This article on ‘John Austin’s Theory of Positivism: All You Should Know’ was written by Toya Sen, an intern at Legal Upanishad.
The theory of positivism, also known as legal positivism, is considered to be one of the most influential schools of thought in the subject of jurisprudence. The emergence of this theory was first seen in the 18th and 19th centuries and was developed by two well-known philosophers and jurists of the time, John Austin and Jeremy Bentham. Later, this theory was popularised by many influential jurists, like Herbert Lionel Adolphus Hart and Joseph Raz. This article briefly explores John Austin’s Theory of Positivism.
Who is John Austin?
John Austin was a prominent British jurist and philosopher whose writings greatly influenced the definition of law as a whole. This work, ‘The Province of Jurisprudence’ published in 1832, defined law as a ‘species of command’ and sought to differentiate positive law from morality. He is best known for his work on legal positivism, a school of thought within the philosophy of law. Austin’s theory on positivism, particularly his concept of “command theory,” had a significant influence on the development of modern legal philosophy.
Although he had little influence on people during his lifetime, his works received the recognition they deserved after his death.
Theory of Positivism
Austin’s theory of positivism is one of the most important contributions to law. The theory sought to define what law is. He wanted to gain a precise and in-depth understanding of the law and its fundamental concepts, especially those used for legal reasoning.
Austin chose to exclude all factors that might influence the study of law, which includes concepts such as history. This allows a person to completely indulge in gaining access to the first principles of law as they are, without considering whether the law is ‘good’. ‘bad’, or ‘morally worthy.’ This way of interpreting the law is known as reading ‘Law as it is’ or ‘Positum’ also called ‘Positive Law.’
John Austin continued to emphasize that laws are essentially commands issued by those in power rather than being based on ideas of justice and morality. He defined law as a rule given by an authority to guide the behaviour of individuals. His ideas were quite different from the concept of laws being based on what’s right or wrong.
Austin divided the laws into a few categories. Firstly, he separated laws into those set by God (the law of God) and those created by humans (human laws). For him, laws that mainly reflected his own utilitarian beliefs served as the law of God, as he saw them as a principle of utility. When it comes to human laws, Austin further divides them into two categories proper laws and improper laws.
Proper laws are commands that have been issued by a sovereign to their subordinates or laws created by individuals who have specific legal rights granted to them. For example, a guardian’s rights over their ward are proper laws because they come from the authority granting those rights.
On the other hand, improper laws are laws that don’t come from a political sovereign or are not directly related to man-made legal systems. It includes laws or rules such as ‘rules of a club’, ‘rules for fashion’, and, to an extent, international law too. Austin referred to this category as “positive morality.” There’s also a subgroup called “laws by metaphor,” which includes expressions of natural patterns, like scientific laws.
Austin believed that there are four key elements in positivism, or positive law. These are command, duty, sanction, and sovereignty. He states that it is a sovereign who makes a command that imposes a duty, which, if not followed, calls for legal sanction.
Let us understand these features in detail:
- Sovereign: According to Austin, a sovereign is a political body that has the ultimate authority and which the people living in its jurisdiction habitually obey. This superior can either be a single person or a group of individuals. The sovereign is the only source of power and the creator of laws. It has the power to make laws without any legal or “de jure” limits. However, there can be practical or “de facto” limits to its power because the effectiveness of its commands and people’s obedience have territorial limits. The only restrictions on the sovereign’s power are practical limitations. When applied to a real situation, this concept means that laws, whether created by a parliament or a similar body, must be followed by the people, regardless of the nature of the statute.
- Command: The term command is often referred to as the Command Theory or the Imperative Theory of Law. This theory defines law as a rule that sets out a general course of action that has been mandated by an authority that exercises sovereign power. This power may be exercised through physical force or other forms of compulsion.
- Duty: The term duty in this theory represents a legal obligation imposed on the people who are subjected to the authority or sovereign. Every command that has been given by a sovereign creates a legal duty for the individual.
- Legal Sanction: A legal sanction refers to the power the sovereign has to punish and penalize individuals for not complying with the laws. The fear of facing legal sanctions, as a negative consequence of disobedience, serves as the primary motivation for people to follow the law and is an essential part of the theory.
In essence, Austin’s main focus was on comprehending laws as commands that are issued by a sovereign authority, rather than being based on moral or ethical principles. He believed that the study of jurisprudence should primarily concern itself with these positive laws and their origins in a clear, determinable law-giver, such as a sovereign or governing body within a political society.
- Austin’s view of the sovereign being the creator of laws ignores the fact that the very foundation of laws lies in the common consciousness of the people and is manifested in customs. One of the major sources of laws are customs developed in varied cultures around the world, and this theory overlooks customary law as a whole. Personal laws such as the Hindu laws or the Muslim laws existed long before the sovereign came into existence.
- The legal character of a law is evident when it is applied by a court of law in the administration of justice. Legal sanctions, although created by the “sovereign,” are only used through the courts. However, courts may sometimes misinterpret a statute or reject a custom. During this process, the court often establishes precedents or case laws that are strictly followed in future cases.
- Austin’s theory does not apply to constitutional law. The sovereign, no matter how powerful it is, will always come under and be subjected to making laws as per the basic structure of the constitution. The command of the Constitution and a sovereign cannot have equal standing because the Constitution is the highest law of the land and it comes before the state.
- The definition mainly applies to a monarchical police state that creates laws and has the authority to harm those who do not comply. In modern times, there are laws and rights for citizens that empower and enable them. Hence, they cannot be considered commands in their true sense. For example, the right to vote or not.
- The most important criticism of this theory lies in the definition of law itself. Law, first and foremost, is a tool used to achieve justice. Any definition that fails to acknowledge that the end of the law is justice is considered incomplete.
In summary, John Austin’s theory of legal positivism, particularly his command theory of law, focused on the idea that laws are commands issued by a sovereign authority and that their validity is determined solely by their source and the presence of sanctions, without regard for their moral content. While his theory has been subject to criticism, it played a foundational role in the development of legal philosophy in the 19th and 20th centuries.
- “Summary of John Austin’s Legal Positivism”, Brandeis University, available at: https://people.brandeis.edu/~teuber/Summary_of_John_Austin_s_Legal_Positivism.pdf
- Kavya Gupta, “John Austin’s Analytical Approach to Positive Law: Explanation, Appreciation and Criticism”, IPleaders Blog, 31 May 2019, available at: https://blog.ipleaders.in/john-austins-analytical-approach-positive-law/