JOHN AUSTIN’S ANALYTICAL APPROACH TO LAW
John Austin a Prominent and Eminent Jurist made his endless effort to gain a precise and in-depth understanding of the fundamental concepts of Legal reasoning through Analytical Approach. In this significant approach of Jurisprudence the word “Analysis” basically means breaking down a considerable problem into a tiny problem so that it can be solved at an individual level. This Approach of Jurisprudence specifically deals with the law as it actually exist. It treats the law as a command emanating from the Sovereign , namely , the State. This Approach of law is neither concerned with the past nor with the future , it simply consider the law as it actually exist i.e the “Positus”. “Legal Positivism” or “Analytical Positivism” is actually one of the most remarkable Approach in the Jurisprudence.
INTRODUCTION
JOHN AUSTIN (1790-1859)
John Austin the Founder of the Analytical School is also considered as the father of English Jurisprudence. He was one of the greatest Exponent of this Approach. At a very early age he entered in Army where he served for 5 years. He was elevated to the chair of Jurisprudence in the University of London in 1826.
IMPORTANT BOOKS OF AUSTIN
- The province of Jurisprudence determined.
- A plea for the constitution.
- Lectures on Jurisprudence or Philosophy of Positive Law 1863
- On Parliamentary Government
AUSTIN’S WORK
- His significant and meaningful lectures were delivered at London University which were further published under the title “The province of Jurisprudence determined”.
- Through these lectures he focused on the nature of law. He even discussed the sources of law and presented an Analysis of English legal system.
- Later on , he wrote another book “A plea for the Constitution” which was basically an answer to the essay by gray “On Parliamentary Government”.
AUSTIN’S CONCEPTION OF LAW
According to Austin “Law is the Aggregate of rules set by men as politically superior , or sovereign , to men as politically inferior.” In simple terms it means laws are man-made rules by sovereign imposed upon the society that it governs.
SOME OF THE ESSENTIALS ARE
- Sovereign : As per the view of Austin each and every political setup has a Sovereign power , which is undoubtedly obeyed by all the Individuals of the society.
A famous quote by De Lolme : “British Parliament can do anything but make a woman a man and a man a woman”.
- Command : It is a component of Imperative or Command theory which prescribes a course of action imposed by an authority to enforce the superior power either by physical force or any other form of compulsion.
- Duty : Command basically levies a legal duty on those who are politically subject to the commander who is Sovereign.
- Legal Sanction : It is mentioned in this theory that sovereign has enough power with himself/herself to punish or penalize for non-compliance of laws. The penalty or punishment imposed in above situation is only called as Legal Sanction.
AUSTIN’S ANALYTICAL METHOD
The approach which was time and again used by Austin was called as Analytical Approach. He almost confined his study only to the positive law. Therefore the school founded by him has got 3 different names and they all are identical in nature. They are :-
- Analytical
- Positivism
- Analytical Positivism
But some of the people still have objection with these terms. They say that the word “Positivism” was started by Auguste Comte to indicate a particular method of study. Though it was used by other Jurists too. So “Positivism” alone cannot give a complete idea of Austin’s School. In the same manner , the word “Analysis” also did not remain confined to this school. Analytical Positivism created a lot of confusion. To further avoid the confusion and give clarity Professor Allen thought to call Austin’s school as Imperative school. He basically gave this name on the Austin’s concept of law.
AUSTIN’S THEORY UNDER TWO HEADS
- Austin’s conception of law
- His method
Austin defined Law as “ A rule laid down for the guidance of an Intelligent being by another Intelligent being having power over him.”
Law divided into 2 parts :-
- Law of god : The laws which are set by God for Humans.
- Human laws : the laws which are set by Humans for Humans.
Further , Human laws are classified into :-
- Positive law :- The laws which are set and exercised not only by the Political Superiors but also by people who are acting in pursuance of legal right conferred to them by Political Superiors.
- Other laws :- The laws which are neither set and exercised by Political Superiors or by the people who are acting in pursuance of legal right conferred to them by Political Superiors.
AS PER AUSTIN:-
“Law is a command of sovereign backed by sanction”. However not all the Commands are Law , it is only the General Command , which obliges to a Course of Conduct , is termed as Law.
There are specifically three kinds of laws that are not considered as “Commands” but still comes under the purview of Jurisprudence. They are:
- Declaratory or Explanatory laws
- Laws to Repeal laws
- Laws of Imperfect Obligation
AUSTIN’S METHOD OF JURISPRUDENCE
The name of this approach itself indicates this method. Austin considered “Analysis” as the primary instrument of Jurisprudence. He further gave certain key points to people , that law should be studied properly and carefully so that the principle used in it can be Analysed for the research work. This approach proved to be inefficient in modern times because the theory propounded by Austin basically helped in removing the confusion created by certain number of abstract theories which were initially related to scope and method of Jurisprudence.
CRITICISMS OF THEORY
- Customs ignored :- From the time immemorial , customs regulated the conduct of the people. Even after State’s existence , customs continued to regulate the conduct. Therefore customs should be included in the study of jurisprudence , but Austin clearly ignored it.
- Law conferring privileges : The law which is permissive in character and confers only privileges as the wills act is certainly not covered by the Austin’s definition of law. Even the procedural law is Not at all discussed by Austin in his definition.
- Judge-made law :- In Austin’s approach there is no place for judge-made law. In the course of their duty judges mainly apply the precedents and interpret the laws to make an effective law. Basically judges works under specific orbit delegated to them by the sovereign.
- Conventions :- Conventions of the constitution which are not enforceable by court shall not be called as law as per austin’s definition , although that is law and belong to the subject matter of jurisprudence.
- Rules set by private persons :- As per Austin’s view positive law includes rules by private persons in pursuance with the legal right.
- International law :- Austin put international law under positive morality along with the law of honour and law of fashion. The main ingredient which is lacking in international law is sanction but this alone will not deprive it from being called “law”.
- Command theory untenable :- Professor Olivecrona from Sweden had denied the applicability of the idea of command to law. He explained that both the concepts have a different meaning i.e they are not identical in nature. (Command and the Statement or Declaration of a Will)
- It is Artificial :- The view that law is command of the sovereign suggest that if the sovereign is standing just above and apart from the society giving his/her arbitrary commands. This aspect treats law as artificial and ignores its character of spontaneous growth.
- Sanction is not the only means to induce obedience :- According to Austin it is the sanction that induces the man to obey the law. Lord Bryce summed up the motives as indolence , deference , sympathy , fear and reason that induce a man to obey the law.
- Relation of law and morals overlooked :- The science of jurisprudence is concerned with positive law or with the laws that are considered without regard as good or bad. Law is not concerned with the morals but it is a growth of an organic nature. The terms like : right , wrong and duty owe their origin to certain ethical notions. But Austin again overlooked this aspect of law as well.
SALIENT FEATURES OF AUSTIN’S THEORY
- Every law is a species of command.
- All positive laws are command of the sovereign either directly or indirectly.
- Every law prescribes a code of conduct.
- Every law has for its sanction the physical force of the state.
CONCLUSION
Austin’s theory proved as a guide for latter Jurists. Therefore we can say that he made a significant contribution to jurisprudence. His theory was not only practical but logical too. Austin’s theory basically lies in its Simplicity , Consistency and Clarity of Exposition.
Author: Shreya Kaul,
STUDENT AT AMITY UNIVERSITY MP (2020-25)
