Austin’s Theory Of Law

Austin’s Theory Of Law

Introduction:

Austin’s theory of law revolves around command of a sovereign. Austin’s aim is to distinguish law from  rules of morality. Basically his theory does not relate to the nature of law rather it relates to the machinery and the mechanism through which it is enforced. In fact he used positivism as the weapon to denounce the Naturalist. He demolished their theory in the light of imperative theory.

Austin’s theory of law:

According to Austin, “Every positive law or every law simply and strictly so called, is set by a sovereign individual or sovereign body of individuals to a person or person in a state of subjection to its author”.

Distinguishing features of Austin’s       positive law:

According to him, positive law has three characteristic features.

            (i)         It is a type of command

            (ii)        It is laid down by a political sovereign.

            (iii)       It is enforceable by a sanction.

(i) Law Is A Type Of Command:

According to Austin every law is in the form of command. A command is an expression of desire given    by superiors to inferiors. The relationship of superior to inferior consists in the power            which the former enjoys over the other i.e., his ability to punish him for disobedience.

 (a) All commands are not laws:

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 general commands. Laws are not like the transitory command given on parade grounds and obeyed there are then by the troops.

(ii) Law is given by a sovereign:

Austin’s second requirement of law is that only that command is law which is given by a political superior or sovereign exclusively. 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.

(a)  A Gunman Is Not A Sovereign:

The difference between the order of a gunman and the decree of dictator is that the latter enjoys a general measure of obedience while the former secures a much more limited compliance.

(b)  No sovereign, no law:

Law is the product of sovereign so according to Austin of there is no sovereign there can be no law. Also the existence of law is an unmistakable indication of the existence of a sovereign.

(c)  Sovereign is illimitable, indivisible and continuous:

According to Austin sovereign’s powers cant be limited in any way. Also powers of sovereign cannot be divided. And a sovereign is continuous.

(d)  Obedience - an inevitable element of law:

According to Austin, law is law only if it is effective and must be generally obeyed. Perfect obedience is not necessary.

(iii) Sanction behind law:

In case of non-compliance with the command, one is to be visited with certain evil consequences. The power to inflict evil must be there and it should be intended to be exercised in case of non-compliance. The sanction behind law is the evil which is to be inflicted in case of disobedience.

Criticism on Austin’s theory of law:'

Austin’s theory of law has been criticized on many grounds Which are as follows.

(i) Laws before state:

Critics concede that in modem societies where there are established states, laws may be in nature of command but there existed laws even prior to the existence of state. The law which existed prior to state was not command of sovereign. It had its source in custom, religion or public opinion and not in any authority vested in a political superior.

 (ii) 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 legislature may be particular in the fullest sense of the word.

 (iv) Law as a command:

According to Austin, law is a command of sovereign but all laws cannot be expressed in terms of a command. The greater part of 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 etc.

(v)     Not applicable to democratic societies:

Austin’s definition of law may be true of a monarchical police state but it cannot be applied to a modem democratic country whose machinery is employed for the service of the people, not to punish the people. If we accept Austin’s definition, the whole of civil law will have to be excluded from the scope of positive law.

(vi) 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.

(vii) Not applicable to constitutional law:

Austin’s definition of law does not apply to constitutional law which cannot be called a command of any sovereign. The constitutional law defines the powers of various organs of state.

(viii) Disregard of ethical element:

The main criticism against Austin’s theory of law is that it disregards moral or ethical elements in law therefore Austin’s theory cannot be accepted as a complete definition of law.

(ix) Limited definition of law:

Salmond finds another defect in Austin’s definition of law. Austin’s definition attempts to answer the question “What is a law?” but the enquiry should be “What is law”?

5.CONCLUSION:

Iiv 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. Though this theory leaves much to be desired but it must be admitted that today this is one legal theory that is very close to reality. As a matter of fact, far from sinning Austin has been sinned against.