Appendix A Front-page and Cover

JURISPRUDENCE PROJECT

IMPERATIVE THEORY OF JOHN AUSTIN AND

ITS POSITIVE CONTRIBUTIONS

Submitted by
Yug Pratap Singh
Roll Number: 47
B.A. LL.B. (Hons.)
Batch: 2014-19

Of Law School,
Banaras Hindu University, Varanasi

In
November, 2017

Under the guidance of

Prof. S. K. Gupta

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 Appendix B Certificate

CERTIFICATE

The project entitled IMPERATIVE THEORY OF JOHN AUSTIN AND

ITS POSITIVE CONTRIBUTIONS" submitted to Law School, Banaras
Hindu University for JURISPRUDENCE, as part of internal assessment is
based on my original work carried out under the guidance of Prof. S. K.
Gupta from July to November, 2017. The research work has not been
submitted elsewhere for award of any degree. The material borrowed
from other sources and incorporated in the thesis has been duly
acknowledged. I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date: November, 2017

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 Acknowledgement

I am using this opportunity to express my gratitude to everyone who supported

me throughout the course of this project. I am thankful for their aspiring
guidance, invaluably constructive criticism and friendly advice during the
project work. I am sincerely grateful to them for sharing their truthful and
illuminating views on a number of issues related to the project.

I express my warm thanks to Prof. S. K. Gupta for his support and guidance at
Banaras Hindu University.

I would also like to thank my coordinator Prof. C. P. Upadhyay and all the
people who provided me with the facilities being required and conductive
conditions for my project.

Yug Pratap Singh

B.A. LL.B. (Hons.)

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 INDEX

Sr. No TOPIC PG NO.

1 INTRODUCTION 5
2 ANALYTICAL JURISPRUDENCE AND 7

LEGAL POSITIVISM
3 AUSTINS VIEWS 10
4 CRITICISMS 12
5 SALMOND ON AUSTINS THEORY OF 14

LAW
6 POSITIVE CONTRIBUTIONS 14
7 A REVISIONIST VIEW 15
8 RELEVANCE OF AUSTINS 16

SOVEREIGN IN MODERN INDIA

9 CONCLUSION 17
10 BIBLIOGRAPHY 18

4
INTRODUCTION

John Austin is considered by many to be the creator of the school of analytical

jurisprudence, as well as, more specifically, the approach to law known as
legal positivism. Austin's particular Imperative theory of law has been subject
to pervasive criticism, but its simplicity gives it an evocative power that
continues to attract adherents.

Life
John Austin's life (17901859) was filled with disappointment and unfulfilled
expectations. His influential friends (who included Jeremy Bentham, James
Mill, John Stuart Mill and Thomas Carlyle) were impressed by his intellect and
his conversation, and predicted he would go far. However, in public dealings,
Austin's nervous disposition, shaky health, tendency towards melancholy, and
perfectionism combined to end quickly careers at the Bar, in academia, and in
government service (Hamburger 1985, 1992).
Austin was born to a Suffolk merchant family, and served briefly in the military
before beginning his legal training. He was called to the Bar in 1818, but he
took on few cases, and quit the practice of law in 1825. Austin shortly thereafter
obtained an appointment to the first Chair of Jurisprudence at the recently
established University of London. He prepared for his lectures by study in
Bonn, and evidence of the influence of continental legal and political ideas can
be found scattered throughout Austin's writings. Commentators have found
evidence in Austin's writings of the German Pandectist treatment of Roman
Law, in particular, its approach to law as something that is, or should be,
systematic and coherent (Schwarz 1934; Stein 1988: pp. 223229, 238244;
Lobban 1991: pp. 223256)
Lectures from the course he gave were eventually published in 1832 as
Province of Jurisprudence Determined (Austin 1832). However, attendance at
his courses was small and getting smaller, and he gave his last lecture in 1833.
A short-lived effort to give a similar course of lectures at the Inner Temple met
the same result. Austin resigned his University of London Chair in 1835. He
later briefly served on the Criminal Law Commission, and as a Royal
Commissioner to Malta, but he never found either success or contentment. He
did some occasional writing on political themes, but his plans for longer works
never came to anything during his lifetime, due apparently to some combination
of perfectionism, melancholy, and writer's block. His changing views on moral,
political, and legal matters also apparently hindered both the publication of a
revised edition of Province of Jurisprudence Determined, and the completion
of a longer project started when his views had been different.

5
(There is some evidence that Austin's views later in his life may have moved
away from analytical jurisprudence towards something more approximating the
historical jurisprudence school (Hamburger 1985: pp. 17891).)

Much of whatever success Austin found during his life, and after, must be
attributed to his wife Sarah, for her tireless support, both moral and economic
(during the later years of their marriage, they lived primarily off her efforts as a
translator and reviewer), and her work to publicize his writings after his death
(including the publication of a more complete set of his Lectures on
Jurisprudence) (Austin 1879). Credit should also be given to Austin's influential
friends, who not only helped him to secure many of the positions he held during
his lifetime, but also gave important support for his writings after his death
(Hamburger 1985: pp. 33, 197; Morison 1982: p. 17; Mill 1863).

Austin's work was influential in the decades after his passing away. E. C. Clark
wrote in the late 19th century that Austin's work is undoubtedly forming a
school of English jurists, possibly of English legislators also. It is the staple of
jurisprudence in all our systems of legal education. (Clark 1883: pp. 45) A
similar assessment is made by H.L.A. Hart, looking back nearly a century later:
within a few years of his death it was clear that his work had established the
study of jurisprudence in England (Hart 1955: p. xvi). As will be discussed,
Austin's influence can be seen at a number of levels, including the general level
of how legal theory, and law generally, were taught (Stein 1988: pp. 238244),
and the use of an analytical approach in legal theory. At such levels, Austin's
impact is felt to this day. Hart could write that Austin's influence on the
development of England of [Jurisprudence] has been greater than that of any
other writer, (Hart 1955: p. xvi) even while Austin's particular command
theory of law became almost friendless, and is today probably best known from
Hart's use of it (1958, 1994) as a foil for the elaboration of Hart's own, more
nuanced approach to legal theory. In recent decades, some theorists have
revisited Austin's command theory (and other works), offering new
characterizations and defenses of his ideas (e.g., Morison 1982, Rumble 1985).

6
ANALYTICAL JURISPRUDENCE AND LEGAL
POSITIVISM

Early in his career, Austin came under the influence of Jeremy Bentham, and
Bentham's utilitarianism is evident (though with some differences) in the work
for which Austin is best known today. On Austin's reading of utilitarianism,
Divine will is equated with Utilitarian principles: The commands which God
has revealed we must gather from the terms wherein they are promulg[ate]d.
The command which he has not revealed, we must construe by the principle of
utility (Austin 1873: Lecture IV, p. 160; see also Austin 1832: Lecture II, p.
41). This particular reading of utilitarianism, however, has had little long-term
influence, though it seems to have been the part of his work that received the
most attention in his own day (Rumble 1995: p. xx). Some have also seen
Austin as being one of the early advocates of rule utilitarianism.(e.g., Austin
1832: Lecture II, p. 42, where Austin urges that we analyze not the utility of
particular acts, but that of class[es] of action). Additionally, Austin early on
shared many of the ideas of the Benthamite philosophical radicals; he was a
strong proponent of modern political economy, a believer in Hartleian
metaphysics, and a most enthusiastic Malthusian (Rumble 1985: pp. 1617).
Austin was to lose most of his radical inclinations as he grew older.

Austin's importance to legal theory lies elsewherehis theorizing about law

was novel at four different levels of generality. First, he was arguably the first
writer to approach the theory of law analytically (as contrasted with approaches
to law more grounded in history or sociology, or arguments about law that were
secondary to more general moral and political theories). Analytical
jurisprudence emphasizes the analysis of key concepts, including law, (legal)
right, (legal) duty, and legal validity. Though analytical jurisprudence has
been challenged by some in recent years (e.g., Leiter 2007a, 2007b), it remains
the dominant approach to discussing the nature of law. Analytical jurisprudence,
an approach to theorizing about law, has sometimes been confused with what
the American legal realists (an influential group of theorists prominent in the
early decades of the 20th century) called legal formalisma narrow approach
to how judges should decide cases. The American legal realists saw Austin in
particular, and analytical jurisprudence in general, as their opponents in their
critical and reform-minded efforts (e.g., Sebok 1998: pp. 65-69). In this, the
realists were simply mistaken; unfortunately, it is a mistake that can still be
found in some contemporary legal commentators.

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Second, Austin's work should be seen against a background where most English
judges and commentators saw common-law reasoning (the incremental creation
or modification of law through judicial resolution of particular disputes) as
supreme, as declaring existing law, as discovering the requirements of
Reason, as the immemorial wisdom of popular custom. Such (Anglo-
American) theories about common law reasoning fit with a larger tradition of
theorizing about law (which had strong roots in continental European thought
e.g., the historical jurisprudence of theorists like Karl Friedrich von Savigny
(1975)): the idea that generally law did or should reflect community mores,
spirit, or custom. In general, one might look at many of the theorists prior to
Austin as exemplifying an approach that was more community-orientedlaw
as arising from societal values or needs, or expressive of societal customs or
morality. By contrast, Austin's is one of the first, and one of the most
distinctive, theories that views law as being imperium orientedviewing law
as mostly the rules imposed from above from certain authorized (pedigreed)
sources. More top-down theories of law, like that of Austin, better fit the
more centralized governments (and the modern political theories about
government) of modern times (Cotterrell 2003: pp. 2177).

Third, within analytical jurisprudence, Austin was the first systematic exponent
of a view of law known as legal positivism. Most of the important theoretical
work on law prior to Austin had treated jurisprudence as though it were merely
a branch of moral theory or political theory: asking how should the state
govern? (and when were governments legitimate?), and under what
circumstances did citizens have an obligation to obey the law? Austin
specifically, and legal positivism generally, offered a quite different approach to
law: as an object of scientific study (Austin 1879: pp. 11071108), dominated
neither by prescription nor by moral evaluation. Subtle jurisprudential questions
aside, Austin's efforts to treat law systematically gained popularity in the late
19th century among English lawyers who wanted to approach their profession,
and their professional training, in a more serious and rigorous manner. (Hart
1955: pp. xvi-xviii; Cotterrell 2003: pp. 74-77; Stein 1988: pp. 231-244)

Legal positivism asserts (or assumes) that it is both possible and valuable to
have a morally neutral descriptive (or conceptualthough this is not a term
Austin used) theory of law. (The main competitor to legal positivism, in
Austin's day as in our own, has been natural law theory.) Legal positivism does
not deny that moral and political criticism of legal systems is important, but
insists that a descriptive or conceptual approach to law is valuable, both on its
own terms and as a necessary prelude to criticism.

8
(The term legal positivism is sometimes used more broadly to include the
position that we should construct or modify our concept of law to remove moral
criteria of legal validity; or to include a prescription that moral values should
not be used in judicial decision-making (Schauer 2010see the Other Internet
Resources). I do not think anything turns on whether the term is used more
broadly or more narrowly, as long as it is clear which sense is being used.
Additionally, while Schauer claims (2010) that Austin could be seen as
supporting some of the views associated with the broader understanding of
legal positivism, there is need for more evidence and argument before the
point should be granted.)

There were theorists prior to Austin who arguably offered views similar to legal
positivism or who at least foreshadowed legal positivism in some way. Among
these would be Thomas Hobbes, with his amoral view of laws as the product of
Leviathan (Hobbes 1996); David Hume, with his argument for separating is
and ought (which worked as a sharp criticism for some forms of natural law
theory, which purported to derive moral truths from statements about human
nature) (Hume 1739); and Jeremy Bentham, with his attacks on judicial
lawmaking and on those, like Sir William Blackstone, who justified such
lawmaking with natural-law-like justifications (Bentham 1789).

Austin's famous formulation of what could be called the dogma of legal

positivism is as follows:

The existence of law is one thing; its merit or demerit is another. Whether it be
or be not is one enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry. A law, which actually exists, is a law, though
we happen to dislike it, or though it vary from the text, by which we regulate
our approbation and disapprobation. (Austin 1832: Lecture V, p. 157)
(While Austin saw himself as criticizing natural law theory, a view shared by
most of the legal positivists who followed him, the extent to which the two
schools disagree, and the location of their disagreement, remains a matter
sharply contested (e.g., Finnis 2000a, 2000b; Bix 2000).)
Fourth, Austin's version of legal positivism, a command theory of law (which
will be detailed in the next section), was also, for a time, quite influential.
Austin's theory had similarities with views developed by Jeremy Bentham,
whose theory could also be characterized as a command theory. Bentham, in a
posthumously published work, would define law as:

9
as assemblage of signs declarative of a volition conceived or adopted by
the sovereign in a state, concerning the conduct to be observed in a
certain case by a certain person or class of persons, who in the case in question
are or are supposed to be subject to his power: such volition trusting for its
accomplishment to the expectation of certain events which it is intended such
declaration should upon occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those whose
conduct is in question. (Bentham 1970: p. 1)
However, Austin's command theory was more influential than Bentham's,
because the latter's jurisprudential writings did not appear in an even-roughly
systematic form until well after Austin's work had already been published, with
Bentham's most systematic discussion only appearing posthumously, late in the
20th century (Bentham 1970, 1996; Cotterrell 2003: p. 50).

AUSTINS VIEWS
Austin's basic approach was to ascertain what can be said generally, but still
with interest, about all laws. Austin's analysis can be seen as either a paradigm
of, or a caricature of, analytical philosophy, in that his discussions are dryly full
of distinctions, but are thin in argument. The modern reader is forced to fill in
much of the meta-theoretical, justificatory work, as it cannot be found in the
text. Where Austin does articulate his methodology and objective, it is a fairly
traditional one: he endeavored to resolve a law (taken with the largest
signification which can be given to that term properly) into the necessary and
essential elements of which it is composed (Austin 1832: Lecture V, p. 117).
As to what is the core nature of law, Austin's answer is that laws (properly so
called) are commands of a sovereign. He clarifies the concept of positive law
(that is, man-made law) by analyzing the constituent concepts of his definition,
and by distinguishing law from other concepts that are similar:
Commands involve an expressed wish that something be done,
combined with a willingness and ability to impose an evil if that wish is
not complied with.
Rules are general commands (applying generally to a class), as contrasted
with specific or individual commands (drink wine today or John
Major must drink wine).
Positive law consists of those commands laid down by a sovereign (or its
agents), to be contrasted to other law-givers, like God's general
commands, and the general commands of an employer to an employee.

10
 The sovereign is defined as a person (or determinate body of persons)
who receives habitual obedience from the bulk of the population, but who
does not habitually obey any other (earthly) person or institution. Austin
thought that all independent political societies, by their nature, have a
sovereign.
Positive law should also be contrasted with laws by a close analogy
(which includes positive morality, laws of honor, international law,
customary law, and constitutional law) and laws by remote analogy
(e.g., the laws of physics).
(Austin 1832: Lecture I).
Austin also wanted to include within the province of jurisprudence certain
exceptions, items which did not fit his criteria but which should nonetheless
be studied with other laws properly so called: repealing laws, declarative
laws, and imperfect lawslaws prescribing action but without sanctions (a
concept Austin ascribes to Roman [law] jurists) (Austin 1832: Lecture I, p.
36).
In the criteria set out above, Austin succeeded in delimiting law and legal rules
from religion, morality, convention, and custom. However, also excluded from
the province of jurisprudence were customary law (except to the extent that
the sovereign had, directly or indirectly, adopted such customs as law), public
international law, and parts of constitutional law. (These exclusions alone would
make Austin's theory problematic for most modern readers.)
Within Austin's approach, whether something is or is not law depends on
which people have done what: the question turns on an empirical investigation,
and it is a matter mostly of power, not of morality. Of course, Austin is not
arguing that law should not be moral, nor is he implying that it rarely is. Austin
is not playing the nihilist or the skeptic. He is merely pointing out that there is
much that is law that is not moral, and what makes something law does nothing
to guarantee its moral value. The most pernicious laws, and therefore those
which are most opposed to the will of God, have been and are continually
enforced as laws by judicial tribunals (Austin 1832: Lecture V, p. 158).
In contrast to his mentor Bentham, Austin, in his early lectures, accepted
judicial lawmaking as highly beneficial and even absolutely necessary
(Austin, 1832: Lecture V, p. 163). Nor did Austin find any difficulty
incorporating judicial lawmaking into his command theory: he characterized
that form of lawmaking, along with the occasional legal/judicial recognition of
customs by judges, as the tacit commands of the sovereign, the sovereign's
affirming the orders by its acquiescence (Austin 1832: Lecture 1, pp. 3536).
It should be noted, however, that one of Austin's later lectures listed the many
problems that can come with judicial legislation, and recommended codification
of the law instead (Austin 1879: vol. 2, Lecture XXXIX, pp. 669704).
11
CRITICISMS
As many readers come to Austin's theory mostly through its criticism by other
writers (prominently, that of H.L.A. Hart; see also Kelsen 1941: 54-66), the
weaknesses of the theory are almost better known than the theory itself:
First, in many societies, it is hard to identify a sovereign in Austin's sense of
the word (a difficulty Austin himself experienced, when he was forced to
describe the British sovereign awkwardly as the combination of the King, the
House of Lords, and all the electors of the House of Commons). Additionally, a
focus on a sovereign makes it difficult to explain the continuity of legal
systems: a new ruler will not come in with the kind of habit of obedience that
Austin sets as a criterion for a system's rule-maker.
A few responses are available to those who would defend Austin. First, some
commentators have argued that Austin is here misunderstood, in that he always
meant by the sovereign the office orinstitution which embodies supreme
authority; never the individuals who happen to hold that office or embody that
institution at any given time (Cotterrell 2003: p. 63, footnote omitted); there
are certainly parts of Austin's lectures that support this reading (e.g., Austin
1832: Lecture V, pp. 12829; Lecture VI, p. 218).
Secondly, one could argue (see Harris 1977) that the sovereign is best
understood as a constructive metaphor: that law should be viewed as if it
reflected the view of a single will (a similar view, that law should be interpreted
as if it derived from a single will, can be found in Ronald Dworkin's work
(1986: pp. 176190)).
Thirdly, one could argue that Austin's reference to a sovereign whom others are
in the habit of obeying but who is not in the habit of obeying anyone else,
captures what a realist or cynic would call a basic fact of political life.
There is, the claim goes, entities or factions in society that are not effectively
constrained, or could act in an unconstrained way if they so chose. For one type
of example, one could point out that if there was a sufficiently large and
persistent majority among the United States electorate, nothing could contain
them: they could elect Presidents and legislators who would amend the
Constitution and, through those same officials, appoint judges who would
interpret the (revised or original) Constitution in a way amenable to their
interests. A different sort of example (and some would say that there are recent
real-life examples of this type) would be a President who ignored the constraints
of statutory law, constitutional law, and international treaty commitments, while
the public and other officials lacked the will or the means to hold that President
to the legal norms that purported to constrain his or her actions.
As regards Austin's command model, it seems to fit some aspects of law
poorly (e.g., rules which grant powers to officials and to private citizensof the

12
latter, the rules for making wills, trusts, and contracts are examples), while
excluding other matters (e.g., international law) which we are not inclined to
exclude from the category law.
More generally, it seems more distorting than enlightening to reduce all legal
rules to one type. For example, rules that empower people to make wills and
contracts perhaps can be re-characterized as part of a long chain of reasoning
for eventually imposing a sanction (Austin spoke in this context of the sanction
of nullity) on those who fail to comply with the relevant provisions. However,
such a re-characterization misses the basic purpose of those sorts of lawsthey
are arguably about granting power and autonomy, not punishing wrongdoing.
A different criticism of Austin's command theory is that a theory which portrays
law solely in terms of power fails to distinguish rules of terror from forms of
governance sufficiently just that they are accepted as legitimate (or at least as
reasons for action) by their own citizens.
Finally, one might note that the constitutive rules that determine who the legal
officials are and what procedures must be followed in creating new legal rules,
are not commands habitually obeyed, nor can they be expressed as habits of
obedience to persons (Hart 1958: p. 603).
(Austin was aware of some of these lines of attack, and had responses ready; it
is another matter whether his responses were adequate.) It should also be noted
that Austin's work shows a silence on questions of methodology, though this
may be forgivable, given the early stage of jurisprudence. As discussed in an
earlier section, in many ways, Austin was blazing a new path. On matters of
methodology, later commentators on Austin's work have had difficulty
determining whether he is best understood as making empirical claims about the
law or conceptual claims; elements of each sort of approach can be found in his
writings (Lobban 1991: pp. 224225; Cotterrell 2003: pp. 8183).
When H.L.A. Hart revived legal positivism in the middle of the 20 th century
(Hart 1958, 1994), he did it by criticizing and building on Austin's theory: for
example, Hart's theory did not try to reduce all legal rules to one kind of rule,
but emphasized the varying types and functions of legal rules; and Hart's theory,
grounded partly on the distinction between obligation and being obliged,
was built around the fact that some participants within legal systems accepted
the legal rules as reasons for action, above and beyond the fear of sanctions.
Hart's hermeneutic approach, building on the internal point of view of
participants who accepted the legal system, diverged sharply from Austin's
approach to law.

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SALMOND ON AUSTINS THEORY OF LAW
1. Austins theory of law is one sided and inadequate; it does not contain the
whole truth. It eliminates all elements except that of force. Austin has missed
the ethical element in law or the idea of right or justice.

2. Law is the declaration of a principle of justice. As Austins theory of law

does not take into consideration the purpose of law, it is not an adequate
definition of law.

3. Austins theory not only misses the ethical aspect of law but over emphasises
on in imperative aspect.

4. According to Salmond, All legal principles are not commands of the state
and those which are at the same thing and in their essential nature, something
more, of which the imperative theory takes no account.

5. Law in abstract sense is more comprehensive in its signification than law in

the concrete sense. To quote Salmond The central idea of juridical theory is not
lex but Jus, in gestez and recht.

POSITIVE CONTRIBUTIONS
Inspite of the criticism of Austins theory of law; it cannot be denied that Austin
rendered a great service by giving clear and simple definition of law. Before
him there was a lot of confusion about the nature of law. By separating law
completely from morality Austin tried to avoid a lot of confusion. His theory of
law of law contains an important element of universal and paramount truth. The
law is created and enforced by the state.

Followings are the Merits of Theory;

a. Suitable for all Systems

Now it is evident from the enactment processes all over the world
that the Governments are making laws with stipulated sanctions in cases of
violation. We see in democracy, communism and even martial law that laws
are made by the sovereign with sanction. All these systems are reflecting the
integrity of this theory.

14
 b. Applicable to Modern Society
The second merit of this theory is that it is applicable to modern
societies and system. There is no doubt that primitive societies have their
history but the laws of modern civilized world are invariably enforced by
some kind of sanctioned.

c. Clear Definition of Law

The third and last merit of this theory is that it clearly recognizes that
law is the product of the state and depends upon physical force of the state
exercised through its machinery for its existence.

A REVISIONIST VIEW

Some modern commentators appreciate in Austin elements that were probably

not foremost in his mind (or that of his contemporary readers). For example,
one occasionally sees Austin portrayed as the first realist: in contrast both to
the theorists that came before Austin and to some modern writers on law, Austin
is seen as having a keener sense of the connection of law and power, and the
importance of keeping that connection at the forefront of analysis (cf. Cotterrell
2003: pp. 4977). One commentator wrote:

Austin's theory is not a theory of the Rule of Law: of government subject to law.
It is a theory of the rule of men: of government using law as an instrument of
power. Such a view may be considered realistic or merely cynical. But it is, in
its broad outlines, essentially coherent. (Cotterrell 2003: p. 70)

When circumstances seem to warrant a more critical, skeptical or cynical

approach to law and government, Austin's equation of law and force will be
attractivehowever distant such a reading may be from Austin's own liberal-
utilitarian views at the time of his writing, or his more conservative political
views later in his life (Hamburger, 1985).

15
RELEVANCE OF AUSTINS SOVEREIGN IN
MODERN INDIA

Austins notion that all laws come from the sovereign may be true theoretically,
and laws in our country (i.e. statue made laws at least) are a result of the act of
the politically superior that is the legislators but the same is not true practically
as they are not a reflection of the will of the superior in the real sense. Though
many laws come directly from the parliament, but they merely reflect the desire
of these politicians to maintain support of the major organized groups in the
country and to meet their interests satisfactorily. Law emanating only from the
sovereign may be fit for a totalitarian regime like Pakistan where the
government can use its monopoly of law making and executive powers for the
re shaping of laws in disregard of the democratic processes, but in a democratic
country like India the same is not possible. The interplay between the public
opinion and state action has become very complex these days whether we are
concerned with the abolition of dowry, the creation of legal remedies against
administrative action or the introduction of a new ground of divorce there is
always some interrelation between the state machinery that produces these
changes and social opinion of the community in which they are intended to
operate. Public opinion on vital issue is expressed through the elected
representatives in the house, and also through public discussion in press, radio,
public lectures. It can thus be concluded that legislative practices in our country
provide for opportunities to the public to participate in the legislative activities
of those to whom these powers are delegated.
According to Austin sovereign is the person who has the last word in a
particular connection. But the issue is that how can one determine the highest
authority in a democratic country like India , to identify the strongest power
would involve an investigation of a lot of legal as well as well extra-legal forces
which determine how a state shall operate. Who is the highest authority, is it the
masses who choose the government, is the legislators who finally make laws, is
it the judiciary that has the power to strike down laws made by the parliament,
is it the executive as laws that are enforced are selected by administrators today,
what they consider worthy of implementing is duly enforced other laws are
followed more in breach than in obedience. Similarly Austins concept of
unlimited and indivisible sovereignty is quite inappropriate in the Indian set up
or any democracy. The sovereign does not have the power to command
anything that it desires. It is as much bound by rules and regulation embodied in
the constitution and other laws as any common man. Legislature is bound by the
constitution and in almost all cases court has the power to decide whether an act
done by the government is constitutional and hence valid otherwise it can be
struck down.

16
CONCLUSION

In the forgoing discussion, an attempt had been made to analyse Austins notion
of sovereignty Vis -a-Vis the modern day state. His theory of sovereignty did
not seem to be applicable in modern day democracies. Nevertheless, that in no
way undermines the importance of his excellent work. Austins concepts about
various legal concepts might not seem true in modern times but we should not
forget that Austin is regarded as one of the noted jurist of all times as much for
his work and theory of law as for the methodology employed to arrive at his
theory.

To conclude, I can say, that inspite of 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. He makes a distinction between what law is and what
it ought to be. It seeks to define law not be reference to its contents but
according to the formed criteria which differentiate legal rules from other rules
such as those of morals, etiquette etc.

Inspite of the criticism of Austins theory of law; it cannot be denied that Austin
rendered a great service by giving clear and simple definition of law. Before
him there was a lot of confusion about the nature of law. By separating law
completely from morality Austin tried to avoid a lot of confusion. His theory of
law of law contains an important element of universal and paramount truth. The
law is created and enforced by the state.

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Internet Resources
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References & Further Readings

Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble

(ed.), Cambridge: Cambridge University Press, 1995.
, 1879, Lectures on Jurisprudence, or The Philosophy of Positive Law, two
vols., R. Campbell (ed.), 4th edition, rev., London: John Murray; reprint,
Bristol: Thoemmes Press, 2002.

Bentham, Jeremy, 1789, An Introduction to the Principles of Morals and

Legislation, J. H. Burns & H.L.A. Hart (eds.), Oxford: Oxford University Press,
1996.
, 1970, Of Laws in General, H.L.A. Hart (ed.), London: Athlone Press.
Bix, Brian H., 2000, On the Dividing Line Between Natural Law Theory and
Legal Positivism,Notre Dame Law Review, 75: 16131624.
, 2004, Legal Positivism, in The Blackwell Guide to the Philosophy of
Law and Legal Theory, Martin P. Golding & William A. Edmundson (eds.),
Oxford: Blackwell, pp. 2949.
, 2012, Jurisprudence: Theory and Context, 6th ed., London: Sweet &
Maxwell.
Clark, E. C., 1883, Practical Jurisprudence: A Comment on Austin, Cambridge:
Cambridge University Press.

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