Austin`s goal was to turn law into a true science. To this end, he considered it necessary to purge human law of all moralistic ideas and to define central legal concepts in a strictly empirical manner. The law, according to Austin, is a social fact and reflects the relationships of power and obedience. This dual view that (1) law and morality are separate, and (2) that all man-made (“positive”) laws can be attributed to human legislators, is called legal positivism. Relying heavily on the ideas of Jeremy Bentham, Austin was the first legal thinker to develop a fully developed positivist legal theory. In the above criteria, Austin succeeded in distinguishing law and legal norms from religion, morality, conventions, and habits. However, customary law (except to the extent that the sovereign had directly or indirectly adopted practices such as law), international law and parts of constitutional law were also excluded from the “jurisdiction of jurisprudence”. (These exclusions alone would make Austin`s theory problematic for most modern readers.) Thus, we can conclude from the above information that Austin`s theory cannot be applied in modern Indian political and legal society because it is a very rigid and short-sighted approach to state management and ignorance of the fundamental values of democracy. This chapter highlights some of the difficulties raised by Austin`s theory of a legal system. Section 1 explains how and why the limitability thesis means that Austin`s theory does not explain an important part of constitutional law. Section 2 examines how the condition of personal obedience to the sovereign leads to a condition of existence of a legal system to a distorted picture of the duration of legal systems. The other two sections deal with the failure of the identity criterion. Observation: From the above definition of sovereign, we can conclude that according to John Austin, the sovereign is not accountable to anyone, but the entire empire must follow what the sovereign dictates, which is in stark contrast to the idea of Indian democracy and federalism.
Austin`s theory also mentioned that the powers of the sovereign are indivisible, that is, the sovereign will make laws, the sovereign will execute the laws, and the sovereign will administer only the law. This philosophy is also at odds with the idea of democracy and the Indian federal structure. Legal positivism claims (or assumes) that it is both possible and valuable to have a morally neutral (or “conceptual” – descriptive legal theory – although this is not a term used by Austin). (The main competitor of legal positivism, both in Austin`s time and in our own, was the theory of natural law.) Legal positivism does not deny that moral and political criticism of legal systems is important, but insists that a descriptive or conceptual approach to law is valuable, both in its own words and as a necessary prelude to criticism. Austin`s work had an influence in the decades following his death (Rumble 2005); this influence is partly due to the reformulation of his ideas by other thinkers such as T. E. Holland (Postema 2011: p. 4). E. C. Clark wrote in the late 19th century. Austin`s work “undoubtedly forms a school of English jurists, perhaps also of English legislators.
It is the basic element of jurisprudence in all our systems of legal education” (Clark 1883: pp. 4-5). A similar assessment is made by H.L.A. Hart, who looked back nearly a century later: “A few years after his death it was clear that his work had established the study of law in England” (Hart 1955: p. xvi). As we have seen, Austin`s influence can be seen on a number of levels, including the general level of how legal theory and law in general were taught (Stein 1988: pp. 238-244), and the use of an analytical approach in legal theory. At these levels, Austin`s influence is still felt today. Hart could write that “Austin`s influence on the development of English [jurisprudence] was greater than that of any other writer” (Hart 1955: p. xvi), although Austin`s theory of the special command of law has become almost hostile and is probably better known today of Hart`s use (1958:602-606, 2012:18-25) as a foil for the elaboration of Hart`s own. a more nuanced approach to legal theory.
In recent decades, some theorists have revisited Austin`s command theory (and other work), offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble 1985, see generally Freeman & Mindus 2013). Fourth, Austin`s version of legal positivism, a “theory of the law of command” (described in detail in the next section), also had a great influence for some time. Austin`s theory had similarities to the views of Jeremy Bentham, whose theory could also be called “command theory.” In a posthumously published article, Bentham defined the law as follows: There were theorists before Austin who probably offered views similar to legal positivism, or at least anticipated legal positivism in some way. Among them, Thomas Hobbes with his amoral view of laws as a product of leviathan (Hobbes 1996); David Hume, with his argument for separating “is” and “should” (which has been seen by some as a scathing critique of certain forms of natural law theory, those views that claimed to derive moral truths from statements about human nature, Hume 1739, section 3.1.1, but see Chilovi and Wodak 2021, which raises questions about the relevance of Hume`s views here to the theory of natural law or legal positivism); and Jeremy Bentham with his attacks on judicial legislation and on commentators such as Sir William Blackstone who justified such legislation with justifications similar to natural rights (Bentham 1789). Second, Austin`s work must be seen in a context where most English judges and commentators viewed common law reasoning (the creation or progressive modification of the law through the judicial settlement of certain disputes) as paramount, as an explanation of existing law, as a discovery of the requirements of “reason”, as the unimaginable wisdom of popular “custom.” Such (Anglo-American) theories of common law reasoning are part of a broader tradition of law theory (which had strong roots in continental European thought – for example, the historical jurisprudence of theorists such as Karl Friedrich von Savigny (1975)): the idea that law in general reflected or should reflect customs, “the spirit or manners of the community”. In general, many theorists before Austin could be seen as an example of a more “community-based” approach – a law that stems from societal values or needs, or expresses societal customs or moralities. In contrast, Austin is one of the first and most striking theories that views the law as “empire-oriented” – and views the law as the rules imposed from above from certain authoritative sources (focused on the family tree). More “top-down” legal theories, such as Austin`s, better correspond to the more centralized governments (and modern political theories about government) of modern times (Cotterrell 2003: pp. 21-77).
Another criticism of Austin`s command theory is that a theory that presents the law only in terms of power does not sufficiently distinguish the rules of terror from forms of government, only that they are accepted by their own citizens as legitimate (or at least as reasons for action). From Austin`s critical analysis of sovereignty theory and legal positivism, the author drew the following conclusions and attempted to determine their relevance to modern Indian political and legal society. Austin also included certain “exceptions” in the “province of jurisprudence,” points that did not meet his criteria, but should nevertheless be considered with other “laws aptly called this”: repeal of laws, declarative statutes, and “imperfect laws” — laws that prescribe actions but without sanctions (a concept Austin attributes to “Roman [legal] jurists”) (Austin 1832: Reading I, p. 36). (Some scholars have argued that Austin may have moved from analytical jurisprudence (see below) to something closer to the historical school of jurisprudence; cf. Hamburger 1985: p. 178-91, arguments that Austin`s views have changed significantly, with Rumble opposing this view in 2013.) (Although Austin considered himself a critic of the theory of natural law, a view shared by most legal positivists who followed him, the extent to which the two schools disagree and the place of their disagreement remains a hotly contested issue (e.g., Finnis 2000a, 2000b.)) Thus, from the above facts, we can say that Austin`s theory is somewhat impractical to apply in the modern era of globalization and the influence of international organizations such as the United Nations Security Council (UNSC), the International Monetary Fund (IMF), the United Nations Commission on Human Rights (UNHRC).