JURISPRUDENTIAL ANALYSIS OF AUSTINIAN THEORY OF LAW

John Austin was a proponent of the analytical school of law. Being a positivist, his primary focus was on the role of law in relation to the sovereignty of a State. An ardent disciple of Jeremy Bentham, he expanded the foundation of elucidative jurisprudence propagated by him.

He viewed law in terms of sanctions, power, commands and sovereignty. Austin’s image of law was that of positive law which focuses on law as it is and not what law ought to be. He separated law from morals and ethics. He limited the scope of interpretation of law by prescribing certain boundaries to it.

In his famous ‘Command Theory of Law’, he pointed out that law is nothing but the command of the sovereign which is backed by sanction. Laws are rules and regulations which are formulated by political superiors or by authorities vested with the power to create and enforce laws. The politically inferior individuals are bound to follow these laws, the infringement of which would make them liable to be punished.

According to the command theory of law, law can be narrowed down to these features:

  1. Law is always laid down by a sovereign authority, either directly or indirectly.
  2. Each and every law is a command.
  3. All the laws provided by a State are sanctioned by physical force.
  4. Every law enforces a duty.

The features of the command theory: command, sanction and duty are interconnected and inseparable. Austin’s theory is also called ‘Command-Duty-Sanction (CDS) Model’. The law imposed by the sovereign is applicable to all equally. Sovereign is the source of all law and possesses the required force to make the citizens comply.

Command, in a nutshell, implies the will of the State/Sovereign. A command differs from the orders of the State in the sense that is always backed by sanction. Sanction is an indispensable part of command since it operates as an unavoidable motivation for the subjects of the Sovereign to comply with the commands. A sanction might assume the form of a punishment or some kind of pain which is usually imposed in case the command is breached or violated.

For an order to be considered a command, it must necessarily contain all these elements. Due to the importance attributed to the three elements, Austin’s theory is also sometimes referred to as ‘Trilogy of Command, Sanction and Sovereign’.

Austin’s theory was subjected to heavy criticism by a lot of jurists on various grounds.

Austin’s complete disregard to ethics and morality led to the jurists expressing their disapproval. He isolated law from any other elements and wanted to analyse law as it is. However, if the present modern legal systems are taken into consideration, it is impossible for law to exist without morality. Ethics and morals hold a crucial position in the legal systems.

Austin’s theory was also denounced on the grounds of his overuse of the term command. Command was considered to be an unavoidable constituent of law, however, in modern legal setups, law inclines more towards the general will of the people rather than simply being the command of the State.

Law, unlike as described in Austin’s theory does not reflect the arbitrary actions of the State. Law has been known to grow naturally under the influence of various things like customs and treaties as the time demands. This notion cannot be applied to modern legal systems because there is no concept of ‘command’ as Austin mentioned and the States do not resort to physical force straightaway for the compliance of these rules and regulations.

In conclusion, even though Austin failed to refer to either historical, natural or sociological aspect for analyzing law but his work in the field is indispensable and his theory provided a groundwork for other jurists.

Aishwarya Says:

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