AUSTIN’S THEORY OF LAW: AN ANALYSIS

Abstract

People come and go in this mortal world but some leave their immortal marks on the path to enlightenment such that whenever any new-comer wishes to get enlightened in the area, he cannot do so without passing through those marks. Such is the immortal theory of law propounded by Austin which cannot be avoided if we wish to study Jurisprudence. He proposed the theory of law way back in the 19 th Century but its still relevant, most popular one and a guiding light for all jurists till date. Austin had an empirical approach which made him founder of Analytical School. He separated notions of ethics from the study of positive law which was praised by Sir Henry Maine. According to him, only positive law was law or what he termed as law properly so called as it was made by sovereign who is illimitable, indivisible and continuous and not in a habit of receiving commands from a like superior. He was the one who introduced the term positive morality and clarified that laws made by God were not subject matter of Jurisprudence thereby removing the ambiguities created by Natural Law School. He said that law is the command of sovereign backed by sanction, which still fits in. His theories are clear, consistent and simple. He systemized the English Law with his theoretical structure and precise analysis. That’s why he is also known as the Father of English Jurisprudence. However, Austin’s theories faced a lot of criticisms yet no theory could eliminate the necessity of studying his theories in order to understand Jurisprudence and Law. It was in this context that Hart said that even the shortcomings of the theories of Austin are a source of
enlightenment. In fact, a Neo-Austinian School evolved as a reaction to criticisms of his theories.