

Austin's definition of law is that it is 'a formal expression or command from a political superior or sovereign to its subjects, backed by the sanction of force'. In other words, law is a set of rules created by a governing body that has the authority to enforce those rules through the use of penalties or punishments.

Essentials

Positive law:
According to Austin, jurisprudence should be focused ‘solely on positive law,’ which refers to the laws that are enacted and enforced by a sovereign or political superior. He believed that law is ‘what it is’, and it should be studied and understood on that basis, rather than on the basis of ‘what it ought to be’. Due to this his theory is also known as Positivism theory.

Command:
According to Austin's theory of law, the definition of law is based on the idea of Command given by the State or the Sovereign. The emphasis on command in this theory makes it imperative, as it is based on the idea of a superior authority giving orders to its inferiors to do something or refrain from doing something, and in case of non-compliance or infringement, there must be consequences or punishments.
Sanction:
In Austin's view, the sanctions associated with a particular law are the evil or harm consequences that follow from disobedience or non-compliance of the command . The fear of these sanctions is what keeps people in line with the law. sanctions must be severe enough to deter people from disobeying the law. He argued that sanctions are the essential element of law, as they make the command effective.
Sovereign:
According to Austin, the sovereign is the ultimate source of authority in the legal system, and has the power to create, enforce, and interpret laws. The sovereign's authority is absolute, and there is no higher authority that can overrule their decisions. I.e., law is based on the idea of a centralized, top-down system of authority, in which the sovereign's commands are the basis for all legal obligations.

Criticism

Austin's theory of law, also known as the "command theory," has received criticism on several fronts. Some of these criticisms are as follows:

Ignored morals and ethics: Austin emphasizes that law is a set of commands issued by the sovereign that are backed by some sanctions. However, this approach ignores the fact that laws are often influenced by moral and ethical considerations. For example, many laws prohibit actions that are considered immoral or unethical, such as murder or theft.

Ignored customs: Another criticism of Austin's theory is that it does not consider the role of customs in shaping the law. Many legal rules and principles are derived from longstanding customs and traditions, which are not necessarily commands issued by a sovereign. For example, dowry.

Ignored judiciary role: Austin also ignores the role of the judiciary in interpreting and applying the law. Judges often make legal decisions based on their interpretation of the law, which may not always align with the commands issued by the sovereign.

Ignored international law: Austin's theory is limited to the domestic legal system and does not account for the role of international law in shaping legal norms and principles.

Various legislation that does not command to people but confers rights like fundamental rights: Austin's theory also fails to address legislation that confers rights on individuals rather than commanding them to take certain actions. For example, fundamental rights, such as the right to equality or right to freedom etc., are not necessarily commands that individuals must follow but are rights that they possess.

Ignored democracy and followed rule of law: Austin's theory places an emphasis on the rule of law over democratic principles. This approach assumes that the sovereign has the authority to issue commands that must be obeyed, regardless of whether they align with the will of the people. However, in democratic societies, the will of the people is a crucial factor in shaping legal norms and principles.

Conclusion

John Austin was an influential legal scholar who is known as the father of the analytical school of jurisprudence. His command theory of law emphasizes that law is a set of commands issued by a sovereign, backed by the sanction. The theory focuses solely on positive law and ignores moral and ethical considerations, customs, the role of the judiciary, and international law. Despite its limitations, Austin's theory has contributed to the development of legal philosophy, and his ideas continued to be studied and debated by legal scholars in present time. The criticisms of his theory have led to the emergence of alternative theories.

References

John Austin (Stanford Encyclopedia of Philosophy)

Imperative Theory by John Austin - Indian Law Portal

John Austin (legal philosopher) - Wikipedia

Imperative Theory of Law by John Austin - iPleaders

B.N. MANI TRIPATHI- JURISPRUDENCE THE LEGAL THEORY