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.