John Austin, an English legal theorist, who was born in 1790 and died in 1859. Even though he
received less recognition in his life as compared to the recognition he received after his death,
he was able to influence American and English law with an analytical approach to jurisprudence,
along with his command theory that influenced American and British law in a way that is
udeniable. If one looks at law from the perspective of John Austin, he believed that law is the
command of the sovereign, what he basically meant by this is that law is a set of rules set by
men who are politically superior for men who are politically inferior. From John Austin’s
perspective, laws are not effective because of the factor of morality but rather they are effective
because of the fear of punishment. He asserted that there is no necessary link between law and
morality.
In his book ‘’the province of jurisprudence determined’’(the compilation of his lectures) he starts
by asserting that, ‘’the matter of jurisprudence is positive law; law simply and strictly so called; or
law set by political superiors for political inferiors’’. From Austin's perspective a political superior
is someone who holds power in comparison to the political inferior who is bound to obey the
commands of the political superior, the sovereign.Thus, emphasizing the importance of power.
He provides an explanation for this point of view as he moves on to describing various kinds of
laws. He bifurcates law into two parts, laws made by God and laws made by men for men.
From Austin’s perspective, he clearly recognizes the authority of God and the authority of God
to make laws but he emphasizes that, for him, the appropriate province of jurisprudence is in
relation to laws made by men for men. He further bifurcates laws made by men into two
categories namely, ‘laws properly so called’ which is positive law and ‘laws improperly so called’
which is considered as positive morality. He asserts that in reality, positive law are the proper
laws as they were created in a hierarchy as compared to ‘laws improperly so called’ which were
not created in hierarchy nor do they have sanctions or the factor or superiority attached to
them.He believes that enforcement of positive morality is through mere opinion and sentiment.
Thus, explaining his emphasis on positive law. From Austin's perspective, every law or rule is
basically a command, rather, laws or rules, properly so called, are a form of commands.
Even though it can be difficult to defend austin’s theory but some commentators have clarified
his perspective by making an assertion that Austin is misinterpreted here as what he meant by
this is that ‘’By the sovereign, the office or institution which embodies supreme authority; never
the people who hold that office or embody that institution at any given time(cotterrell 2003).’’
furthermore, it could be asserted(Harris 1977) that the sovereign should be taken as a
‘constructive metaphor’’, this view suggests that law should be perceived as if it projected the
perspective of a single will, this view closely resembles the view found in Dworkin’s work.
Moreover, it could be asserted that John Austin’s perception of a sovereign, a figure that must
be obeyed but doesn’t have to reciprocate that obedience can be viewed as a basic reality in
politics.
However, Austin’s theory is probably more recognized for its criticisms more than the theory
itself. To begin with, it is extremely difficult to be able to identify the sovereign. The emphasis on
‘’sovereignty’’ makes it extremely complex to explain the continuity of legal systems as new
received less recognition in his life as compared to the recognition he received after his death,
he was able to influence American and English law with an analytical approach to jurisprudence,
along with his command theory that influenced American and British law in a way that is
udeniable. If one looks at law from the perspective of John Austin, he believed that law is the
command of the sovereign, what he basically meant by this is that law is a set of rules set by
men who are politically superior for men who are politically inferior. From John Austin’s
perspective, laws are not effective because of the factor of morality but rather they are effective
because of the fear of punishment. He asserted that there is no necessary link between law and
morality.
In his book ‘’the province of jurisprudence determined’’(the compilation of his lectures) he starts
by asserting that, ‘’the matter of jurisprudence is positive law; law simply and strictly so called; or
law set by political superiors for political inferiors’’. From Austin's perspective a political superior
is someone who holds power in comparison to the political inferior who is bound to obey the
commands of the political superior, the sovereign.Thus, emphasizing the importance of power.
He provides an explanation for this point of view as he moves on to describing various kinds of
laws. He bifurcates law into two parts, laws made by God and laws made by men for men.
From Austin’s perspective, he clearly recognizes the authority of God and the authority of God
to make laws but he emphasizes that, for him, the appropriate province of jurisprudence is in
relation to laws made by men for men. He further bifurcates laws made by men into two
categories namely, ‘laws properly so called’ which is positive law and ‘laws improperly so called’
which is considered as positive morality. He asserts that in reality, positive law are the proper
laws as they were created in a hierarchy as compared to ‘laws improperly so called’ which were
not created in hierarchy nor do they have sanctions or the factor or superiority attached to
them.He believes that enforcement of positive morality is through mere opinion and sentiment.
Thus, explaining his emphasis on positive law. From Austin's perspective, every law or rule is
basically a command, rather, laws or rules, properly so called, are a form of commands.
Even though it can be difficult to defend austin’s theory but some commentators have clarified
his perspective by making an assertion that Austin is misinterpreted here as what he meant by
this is that ‘’By the sovereign, the office or institution which embodies supreme authority; never
the people who hold that office or embody that institution at any given time(cotterrell 2003).’’
furthermore, it could be asserted(Harris 1977) that the sovereign should be taken as a
‘constructive metaphor’’, this view suggests that law should be perceived as if it projected the
perspective of a single will, this view closely resembles the view found in Dworkin’s work.
Moreover, it could be asserted that John Austin’s perception of a sovereign, a figure that must
be obeyed but doesn’t have to reciprocate that obedience can be viewed as a basic reality in
politics.
However, Austin’s theory is probably more recognized for its criticisms more than the theory
itself. To begin with, it is extremely difficult to be able to identify the sovereign. The emphasis on
‘’sovereignty’’ makes it extremely complex to explain the continuity of legal systems as new
