AUSTIN AND LEGAL POSITIVISUM
Austin is very famous due to his best views related to positive law and due to his “Legal
positivism” theory and often called the “command theory of law” because the concept of
command lies at is essential: law is the command of the sovereign, backed by a threat of
sanction in the event of non-compliance. Legality, on this account, is determined by the source
of a norm, not the merits of its substance (i.e. it embodies a moral rule).
Austin’s legal positivism theory
Start of theory the by his definition:
“If a determinant human superior, not in a habit of obedience to a like superior, commands,
habitual obedience from a bulk of a society, such a society is politically organized and
independent”
If we explain his definition then we come with attributes and main focus of Austin theory which
are mentioned as following:
1. General law is command
2. Sovereign is the main source of law
3. Sanction is must to enforce law.
4. Separation between law and morals
The key terms of Austin theory are explain as following:
Sovereign:
According to Austin a sovereign is any person or a body of person who is supreme in authority
and to whom the bulk of political society habitually obeys. On the positive side, this
determinate superior should receive habitual obedience, but on the negative side, this superior
is not in the habit of obedience to others like him. The command from the sovereign authority
must be obeyed by majority of the people. Perfect obedience of the people is not required to
make it a law. E.g. terrorist do not obey the law. The sovereign authority must be a political
authority, it can be king, parliament etc.
Three main characteristics of Austin’s Sovereign:
✓ Unlimited powers – must be habitually obeyed by the bulk of society; not habitually
obey anyone else; not bind itself by law means sovereign power is legally unlimited.
✓ Continuous – institution of the sovereign continues.
✓ Indivisible – not possible to obey to more than one sovereign and therefore obey a
individual sovereign authority; rare cases can have joint sovereign
Command:
Law is command and it is compulsory. It is imperative to follow it. The commands are from
superior to inferior and citizens have to follow it and obey it and according to Austin if inferior
have the choice, then such the law is not a law and that is the reason imperative law is the law
of the land. Positivism regards law as the expression of the will of the state through the medium
of legislature.
Commands are of two types:
1. General command: Is the first one and issue for whole community.
2. Particular command: The second one is given to particular command which is given to
the particular community or to individual alone.
Only the general commands are considered as the laws.
According to this theory, all laws should be in a general nature of command and command is
different from the request because it is mandatory if it is come from supreme authority of the
state and if we don’t fulfill the request than it never led to penalties and punishments as in the
case with commands because whenever a duty lies, a command has been signified and
wherever a command is signified, a duty is than imposed. And only a command not become a
law until it come from sovereign like a command from robber to rob and from a professor is
not a law because they are not supreme political authority but a command is law if they can
originate from other bodies to which the sovereign bestows the power to make law e.g. the
courts, administrations, international organizations etc.
Sanction:
Sanction is actually means evil and punishment attached to a command which become a law
example: fines, imprisonment, compensations etc and Austin use the word sanction in a legal
term. According to Austin sanction is important for the enforcement of law and peoples never
commit any offence which is against the law because the sanction denotes the fear that there is
a punishment in the case of disobedience of law by anyone. And according to Austin the whole
of law will have to be excluded from the scope of positive law if there is no sanction with it
and for Austin if there is no sanction behind any law than it is positive morality.
MERITS AND DISMEREITS OF AUSTIN THEORY
MERITS
Simplicity
The influence of Austin’s theory was great due to its simplicity, consistency and clarity.
Separation of moral and law
Austin theory of positive law separate laws from morals and in early time laws are confused
with religion.
Enforcement of law
He clearly say the sanction is the way to enforce the law. Laws are the command from sovereign
and do depend greatly upon the sanction for its enforcement.
His theory has an important and universal truth. Law is created by the State sovereign power.
CRITICISM
Sovereignty
Austin notion of sovereignty is not well considered now in many countries because now the
sovereignty is divided into three organs of the state: the legislature, executive and judiciary.
Sanction
Sanction is not the only way to enforce the law, there are many other considerations like fear,
sympathy, reasons, and respect which encourage a person to obey the law. Forced and punishment
is the last option.
Judge made law (precedent)
If the law is the command from the sovereign than judge made law (precedent) is not considered
as a law, so there is no place for precedents according to Austin theory.
Theory conflicts with other laws
The theory of the Austin conflicts with other ordinary terms of law. Like customary law,
international law and constitutional law is not the considered as a law according to Austinian
definition because there are not a command from sovereign.
Customs
Theory of the Austin ignore the customs. As sometime laws are based on religions example in
Pakistan and India, muslin and Hindus laws are based on religion.
Disregards the moral and ethical elements
According to Salmond the imperative theory neglect the moral and ethical elements in the law.
According to Austin unjust law is the law. This is wrong because the aim of law is justice.
