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austin theory of law pdf analytical positivism jurisprudence pdf
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BISSMILALLAH KI BARKAT
John Austin is titled as the the father of the English Jurisprudence and analytical
school , he accomplished his law degree in 1818 and by this year 1826 he was
appointed as chair of jurisprudence in the university of London later on in 1832
his lectures were published under title of “Province of Jurisprudence
Determined”
Austin was applied the analytical method and he confined his study only to
positive law which is how the law actually exists or law as it is, according to him
the matter of jurisprudence is ‘positive law’ which is law set by political superior
for the political inferior(law simply and strictly so called).
The general definition of law is that it’s a rule which is laid down for the guidance
of a person and it obliges a person or person to do a specific conduct and it is
enforced y a politically sovereign person and it is enforceable by sanction.
Law can be law if it passes two stages as per Austin theory….
Law has to go 1st through 2 loops/jumps
First they have to be come in the ambit of being called
Moral law, properly so-called, it is a command proceeding from a determinate
source and having a sanction and an obligation, yet not positive law, because not
proceeding from a sovereign.
(sancation from father is law properly but not strickly
From God is proper but not strick
But if come from political superior its properly stickly (England its queen and
parliament)
However, according to Austin for a law to be properly so-called it has to be
command and command is considered as an expression which a law or any form
of order is issued by a political superior for an political inferiois that what one
shall forebear from doing or shall do, commond can be differenciated from other
,signification of desire not by the fashion in which that desire is signified but the
power and purpose of the party commanding to inflict an evil or ounishment in
the acse the desire is not fulfilled or being disregared.’
For Austin the most imp question is not ‘what law should be ‘law is ‘,law consist of
body of rules which are called ‘commands’ ,commands are definite and objective
As there is no command in the phrase that ‘if I don’t comply or fulfill yur wish in
that case you will not harm me?’ here the presence of word ‘wish’ is not an
command although its an imperitive phrase. But in a case where its stated that I
will harm you if you don’t comply with my wishes and you will be laible for it here
the word wish is attached with liability so its amounts to command. The
(laible)sancation here is an evil and the use of word command shows tht durty is
implied.Commnd can be considered a kind of desire but it only distinguidhed from
other signification of desire because it has certain particularity in it which is
attechmnet of a sanction with a desire. Which will make person being laible to an
evil if he don’t comply with the wish person signifies , therefore he is bound and
obligated to it. Or a person lies under a duty to obey it
Duty and command as considered as correlative terms as person is bound or
obligated to comply with the command which his superior signigfies or we can
also term this as he lies under a duty to obey his superior In case of disobedience
must be punished.
As disobedience leads to sanction which is a penalty here is fear of punishment. It
is considered as the sole of positive law. According to Salmond "Sanction is
the instrument of coercion by which any system of imperative law is
enforced. However Sanction isn't analogous to fear – sanction is the
slightest threat of the slightest evil, means if a person imply fails to comly
with the terms of the contract which resulted in nullity of the contract is
suuficint for purposes of sanctionor to hold him laible
According to the views of Austin the proper law or law properly so called means
positive law which is “the aggregate of rules set by man as politically superior to
men as politically inferior subjects”.
, When it come soverign, it a body or a person who has the supereme authority or
power over all the others and he recives habitual obedience from the subject
(bulk of political society)and have the power to inflict others with pain/evil but
doesnot habitually obedience any other person or institution
the term superiority signifies might: the power of affecting others with evil or
pain, and of forcing them, through fear of that evil, to fashion their conduct to
one’s wishes
according to Austin theory law is divided into two main categrories
divine law and human law
the divine law has a transcendent source.more inflexible, absolute
and superior to man-made laws..
Moral law, improperly so-called, is that set by the opinions and sentiments of an
indeterminate public. The difference between positive law and moral law
properly so-called depends then simply upon whether or not the rules are set by a
sovereign
((((According to Austin The might or superiority of god is absolute but in many
senarious od human the relation between superior and inferior and inferior and
superior are used resiprocally as monarch is the superioirs but the mass
population is also superiousr of monarch as (here come the debate that we are
the true superioir the public but we sleep in slumber )
The 2nd stage of Austin teory of law ‘strictly’ so called
1. The positive law of or law strickly so called can be established by monarch
sovereign bodies, as supreme political superiors
2. by men in a state of subjection, as subordinate political superiors:
3. by subjects as private persons, in pursuance of legal rights
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