Does Austin’s Command Theory of Law stand the Test of Time? : In relation to Modern India.

Introduction: John Austin is a quintessential contributor in the ‘Analytical School of Jurisprudence’. He was born in 1790 and served as an army officer till 1812. Later he digressed towards law and became Professor of Law at Bentahmite University College in London. He was promoted to the chairman of jurisprudence at the University of London in 1826. His lectures were recorded in his book Province of Jurisprudence Determined. It can be observed from his interpretation and works regarding law that he was devotedly influenced by stringent and disciplined life in army.

Law- from Austin’s perception: John Austin confined his study to the positive law. He aimed at drawing a line between positive law and positive morality. To quote him,

“… is to distinguish positive laws (the appropriate matter of jurisprudence) from the objects now enumerated: objects with which they are connected by ties of resemblance and analogy…” [1]

According to John Austin, positive morality is not a proper law; a ‘law’ would be considered ‘law’ if it has following features:

  1. command,
  2. sovereign,
  3. duty, and             
  4. sanction

Command implies an expression of giving order which comes along with sanction, i.e., threat or punishment for not obeying the command. Sovereign is a person or body of persons who give the command and in return general public has the duty to obey him. Based on the above mentioned four attributes, Austin divided law into two categories- Divine Laws and Human Law. Further, Human Law is divided into- Positive law and other laws.

Relevance of Austin’s Command Theory of Law in Modern Indian Politics:

As already mentioned the strict army lifestyle stimulated Austin to give confined interpretation to law. Besides, Austin was born in the era of dictators and emperors which further led him to believe in sovereign as the only superior power holder. However, the question arises if Austin’s Command theory of law (or Imperative theory) stands the test of time. The same can be observed by the following points:

  1. Sovereign Power is indivisible: According to Austin, powers of sovereign are indivisible. There can only be one sovereign who collects obedience from the society against his commands. Austin implies that there can only be one superior and no one can stand on the higher pedestal other than sovereign.

However, this trend cannot be applied in the current Indian scenario; the Constitution is suprema lex that confers power to the government of the country. Moreover, India endorses a quasi-federal structure, i.e., there is dual polity and powers have been divided between central and state government. There are three lists- Union List, State List and Concurrent List given in the 7th Schedule of the Indian Constitution that stow the subject matters that particular government has to authority to make laws upon.

  1. Customs not taken into consideration: Austin was of the view that customs didn’t contribute in the evolution of law as he strongly supported the idea of ‘law as command’ by sovereign.

India is a diverse country with diversified cultures and religions. There are various customs that are now codified and regulate human conduct in India. For instance, personal laws such as Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Anand Marriage Act, 1909. Thereby, it can be concluded that customs cover a noteworthy significance in the evolution of law in India and still serve as the same.

  1. International Law as positive morality: Austin’s criteria for defining a ‘law’ is to check the attributes of command, sanction, duty and sovereign in it. Austin believed the International Laws to be a mere ‘positive morality’ as

“they are not clothed with legal sanctions, nor do they oblige legally the parties to whom they are set.” [2].

Whereas, the importance of international law cannot be neglected in the present time, especially by a developing country like India. Notions passed by International organizations like UN, ICJ, UNSC, etc, are seriously taken into consideration to maintain affluent relations globally.

  1. Sanctions as the only mean to secure obedience: Austin was pedantic about inclusion of sanctions in law. Sanction is a threat or punishment that is imposed on a person when he does not obey the commands of the sovereign. Austin completely ignored other traits that might stimulate obedience.

The Indian Constitution provides Fundamental duties [3] that are not enforceable but are still followed by sections of society out of the feelings of patriotism, deterrence, sympathy, morals, etc.

  1. No room for other law-making authorities: As per Austin’s theory of sovereignty- sovereign has indivisible, determinate and unconfined powers. Only the commands given by sovereign were considered to be ‘law’. The judiciary wasn’t given much importance as a law-interpreting body in Austin’s theory.

An independent judiciary is a sine qua non in India. The Supreme Court has the authority to bind all the lower courts with its decisions. [4].Further, precedent has been regarded as a prolific source of law (Precedent implies using previous judgments or rulings as a guideline to conclude the future cases). This does not only save time but also maintains a certain degree of stability in the interpretations of law. It can be observed that India even today gives ample room to judiciary as a law-making agency that does not go hand in hand with Austin’s command theory of law.

Conclusion: John Austin, as a renowned scholar, contributed a lot to the law subject. However, his ideology being adamant with regard to sovereign commands and sanctions does not go with the present state of affairs. India is a democratic country; the leaders themselves are bound by certain guidelines so that they cannot work against the welfare of people. Secondly, India being a country with numerous cultures and religions cannot ignore customs associated with different sections of people making it difficult to draw a line between law and morality. On the other side, Austin was determined to achieve a clear distinction between positive law and positive morality. However, despite not being standing the test of time (concerning India’s modern political scenario) Austin’s theory gave a new direction to the evolution of law and opened more windows for the perceptive studies in jurisprudence.

References:

  1. John Austin, Province of Jurisprudence Determined, p. 8
  2. John Austin, Province of Jurisprudence Determined, p. 142
  3. Article 51A, Part IV-A, the Indian Constitution.
  4. Article 141, the Indian Constitution.

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