JAMIA MILLIA ISLAMIA

JURISPRUDENCE
ANALYTICAL JURISPRUDENCE
(AUSTIN VIEW)

SUBMITTED TO:- MR.SUKESH MISHRA

SUBMITTED BY:- VAIBHAV SHARMA

BALLB (HONS)(S/F)
2ND YEAR

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Acknowledgement
I am using this opportunity to express my gratitude to everyone who supported
me throughout the course of this project. I am thankful for their aspiring
guidance, invaluably constructive criticism and friendly advice during the
project work. I am sincerely grateful to them for sharing their truthful and
illuminating views on a number of issues related to the project. I express my
warm thanks to MR. SUKESH MISHRA for his support and guidance at
Jamia Millia Islamia .I would also like to thank all the people who provided me
with the facilities being required and conductive conditions for my project.

Vaibhav Sharma

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INDEX

Sr. No TOPIC PG NO.

1 INTRODUCTION 4
2 ANALYTICAL JURISPRUDENCE AND 6

LEGAL POSITIVISM
3 AUSTIN’S VIEWS 10
4 CRITICISMS 12
5 SALMOND ON AUSTIN’S THEORY OF 14

LAW
6 POSITIVE CONTRIBUTIONS 14
7 A REVISIONIST VIEW 15
8 RELEVANCE OF AUSTIN’S 16

SOVEREIGN IN MODERN INDIA

9 CONCLUSION 17
10 BIBLIOGRAPHY 18

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INTRODUCTION

John Austin is considered by many to be the creator of the school of analytical jurisprudence,
as well as, more specifically, the approach to law known as “legal positivism.” Austin's
particular Imperative theory of law has been subject to pervasive criticism, but its simplicity
gives it an evocative power that continues to attract adherents.

LIFE

John Austin's life (1790–1859) was filled with disappointment and unfulfilled expectations.
His influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and
Thomas Carlyle) were impressed by his intellect and his conversation, and predicted he
would go far. However, in public dealings, Austin's nervous disposition, shaky health,
tendency towards melancholy, and perfectionism combined to end quickly careers at the Bar,
in academia, and in government service (Hamburger 1985, 1992).

Austin was born to a Suffolk merchant family, and served briefly in the military before
beginning his legal training. He was called to the Bar in 1818, but he took on few cases, and
quit the practice of law in 1825. Austin shortly thereafter obtained an appointment to the first
Chair of Jurisprudence at the recently established University of London. He prepared for his
lectures by study in Bonn, and evidence of the influence of continental legal and political
ideas can be found scattered throughout Austin's writings. Commentators have found
evidence in Austin's writings of the German Pandectist treatment of Roman Law, in
particular, its approach to law as something that is, or should be, systematic and coherent
(Schwarz 1934; Stein 1988: pp. 223–229, 238–244; Lobban 1991: pp. 223–256)

Lectures from the course he gave were eventually published in 1832 as “Province of
Jurisprudence Determined” (Austin 1832). However, attendance at his courses was small and
getting smaller, and he gave his last lecture in 1833. A short-lived effort to give a similar
course of lectures at the Inner Temple met the same result. Austin resigned his University of
London Chair in 1835. He later briefly served on the Criminal Law Commission, and as a
Royal Commissioner to Malta, but he never found either success or contentment. He did
some occasional writing on political themes, but his plans for longer works never came to
anything during his lifetime, due apparently to some combination of perfectionism,
melancholy, and writer's block. His changing views on moral, political, and legal matters also
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apparently hindered both the publication of a revised edition of “Province of Jurisprudence

Determined,” and the completion of a longer project started when his views had been
different.

(There is some evidence that Austin's views later in his life may have moved away from
analytical jurisprudence towards something more approximating the historical jurisprudence
school (Hamburger 1985: pp. 178–91).)

Much of whatever success Austin found during his life, and after, must be attributed to his
wife Sarah, for her tireless support, both moral and economic (during the later years of their
marriage, they lived primarily off her efforts as a translator and reviewer), and her work to
publicize his writings after his death (including the publication of a more complete set of his
Lectures on Jurisprudence) (Austin 1879). Credit should also be given to Austin's influential
friends, who not only helped him to secure many of the positions he held during his lifetime,
but also gave important support for his writings after his death (Hamburger 1985: pp. 33,
197; Morison 1982: p. 17; Mill 1863).

Austin's work was influential in the decades after his passing away. E. C. Clark wrote in the
late 19th century that Austin's work “is undoubtedly forming a school of English jurists,
possibly of English legislators also. It is the staple of jurisprudence in all our systems of legal
education.” (Clark 1883: pp. 4–5) A similar assessment is made by H.L.A. Hart, looking back
nearly a century later: “within a few years of his death it was clear that his work had
established the study of jurisprudence in England” (Hart 1955: p. xvi). As will be discussed,
Austin's influence can be seen at a number of levels, including the general level of how legal
theory, and law generally, were taught (Stein 1988: pp. 238–244), and the use of an analytical
approach in legal theory. At such levels, Austin's impact is felt to this day. Hart could write
that “Austin's influence on the development of England of [Jurisprudence] has been greater
than that of any other writer,” (Hart 1955: p. xvi) even while Austin's particular command
theory of law became almost friendless, and is today probably best known from Hart's use of
it (1958, 1994) as a foil for the elaboration of Hart's own, more nuanced approach to legal
theory. In recent decades, some theorists have revisited Austin's command theory (and other
works), offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble
1985).

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ANALYTICAL JURISPRUDENCE AND LEGAL POSITIVISM

Many times jurists have made their efforts to define law, its sources and nature. For the
purpose of understanding their points of view, the jurists are divided on the basis of their
approaches to law. This division has been helpful in understanding the evolution of legal
philosophy.One class of these jurists came to be known as "positivists" or "analysts" who had
little to do with vague and abstract notions of natural law. These were the believers of
Analytical or Positive School, who propounded positivism. The term 'positivism' was
invented by Auguste Comte, a French thinker. The exponents of this school are neither
concerned with the past nor with the future of law but with the law as it exists, i.e. with law
'as it is' (Positrum). Its founder was John Austin and hence it is also called Austinian School.
The purpose of analytical jurisprudence is to analyse the first principles of law without
reference either to their historical origin or development or their validity. Another purpose is
to gain an accurate and intimate understanding of the fundamental working concepts of all
legal reasoning. The positive law takes law as the command of the sovereign. It puts
emphasis on legislation as the source of law. It regards law as a closed system of pure facts
from which all norms and values are excluded.
Importance:
-Bought about precision in legal thinking
-Provided us with clear and scientific terminology
-Excluded external considerations which fall outside the scope of law

Chief exponents:
1.Bentham
2.Austin
3.Salmond
4.Holland
5.Hart

Apart from these, this school received encouragement from Europe from Kelson.
This article primarily deals with Bentham, Austin, Pound and Salmond to understand the
evolution of this school.

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's
utilitarianism is evident (though with some differences) in the work for which Austin is best

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known today. On Austin's reading of utilitarianism, Divine will is equated with Utilitarian
principles: “The commands which God has revealed we must gather from the terms wherein
they are promulg[ate]d. The command which he has not revealed, we must construe by the
principle of utility” (Austin 1873: Lecture IV, p. 160; see also Austin 1832: Lecture II, p. 41).
This particular reading of utilitarianism, however, has had little long-term influence, though it
seems to have been the part of his work that received the most attention in his own day
(Rumble 1995: p. xx). Some have also seen Austin as being one of the early advocates of
“rule utilitarianism.”(e.g., Austin 1832: Lecture II, p. 42, where Austin urges that we analyze
not the utility of particular acts, but that of “class[es] of action”). Additionally, Austin early
on shared many of the ideas of the Benthamite philosophical radicals; he was “a strong
proponent of modern political economy, a believer in Hartleian metaphysics, and a most
enthusiastic Malthusian” (Rumble 1985: pp. 16–17). Austin was to lose most of his “radical”
inclinations as he grew older.

Austin's importance to legal theory lies elsewhere—his theorizing about law was novel at
four different levels of generality. First, he was arguably the first writer to approach the
theory of law analytically (as contrasted with approaches to law more grounded in history or
sociology, or arguments about law that were secondary to more general moral and political
theories). Analytical jurisprudence emphasizes the analysis of key concepts, including “law,”
“(legal) right,” “(legal) duty,” and “legal validity.” Though analytical jurisprudence has been
challenged by some in recent years (e.g., Leiter 2007a, 2007b), it remains the dominant
approach to discussing the nature of law. Analytical jurisprudence, an approach to theorizing
about law, has sometimes been confused with what the American legal realists (an influential
group of theorists prominent in the early decades of the 20th century) called “legal
formalism”—a narrow approach to how judges should decide cases. The American legal
realists saw Austin in particular, and analytical jurisprudence in general, as their opponents in
their critical and reform-minded efforts (e.g., Sebok 1998: pp. 65-69). In this, the realists
were simply mistaken; unfortunately, it is a mistake that can still be found in some
contemporary legal commentators.

Second, Austin's work should be seen against a background where most English judges and
commentators saw common-law reasoning (the incremental creation or modification of law
through judicial resolution of particular disputes) as supreme, as declaring existing law, as
discovering the requirements of “Reason,” as the immemorial wisdom of popular “custom.”
Such (Anglo-American) theories about common law reasoning fit with a larger tradition of

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theorizing about law (which had strong roots in continental European thought—e.g., the
historical jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that
generally law did or should reflect community mores, “spirit,” or custom. In general, one
might look at many of the theorists prior to Austin as exemplifying an approach that was
more “community-oriented”—law as arising from societal values or needs, or expressive of
societal customs or morality. By contrast, Austin's is one of the first, and one of the most
distinctive, theories that views law as being “imperium oriented”—viewing law as mostly the
rules imposed from above from certain authorized (pedigreed) sources. More “top-down”
theories of law, like that of Austin, better fit the more centralized governments (and the
modern political theories about government) of modern times (Cotterrell 2003: pp. 21–77)

Third, within analytical jurisprudence, Austin was the first systematic exponent of a view of
law known as “legal positivism.” Most of the important theoretical work on law prior to
Austin had treated jurisprudence as though it were merely a branch of moral theory or
political theory: asking how should the state govern? (and when were governments
legitimate?), and under what circumstances did citizens have an obligation to obey the law?
Austin specifically, and legal positivism generally, offered a quite different approach to law:
as an object of “scientific” study (Austin 1879: pp. 1107–1108), dominated neither by
prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin's efforts
to treat law systematically gained popularity in the late 19th century among English lawyers
who wanted to approach their profession, and their professional training, in a more serious
and rigorous manner. (Hart 1955: pp. xvi-xviii; Cotterrell 2003: pp. 74-77; Stein 1988: pp.
231-244)

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally
neutral descriptive (or “conceptual”—though this is not a term Austin used) theory of law.
(The main competitor to legal positivism, in Austin's day as in our own, has been natural law
theory.) Legal positivism does not deny that moral and political criticism of legal systems is
important, but insists that a descriptive or conceptual approach to law is valuable, both on its
own terms and as a necessary prelude to criticism.

(The term “legal positivism” is sometimes used more broadly to include the position that we
should construct or modify our concept of law to remove moral criteria of legal validity; or to
include a prescription that moral values should not be used in judicial decision-making
(Schauer 2010—see the Other Internet Resources). I do not think anything turns on whether
the term is used more broadly or more narrowly, as long as it is clear which sense is being
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used. Additionally, while Schauer claims (2010) that Austin could be seen as supporting
some of the views associated with the broader understanding of “legal positivism”, there is
need for more evidence and argument before the point should be granted.)

There were theorists prior to Austin who arguably offered views similar to legal positivism or
who at least foreshadowed legal positivism in some way. Among these would be Thomas
Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996); David
Hume, with his argument for separating “is” and “ought” (which worked as a sharp criticism
for some forms of natural law theory, which purported to derive moral truths from statements
about human nature) (Hume 1739); and Jeremy Bentham, with his attacks on judicial
lawmaking and on those, like Sir William Blackstone, who justified such lawmaking with
natural-law-like justifications (Bentham 1789).

Austin's famous formulation of what could be called the “dogma” of legal positivism is as
follows:

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is
one enquiry; whether it be or be not conformable to an assumed standard, is a different
enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it
vary from the text, by which we regulate our approbation and disapprobation. (Austin 1832:
Lecture V, p. 157)

(While Austin saw himself as criticizing natural law theory, a view shared by most of the
legal positivists who followed him, the extent to which the two schools disagree, and the
location of their disagreement, remains a matter sharply contested (e.g., Finnis 2000a, 2000b;
Bix 2000).)

Fourth, Austin's version of legal positivism, a “command theory of law” (which will be
detailed in the next section), was also, for a time, quite influential. Austin's theory had
similarities with views developed by Jeremy Bentham, whose theory could also be
characterized as a “command theory.” Bentham, in a posthumously published work, would
define law as:

…as assemblage of signs declarative of a volition conceived or adopted by the sovereign in a

state, concerning the conduct to be observed in a certain case by a certain person or class of
persons, who in the case in question are or are supposed to be subject to his power: such
volition trusting for its accomplishment to the expectation of certain events which it is

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intended such declaration should upon occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those whose conduct is in
question. (Bentham 1970: p. 1)However, Austin's command theory was more influential than
Bentham's, because the latter's jurisprudential writings did not appear in an even-roughly
systematic form until well after Austin's work had already been published, with Bentham's
most systematic discussion only appearing posthumously, late in the 20th century (Bentham
1970, 1996; Cotterrell 2003: p. 50).

AUSTIN’S VIEWS

Austin's basic approach was to ascertain what can be said generally, but still with interest,
about all laws. Austin's analysis can be seen as either a paradigm of, or a caricature of,
analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in
argument. The modern reader is forced to fill in much of the meta-theoretical, justificatory
work, as it cannot be found in the text. Where Austin does articulate his methodology and
objective, it is a fairly traditional one: he “endeavored to resolve a law (taken with the largest
signification which can be given to that term properly) into the necessary and essential
elements of which it is composed” (Austin 1832: Lecture V, p. 117).

As to what is the core nature of law, Austin's answer is that laws (“properly so called”) are
commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by
analyzing the constituent concepts of his definition, and by distinguishing law from other
concepts that are similar:

 “Commands” involve an expressed wish that something be done, combined with a

willingness and ability to impose “an evil” if that wish is not complied with.

 Rules are general commands (applying generally to a class), as contrasted with

specific or individual commands (“drink wine today” or “John Major must drink
wine”).

 Positive law consists of those commands laid down by a sovereign (or its agents), to
be contrasted to other law-givers, like God's general commands, and the general
commands of an employer to an employee.

 The “sovereign” is defined as a person (or determinate body of persons) who receives
habitual obedience from the bulk of the population, but who does not habitually obey

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any other (earthly) person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.

 Positive law should also be contrasted with “laws by a close analogy” (which includes
positive morality, laws of honor, international law, customary law, and constitutional
law) and “laws by remote analogy” (e.g., the laws of physics).
(Austin 1832: Lecture I).

Austin also wanted to include within “the province of jurisprudence” certain “exceptions,”
items which did not fit his criteria but which should nonetheless be studied with other “laws
properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing
action but without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin
1832: Lecture I, p. 36).

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion,
morality, convention, and custom. However, also excluded from “the province of
jurisprudence” were customary law (except to the extent that the sovereign had, directly or
indirectly, adopted such customs as law), public international law, and parts of constitutional
law. (These exclusions alone would make Austin's theory problematic for most modern
readers.)

Within Austin's approach, whether something is or is not “law” depends on which people
have done what: the question turns on an empirical investigation, and it is a matter mostly of
power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is
he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely
pointing out that there is much that is law that is not moral, and what makes something law
does nothing to guarantee its moral value. “The most pernicious laws, and therefore those
which are most opposed to the will of God, have been and are continually enforced as laws
by judicial tribunals” (Austin 1832: Lecture V, p. 158).

In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking
as “highly beneficial and even absolutely necessary” (Austin, 1832: Lecture V, p. 163). Nor
did Austin find any difficulty incorporating judicial lawmaking into his command theory: he
characterized that form of lawmaking, along with the occasional legal/judicial recognition of
customs by judges, as the “tacit commands” of the sovereign, the sovereign's affirming the
“orders” by its acquiescence (Austin 1832: Lecture 1, pp. 35–36). It should be noted,
however, that one of Austin's later lectures listed the many problems that can come with

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judicial legislation, and recommended codification of the law instead (Austin 1879: vol. 2,
Lecture XXXIX, pp. 669–704).

CRITICISMS

As many readers come to Austin's theory mostly through its criticism by other writers
(prominently, that of H.L.A. Hart; see also Kelsen 1941: 54-66), the weaknesses of the theory
are almost better known than the theory itself:

First, in many societies, it is hard to identify a “sovereign” in Austin's sense of the word (a
difficulty Austin himself experienced, when he was forced to describe the British “sovereign”
awkwardly as the combination of the King, the House of Lords, and all the electors of the
House of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the
continuity of legal systems: a new ruler will not come in with the kind of “habit of
obedience” that Austin sets as a criterion for a system's rule-maker.

A few responses are available to those who would defend Austin. First, some commentators
have argued that Austin is here misunderstood, in that he always meant “by the sovereign
the office orinstitution which embodies supreme authority; never the individuals who happen
to hold that office or embody that institution at any given time” (Cotterrell 2003: p. 63,
footnote omitted); there are certainly parts of Austin's lectures that support this reading (e.g.,
Austin 1832: Lecture V, pp. 128–29; Lecture VI, p. 218).

Secondly, one could argue (see Harris 1977) that the sovereign is best understood as a
constructive metaphor: that law should be viewed as if it reflected the view of a single will (a
similar view, that law should be interpreted as if it derived from a single will, can be found in
Ronald Dworkin's work (1986: pp. 176–190)).

Thirdly, one could argue that Austin's reference to a sovereign whom others are in the habit
of obeying but who is not in the habit of obeying anyone else, captures what a “realist” or
“cynic” would call a basic fact of political life. There is, the claim goes, entities or factions in
society that are not effectively constrained, or could act in an unconstrained way if they so
chose. For one type of example, one could point out that if there was a sufficiently large and
persistent majority among the United States electorate, nothing could contain them: they
could elect Presidents and legislators who would amend the Constitution and, through those
same officials, appoint judges who would interpret the (revised or original) Constitution in a
way amenable to their interests. A different sort of example (and some would say that there
are recent real-life examples of this type) would be a President who ignored the constraints of
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statutory law, constitutional law, and international treaty commitments, while the public and
other officials lacked the will or the means to hold that President to the legal norms that
purported to constrain his or her actions.

As regards Austin's “command” model, it seems to fit some aspects of law poorly (e.g., rules
which grant powers to officials and to private citizens—of the latter, the rules for making
wills, trusts, and contracts are examples), while excluding other matters (e.g., international
law) which we are not inclined to exclude from the category “law.”

More generally, it seems more distorting than enlightening to reduce all legal rules to one
type. For example, rules that empower people to make wills and contracts perhaps can be re-
characterized as part of a long chain of reasoning for eventually imposing a sanction (Austin
spoke in this context of the sanction of “nullity”) on those who fail to comply with the
relevant provisions. However, such a re-characterization misses the basic purpose of those
sorts of laws—they are arguably about granting power and autonomy, not punishing
wrongdoing.

A different criticism of Austin's command theory is that a theory which portrays law solely in
terms of power fails to distinguish rules of terror from forms of governance sufficiently just
that they are accepted as legitimate (or at least as reasons for action) by their own citizens.

Finally, one might note that the constitutive rules that determine who the legal officials are
and what procedures must be followed in creating new legal rules, “are not commands
habitually obeyed, nor can they be expressed as habits of obedience to persons” (Hart 1958:
p. 603).

(Austin was aware of some of these lines of attack, and had responses ready; it is another
matter whether his responses were adequate.) It should also be noted that Austin's work
shows a silence on questions of methodology, though this may be forgivable, given the early
stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a
new path. On matters of methodology, later commentators on Austin's work have had
difficulty determining whether he is best understood as making empirical claims about the
law or conceptual claims; elements of each sort of approach can be found in his writings
(Lobban 1991: pp. 224–225; Cotterrell 2003: pp. 81–83).

When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958,
1994), he did it by criticizing and building on Austin's theory: for example, Hart's theory did
not try to reduce all legal rules to one kind of rule, but emphasized the varying types and
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functions of legal rules; and Hart's theory, grounded partly on the distinction between
“obligation” and “being obliged,” was built around the fact that some participants within
legal systems “accepted” the legal rules as reasons for action, above and beyond the fear of
sanctions. Hart's “hermeneutic” approach, building on the “internal point of view” of
participants who accepted the legal system, diverged sharply from Austin's approach to law.

SALMOND ON AUSTIN’S THEORY OF LAW

1. Austin’s theory of law is one sided and inadequate; it does not contain the whole truth. It
eliminates all elements except that of force. Austin has missed the ethical element in law or
the idea of right or justice.

2. Law is the declaration of a principle of justice. As Austin’s theory of law does not take into
consideration the purpose of law, it is not an adequate definition of law.

3. Austin’s theory not only misses the ethical aspect of law but over emphasises on in
imperative aspect.

4. According to Salmond, “All legal principles are not commands of the state and those
which are at the same thing and in their essential nature, something more, of which the
imperative theory takes no account”.

5. Law in abstract sense is more comprehensive in its signification than law in the concrete
sense. To quote Salmond “The central idea of juridical theory is not lex but Jus, in gestez and
recht”.

POSITIVE CONTRIBUTIONS
Inspite of the criticism of Austin’s theory of law; it cannot be denied that Austin rendered a
great service by giving clear and simple definition of law. Before him there was a lot of
confusion about the nature of law. By separating law completely from morality Austin tried
to avoid a lot of confusion. His theory of law of law contains an important element of
universal and paramount truth. The law is created and enforced by the state.

Followings are the Merits of Theory;

A. SUITABLE FOR ALL SYSTEMS

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Now it is evident from the enactment processes all over the world that the Governments are
making laws with stipulated sanctions in cases of violation. We see in democracy,
communism and even martial law that laws are made by the sovereign with sanction. All
these systems are reflecting the integrity of this theory.

B. APPLICABLE TO MODERN SOCIETY

The second merit of this theory is that it is applicable to modern societies and system. There
is no doubt that primitive societies have their history but the laws of modern civilized world
are invariably enforced by some kind of sanctioned.

C. CLEAR DEFINITION OF LAW

The third and last merit of this theory is that it clearly recognizes that law is the product of
the state and depends upon physical force of the state exercised through its machinery for its
existence.

A REVISIONIST VIEW

Some modern commentators appreciate in Austin elements that were probably not foremost
in his mind (or that of his contemporary readers). For example, one occasionally sees Austin
portrayed as the first “realist”: in contrast both to the theorists that came before Austin and to
some modern writers on law, Austin is seen as having a keener sense of the connection of law
and power, and the importance of keeping that connection at the forefront of analysis (cf.
Cotterrell 2003: pp. 49–77). One commentator wrote:

Austin's theory is not a theory of the Rule of Law: of government subject to law. It is a theory
of the ‘rule of men’: of government using law as an instrument of power. Such a view may be
considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent.
(Cotterrell 2003: p. 70)

When circumstances seem to warrant a more critical, skeptical or cynical approach to law and
government, Austin's equation of law and force will be attractive—however distant such a

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reading may be from Austin's own liberal-utilitarian views at the time of his writing, or his
more conservative political views later in his life (Hamburger, 1985).

RELEVANCE OF AUSTIN’S SOVEREIGN IN MODERN INDIA

Austin’s notion that all laws come from the sovereign may be true theoretically, and laws in
our country (i.e. statue made laws at least) are a result of the act of the politically superior
that is the legislators but the same is not true practically as they are not a reflection of the will
of the superior in the real sense. Though many laws come directly from the parliament, but
they merely reflect the desire of these politicians to maintain support of the major organized
groups in the country and to meet their interests satisfactorily. Law emanating only from the
sovereign may be fit for a totalitarian regime like Pakistan where the government can use its
monopoly of law making and executive powers for the re shaping of laws in disregard of the
democratic processes, but in a democratic country like India the same is not possible. The
interplay between the public opinion and state action has become very complex these days
whether we are concerned with the abolition of dowry, the creation of legal remedies against
administrative action or the introduction of a new ground of divorce there is always some
interrelation between the state machinery that produces these changes and social opinion of
the community in which they are intended to operate. Public opinion on vital issue is
expressed through the elected representatives in the house, and also through public discussion
in press, radio, public lectures. It can thus be concluded that legislative practices in our
country provide for opportunities to the public to participate in the legislative activities of
those to whom these powers are delegated.

According to Austin sovereign is the person who has the last word in a particular connection.
But the issue is that how can one determine the ‘highest authority’ in a democratic country
like India , to identify the strongest power would involve an investigation of a lot of legal as
well as well extra-legal forces which determine how a state shall operate. Who is the highest
authority, is it the masses who choose the government, is the legislators who finally make
laws, is it the judiciary that has the power to strike down laws made by the parliament, is it
the executive as laws that are enforced are selected by administrators today, what they
consider worthy of implementing is duly enforced other laws are followed more in breach
than in obedience. Similarly Austin’s concept of unlimited and indivisible sovereignty is
quite inappropriate in the Indian set up or any democracy. The sovereign does not have the

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power to command anything that it desires. It is as much bound by rules and regulation
embodied in the constitution and other laws as any common man. Legislature is bound by the
constitution and in almost all cases court has the power to decide whether an act done by the
government is constitutional and hence valid otherwise it can be struck down.

CONCLUSION

In the forgoing discussion, an attempt had been made to analyse Austin’s notion of
sovereignty Vis -a-Vis the modern day state. His theory of sovereignty did not seem to be
applicable in modern day democracies. Nevertheless, that in no way undermines the
importance of his excellent work. Austin’s concepts about various legal concepts might not
seem true in modern times but we should not forget that Austin is regarded as one of the
noted jurist of all times as much for his work and theory of law as for the methodology
employed to arrive at his theory.

To conclude, I can say, that inspite of criticism of Austin's theory of law, it cannot be denied
that Austin rendered a great service by giving a clear and simple definition of law. He makes
a distinction between what law is and what it ought to be. It seeks to define law not be
reference to its contents but according to the formed criteria which differentiate legal rules
from other rules such as those of morals, etiquette etc.

Inspite of the criticism of Austin’s theory of law; it cannot be denied that Austin rendered a
great service by giving clear and simple definition of law. Before him there was a lot of
confusion about the nature of law. By separating law completely from morality Austin tried
to avoid a lot of confusion. His theory of law of law contains an important element of
universal and paramount truth. The law is created and enforced by the state.

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BIBLIOGRAPHY

INTERNET RESOURCES

 www.meritnation.com

REFERENCES & FURTHER READINGS

 Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble (ed.),

Cambridge: Cambridge University Press, 1995.

 –––, 1879, Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols.,
R. Campbell (ed.), 4th edition, rev., London: John Murray; reprint, Bristol:
Thoemmes Press, 2002.

 Bentham, Jeremy, 1789, An Introduction to the Principles of Morals and Legislation,

J. H. Burns & H.L.A. Hart (eds.), Oxford: Oxford University Press, 1996.

 –––, 1970, Of Laws in General, H.L.A. Hart (ed.), London: Athlone Press.

 Bix, Brian H., 2000, “On the Dividing Line Between Natural Law Theory and Legal
Positivism,”Notre Dame Law Review, 75: 1613–1624.

 –––, 2004, “Legal Positivism,” in The Blackwell Guide to the Philosophy of Law and
Legal Theory, Martin P. Golding & William A. Edmundson (eds.), Oxford:
Blackwell, pp. 29–49.

 –––, 2012, Jurisprudence: Theory and Context, 6th ed., London: Sweet & Maxwell.

 Clark, E. C., 1883, Practical Jurisprudence: A Comment on Austin, Cambridge:

Cambridge University Press.

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