Jurisprudence presentation on Austin's theory.

1. Austin's Theory of Analytical
Positivism
A Jurisprudence Presentation
Submitted by
Aakriti Sood (Roll no. 55)
Aarohi Mikkilineni (Roll no 142)

2. Positivism
Prof HLA Hart`s five fold meaning of Positivism
1. Law is the command of Human Beings
2. Law is as it is
3. Law is not to be derived from nor there is to be any
relationship between law and other enquiries (sociology,
history, etc.)
4. Legal system is a closed logical system (no external
aspects can be allowed to be considered in law)
Example: A.K.Gopalan v. State of Madras
5. Law is a matter of fact and it can be defended or justified
unlike moral statements.
Example: Capital punishment .

3. Characteristics of Positivism
• Certainty and Predictability of Law
• Scientific Study of Legal System
• Definite and Verifiable Source
• Sanction
• Bindingness emanates from State
• Distinction between Law as it is and Law
ought to be.
• Law can only be studied with the help of logic.

4. John Austin
• Born in 1790 and joined the Army and served
as an Army officer for 5 years until 1812.
• Also a Professor of Law
• Impressed by Scientific Treatment of Roman
Law and used the same in England
• Avoided Metaphysical approach to Law
• Strict discipline and command of army life was
reflected in the Austinian concept of Law.

5. Austins Definition of Law
John Austin defined law as
- “ a rule laid down for the guidance of an
intelligent being by an intelligent being having
power over him”.

6. Classification of Law
Classification of
Law
Law set by God to
men called as “LAW
OF GOD”
Laws set by Men to
Men called as
“HUMAN LAWS”
Laws properly so
called
Laws set by Politcial
superior to Political
subordinates. Eg.
Statues
Laws set by
subjects as Private
Persons.
Law improperly so
called.
Rules which are not
set directly by a
political Superior.

7. Positive Laws
For distinguishing Laws properly so called from
Laws improperly so called, Austin gave four
Characteristics of Laws properly so called:
• Command
• Sanction
• Duty
• Sovereignty
- Every positive law or every law simply and strictly
so called said by a sovereign or a sovereign body of
persons wherein that person or body is Supreme.

8. Positive Laws (contd)
• Command- Law is in a form of order issued by
a superior to an inferior and not a wish, desire
or request. There is no option or choice to
obey it.
• Sanction- If law is not obeyed, there is the fear
of punishment.
• Duty- Person to whom the order is given has a
legal duty to obey it. In case of disobedience
punishment is given.

9. Sovereignty
- “if a determinate human superior, not in the 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 which includes the superior
(society is political and independent).
- Sovereign may be an individual or a body or aggregate of
individuals.
- 2 types of sovereignty:
Positive- Sovereign receives habitual obedience from the bulk
of a society
Negative- Sovereign is not in the habit of obedience to a like
superior.

10. Attributes of Sovereignty
• Sovereign power is legally unlimited: no limitation or
restriction on the Law making power of Sovereign
• Sovereign Power is Indivisible: There can only be one
Sovereign and all powers should be vested in one
single hand be it Legislative, Executive or Judicial
Powers.
• Sovereign is not Subordinate: Sovereign is in the habit
of receiving obedience and not in the habit of obeying
someone.
• Continuous: The office of Sovereign is Continuous.

11. Exceptions to Command
Austin accepts 3 kinds of laws , which though
not commands can be included within the
purview of Jurisprudence by way of exception
• Declaratory Laws: passed only to explain the
laws which are already in force.
• Laws of Repeal: Revocation of a command
• Laws of imperfect obligation: Not treated as
commands because they lack Sanction.

12. Criticism
• Sanction alone is not the means to induce the
obedience. There are other considerations also
like fear, deterrence, sympathy, reasons, etc.,
which induce a person to obey law. Force is the
last resort.
• No place for Judge made laws especially English
law which has been created by Judicial Decisions
• Customs overlooked
• Command overemphasized
• Failed to consider that Laws can be power
conferring also.

13. Thank you