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
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.
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.
There are many criticisms of Austin's theory:
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- He overemphasized command which is not applicable in current situation.
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
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
- Banović, D., 2021. About John Austin's Analytical Jurisprudence: The
Empirical-Rationalist Legal Positivism. SSRN Electronic Journal
- Freeman, M. and Mindus, P., 2013. The legacy of John Austin's
jurisprudence. Dordrecht: Springer.
- Hart, H. and Raz, J., 2012. Concept of Law. Oxford: Oxford University