Austins theory of law

There are two main schools of thought in law, analytical and normative. Analytical jurists look at law as it is. What is law? What is the relationship between law and power? Whereas the normative jurists look at law as it ought to be and holds that there must be a relationship between law and morality. John Austin was the founder of the analytical school of thought. There were three main goals of Austin: 1. His first goal was to distinguish the law from values. 2. His second goal was to define the law in such a way that it should be free of values and universally acceptable. This definition must deal with the facts about law. 3. To analyze the law in broad sense and to present the general view of law. Austin defined law as law is the command of sovereign enforced under the threat of sanctions.

Main features of the theory

According to Austin positive law has three main features. 1. Commands. 2. Sovereign 3. Sanction

1.

Command

According to Austin the first feature of law is that it is a type of command. Commands are expressions of desires given by superior to inferior, but there are commands which are laws and which are not. But according to him a command has following elements: 1. A wish 2. A sanction 3. Expression of the wish 4. Generality 5. From a sovereign Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given by the army officers on prade grounds and obeyed by the soldiers.

2.

Sovereign

According to Austin sovereign is any person or body of persons whom a bulk of a political society habitually obeys, who does not himself obey some other person, on positive side this theory says that a sovereign should receive habitual obedience, and on the

negative side it says that this sovereign is not in the habit of obedience to others like him. There is no legal limitation on the power of this sovereign.

Analysis of Austins definition of Sovereign

1. Only a determinate person or body of person can be sovereign. It means that sovereignty cannot belong to the general will or to the public opinion. It belongs to a determinate human being, a definite person or body of person. 2. The power of sovereign is legally unlimited. The laws he makes should be obeyed by all. While he himself does not obey any law. Hence there can be no limits on his power. 3. Sovereignty is indivisible. Sovereignty cannot be divided. John C. Calsoun says that to divide sovereignty is to destroy it. If sovereignty is divided by law between two or more persons or bodies of some persons then one of the two things would happen, either one of them will limit the authority of the other and thus become the real sovereign or any other person in a body of persons who has legally limited the authority of the other become the real sovereign. It means that sovereignty may be formally distributed but cannot be really divide. 4. Source of power. Professor Laski says there are three implications of the definition of the sovereign given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power. 5. Habitual obedience by people. The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the population.

3.

Sanction.

The term sanction is derived from Roman law. According to Salmond sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is a sanction applied by the state in the administration of justice.

CRITICISM
Austin's theory of law has been criticized on many grounds. 1. In a modern complex society Austins sovereignty is difficult to identify: Austins key presumption was that in every society a determinate group or institution can be found has ultimate control over all society. This presumption did not hold in a complex society. 2. According to Historical School, law is prior to and independent of political authority and enforcement. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it. 3. Some have criticized it as a theory of gunman, as it makes no real distinction between a law and the command of a bank-robber who points his gun at the bank clerk and orders him to give him money. 4. According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A Divorce Act is law even if it does not apply to all persons.

5. According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law. 6. According to Austin, law is a command of the sovereign but the great part of a legal system consists of laws which neither command nor forbid things to be done for example right to vote. 7. Sanction is not an essential element of law, as in civil law no such sanction can be found. 8. Austin's definition of law cannot be applied to International law that is to say that International Law is not an imperative law. The International law is not the command of any sovereign, although it is considered to be law by all concerned. 9. Austin's definition of law does not apply to constitutional law which cannot be called commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state.

Conclusion:
Austin did great work. He gave a clear and simple definition of law but his definition has been criticized by the jurists. Some says that all laws are not commands, for example right to vote. I think that it is also a type of command, because it holds that nobody can take this right and if anybody will try to do so, he will be punished. But the sovereignty he wants cannot be found in the modern society.