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Criticisms of Austin

(1) The document discusses several criticisms of John Austin's theory of law, including that it ignores customs, judge-made law, the relationship between law and morality, and international law. (2) It then examines the applicability of Austin's theory in modern India, noting that India does not have an unlimited sovereign and that lawmaking involves democratic processes and public opinion, not just commands from a sovereign. (3) The concept of unlimited sovereignty is inappropriate for democracies like India where the legislature and judiciary constrain each other and the executive. Austin's view of sovereignty does not capture the complexity of lawmaking in modern democratic systems.

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Naman Mishra
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244 views3 pages

Criticisms of Austin

(1) The document discusses several criticisms of John Austin's theory of law, including that it ignores customs, judge-made law, the relationship between law and morality, and international law. (2) It then examines the applicability of Austin's theory in modern India, noting that India does not have an unlimited sovereign and that lawmaking involves democratic processes and public opinion, not just commands from a sovereign. (3) The concept of unlimited sovereignty is inappropriate for democracies like India where the legislature and judiciary constrain each other and the executive. Austin's view of sovereignty does not capture the complexity of lawmaking in modern democratic systems.

Uploaded by

Naman Mishra
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© © All Rights Reserved
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Criticisms of Austin’s Theory:

(i) Customs ignored: For Austin, law is the command of sovereign. In the early times, not the
command of any superior, but customs regulated the conduct of the people. Even after coming
of State into existence, customs continued to regulate the conduct. Therefore, customs should
also be included in the study of jurisprudence, but he ignored them. Customs have been in
existence since old times. Customs have also been an important source of law. As per Austin,
customs can only be a law if the sovereign accepts them as law, while customs provide the basis
on which the law can be based. Thus, even if the sovereign does not recognise them as law,
customs have always been an important source of law & can’t be ignored.
(ii) Judge-made law: There is no place for judge-made law. In the course of their duty (while
applying precedents & interpreting the law), judges make law. Though an Austinan would say
that judges act under the powers delegated to them by the sovereign, therefore, their acts r the
commands of the sovereign. However, in modern times, judges perform a creative function &
Austin’s definition of law does not include it.
(iii) Command theory untenable: Command presupposes a commander. No indeterminate
party can command, expressly or tacitly or can receive obedience or submission. The question is
whether he can be discovered, who might be regarded as having commanded the whole corpus of
law. In democratic system, it is not possible that one person commands.
(iv) Sanction is not the only means to induce obedience
(v) International Law: Austin put Intl. Law under positive morality along with the law of
honour & law of fashion. The so-called law of nations consists of opinions or sentiments. It,
therefore, is no law properly so called. The main ingredient of law lacking in Intl. Law is
sanction, but this alone will not deprive from being called law. Now-a-days, Intl. Law is playing
an important role &, thus, it can’t be totally negated. Hence, nobody will accept that
International law is not a law. Therefore, according to Austin, a very important branch of law
shall be excluded from the study of jurisprudence.
(vi) Relation of law & morals overlooked: To Austin, law isn’t concerned with morals but this
isn’t correct proposition. Law is not an arbitrary command, but it is a growth of an organic
nature. Moreover, law has not grown as a result of blind forces, but it has been developed
consciously & has been directed towards a definite ends. It isn’t completely devoid of ethical &
moral elements. Any law, which is devoid of ethics or morality, can’t withstand the test of time.

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People don’t accept it whole-heartedly because of it being unethical. Hence, morals have always
been an integral part of law.
(vii) Other Laws ignored: Austin does not cover procedural laws, e.g., Civil Procedure Code,
etc. He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity
Act, etc.
Applicability/ Relevance of Austin’s Theory in Modern India:
(1) We don’t have a legally unlimited or indivisible sovereign. Our constitution is supreme,
though it can be amended, but basic structure can’t be.
(2) Though there is separation of powers, yet sometimes judiciary makes law (Art. 141 –
Vishakha’s case & D.K Basu’s case).
(3) Ordinance making power of the Governor & the President (Art. 123 & 213).
(4) We have quasi-federal system. Though the President has the supreme power, but the same is
exercised by the Prime Minister.
(5) DPSP are not positive law as per Austin. Though DPSP are non-justiciable, yet they r
important as they govern the guidelines for the society. Thus, the principle of ‘is’ & ‘ought’
fails.

Austin’s notion that all laws come from the sovereign may be true theoretically, and
laws in our country (i.e. statue made laws at least) are a result of the act of the politically
superior that is the legislators but the same is not true practically as they are not a reflection of
the will of the superior in the real sense. Though many laws come directly from the parliament,
but they merely reflect the desire of governments to maintain support of the major organized
groups in the country and to meet their interests satisfactorily. Law emanating only from the
sovereign may be fit for a totalitarian regime like Pakistan where the government can use its
monopoly of law making and executive powers for the re shaping of laws in disregard of the
democratic processes, but in a democratic country like India the same is not possible. The
interplay between the public opinion and state action has become very complex these days
whether we are concerned with the abolition of dowry, the creation of legal remedies against
administrative action or the introduction of a new ground of divorce there is always some
interrelation between the state machinery that produces these changes and social opinion of the
community in which they are intended to operate. Public opinion on vital issue is expressed
through the elected representatives in the house, and also through public discussion in press,

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radio, public lectures etc. It can thus be concluded that legislative practices in our country
provide for opportunities to the public to participate in the legislative activities of those to whom
these powers are delegated.

According to Austin sovereign is the person who has the last word in a particular
connection. But the issue is that how can one determine the ‘highest authority’ in a democratic
country like India , to identify the strongest power would involve an investigation of a lot of
legal as well as well extra-legal forces which determine how a state shall operate. Who is the
highest authority, is it the masses who choose the government, is the legislators who finally
make laws, is it the judiciary that has the power to strike down laws made by the parliament, is it
the executive as laws that are enforced are selected by administrators today, what they consider
worthy of implementing is duly enforced other laws are followed more in breach than in
obedience.  Similarly Austin’s concept of unlimited and indivisible sovereignty is quite
inappropriate in the Indian set up or any democracy. The sovereign does not have the power to
command anything that it desires. It is as much bound by rules and regulation embodied in the
constitution and other laws as any common man. Legislature is bound by the constitution and in
almost all cases court has the power to decide whether an act done by the government is
constitutional and hence valid otherwise it can be struck down.

Thus we can say that the notion of sovereignty in India at present certainly not what
Austin would define as sovereignty, the concept of sovereignty is under restraint which is very
justified as the concept of an unlimited illimitable and indivisible sovereignty is a superfluity that
debases the very cannon of Indian Jurisprudence.

Conclusion 

In the forgoing discussion, an attempt had been made to analyse Austin’s notion of sovereignty
vis -a-vis the modern day state. His theory of sovereignty did not seem to be applicable in
modern day democracies. Nevertheless, that in no way undermines the importance of his
excellent work. Austin is regarded as one of the noted jurist of all times as much for his work and
theory of law as for the methodology employed to arrive at his theory.

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