Introduction:
The numerous criticisms found in the Natural Law theory, acted as a
stimulus to find a new and more
acceptable theory for law. The Positivist theory of law sought to
satisfactorily explain the meaning of law.
Positivism simply means that the law is something that is ‘posited’, that is to say laws are made
in accordance with socially accepted rules. The positivist view on law can be
seen to cover two broad principles:
• Firstly, that laws may seek to enforce justice and morality, but their
success or failure in doing so does not determine their validity. Provided a
law is properly formed, in accordance with the rules recognized in the society
concerned, it is a valid law, regardless of whether it is just by some other
standard
•
Secondly, that law is nothing
more than a set of rules to provide order and governance of society.
John Austin and Hans Kelson are regarded as legal positivists and the
theories put forth by them are regarded as the Positivist theory of Law.
Austin
sought to distinguish law by its formal criteria and not by its contents. He put forth his Austinian Theory of law, also known as the Imperative theory of law.
John Austin’s theory of law is strongly influenced by Jeremy Bentham. According to Austin,
law is a phenomenon of large societies with a sovereign: a determinate person
who has supreme and absolute de facto power – he is obeyed by all but does not
similarly obey anyone else. The laws in that society are a subset of the
sovereign's commands: general orders that apply to classes of actions and
people and that are backed up by threat of force or “sanction.”
To Austin Law properly so-called is a species of COMMAND characterized
with 4 elements: (1) Command, (2) Sanction, (3) Duty and (4)
Sovereignty.
The three basic points of Austin's theory of law are, that:
• The law
is command issued by the un-commanded commander of the sovereign;
• Such
commands are backed by sanctions; and
• A sovereign
is one who is habitually obeyed.
The sovereign is the most politically powerful person, who is not under
the command of any other person. For example an order passed by a policemen or
a teacher will not be considered law because there is someone more powerful
than both of them.
A point to be noted as well is that only an order meant to be obeyed by
all will be considered law. If the sovereign was to order his servant to
perform a certain task or order his cook to prepare a certain dish, these
orders would not be considered law as they were only meant for a single
individual and not the general populace. However an order such as stopping at a
red light is meant for all and can thus be considered as law.
The violation of any of these orders will result in a prescribed
punishment. As opposed to Natural Theory, Austin proclaimed definite
punishments or sanctions for the violation of a law and not just moral
punishments. His theory stated that a person shall be punished for breaking the
law.
Criticism of Austinian Theory
Criticism by Historical School
Sir Henry Maine, the main exponent of the historical school, has
criticized Austin’s imperative theory on two grounds;
• Law is not invariably linked with
the sovereign. In early communities rules
which regulated life were derived
from immemorial usages and these rules were administered by domestic tribunals
in families or village communities. Therefore
the proposition that a sovereign is an essential
pre-requisite of law carries no weight.
• There are rules of customary law,
international law and even constitutional law which are habitually obeyed and
yet do not fall within the Austinian definition of law.
However, Salmond in his response
to Maine’s criticism argued that Austin’s theory of law as it exists applies to modern mature
states. It does not concern itself with the early societies. The rules referred to by Maine cannot
be called law proper; they could at most be called the rules of positive
morality and not of civil law. Salmond calls these rules as historical sources
from which law is developed, they are not law themselves.
Moral Criticism
Though Salmond rejected the
historical criticism, he appreciated the inadequacy of the imperative theory of
civil law. He observed “It is one sided and inadequate –
the product of an incomplete analysis of historical conceptions.” Salmond’s
main criticism against the imperative theory is
that it disregards the moral and ethical elements in law. The theory ignores
the intimate relation between law and justice. Any definition of law without
reference to justice is evidently inadequate.
In all fairness to the imperative theory it must be remembered that, as
pointed out by Austin, his theory of civil law is only a formal and not a
substantive treatment of the law. The question of morality and public opinion
are concerned with the law only in the substantive aspect.
Other Criticisms
• In Austin’s theory the sovereign has absolute and limitless power.
There is no check on the laws a sovereign can pass. Should the sovereign decide
to make murdering a man a legal action then, though this is contrary to moral
law, by Austin’s theory it will still be legal. Absolute power eventually leads
to rebellion. In the words of Lord Acton, a famous English historian, ‘Power
corrupts and absolute power corrupts absolutely.’ The people will
eventually revolt against an absolute ruler, as can be seen through numerous
instances in history.
• There is no stability of law.
This is a major drawback of Austin’s theory. Each time there is a new sovereign
a new set of laws may be formulated that are contradictory to the previous
laws.
• The sovereign is not in the purview of his own law.
• It is not only the sanctions
behind law that have to be considered, but also
other factors like general
recognition, public opinion, the will to be governed etc.
• According to Cicero and Kant, law is based on reason. Laws flow from
reason and not from the Sovereign, as reasonableness is one of the primary
ingredients of law.
Conclusion: According to the Austinian Theory of law, civil law consists of general
commands issued by the State to its
subjects and enforced through the agency of Courts of law by the sanctions of
physical force. However, one cannot accept Austin’s theory on the grounds of
the criticism leveled against it by several jurists. But in the end, from a
formal point of view, Austin’s theory is on the whole forceful and the various
criticism considered do not shake it off its foundation.
Who is John Austin?
John Austin was born. March 3, 1790. He was an English jurist whose
writings, especially The Province of Jurisprudence Determined
(1832), advocated a definition of law as a species of command and
sought to distinguish positive law from morality. He had little
influence during his lifetime outside the circle of Utilitarian supporters of
Jeremy Bentham.
Austin began to study law in 1812 after five years in the army and from
1818 to 1825 practiced unsuccessfully at the chancery bar. His powers of
rigorous analysis and his uncompromising intellectual honesty deeply impressed
his contemporaries, and in 1826, when University College, London, was founded,
he was appointed its first professor of jurisprudence, a subject that had
previously occupied an unimportant place in legal studies. He spent the next
two years in Germany studying Roman law and the work of German experts on
modern civil law whose ideas of classification and systematic analysis exerted
an influence on him second only to that of Bentham. Both Austin and his wife,
Sarah, was ardent Utilitarian’s, intimate friends of Bentham and of James and
John Stuart Mill, and much concerned with legal reform.
Austin's first lectures, in 1828, were attended by many distinguished
men, but he failed to attract students and resigned his chair in 1832. In 1834,
after delivering a shorter but equally unsuccessful version of his lectures, he
abandoned the teaching of jurisprudence. He was appointed to the Criminal Law
Commission in 1833 but, finding little support for his opinions, resigned in
frustration after signing its first two reports. In 1836 he was appointed a
commissioner on the affairs of Malta. The Austins then lived abroad, chiefly in
Paris, until 1848, when they settled in Surrey, where Austin died in 1859.
jurisprudence
