A USTIN

Observations on his method of approach:

a. To analyze the concepts of law in the light of a definition of law is to follow the a
priori method contemporary natural law philosophers sought to explain society on
supposition that it originated in a primeval social contract; Austin sought to depict
the logical coherence of the system on the supposition that it originated in sovereign
commands.

b. Austin did not reveal the steps by which he aimed at his concept of law. He simply
made certain propositions and applied them logically. By concealing as it were, the
way in which his concept was evolved, he concealed the most interesting part of the
whole analysis. It is more important to probe and test the reasoning by which he
constructed the concept than to follow out his subsequent application of it, for the
latter will only reflect what was put into the former.

c. Austin’s material was English law, with at most a little roman law thrown in the
concept which he fashioned from them should have been utilized only within those
limits. Unfortunately he applied it outside that field, and that was destined to
provoke controversy.

THE AUSTINIAN CONCEPT OF LAW

“Law” in its most comprehensive signification was defined as a rule laid down for the
guidance of an intelligent being by an intelligent being having power over him. Law was
sub-divisible into two categories, “laws properly so-called” and “laws improperly so-called”.
The former were described as “general commands”. A command was the expression of a
wish by a determinate person, or body of persons, that another person shall or forbear from
doing some act subject to an evil in the event of the community, and they enjoin, not single
action but types and species of actions. It follows, therefore, that they are also continuing
commands. Laws properly so called or general commands, he subdivided into laws set by
God, Divine law or the law of God, and laws set by men to men, to which he applied the term
“positive” to distinguish them from the law of God.

Laws set by men to men also fell into two categories. The fist consisted of laws set by
political superiors, i.e. by a sovereign person or a sovereign body of persons, to a member or
members of the unrepentant political society wherein that person or body of persons was
sovereign or supreme. This category also included laws set by private persons acting in
pursuance of rights conferred upon them by political superiors. All this was termed by
Austin “positive law” or “law simply and strictly so-called”, and was according to him, the
subject-matter of jurisprudence. Since positive laws were a species of laws properly so
called, they were defined as commands of a sovereign supported by sanctions. The second
category consisted of laws set by man to man neither as political superior, not in pursuance
of rights conferred upon them by such superiors e.g. those set by a master to a servant or
the rules of a club. They are still laws properly so called, because they are commands, but he
distinguished them from positive law by giving them the term “positive morality”.

Under the general heading of laws improperly so called he placed, first of all “laws by
analogy i.e. laws set and enforced by mere opinion, such as the laws of fashion, international
law and so forth. These also he somewhat confusingly termed “positive morality” – positive
so as to distinguish them from the laws of God, “morality” so as to distinguish them from
positive law or law strictly so called. Laws improperly so called also included a final
category, called “laws by metaphor”, which covered expressions of the uniformities of
nature.
The distinctions which Austin drew were entirely arbitrary. There is no objection to do this
provided clear indications are given of what the distinctions mean. Austin was scrupulous in
this respect. Thirdly, he did however, commit two errors. Although he did not specifically
say so, it is clear that he fashioned his concept of law out of the material of English law, and
possibly, Roman law. He was also misguided in applying the “epithet proper” to what was,
after all, his own special meaning of the word “law”.

SOVEREIGNTY
The great contract between positive law and positive morality was, in Austin’s view, the fact
that the former was set by a political superior. He elaborated this notion and evolved his
theory of sovereignty. Sovereignty involved two “marks”, a positive and a negative one.
The positive mark was that the bulk of a given society was in the habit of obedience to a
determinate common superior. The negative mark was that the determinate superior was
not in the habit of obedience to some other superior. Both these were combined in the
proposition.

“If a determinate human superior, not in the habit of obedience to a like superior, receive
habitual obedience from the bulk of a given society that determinate superior s sovereign in
that society, and the society (including the superior) is a society political and independent.

He went on to assert that sovereignty must have the attributes of continuity, indivisibility
and illimitability of an independent political society he has this to say.“in order that an
independent society may form a society political, it must not fall short of a ** which cannot
be fixed with precision, but which may be called considerable, or not extremely minute.

On all this there are several observations to be made.

a. Austin’s remark that the sovereign has to receive “the habitual obedience from the
bulk of a given society touches on a valuable point. It reveals somewhat obliquely
the fact that every legal system is ultimately founded on some fact for which no
justification can be adduced in law.

b. It has been said that Austin confused what may be called the “de facto sovereign”, or
body that receives obedience, with the “de jure sovereign”, the law-making body. In
 England the crown receives allegiance from British subjects, while the crown in
parliament is the supreme law-making body. When Austin talked of the commander
who makes law, he was referring to the de jure sovereign.

c. Theoretically there is no need for only one law-making body, though in practice this is
desirable.

The attribute of continuity of the sovereign may be questioned by asking

where sovereignty resides during dissolution of parliament. Austin
appreciated the difficulty but fell into confusion in trying to anticipate it. In
one place he said, correctly, that the sovereign body is the crown, the Lords
and the Electorate. The latter interpretation renders their whole concept
meaningless. Who, in that case is the commander and who the commanded?
The point is that is not necessary for the de jure sovereign to be continuous.

8 The attribute of indivisibility has also created difficulty. The question is whether
sovereign authority can be rested in more than one body, not whether it may be
exercised by more than one Austin would have admitted that its exercise may be
delegated to several. The difficulty can be seen by asking whether the legislature of a
colony is sovereign or not. It certainly has the power to make law within its territorial
limits but the parliament at West minister can also legislate for it. If would seen,
therefore, that for the colonial lawyer sovereignty is divided between his own
legislature and the parliament at West-minister. It might be objected, however, that
the colonial legislature is only exercising a delegated authority from the parliament at
West-minister. This can be met with the reference to the maxim” delegates delegare
non protest” a delegate cannot delegate his authority to someone else, for it was
held in Powell v Apollo candle co. that a colonial legislature can delegate its powers
to legislate, which implies that it is not itself exercising a delegated function. The
indivisibility of sovereignty has now been judicially rejected.
9. The attribute of illimitability: Austin is straight forward assertion is too simple. With
reference to the United States it is obviously untrue for there is no single sovereign
to begin with, and the sovereign bodies cannot be said to enjoy limitless power,
either individually or in concert, and the power of changing the constitution is subject
to very special procedure and really invoked. Long before this, sir Matthew hale had
challenged Hobbs’s conception of absolute sovereignty by arguing that sovereign
powered accrue to the sovereign by certain laws of the imgdow** and that there are,
therefore, certain qualifications of these powers.

Austin denies that the sovereign has claims and duties. He said that to say that the
sovereign has a claim would imply that some other sovereignty has conferred it on
the first sovereign, which would not therefore be sovereign. It has been objected
that there is nothing to prevent the sovereignty from conferring a claim upon itself,
to – Austin replies that this was to confuse might with right.

LAW AS THE COMMAND OF A SOVEREIGN

Austin perceived clearly that an indeterminate body is incapable of commanding. The
question is whether a determinate person or body of persons can be discovered, who might
be regarded as having commanded the whole corpus of the law. Never at any moment in
history is a person or group of persons discoverable who might be said to have commanded
at least the rule which entitled him or them to command. as PREFESSOR Oliver Rona
pointed out, the bulk of the law existed before the individuals’ who comprise the legal
sovereign in England, attained their positions, and they did so by virtue of rules of law.
There is no sense in saying that the rules which brought them to these positions are their
own commands.

Finally, why should the commands of a former sovereign continue to be “law” under his
successor? Austin, following Hobbes, reconciled this with the command theory in saying
that what the sovereign permits he commands – “facit commands”. This objection, as
formulated by professor hart, is that it implies that the sovereign both knows of the practice
and decides not to interfere.

LAW AS A COMAND
There are many rules which are in no sense conceive commands, such as the rule that no
action is to succeed when the limitation period has expired or that which merely defines
what constitutes contract or murder, or rules which prescribe the effective way of exercising
certain powers e.g. the rule that a will must be witnessed by two witnesses. Austin, it will be
remembered, regarded these last as commands, i.e. as duties coupled with the sanction of
nullity.

The enduring contributions which Austin has made are to. The first is the analytical
discipline, which has transcended the bounds of purely formal analysis.
It is capable of yielding fruitful results, whether conducted historically, functionally or
otherwise.

Secondly, he helped also to propagate the positivist doctrine that is helpful, to some extent
at least, to separate the law as it is from law as it ought to be.

Austin’s successors in the analytical tradition have abandoned his concept in favour of other
formulations.