Jurisprudence : John Austin's Command Theory of Law

Q. Discuss Austin's Command theory of Law. (20 Marks - 2021)
Q. Discuss the Command theory of Law given by John Austin. (20 Marks - 2019)
Q. Discuss the command theory of Law given by John Austin. Is this theory suitable for Indian legal system? (20 Marks - 2018)

Austin's Command Theory of Law
John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London. According to Austin, there are two kinds of law: 
(a) Law of God - Laws set by God for men
(b) Human Laws - Laws set by men for men.

Human laws are further divided into two categories
(1) Positive Law : These are the laws set by political superiors as such or by men not acting as political superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject matter of jurisprudence.

(2) Other laws : Those laws which are not set by political superiors (set by persons who are not acting in the capacity or character of political superiors) or by men in pursuance of legal rights.

Austin further elaborated these as follows:
(1) Laws properly so called : are those laws which are commands. Divine laws or the laws of the God, which are set by God to his human creature are the laws properly so called.
(2) Laws improperly so called : are those laws which are not command. Eg. Laws by analogy as laws of fashion, laws by metaphor i.e. laws of gravity.

Human laws : These are those laws which are not set by men as political superior or in pursuance of a legal right Eg. positive morality - Positive moral rules, International law.

Positive law is the subject matter of jurisprudence : Austin says that only positive law is the proper subject matter of jurisprudence - law simply and strictly so called or law set by political superiors to political inferiors. Jurisprudence is the general science of positive law.

Law is Command :
Austin defined law as the command of the sovereign. According to Austin, the law is the command of the sovereign imposing a duty which is enforceable by sanction. The study and analysis of positive law are based upon the law which is strictly applied by political superiors to political inferiors.

Law as a "rule laid down for the guidance of an intelligent being having power over him. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands.

The basic features of Command theory are:
• Command (by political superiors).
• Duty (imposing duty on political inferiors).
• Sanction.
• Sovereignty.

Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. The key to a law properly so called lies in obligation. Every wish with regard to conduct is favourable to conduct which is desired and unfavourable to the conduct which is not desired. Such wishes may emanate from directions or from general opinion, but wishes which are directives are distinguishable in that they render conduct obligatory. General opinion cannot create obligations. Every Directive then is a command; the threat of evil is a sanction and the party commanded and threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obligation.
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All India Bar Examination (AIBE) - Solved Questions

All India Bar Examination
All India Bar Examination (AIBE) is the gateway to advocacy. The law graduates who are looking forward to become lawyers have to get through this examination. The AIBE is conducted by the Bar Council of India. The AIBE is scheduled once in a year. This is an all India level qualifying examination. To pass the examination, one has to score 40% of marks. Which means this is not a competitive examination where the students have to compete with each other for getting a rank.  

Question pattern of All India Bar Examination
The AIBE examination question paper consists of 100 multiple choice question (MCQ). Syllabus of AIBE covers mainly the Constitution of India, CPC, CrPC, IPC, Advocates Act including all other acts in general. There are scenario based questions which are to be comprehended before answering to avoid mistakes.

AIBE Previous years question papers

AIBE 15 - Jan 2021 - Set A - Previous year solved question paper

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Jurisprudence : Savigny's Volksgeist Theory and its Criticism

Q. Explain Savigny's Volkgeist theory (20 marks - 2019)
Q. What do you understand by Savigny's 'Volksgeist theory of law'? Also give its criticism in details. (20 marks - 2018)

Savigny's Volksgeist Theory of Jurisprudence

Fredrich Karl Von Savigny is the founder of the Historical School of Jurisprudence. He has propounded the Volksgeist theory of jurisprudence. The word Volksgeist  means general consciousness or common will of people. 

Volksgeist means the law is a common will or perception of the people. It origins from the spirit of the people. The thought process of Savigny's Volksgeist theory was that law is an expression of the will of the people and it doesn’t come from the deliberate legislation. It develops as the consciousness of the nation builds up.
 
The theory of Savigny is discussed in detail bellow
 
1. Source of law is Volksgeist: According to the Savigny, the law is the product of the people’s life living in a society. It is the derivative of a culture of the society.  The Volksgeist gradually drives the law to develop over the course of history. Thus, according to Savigny, a thorough understanding of the history of people/society is necessary for studying the law accurately.
 
2. Law develops like a language: As per Savigny, law develops like a language. He said that law is a national character and develops like a language in the nation, which not only binds people with belief and opinion in a group but also grows with the development of the nation. 
 
3. Initially the development of law is natural, later on, it is developed  by jurists: Savigny's theory stated that in the early stages law develops of its own according to the needs of the people. When the nation reaches to a certain level of civilization, different kind of national activity drive the development of the law accordingly.

4. Law is a regular and continuous process:  Law is a continuous and unbreakable process bound by the common culture and beliefs of society. Customs and usages in society are given common consent to be followed by the society in the beginning. People follow them willingly, finally, with the acceptance of the entire nation the customs and usage take the shape of law on the society.
 
5. Opinion of Savigny on codification of law: Savigny did not supported the codification of the law. According to him development of the law should be on the basis of historical knowledge and not by the arbitral legislation.

6. Savigny's admiration for roman Law: While emphasizing Volksgeist as the essence  of law, Savigny justified adoption of Roman law as the texture of German law which was more or less diffused in it. He therefore located Volksgeist in the Romanized German customary law.

Criticism of Savigny's Volksgeist Theory

1. The Theory is inconsistent: On the one hand Savigny asserted that the origin of law is in the popular conscious and on the other hand he vouched for the inclusion of some of the Roman laws making it a mix of Roman and German law.

2.   Volksgeist is not the exclusive source of law: As mentioned above, apart from the local peoples will, it also includes Roman law as it's source.

3. Customs not always based on the popular consciousness: The critics of the theory suggest that customs may always not be the Volksgeist in true meaning of the term. There are example of customs which were inttially imposed upon the people by the high and mighty of the society.

4. Savigny ignored other factors that influence law: Growth of the law does not necessarily depends upon the Volksgeist alone. Savigny missed those other points which might have fueled the development of the law.
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Jurisprudence : Meaning, Definition, Nature and Importance - LLB Solved Question

Meaning, Definition, Nature and Importance of Jurisprudence

Meaning of Jurisprudence

The English word Jurisprudence has been taken from a Latin word Jurisprudentia. Juris means law and prudentia means knowledge. So the term Jurisprudence literally means knowledge of law. 

Different jurists have given different definition of Jurisprudence according to the prevailing socio-political and economic conditions of their respective countries. Some of the prominent definitions are discussed below:

1. Holland: According to the prominent jurist Holland, "Jurisprudence is the formal science of positive law". This definition of Holland covers two important aspects of law, according to him it is  formal science and it is positive.

According to Holland jurisprudence is formal because it concerns itself with basic ideas and principles of the system of law rather than with laws themselves. A systematic study and formulated knowledge is called science. Jurisprudence deals with systematic study of the ideas, principles and concepts underlying various systems of law in the form of a systematic branch of learning. So it is a formal science.

According to Holland, positive law is a general rule of external human action enforced by a sovereign political aut5hority. In this respect Holland agree with Austin who says "The subject matter of Jurisprudence is positive law". 

2. Salmond: Salmond has defined jurisprudence in two different senses -  wider or generic sense and narrow or specific sense.

(i) Jurisprudence in wider sense: "Jurisprudence in wider sense means the science of civil law". Salmond says that in a generic and primary sense jurisprudence includes the entire body of legal doctrines.

(ii) Jurisprudence in narrow sense: In this sense, according to Salmond, it includes a specific study of such doctrine. It is more practical and specific study of the department of law.

3. Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law". By the term 'Positive Law" he means "jus positivum", law laid down by a political superior for commanding obedience from the subjects.

4. According to Dr. Allen, "Jurisprudence is the scientific synthesis of the essential principles of law".

5. According to Paton, "Jurisprudence is a particular method of the study not of the law of one particular country but of the general notions of the law itself".

Nature of Jurisprudence

Jurisprudence is a growing and dynamic subject having no limitation on itself. Every jurist does his not limit his study on the rules made but tries to understand their utility after due deliberation. Most of the jurists opine that the nature of Jurisprudence is that of a science. The reason for this is that as in science we draw conclusions after making systematic study by inventing new methods, Jurisprudence draws conclusions after systematic and scientific study of principles of law.

Importance of Jurisprudence [2018 - 4 marks]

1. Salmond has emphasized the importance of jurisprudence in terms of its own intrinsic interest like any other subject of serious scholarship. 

2. Jurisprudence has its practical value. It seeks to rationalise the concept of law which enables us to solve the different problems involving practical intricacies of law.

3. Jurisprudence has great educational value. the logical analysis of legal concepts widens the outlook of the lawyers and sharpens their logical techniques. 

4. Holland emphasises the importance of Jurisprudence as "the ever renewed complexity of human relations calls for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible".

5. Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the legislature by providing the rule of interpretation.

6. The study of Jurisprudence helps in rationalising the thinking of the students and prepares them for an upright civil life. 

7. Jurisprudence is immensely helpful to the legislators in the process of their law making by providing the technicalities of law and legal precepts.

8. According to Austin, the study of jurisprudence enables a person to acquire the principles of English Jurisprudence specially and accurately.

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Important Question

Q. Define Jurisprudence. Discuss it's nature and importance [2021, 2019, 2018 - 20 marks]

Q. Short note on importance of Jurisprudence [2018 - 4 marks]

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