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Critical analysis of Austins definition of law

Legal Methods (NALSAR University of Law)

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Critical analysis of
austin’s definition of law

Jurisprudence project

Contents
INTRODUCTION......................................................................................................................2
INTERPRETING AUSTIN’S THOUGHT................................................................................5
CRITICISMS OF AUSTIN’S THEORY OF LAW...................................................................7
MODERN CRITICISMS AND REJOINDERS......................................................................10

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SALMOND ON AUSTIN’S THEORY OF LAW...................................................................13

MERITS OF THE THEORY...................................................................................................15
CONCLUSION........................................................................................................................15
BIBLIOGRAPHY....................................................................................................................16

INTRODUCTION
“Law is the command of the sovereign”

Austin defines law as the command of the sovereign. His theory of law is also known as
the imperative theory of law. According to Austin, positive law has three main features:-

1. It is a type of command.
2. It is laid down by a political sovereign.
3. It is enforceable by a sanction.

A typical example for law would be the Road Traffic Act, 1960 which could be described as
a command laid down by the sovereign under the English legal system which is backed by
sanction. This Act lays down certain rules which have to be followed (command). It has been
passed by the Queen-in-Parliament (laid down by the sovereign authority of England). Its
violations are met with penalties (sanction).

1. What is a command?

According to Austin, requests, wishes etc. are expressions of desire, while commands are
expressions of desire given by superiors to inferiors. The relationship of superior to inferior
consists for Austin in the power which the former enjoys over the other, i.e., his ability to
punish him for disobedience. In a sense, the idea of sanction is built into the Austinian notion
of command. Logically, it might be more correct to say that law has two rather than three
distinguishing features.

There are commands which are laws and there are commands which are not laws. Austin
distinguishes laws from other commands by their generality. Laws are not like the transitory
commands given on parade grounds and obeyed there and then by the troops. Laws are like
the standing orders of a military station which remain in force generally and continuously for
2

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all persons on the station. However, there can be exceptions. There can exist laws such as
acts of attainder which lack the characteristic of generality. Hence, generality alone is neither
necessary nor sufficient to serve as the distinguishing feature of law.

Some have criticised the positivist theory of’ law as a theory of “gun-man law” on the ground
that it makes no real distinction between a law and the command of a bank robber who points
his gun at the bank clerk and orders him to hand over the contents of the till. This criticism
overlooks Austin’s second requirement of law which requires that only that command is law
which is given by a political superior or sovereign. To Austin, a sovereign is any person or
body of persons whom the bulk of a political society habitually obeys and who does not
himself habitually obey some other person or persons. One difference between the order of a
gunman and the decree of a dictator is that the latter enjoys a general measure of obedience
while the former secures a much more limited compliance.

2. Who or what is the sovereign?

Austin formally defines the sovereign as a determinate or determinable person or group of

persons in an independent political society to whom the population as a whole has a habit of
obedience, but who has no habit of obedience to a political superior. Persons who comprise
the sovereign entity are not just the vague “them” of positive morality. It must be possible to
identify them as if by name, address, and social security number. The reasons for this
requirement are not made clear.1

The most serious problem with this definition is the combined complexity and vagueness of
the sovereign when so described. The sovereign in England has three constituent parts. The
first two are the monarch (whoever is upon the throne) and the members of the House of
Peers, all of whom are clearly determinate. The third part is not, as one might expect, the
House of Commons, but rather the lectorate who voted them into office and who are
theoretically determinable. In the United States, the situation is less complex, but the notion
of the sovereign is equally amorphous. The sovereign is not Congress, the President, nor any
other officers of state; it is the electorate. This unwieldy and almost unimaginable concept is
made manageable by the notion of delegation. The electorates in the United Kingdom and the
United States exercise their function directly only periodically, at elections. Between

1
The most probable reason is that the laws which are the subject matter of jurisprudence must be clearly
identifiable in order to be organized scientifically. This requirement would be like Hart’s secondary rules for
identifying laws.

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elections, they delegate their powers to the officials whom they have elected and their
appointees.

Another problem is that Austin, by making absence of a habit of obedience to a political

superior the defining characteristic of the sovereign, seems to suggest that the matter is one of
power and not of right. The sovereign is the unconditioned conditioner. This is not, of course,
what he wishes to say. He specifically states that might is only one condition of right,
although a very necessary one, since one cannot be a sovereign without the power to make
orders “stick.” But he is never very clear as to what the other conditions are.

The notion of an independent political society, which is closely related to that of sovereignty,
is couched in the same terms. It is a society whose sovereign person or persons do not have a
habit of obedience to a political superior. Thus, the viceroy of India, when that country was
under British rule, was not a sovereign even though his word was law, since he was subject to
the crown.

The distinction between a political and a non-political society is not very clearly explained.
Austin says that there are several conditions, but the only one which he mentions is size; a
community must have substantial population to be considered a political society. He therefore
denies (contra Savigny) that the customs of a primitive tribe are laws. Customs only become
laws when they are officially stamped and approved by the sovereign, and the chief of a tribe
is not a sovereign – even though his every command is obeyed and the tribe is totally
independent – since a tribe is too small to be a political society. Loose confederations of
small groups, as when several tribes or small cities unite periodically for mutual defence or
some other purpose, may satisfy the numerical requirement on these occasions, but such
combinations are not considered to be independent political societies by Austin since they are
not united under one sovereign for a sufficient period of time.

Austin is, of course, unable to say how large a group must be to become such an independent
political society (i.e., How many stones make a heap?). He admits that quite small city-states
in ancient times were political societies, but he does not really make it clear why this is so.

3. What must be the sanction?

A sanction is an evil of some sort. According to Austin the degree of the sanction is not a
matter. However mild the sanction be, if there is a sanction for the disobedience of the
command of the sovereign, then that command is law. This principal is to be applied to all

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fields of law. Whether the law is civil or crime, disobedience of law must be met with
sanction.

According to Austin, law is law only if it is effective and it must be generally obeyed.
Perfect obedience is not necessary. Many contravene the law without depriving it of all
effectiveness. Without general obedience, the commands of the law-maker are as empty as a
language which is no longer spoken or a monetary currency which is no longer in use. They
have the appearance of law hut not the reality of law. A Sovereign may enjoy obedience
through conquest, usurpation or elect ion. What is sufficient for a legal theorist is that such
obedience exists.

According to Austin laws are of two kinds, viz., divine law and human law. Divine law was
given by God to men. Human laws are set by men for men. Human laws are of two kinds.
There are certain human laws which are set by political superiors and are called positive laws
and there are others which are not set by political superiors. To the second category belong
the rules of a club or any other voluntary association.

Austin puts great emphasis on the relation between law and sovereign. Law is law because it
is made by the sovereign and sovereign is sovereign because it makes the law. The relation
between the sovereign and law is the relation between the centre and the circumference.

INTERPRETING AUSTIN’S THOUGHT.

Even if we assume that Austin’s purpose was to create an empirical legal science by
verbal definitions, his work poses a number of interpretive problems. First, it is difficult to
determine whether the law, for Austin, is to be identified with what actually happens in fact,
or with what was supposed to happen according to the rules and regulations of the
jurisdiction. Hobbes, and the legal realists of the twentieth century, would say that the law is
what actually happens, and that anything else is just empty talk with no legal significance.
The mainline legal tradition, on the other hand, views law as prescriptive, in the sense that it
indicates what is supposed to happen if its rules are followed.

Austin appears to have had a foot in both camps, but his Hobbesian shoe is a very large one
and rather firmly planted.2 This may explain his rather odd and awkward representation of the
sovereign as a set of actual identifiable persons. For Hobbes, power must lie with and be
exercised by actual, not ideal or hypothetical persons, a view that is open to the criticism that
2
W.L. Morrison, John Austin 48 (1982).

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it does not distinguish between the proper and the corrupt administration of the law. 3 A
realistic view of the outcome of a Chicago courtroom trial in the era of Al Capone might be
that the party supported by the mob will prevail in the court of a judge who is in Capone’s
pocket. But, as Roscoe Pound pointed out, this would not show the application of law but its
absence, as law has been replaced by a totally illegal system.4

Most modern interpreters have taken the view that this is a serious problem for Austin and
have concluded that Austin reads best when his jurisprudence is taken to be a normative,
rather than a descriptive study. W.L. Morrison contends that the revisionists are mistaken and
Austin is right; the normative and descriptive elements in law can exist together in the
manner in which Austin portrays them.5 This question, so far as the present article is
concerned, is moot, since the problem is best taken care of in the light of modern
developments in formal studies, which will be considered later in this study.

The second difficulty is identifying and portraying Austin’s view of the relationship between
law and moral values. The matter appears to be clear, as he states unequivocally that the
existence of law is one thing, and that its goodness or badness is another, and he insists that
the business of the jurist is not to criticize or improve the law but to take it as it is. This
position is to be expected in one who was reorganizing law on the model of the physical
sciences, but it conflicts with the traditional view that an important part of the function of
lawyers is to make beneficial changes in the law.

Austin is by no means saying that law should be static and unchanging or independent of
morality. He is saying, rather, in line with Bentham’s views, that law reform is not the
function of jural science, but is the business of ethics in general and the science of legislation
in particular. Unlike Bentham, however, Austin does not confine law-making to Parliament,
but allows for judicial legislation also. This means that the judge may wear two hats, one
representing the interpretative functions of the bench and the other its legislative activity.
This is awkward enough, but if we consider that the court may be accepting and endorsing
ideas argued by counsel and that many legal minds may lie behind counsel’s opinion, we are
left with the conclusion that everyone connected with law has both legal and legislative hats,
which must be taken off or put on during the course of legal business. In short, his view of
the relationship of law to morals is not only subtle, but awkward.

3
Hans Kelsen expresses this as failing to see the difference between a tax collector and a highwayman
4
Roscoe Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 TUL. L. REV. 475 (1933).
5
Supra n3.

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CRITICISMS OF AUSTIN’S THEORY OF LAW

Austin’s theory of law has been criticised on many grounds:-

1. Laws before State

The definition of law in terms of state has been criticised by jurists belonging to the
historical school and sociological schools. Critics belonging to the historical school concede
that in modern societies where there are established States, laws maybe in the nature of
command, but there existed laws even prior to the existence of the State. The law which
existed prior to the State was not the command of the sovereign. It had its source in custom,
religion or public opinion and not in any authority vested in a political superior. According to
this school, law is prior to and independent of political authority and enforcement. A State
enforces it because it is already law. It is not correct that it becomes law because the State
enforces it.

Although Salmond is not a supporter of the imperative theory of law but he does not accept
the criticism of the historical school. He points out that the rules which were in existence
prior to the existence prior to the existence of a political State were not laws in the real sense
of the term. They resembled law. They were primitive substitutes for law but not laws.
Salmond considers it to be a virtue of the imperative theory of law that it excludes those rules
which resemble law but are not laws. Salmond supports his argument with an analogy. Apes
might have resembled human beings. They might be in existence prior to men, but it is not a
defect of a definition of man if it excludes apes from definition. As a matter of fact, it is a
merit of the definition.

Malinowski maintains that even in primitive society there are rules behind which the
community throws the whole weight of its organisation. The very structure of society is such
that primitive man suffers if the rules are disobeyed. Although there is no intricate system of
Courts or police, the community directly entrusts itself in securing the observance of those
rules which it considers essential. If primitive man does not meet his customary obligations,
he knows that in future no one will help him. Apart from the community, primitive man is
helpless. The threat of expulsion or death is a salutary one for prospect offenders. Because in
so many cases the community leaves primitive man to enforce his own rights by self-help, we

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must not leap to the conclusion that there are no rules the breach of which is regarded as fatal
to community life.

But according to me laws before State are in accordance which Austin’s theory as the fear of
not getting the support of others is form of sanction and the head of the primitive man’s herd
or group can be considered as a sovereign. Thus all the necessaries of law is met even in the
time of primitive men.

2. Generality of law

According to Austin, law is a general rule of conduct, but that is not practicable in every
sphere of law. A law in the sense of the Act of the legislature may be particular in the fullest
sense of the word. A divorce Act is law even if it does not apply to all persons. Law, in the
sense of the legal system, can be particular. The requirement that law should become general
is extremely difficult to maintain. There are degrees of generality. The question whether a
contract can be create law for the parties has peculiar urgency for the international lawyer. In
his view, treaties are a source of international law. They are so only if law need not be
general as normally treaties are binding only on those States which have ratified them. The
international lawyer who declares that a bilateral treaty makes law for the parties is implicitly
that law need not be general.

3. Promulgation

According to Austin, law is a command and that command has to be communicated to the
people by whom it is meant to be obeyed or followed. This view of Austin is not tenable.
Promulgation is usually resorted to but it is not essential for the validity of a rule of law. Up
to 1870, laws in Japan were addressed only to the officials whose duty was to administer
them and might be read by no one else. The Chinese maxim “let the people abide by, but not
apprised of the law” lends further support to the argument.

4. Law as command

According to Austin, law is a command of the sovereign but all laws cannot be expressed in
terms of a command. The greater part of a legal system consists of laws which neither
command nor forbid things to be done. They empower people by certain means to achieve
certain results, e.g., laws giving citizens the right to vote, laws conferring on leaseholders the
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bulk of the law of Contract and of property consists of power-conferring rights. To regard a
law conferring a power on one person as in fact an indirect order to another is to distort its
nature. The term “command” suggests the existence of a personal commander. In modern
legal systems, it is impossible to identify any commander in this personal sense. This is
especially so where sovereignty is divided as in federal States. Commands conjure up the
picture of an order given by one particular commander on one particular occasion to one
particular person. Laws differ as they can and do continue in existence long after the
extinction of the actual law-giver. It might be contented that laws laid down by a former
sovereign remain law insofar as the present sovereign does not repeal them and allows them
to be in force. It cannot be said that what the sovereign permits, he impliedly or tacitly
commands. In certain States the law-making powers of the sovereign are limited by the
Constitution which prevents the repeal by ordinary legislation of “entrenched” clauses. In
such cases, no question arises of the present sovereign allowing or adopting such clauses. The
notion of an implied or tacit command is suspect. An implied command is no command.

5. Sanction

Austin’s definition of law may be true of a monarchial police State, but it cannot be applied
to a modern democratic country whose machinery is employed for the service of the people.
The sanction behind law is not the force of the State but the willingness of the people to obey
the same. To define law in terms of sanction is like defining health in terms of hospital and
diseases. Force can be used only against a few rebels and not against the whole society. If law
is opposed by all the people, no force on earth can enforce the same

Sanction is not an essential element of law. If we apply this fact to every kid of law, we are
able to arrive at absurd conclusions. It is true that there is such a thing as sanction in case of
criminal law but no such sanction is to be found in case of civil law. If we accept Austin’s
definition, the whole of civil law will have exclude from the scope of positive law.

6. Not applicable to International Law.

Austin’s definition of law cannot be applied to international law. Although international law
is not the command of any sovereign, yet it is considered to be law by all concerned. The
view of Austin was that international law was positive morality and he described ita as “law
by analogy”. Austin has been repudiated on this point.

7. Disregard of ethical elements.

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Austin’s theory of law is defective in as much as it disregards that ethical element which is an
essential constituent of a complete conception. Austin’s theory is silent about the special
relation between law and justice.

The main criticism of Salmond against Austin’s theory of law is that it disregards the moral
or ethical elements in law. The end of law is justice. Any definition of law without reference
to justice is inadequate. Law is not right alone, or might alone, but the perfect union of the
two. Law is justice speaking to men by the voice of the State. As Austin’s theory excludes the
ethical elements in law, it cannot be accepted as complete definition of law.

The view of Salmond is that Austin’s definition of law refers to “ a law” and not “the law”.
The term “a law” is used in a concrete sense to denote statute, e.g., the law of contract etc.
However, the term ‘the law” is used in an abstract sense to denote legal principles in general.
Austin’s definition refers to law only in the concrete Sense and not in the abstract sense. A
good definition of law must deal with both aspects of the law.

8. Purpose of law ignored

Austin’s theory of sovereignty ignores altogether the purpose of law and hence is one-sided
and incomplete. Paton writes that justice is the command of law and it is only fitting that an
instrument be defined by a delineation of the purpose which is its raison d’etre. The view of
Sir Henry Maine is that Austin's theory is founded on mere artifice of speech and it assumes
courts of justice to act in a way and from motives of which they are quite unconscious. The
purpose of law should be included in the definition of law.

MODERN CRITICISMS AND REJOINDERS

1. The Main Criticisms of Austin’s Work

Within a few years of his death, Austin’s work was being praised in the most fulsome terms. 6
Much of this popularity was due to the fact that he was seen in the latter part of the nineteenth
century as an advocate for a radical empiricist version of legal science, creeping along from

6
Markby, writing in 1889, was openly Austinian and cited him frequently as the dominant authority on legal
philosophy. He commented that no one had contradicted Austin, at least not in England. William Markby,
Elements of law onsidered with reference to principles of general jurisprudence (oxford, university press).
Markby had some minor differences with Austin and also dealt with particular, as opposed to general
jurisprudence, which Austin never reached.

10

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case to case, close to the facts, without too much in the way of overarching theory. What
Austin had actually said disappeared without a trace into what he was thought to have said.
More recently, critics, perhaps less enamored of radical empiricism, have been less kind.
Almost every aspect of his teaching has been called into question, especially in the last half
century, when a number of distinguished juristic philosophers either attacked Austin’s views
or took up the cudgels on his behalf. The principal criticisms levelled at Austin’s views have
been:

1. His description of laws as commands, producing a habit of obedience, misrepresents the

nature of the authority given to law.

2. His requirement that sovereignty, as defined by him, is necessary for the existence of law
unnecessarily denies the validity of primitive (and modern) customary law, including
international law and constitutional law.

3. His (alleged) program to reduce the inchoate body of regulations to a set of simple rules
(requests coupled with a threat of harm) is an impossible project. It is based on the radical
empiricism of his day, but is out of touch with modern notions of scientific method.

4. His version of sovereignty (a determinate person or persons with no habit of obedience to

another such person or group) is clumsy to the point of being inconceivable within modern
legal systems. The same criticism can also be levelled against the related notion of the
independent political society.7

5. Austin has passed over or obscured the necessary relationship of law to moral values. This
has been a major issue in the modern debates centred around the term “legal positivism.” Lon
Fuller8 and, more recently, Ronald Dworkin9 have been major critics, maintaining that Austin
has misrepresented, if not ignored, the unavoidable presence of morals within the law.

2. The Defence of Austin: Taking Care of Problems By Simple Modifications

Austin is not currently short of advocates and interpreters10 who endeavour to show, and with
some success, that by making minor adjustments, such as Austin might well have been
persuaded to adopt, the usual objections to his jurisprudence can be avoided. The following
are the main points of this defence:
7
H.L.A Hart, The Concept of Law, 2nd Edn 1994.
8
Lon L. Fuller, The Morality of Law, 1964
9
Ronald Dworkin, Taking Rights Seriously, 1977
10
Supra n7

11

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1. The sovereign is most conveniently viewed, from the jurisprudential perspective, not as the
collection of actual officials who are making the law and making it work, but as the
constitutional system which allocates to each official body its functions and powers. This
avoids the clumsy analysis of legal systems in terms of actual persons.

2. The notion of a political society, from the perspective of jurisprudence, has only an indirect
relationship to numerocity. It is better taken to be one sufficiently complex to have laws
which require the offices of a legal profession. A simpler society, which had no need of
lawyers, might have law in some sense of the word, but would have no need of jurisprudence.

3. Austin’s sharp distinction between custom and law is replaced in various ways. Kelsen
bases law on customary acceptance of law by the community in general, while Hart
emphasizes the importance of customary acceptance by the legal community. Either of these
expedients allows international law and constitutional law to be treated as law “properly so-
called.”

4. The idea that law consists of commands in the sense of requests accompanied by threat of
harm is generally abandoned outside the area of criminal law. One way of retaining Austin’s
definition is to treat laws, as does Kelsen, as commands issued to officials. 11 This is a possible
way of viewing the matter but it is awkward and, as Hart comments, does not adequately take
cognizance of the fact that most laws are not published to officials only, but to the
community in general as well. Most modern authors acknowledge that law must be reinforced
by sanctions, but these are not limited to threats of harm. They can also include positive
inducements. This is the more convenient way to look at the laws relating to the proper
making of a will or enforcing only those contracts which conform to certain requirements
(e.g., the Statute of Frauds).

5. Acknowledgement of the authority of the law is not a conditioned reflex. Austin appears to
have been led astray on this point by his admiration for Hobbes or his enthusiasm for the
methodology of James Mill’s economics. The reasons for conforming to law are complex.
Awareness of sanctions may play a part, but an acknowledgment that the law is, in some
sense of the word, good and/or just, must also be considered important.

6. With regard to the vital matter of the formal organization of legal materials into a
systematic version of law, it is by no means certain that Austin intended it to be a list of

11
Ibid

12

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simple commands. It is true, as was mentioned earlier, that he used the term “aggregate” as
an inclusive term for all the laws of a jurisdiction. However, he never spelled out his proposal
in these terms, and he was critical of Bentham’s predilection for simple rules. 12 There is no
reason to conclude that Austin thought that law could or should be analyzed in such a simple
manner. His admiration for the scientific qualities of Roman law, indeed, argues to the
contrary.13

7. Austin’s views on the relation of law to moral values, as was suggested earlier, are by no
means simple and are capable of more than one interpretation. His plain statement that the
nature of law is one thing and its goodness and badness another, has been taken to mean that
moral values have no place in law. This need not be so. He is probably talking here of using
value statements to approve, disapprove or improve the law as it stands. This, he insists, is
not the business of juriscience, which, like physical science, is descriptive only. Improvement
is the business of ethics, especially the science of legislation.14 But there is no reason why the
values inherent in the law should not be included in a descriptive jurisprudence. What is ruled
out is any necessary implication that the values described are anything more than observed
facts present and functioning in the law. This is sometimes termed an externalist point of
view, where an outsider is looking in on value statements in a system, as opposed to the
internalist perspective of someone inside the system who accepts its values.

SALMOND ON AUSTIN’S THEORY OF LAW

The view of Salmond is that 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. By doing so, Austin
has missed the ethical element in law or the idea of right or justice. It is not by accident that
the expression law and justice are regarded as synonymous and courts of law are described in
popular parlance as courts of justice. Essentially, 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.

12
John Austin, Lectures on Jurisprudence, or, The Philosophy of Positive Law.
13
Wilfred E. Rumble, The Thought of John Austin: Jurisprudence, Colonial reform, and the
British Constitution 3-4, 1985
14
Supra n7

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Salmond maintains that the Austinian theory not only misses the aspect of law but over
emphasises it’s imperative aspect. It is true that State enforcement is an essential ingredient in
law but it is true only in the sense that law requires the coercive administration of Justice by
the State. It is not true in the Sense that every legal principle is the command enforced by a
sanction. What is true is that while some principles of law are imperative principles others are
not.

Salmond contends that all laws are not commands. A lot of modern law is purely permissive
character and confers privileges. When law permits a man to make a will, it does not
command him to do so. The same is true of the rules relating to judicial procedure and
interpretation of statutes. As a matter of fact, Austin himself three exceptional cases in civil
law where there was no command. To quote Salmond: “All legal principles are not
Commands of the State and those which are such commands are at the Same time and in their
essential nature, something more, of which the imperative theory takes no account.”

Salmond finds another defect in Austin’s definition of law. Austin’s definition attempts to
answer the question “What is a law?” but the true enquiry should be “What is law?” Law in
the 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.” By trying to define “a law” Austinian theory is led to the wrong conclusion that
statute law is typical of all law and the form to which all law reduces itself in root analysis.
The error lies in the wrong method of approach by Austin.

It is sometimes said that the chief defect in Austin’s definition lies in the method adopted by
Austin to arrive at the definition. Austin says that positive law is the “aggregate of the rules
established by politic al superiors”. Salmond does not agree with this view. To quote him:
“All law is not produced by laws and all laws do not produce law.” Law represents the whole
body of rules recognised and applied by the courts. A law usually arises from the exercise of
legislative authority of the State and is one of the sources of law in the abstract sense. Judicial
precedents and customs are also sources of law and they produce case law and customary
law. Although they are not enacted by any law, they are also applied by courts. Hence it is
correct to say that “all law is not produced by law”.

Salmond further says that “although laws commonly produce law, that is not invariably the
case.” Every Act of Parliament is called a law but not all Acts of Parliament formulate rules
of law. Before the system of judicial divorce was introduced in England by the Matrimonial

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Causes Act of 1857, a divorce could be got by means of a private Act of Parliament.
Although the private Act was passed by Parliament by which the parties ceased to be husband
and wife, no legal principle was created. That is why Salmond observed:. “All law is not
produced by laws and all laws do not produce law.”

MERITS OF THE THEORY

In spite of the 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. 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 contains an important element of universal and
paramount truth. The law is created and enforced by the State. To quote J.C Gray: “if Austin
went too far in considering the law as always proceeding from the State, he conferred a great
benefit on jurisprudence by bringing out clearly that law is at the mercy of the state.”

Salmond observes thus about Austin’s theory of law: “it contains an important element of
truth. It rightly recognises the essential fact that civil law is the product of the state and
depends for its existence on the physical force of the State exercised through the agency of
judicial tribunals. Where there is no State which governs a community by the use of physical
force, there can be no such thing as civil law. It is only if so far as any rules are recognised by
the State in the exercise of this function that these rules possess the essential nature of civil
law.”

CONCLUSION
How one evaluates Austin as compared to philosophers like Bentham perhaps depends on
what one considers the essential marks of the true philosopher. If the ability to notice
underlying and deep problems in apparently plain and clear matters is an important indicator,
then it was conspicuously absent in Bentham and equally clearly present in Austin. Bentham
argues ingeniously at times on philosophical questions, but he is impatient of criticisms and
difficulties, brushing them aside, often summarily, and proceeding to his next point. Austin,
on the other hand, is very reflective, giving difficulties and objections his full attention and
only resolving or dismissing them after due consideration. This is the rare gift of a true

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philosopher. It often prevents him from achieving all his practical aims and objectives, but it
enables him to lay a good conceptual framework for those, perhaps more practical, persons
who will follow after. And this is important, as a fortress is only as strong as its foundation
(Ut fundamentum, ita et arx), or to put it another way, you cannot build a solid house upon
sand. Matthew 7:26-27. Unfortunately, this reflective trait makes philosophers difficult to
interpret. Clarity and consistency may be sacrificed here and there to take account of some
perceived deep problem, and this may happen without the philosopher making it clear what
the problem was perceived to be.

Thus even if the definition of law given by Austin is not devoid of criticisms, it is one of the
fundamental and base definition of law for the students of law to build their knowledge upon
law.

BIBLIOGRAPHY
Printed Source
 V.D. Mahajan, Jurisprudence And Legal Theory.
 John Austin, Lectures on Jurisprudence, or, The Philosophy of Positive Law
 Wilfred E. Rumble, The Thought of John Austin: Jurisprudence, Colonial reform,
and the British Constitution
 H.L.A Hart, The Concept of Law
 Campbell Law Review.

Electronic Source
 http://law.campbell.edu/lawreview/articles/29-1-47.pdf

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