ABOUT HIS LIFE
Philosopher John Austin was born in the year 1790 to Jonathan and Anne Austin. Acknowledged as the ‘Father of English Jurisprudence’, he was a notable legal theorist who influenced the British and American Legal structure with his analytical approach to Jurisprudence and his theory of legal positivism. Although his work got recognition only after his death.
He also tried everything from joining the army to appearing in the Bar and practicing as a lawyer and also juggled between a few other government jobs. Later, in his life, he mostly depended on his wife’s income who was a writer and a translator.
One of Austin’s most significant works is “The Province of Determined Jurisprudence,” which was published in 1832, and was only acknowledged after his death when his wife republished it. In it, he gave his much-criticized “command theory”.
BACKGROUND OF The COMMAND THEORY
Austin confined his study only to the analytical school of law and was never in favor of the traditional approach of the Natural School of Law and argued that there was no necessary link between law and morality and he was not alone. This concept of law and morality is very well explained in the Hart and Fuller debate which explains the divide that exists between natural law and positive with the regard to law and morality. Austin applied Plato’s deduction strategy and was attempting to find the true essence of the law.
AUSTIN’S COMMAND THEORY
According to John Austin, a command is a law given by a sovereign (superior) which should be followed by everyone. People who did not show obedience to the sovereign were subjected to sanctions. ‘Sovereign’ according to Austin could be a person such as a king or the body of persons such as the parliament. ‘Command’ and ‘Sanctions’ played a very crucial role in Austin’s theory. In his book, Austin is promoting a command theory i.e., “A law is a command which obliges a person or persons and obliges generally to acts or forbearances of a class” or a “course of a conflict” (pg. 24). A command, furthermore, always “express[es] or initmat[es] of the wish being presented” by a superior to his inferiors — it, in other words, demands a theory of sovereignty, or of legal personality (pg. 24). This wish of the superior (sovereign) has a more raw notion of domination that the power affecting others with evil or pain and of forcing them to fashion their conduct to one’s wishes. If a person or persons showed non-compliance towards the wishes of the superior then they were being penalized.
According to Austin, the ‘political superior’ should be clearly identifiable and his powers are absolute and unlimited. The political superior could not be legally limited and therefore, the superior was not subject to the constitution. He also gave the concept of ‘habitual obedience’ by which he meant that all the subordinates should habitually obey the superior.
CRITICISMS OF AUSTIN’S COMMAND THEORY
This theory has been criticized by a lot of scholars and jurists and the primary criticisms came from Prof. H. L.A. Hart and Hans Kelson. According to Prof. Hart, if the power of the sovereign is absolute then eventually there will be a revolution. Therefore, Austin’s theory is not feasible and practicable.
The command theory received its fair- share of criticisms due to a lot of factors. The theory lacked the reasoning and practicality which was not fit for the free world. His army life could be a reason for strict discipline and command which is very apparent in his concept of law.
I will be discussing the criticisms that were given by Prof. H. L. A. Hart and Hans Kelson in my upcoming article.
Austin, John. 2000 . The Province of Jurisprudence Determined. Amherst, NY: Prometheus.