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Austin And Analytical School Of Law

[1]Sir John Austin was born on March 3, 1790. He was a European Jurist or an English Legal Theorist born and bought up in London. At the age of 22 he started studying law. Prior to this he served in the army for about five years till 1812. In the year 1826 he was appointed as the first jurisprudence professor at the University of London. In 1832, Austin wrote a book, The Province of Jurisprudence Determined. He was a student of Bentham. He is considered Pioneer of Analytical School of law.

Analytical School of law is basically based on legal positivism. Legal positivism focuses on what law is rather than what law should be. Therefore, this school is known as a positive school. Moreover, this school considers law as command of the authority of the state and hence called imperative school of Jurisprudence. Sir John Austin was considered the Father of Analytical School of law so this school is also called Austinian School of Law. Bentham, Holland, Austin and Salmond are the main jurists in the Analytical School.

Sir.John Austins Theory

[1]John Austin's theory of law is also called by different names as Command Theory, Theory of Sovereignty and Monistic Theory. According to his belief law can be simply understood as command, this command should be given by the sovereign, and there should be some sanctions on it.

In simpler words it can be understood as order by a political superior to a political inferior with some imposed punishment to the politically inferior if the order is not performed by the politically inferior. It can be written in the form of linear equation as:
Austin Theory = Sovereignty + Command + Sanction

When we think of commands, we think of them as the expressions of desire that politically superior people deliver to politically inferior people. Austin separated commands into two categories: particular or occasional commands, which require individual or special acts or forbearance, and general commands, which require acts or forbearance of a given type generally.

Austin classifies law as a law properly so called and law improperly so called. Laws properly so called were again classified as divine law and human law. Human law was again sub divided as positive law and laws set by men not as political superior. The law improperly so called is divided into law by analogy and law by metaphor. Law properly so called is commands form superior to inferior. Law improperly so called is not commands for example, fashion laws.

[2]Sir John Austin focused on "What Law is" rather than "What Law Ought to be". He developed his idea because he thought that although the majority would follow the law, the minority would break it. So, to regulate them Sanctions that is punishment is mandatory. For instance, the Jammu and Kashmir Reorganization Act, 2019, this removed Article 370 of the Indian Constitution and gave Jammu and Kashmir a special status. The majority of people agreed with the law, but there was also significant opposition, which led to the imposition of Section 144.

Criticism
There are many criticisms of Austin's theory:
  1. Austin neglected or discarded the importance of custom. Humans are usually constantly controlled by the customs which they have been following for ages. He overlooks the fact that perhaps the roots of the law are located in the human mind, which takes the form of custom. For example, Article 13 of Constitution of India states that the term 'law' includes 'customs'. The personal laws such as Muslim law and Hindu law are also an example of laws following customs in India.[3]
     
  2. Austin theory does not recognize international law. According to him their laws are based on morality. He thinks so because international laws are not backed by sanctions. He also did not recognize the fact that international laws play a great role in maintaining world peace.
     
  3. Austin's vision of judges does not make law is very unrealistic. In today's time judiciary laws are accepted everywhere across the world. With the changing needs of modern society, there is always a need for judicial law or judge made law because there might be chances that the legislature related to that particular offence is not relevant at that time. This is the place where the judiciary has to step in.
     
  4. His theory was unable to establish a relation between law and morality. Given that justice is a moral notion that has no significance outside of morality, law and morality are tied to one another.
     
  5. People follow law out of respect, will and safety. Sanctions are not always the reason that one follows rules imposed by the superior. For example, one wears a helmet for his own safety. Another example can be that one follows with his will all the traffic rules even when sometimes there are no traffic police because he has respect for the law and for his country.
     
  6. There are various legislations that do not command the people but confer rights. For example, the fundamental rights provided to us by the Constitution of India.
     
  7. He overemphasized command which is not applicable in current situation.

Conclusion
Sir John Austin rightly said that there should be a command by political superior to political inferior and if the latter fails to do so there should be some kind of punishment imposed on him. But he gave prominence to it. In all cases there is not always a need for punishment. For instance, a minor is exempt from punishment.

One must also understand the state in which a person has committed an offence. He was not able to establish any relation between law and morality. It is also important to note that sovereign is not always correct. There should also be a check on sovereign powers, where judiciary and judge made laws play an important role.

End-Notes:
  1. Banović, D., 2021. About John Austin's Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism. SSRN Electronic Journal
  2. Freeman, M. and Mindus, P., 2013. The legacy of John Austin's jurisprudence. Dordrecht: Springer.
  3. Hart, H. and Raz, J., 2012. Concept of Law. Oxford: Oxford University Press.

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