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AUSTIN AND HIS ANALYTICAL POSITIVISM

Submitted By Arjun Bajpai

Roll No. 11IP60017

Semester 1st

Rajiv Gandhi School of Intellectual Property Law

Indian Institute of Technology, Kharagpur

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Table of Contents

Serial No. Title Page No.

01 Abstract 3
02 Title, Objective, Methodology 4
03 Life History 4
04 Austins Contribution for Jurisprudence 5
05 Austins Positive Law Theory 7
06 Criticisms 8
07 Conclusion 9
08 Bibliography 10
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1. ABSTRACT -
Positive law is treating law as it is; it should not be merged with morality. Positive law
is realistic, scientific, logically sound and consistent. It doesnt change its nature with
situations. Positive law gives a clear distinction between is and ought. Austin was
known for his analytical positive approach in law. For this reason he is known as
Father of English Jurisprudence.
Austin with his modern thoughts for positivism kept law and morality apart. He said
that law doesnt have anything to do with morality and ethics. This means a law is law
whether it is good or bad. Goodness or badness should not deciding factor in law. He
was the one who considered jurisprudence as a science. In his theory he said that law
should be followed as a command and that law should be backed by sanction. This
analytical positivism of John Austin will be studied starting from his life history,
which will show his thinking was developed and later on his ideas will be studies plus
his contribution in the field of jurisprudence including his most common command
theory of law. After which his legal theory will be studied along with the criticisms
put to his positive theory of law by various positive morality supporters of that time.
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2. TITLE OF THE RESEARCH -

To study Austins Analytical Positivism.

3. METHODOLOGY -
Methodology will include Secondary research through available data sources which
shall involve collection of data, compilation of facts and research of articles from
textbook and other sources. The aim of the research is not to support or criticize
Austin and his theories.

4. LIFE HISTORY

Austin was the first of the seven children of Jonathan and Anne Austin, Austin was born on
3rd March 1790 in Ipswich. His mother, the daughter of a yeoman farmer, was well educated,
religious, and melancholic in disposition. His father, a miller and corn merchant profited
greatly from the Napoleonic Wars, was the first in his family to acquire wealth. He had a little
education; Jonathan Austin had a precise mind and disliked exaggeration-characteristics
shared by his eldest son. He was determined to provide better educational opportunities for
his children, several of whom achieved considerable success. It is still not clear whether
Austin really attended school or was tutored at home. In any case, in a burst of anti-
Napoleonic enthusiasm inflamed by the almost continuous wars with France during his
childhood and the presence of military at Ipswich, he enlisted in the army when he was 17.
He was later promoted to lieutenant, Austin saw no military action and fell into a state of
boredom. Realising that he was not fit for military career, he resigned in 1812 and returned to
Ipswich. His personality hampered his striving for success during his life-time; Austin was
plagued for the next two years with indecision about what he should do next. Finally he
decided to get into the profession of law and in 1814 began reading for the bar at the inner
temple of London. His aim was clear right from the starting that he wanted to study and
elucidate the principles of law. Formal legal education was not present at that time. Law was
learnt through practice rather than theoretical grounding, and it was achieved through
undirected reading, discussions and observations in chambers, law offices and courts. While
working as a draftsman at the chambers of equity Austin got engaged to Sarah Taylor and
later on after finishing his legal education Austin married Sarah in August 1819. Sarah was a
perfect match for Austin as she supported him in all his works and conditions. Shortly before
marriage Austin had been introduced to Bentham, whose work he had long admired. When
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the newly-wed couple took up residence in Queen Square Place in London, they became
neighbors both of Bentham and Benthams principal disciple, the philosopher James Mill.
Austins home became a meeting point for the Benthams circle. When Austin shifted to their
new house Bentham was 70 and he was Englands most important political and legal
philosophers, the founder of utilitarianism, and a radical social reformer. He believed that the
human condition could be improved through the development of science of legislation based
on the principle of utility or the principle of greatest happiness for maximum number. This
science of legislation aims at determining at what law is instead of what law ought to be.
Austin later became the equity draftsman. He also travelled on the Norfolk circuit but gave up
his one case as he was tongue-tied. Austin had anxiety in public speaking and this over
shadowed his brilliance and resulting he was unsuccessful as a lecturer in subsequent years.
He gave up the practice of law in 1825. Austins interest lay in politics and legal philosophy;
therefore he published many articles in which Benthams influence was clearly felt present. In
his first article he argued that greatest happiness requires the equal distribution of wealth
through inheritance. In 1826 Austin was appointed professor of jurisprudence at the law of
nations at the newly founded University of London and began the only philosophically
productive period of life.

5. JOHN AUSTINS CONTRIBUTION FOR JURISPRUDENCE -

John Austin set a line between natural law and utilitarian approach and came up with the
concept of positive law. He also gave the command theory of law. He was a follower of
Jeremiah Bentham. Natural law was unstable and uncertain and it wasnt able to prove its
scientific validity as well as tests on the basis of certain set standards. The society was getting
modernized but Natural law was the same. Austins broad approach to law was to regard it as
the command of the sovereign. Positive law is laid down by the political to the inferior.
Austin said that there must be determinate person to issue a command and that command is
obeyed by the people due to the threat of sanction in case if that command is not obeyed.
Austin wanted to separate the positive law from morality and social custom rules and also he
confined jurisprudence to advanced or modern systems. Austin draw a sharp line between
morality and jurisprudence, according to him law should be treated as law and it has nothing
to do with goodness or badness of that law, this separation is one of the most important
characteristics of analytical positivism. Austins efforts to treat law systematically gained
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popularity in the 19th century among English lawyers who wanted to approach their
profession in a very serious and rigorous manner. It is Austin who for the first time treated
jurisprudence as an organ of science. Austin wanted a conceptual approach towards law
which in morally neutral and the judicial decision making should not be influenced with
moral values which was the main idea of positivism. Positivism says that law should be
treated as law i.e. no considerations should be done on the grounds of ethics or morality. The
existence of law is one thin and its merit or demerit is another thing and in this way Austin
found himself criticizing the principles of natural law. Natural law accordingly changes itself
with the comfort and likes of people but positive law doesnt change itself accordingly.
Positive law cannot be challenged on the grounds of natural law and this makes positive law
very rigid and unchangeable. Austins theory was mainly behind the English legal theory. He
is recognized as the father of English jurisprudence. He also gave the command theory which
aimed at telling what law should be not what law ought to be. In order to explain what law
is John Austin suggested a command theory that law should be commanded by an un-
commanded commander, just like Hitler who was an un-commanded command. This theory
tells about the commandment of the sovereign. Austin realised that there should be fixed
written commandments, which should be obeyed by all people. These commandments should
be backed with sanctions. For example, if we do not obey traffic rules, we shall be penalized
by the Indian Law. This is how Austin explained that there should be a sovereign who should
form laws and these laws must be followed as commands. In this definition sovereign
somehow refers to a politically superior person who is respected by fair good amount of
people of the society. Also the command is backed by punishments which make that
command functional. This is very similar to a situation where a gunman is ordering us to do
certain things which are against our will and moral values, but in threat we have to follow the
commands of that gunman. Here this gunman has been replaced by a sovereign person. Now
this theory has another special aspect i.e. in a state all the people should be treated equally,
which brings uniformity.

6. AUSTINS POSITIVE LAW THEORY

Austins model of law is the positive law and it is different from the positive morality or other
kinds of laws. The positive morality lacks force, sanction and coercion of the state. Positive
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law on the other side describes the rules set by the politically superior to the inferior. For
Austin positive law is the absolute matter of jurisprudence. He rejects the law that ought to be
which Austin decries as science of legislation or utility or positive morality. In this category
he includes different types of rules i.e. rules for clubs, laws of fashion and laws of natural
science and rules of international law. The positive law therefore becomes a distinct and
clearly identifiable feature characterized by four elements command, sanction, duty and
sovereignty.

Austin brings about this distinction between positive law and morality by the analytical and
logical methods which see law with command, duty and sanction. Duty and Sanction are
correlative to each other and the fear of sanction is the motive for obedience. Austin divided
commands into two categories: general command and particular command. A particular
command is addressed to a particular person while general command is addressed to
community at large. He defined law as a rule which is laid down for the guidance of
intelligent being by an intelligent being having power with him, which he further divided into
two parts i.e.

1. Laws set by God for men and

2. Laws set by men for men

The laws set by men for men are further categorized into Positive laws and other laws.

a. Positive laws are the laws laid by political superiors and these laws are the main part
of jurisprudence.
b. Other laws are not set by men or political superiors in pursuance of legal rights.

Austin considered positive law as the main matter for jurisprudence and he said that the chief
characteristics of positive laws are commands, duty and sanction. But he accepts that there
are three kinds of laws which cannot be considered as commands but they should be included
in jurisprudence as an exception. They are:

Declaratory laws - they are not commands but they are already in existence. They explain
the pre existed laws which are in force even at present.

Laws of repeal - they are nothing but the revocation of command.

Laws of imperfect obligation these are the laws which have no sanction behind them.
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7. CRITICISMS OF AUSTINS THEORY

Austins theory has been criticized by many philosophers. His main criticism has been
discussed below:

Customs ignored- Austins command theory hasnt been backed by historical facts. From
historical times customs are used to regulate or conduct the people. Custom has a very deep
influence in the society and its functions even after the formation of new societies and states
but it was completely ignored by Austin.

Judge made laws and rules set by private persons- judge made laws found no place in
Austins theory of positivism as well as rules set by private persons werent included in the
picture of Austins positive law.

International laws- Austin puts international law with the laws of fashion and law of honour
and places it under positive morality which discarded a very important branch of law from his
model.

Command theory untenable- Professor Olivecrona has denied the applicability of command
theory in the case of wills. He said that command and will cannot go side by side because
command intends to influence the will of one person by the other which is against the basic
meaning of will. Therefore keeping in mind todays scenario of Governments, command for
aw is completely untenable.

Austins concept of general jurisprudence and particular jurisprudence was very misleading
and confusing. For no law in general can be extended or made for an individual. Only in the
rare of the rarest cases it happens that laws are enacted against individuals who are pretty
much above the pale of law.

Apart from the above points, jurists found out Austins theory as artificial and incorrect.
Sanction and immorality made his law unpleasing and therefore it was heavily criticized.
According to the German philosopher Gustav Radbruch law cannot be separated from justice
and morality as they are the preconditions of a good law.

Salmond criticized Austins theory by saying that in order to make a law effective, the law
should have ingredients of ethics and morality in it.
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Lon Fuller in United Sates said that the purpose of law is to subject human conduct to the
governance of rules. The law cannot be departed from morality, values, natural laws and
ideas.

8. CONCLUSION

Austins positive law was prevalent in the 19th century. Though it was short
lived and criticized heavily by many jurists. His concepts of general and
particular jurisprudence were very confusing and misleading. But his
contribution to Analytical School of Positivism can never be
overlooked. He opened a new door in the way of approach to law. He was
the first who treated Jurisprudence as a science of law. Therefore this
issue is open ended as there are positive and negative sides of his theory.
His theory was further modified by Salmond Gray and Sir Henry Maine.

9. BIBLEOGRAPHY

Books Referred:

o Edgar Bodenheimer: Jurisprudence the philosophy and method of the law; 6th edition 2009
o S.N. Dhyani: Fundamentals of Jurisprudence;4th edition 2007
o Avtar Singh: Introduction to Jurisprudence; 3rd edition 2009
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o G.W. Paton: A textbook of Jurisprudence; 4th edition 2004

o V.D. Mahajan: Legal theory and Jurisprudence; 5th edition 2008
o Lloyed : Introduction to Jurisprudence;

Web Resources:

o http://plato.stanford.edu/entries/austin-john/
o http://users.rcn.com/rhartzman/Austin.pdf