◆Introduction:- John Austin was born in 1790, he joined the Army and served as an Army Officer for 5 years until 1812. The Army life of strict discipline and command had its reflection in the Austinian concept of law. Austin published "Province of Jurisprudence Determined" in 1832. He died in 1859 and his works were published by his wife Sarah Austin in 1861.
John Austin is an influential jurist is considered to be the father of English Jurisprudence. He confined his study only in the positive law and applied analytical method for this purpose. His theory of law is usually called the imperative theory because of his emphasis on command.
John Austin is an influential jurist is considered to be the father of English Jurisprudence. He confined his study only in the positive law and applied analytical method for this purpose. His theory of law is usually called the imperative theory because of his emphasis on command.
◆ Imperative theory of John Austin:-
The emergence of positivism in philosophy is the result of a shift in emphasis from metaphysical to empirical trends in theoretical philosophy. When thinking process on the basis of deduction from pre-conceived ideals, it is known as metaphysical; when it is proceeds on the study of facts and experiences, it is termed as empirical or positivistic.
John Austin is the chief exponent of the analytical School of jurisprudence. According to the Austin "law and morality are separate and that all human-made (positive) law can be traced back to human lawmakers, is known as legal positivism." Drawing heavily on the thought of Jeremy Bentham Austin was the first legal thinker to work out of full-blown positivistic theory of law.
According to John Austin there are two types of law, namely-
1. Laws properly so called that is created by the sovereign, and;
2. Laws in properly so called that is natural or religious rules, moral rules.
Austin attributed three elements with his theory of positive law which are-
●Sovereign,
●Command ,and
●Sanction
The emergence of positivism in philosophy is the result of a shift in emphasis from metaphysical to empirical trends in theoretical philosophy. When thinking process on the basis of deduction from pre-conceived ideals, it is known as metaphysical; when it is proceeds on the study of facts and experiences, it is termed as empirical or positivistic.
John Austin is the chief exponent of the analytical School of jurisprudence. According to the Austin "law and morality are separate and that all human-made (positive) law can be traced back to human lawmakers, is known as legal positivism." Drawing heavily on the thought of Jeremy Bentham Austin was the first legal thinker to work out of full-blown positivistic theory of law.
According to John Austin there are two types of law, namely-
1. Laws properly so called that is created by the sovereign, and;
2. Laws in properly so called that is natural or religious rules, moral rules.
Austin attributed three elements with his theory of positive law which are-
●Sovereign,
●Command ,and
●Sanction
● Sovereign:- According to Austin sovereign is any person or body of persons whom the bulk of political society habitually office but who does not habitually over any other person or institution.
A sovereign is a political is superior person, perhaps can be a individual person, for example king, queen or a group of persons example Parliament, Congress, House of Lord etc. Austin thought that all independent political societies, by their nature, have a sovereign. So accordingly two important aspects of sovereignty emerges, namely-
1. The bulk of the society shall pay habitually obedience to a determinate and common superior. This is called positive mark of sovereignty.
2. The superior shall not be in the habit of obedience to any other human superior. This is called the negative mark of sovereignty.
A sovereign is a political is superior person, perhaps can be a individual person, for example king, queen or a group of persons example Parliament, Congress, House of Lord etc. Austin thought that all independent political societies, by their nature, have a sovereign. So accordingly two important aspects of sovereignty emerges, namely-
1. The bulk of the society shall pay habitually obedience to a determinate and common superior. This is called positive mark of sovereignty.
2. The superior shall not be in the habit of obedience to any other human superior. This is called the negative mark of sovereignty.
● Command:- "A command are expression of desires given by superior to inferior", that means command issued by a sovereign to the people of independent political society. The command is backed up by credible threats of sanction that is punishment or other adverse consequences in the event of non-compliance. The essential components of the command are:-
1.Duty:- The obligation to comply with the command.
2.Right:- The capacity to direct another to do a particular act or forbear from doing a particular act.
3.Sanction:- the punishment which would be the consequence of non-compliance compliance of command.
Commands may be particular or general, according to Austin a particular command enjoins or forbids a particular act specifically determined; whereas a general command enjoins act or forbearance of a class or series forming a course of conduct.
1.Duty:- The obligation to comply with the command.
2.Right:- The capacity to direct another to do a particular act or forbear from doing a particular act.
3.Sanction:- the punishment which would be the consequence of non-compliance compliance of command.
Commands may be particular or general, according to Austin a particular command enjoins or forbids a particular act specifically determined; whereas a general command enjoins act or forbearance of a class or series forming a course of conduct.
●Sanction:- The third important element of Austin's definition of law is 'sanction', which may be considered as inbuilt in the idea of command. It signifies a method of coercion to enforce the command not, leaving the citizen free to decide whether to obey the law, but to make him obey irrespective of whether he likes it. Sanction consists of the penalties inflicted on the orders of the sovereign for the violation of law; if for instance, the sovereign decrees that no driver should exceed 60 km per hour on highway, a person who violates that command will be liable to pay fine or undergo imprisonment. Thus, the sovereign power, namely the state, has given a command and enforced it by a sanction.
According to Austin the essentials of every law is like:-
According to Austin the essentials of every law is like:-
1.Sovereign is the source of law. Because sovereign are the politically superior person or group of persons, who makes the positive law.
b. Law is a command of sovereign, because whatever the law created by the sovereign i.e., politically superior person which has to be obeyed by the subordinate persons.
c. Command implies sanction. It means that the laws are the commands, which obliged to comply by the people on the threat of sanction that is punishment or penalty on its non-compliance.
b. Law is a command of sovereign, because whatever the law created by the sovereign i.e., politically superior person which has to be obeyed by the subordinate persons.
c. Command implies sanction. It means that the laws are the commands, which obliged to comply by the people on the threat of sanction that is punishment or penalty on its non-compliance.
●Criticism:- The positivistic theory propounded by Sir John Austin has been possessing an important place in the study of Jurisprudence. However the positivistic theory of Austin is not free from criticisms. Many philosophers had criticized his theory as follows:
1. The most forceful criticism of Austin's theory came from natural law. It was pointed out by Lon Fuller that law is a kind of order, while he has an internal moral structure to which it must confirm in order to be called law. Austin's definition does not link law with justice, which is the aim and purpose of law.
2.The exclusion of sociological content from law is the main target of criticism of the sociological school. Because he has ignored the sentiments of the community. It is the conviction of the people that the law has prescribed the right course of conduct that really constitutes its authority and force. At best, sanctions enforce obedience against a recalcitrant minority, but when there is a General feeling in the community that a law is totally oppressive and unjust, there will be universal disobedience. Sanction cannot enforce obedience in such a situation.
3. Sanctions, as an essential element of law is true only in case of criminal law; civil law aims mostly at the proper maintenance of legal obligations and does not impose any punishment.
4. Henry Maine, who belongs to the historical school of thought, has described Austin's theory as historically inaccurate. In ancient States the sovereign where not concerned with laying down the laws. Customs and popular usages established laws in those states. The laws were then not the commands of the sovereign, but were adopted by the people for themselves.
5. Another drawback of Austin's theory was that he did not reveal the reasoning which led him to his concept of law, but simply made certain assumptions and applied them logically.
1. The most forceful criticism of Austin's theory came from natural law. It was pointed out by Lon Fuller that law is a kind of order, while he has an internal moral structure to which it must confirm in order to be called law. Austin's definition does not link law with justice, which is the aim and purpose of law.
2.The exclusion of sociological content from law is the main target of criticism of the sociological school. Because he has ignored the sentiments of the community. It is the conviction of the people that the law has prescribed the right course of conduct that really constitutes its authority and force. At best, sanctions enforce obedience against a recalcitrant minority, but when there is a General feeling in the community that a law is totally oppressive and unjust, there will be universal disobedience. Sanction cannot enforce obedience in such a situation.
3. Sanctions, as an essential element of law is true only in case of criminal law; civil law aims mostly at the proper maintenance of legal obligations and does not impose any punishment.
4. Henry Maine, who belongs to the historical school of thought, has described Austin's theory as historically inaccurate. In ancient States the sovereign where not concerned with laying down the laws. Customs and popular usages established laws in those states. The laws were then not the commands of the sovereign, but were adopted by the people for themselves.
5. Another drawback of Austin's theory was that he did not reveal the reasoning which led him to his concept of law, but simply made certain assumptions and applied them logically.
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