Austinian concept of Law/Austin’s concept of Positive Law

Austinian Concept of Law

Austin defined law as ‘a rule laid down for the guidance of an intelligent being by an intelligent being having power over him’. Positive law, according to him, consists of commands, set as rules of conduct, by a sovereign member or members of the independent political society wherein the author of law is supreme. Every law, properly so called, must have three elements of command, sanction and sovereign.

A ‘command’ is an expression of a wish by a determinate person, or body of persons, that another person shall do or forbear from doing some act subject to an evil in the event of disobedience. The evil which will probably be incurred in case a command be disobeyed is called a ‘sanction’. Thus, the command is said to be sanctioned or enforced by the chance of incurring the evil… So every law is a command, imposing a duty, enforced by a sanction. If a law held out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed upon those who shall act accordingly. Thus, it is only by the chance of incurring evil, that one is obliged to compliance.

Austin’s notion of sovereign is ‘if a determinate human superior not in a habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is ‘sovereign’ in that society’. The basis of sovereignty is thus the fact of obedience. The sovereign’s power is unlimited and indivisible (no division of authority). The sovereign is not bound by any legal limitation or by his own laws.

Austin’s definition of law as the “command of the sovereign” suggests that only the legal systems of the civilized societies can become the proper subject-matter of jurisprudence because it is possible only in such societies that the sovereign can enforce his commands with an effective machinery of administration. Austin’s definition ignores customs.

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Critics of Austin say that a theory of defining law in terms of ‘command’, ‘sovereignty’, and ‘sanctions’ alone cannot provide an adequate analysis of the ordinary standard type of legal system. Austin’s insistence on sanctions as a mark of law conceals and distorts the real character and function of law in a community.

Sanctions is not the only means to induce obedience. Law is obeyed because of its acceptance by the community. Further, customs and conventions of the Constitution, though not enforceable by law, regulates the conduct of the people and the State. Still further, judicial decisions (i.e. precedents) become binding laws, while nobody has commanded these. Law do not always commands, but confers privileges also e.g. right to make a will.

In modern times, law is nothing but the general will of the people, therefore, law cannot be said to be a mere command of the sovereign. The sovereign cannot stand above and apart from the community giving arbitrary commands, as State itself is a sovereign. The view that ‘law is the command of sovereign’, treats law as artificial and ignores its character of spontaneous growth. Duguit asserted that the notion of command is inapplicable to modern social/welfare legislations, which do not command people but confer benefits; and which binds the State itself rather than the individual.

According to Hart, the Austinian formula does designate one necessary condition i.e. where the laws impose obligations or duties, these should be ‘generally obeyed’. But, though essential, this accounts only for the ‘end product’ of the legal system. The cumulative evidence against Austin should not, however, obscure the fact that law does consist of prescriptions of conduct which are usually phrased in imperative form.

Locating Austin’s sovereign in India

In a democratic country, like India, it is very difficult to locate a single determinate sovereign who might be regarded as possessing unlimited and absolute power to make law.

(i) The Parliament has unlimited and absolute power to amend the Constitution. But the limitation was imposed by the judiciary in Keshavanand Bharati v State of Kerala (AIR 1973 SC 1416) wherein it was held that the Parliament cannot amend any provision of the Constitution which violates the ‘basic structure’ of the Constitution.

(ii) According to Austin, there is no division of power of sovereign. But in India, there is a sharp division of powers between  legislatures (Union and State); and there are certain provisions in the Indian Constitution wherein even the executive and the judiciary can make laws. For example, ordinance-making power of the President/Governor, the laws made/declared by the Supreme Court to be binding on all courts throughout the country, etc.

(iii) Austin’s theory could be applied to the British Parliament which is supreme (there is no division of power in England into different organs of State i.e. legislature, executive and judiciary). However, Austin’s notion that sovereignty is indivisible is falsified by federal Constitutions e.g. India, USA, etc. In a federation, legislative power is divided between the Union and the member States.

(iv) In ancient India, there was no concept of sovereignty in the sense as it is understood today. Sovereignty under ancient Hindu law lay finally with God but was delegated to the king and to the people.

Austin and Kelsen’s theories compared

Kelsen’s pure theory of law owes to Austin’s theory. However, the two differ in many respects:

(1) For Austin law is a command of the sovereign. Kelsen no doubt requires a sanction as much as Austin does. But for him law is not the command of a personal sovereign but a hypothetical judgement which visits with a sanction for the non-observance of the conduct prescribed.

(2) In the Austinian sense, a sanction has a moral or psychological basis;

the motivation by fear makes people to submit to law. Kelsen rejected the idea of command, because it introduces a psychological element into a theory of law which should, in his view, be ‘pure’. In the Keisenian sense, coercive act means forcible deprivation of liberty. There is no idea of fear involved, because the norms prescribe.

(3) Although sanction is an essential element of his law, validity a rule has nothing to do with its sanction. In the Austinian sense, the sanction was something outside a law imparting validity to it. While, according to Kelsen, a sanction is in-built in every legal norm.

(4) Austin’s theory denies to ‘custom’ the character of law as it has not been created by the sovereign. Kelsen, however, is able to accomodate custom within his concept of law viz. popular practice may generate legal norms.

Question:- Austin’s concept of Positive Law consists of commands by the sovereign which is inseparably connected with sanction. Compare Austin’s theory with Kelsen’s pure theory of law.

Critically discuss that ‘Law is the Command of Sovereign’. How would you locate Austin’s sovereign in India.

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