Austin was a positivist, meaning that he concerned himself with what the law was instead of going into its justness or fairness. Austin differentiated between ‘Law properly so called’ and ‘laws improperly so called’ and said that laws properly so-called are general commands but not all of it is given by men for men. A species of Laws properly so-called are given by political superiors to political inferiors.
According to Austin law is the command of the sovereign that is backed by sanction. Austin has propagated that law is a command which imposes a duty and the failure to fulfill the duty is met with sanctions
Thus Law has three main features:
- It is a command.
- It is given by a sovereign authority.
- It has a sanction behind it.
In order to properly appreciate Austin’s theory of law, we need to understand his conception of command and sovereign.
It is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the presence of two parties- the commander (political superior) and the commanded (political inferior).
In Austin’s theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to Austin, the sovereign is the source of all laws.
Is the evil consequence that follows on the violation of a command. To identify a law, the magnitude of the sanction is not relevant but the absence of sanction disentitles an expression of the sovereign from being a law in the Austinian sense. The sanction should not also be confused with a reward that might be on offer if a given conduct is followed or refrained from. Reward confers a positive right whereas a sanction is a negative consequence.
Criticism of Austin’s Command Theory of law
- Welfare states pass a number of social legislations that do not command the people but confer rights and benefits upon them. Such laws are not covered under the command theory.
- According to Austin, the sovereign does not have to obey anyone but the modern states have their powers limited by national and international laws and norms. For example, the Government of India cannot make laws that are violative of the provisions of the Constitution of India.
- Austin does not provide for judges made laws. He said that judges work under the command of the sovereign but in reality judges make positive laws as well.
- Since the presence of a sovereign is a prerequisite for a proposition to called law, Austin did not recognize international laws as such because they are not backed by any sovereign.
Roscoe Pound a distinguished American legal scholar was a leading jurist of the 20th century and was one of the biggest proponents of sociological jurisprudence which emphasized taking into account social facts in making, interpretation and application of laws.
Roscoe Pound drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and waste. Such a society according to Roscoe Pound would be an ‘efficient’ society.
The realisation of such a social structure would require a balancing of competing interests. Roscoe Pound defined interests as claims or wants or desires which men assert de facto, and about which law must do something if organised societies are to endure.
For any legal order to be successful in structuring an efficient society, there has to be:
- A recognition of certain interests- individual, public and social.
- A definition of the limits within which such interest will be legally recognized and given effect to.
- Securing of those interests within the limits as defined.
Roscoe Pound’s classification of interests are as follows:
- Individual interest: These are claims or demands determined from the standpoint of an individual’s life and concern. They are-
- Interest of personality: This includes physical integrity, freedom of will, honour and reputation, privacy and freedom of conscience.
- Interest in domestic relations: This includes relationships of parents, children, husbands and wives.
- Interest of substance: This includes interests of property, freedom of association, freedom of industry and contract, continuity of employment, inheritance and testamentary succession.
- Public interest: These interests are asserted by an individual from the standpoint of political life. They are:
- Interests of the state as a juristic person: It includes integrity, freedom of action and honour of the state’s personality, claims of the politically organized society as a corporation to property acquired and held for corporate purposes.
- Interests of the state as guardian of social interest.
- Social interests: These are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society. Social interests include-
- Social interest in general security: This includes general safety, peace and order, general health, security of acquisition and transaction.
- Social interest in the security of social institutions such as domestic, religious, political and economic institutions.
- Social interest in general morals like laws dealing with prostitution, gambling, bigamy, drunkenness.
- Social interest in the conservation of social resources like natural and human resource. This social interest clashes to some extent with the individual interest in dealing with one’s own property as on, please.
- Social interest in general progress. It has three aspects- economic, political and cultural.
- Social interest in individual life. It involves self-assertion, opportunity and conditions of life. Society is interested in individual life because individuals are its building blocks.
Having given various interest recognized by law, Roscoe Pound applied himself to figure out to balance competing interests. He said that interests should be weighed on the same plane. According to him, one cannot balance an individual interest against a social interest, since that very way of stating them may reflect a decision already made. Thus all the interests should be transferred to the same place, most preferably to the social plane, which is the most general, for any meaningful comparison.
Criticism of Roscoe Pound’s theory of law
- Pound said that interest pre-exists laws and the function of the legal system should be to achieve a balance between competing interests but we see that a lot of interests today are a creation of laws.
- The theory does not provide any criteria for the evaluation of interest. It is not interesting as such, but the yardstick with reference to which they have measured that matter. It may happen that some interest is treated as an ideal in itself by society, in which case it is not the interest as an interest, but as an ideal that will determine the relative importance between it and other interests.
- Pound’s theory of balancing interests can be effectuated most effectively by judges because the judges get to translate the activity involved in the cases before them in terms of interests and select the ideal with reference to which the competing interests are to be measured. Thus his theory gives more importance to the judiciary in comparison to the legislature.
John William Salmond
John William Salmond was a law professor in New Zealand who later also served as a judge of the Supreme Court of New Zealand. He made a seminal contribution in the field of jurisprudence, the law of torts and contracts law.
Salmond claimed that the purpose of the law was the deliverance of justice to the people. Salmond also necessitated the presence of the state for the implementation of laws just like Bentham and Austin.
Salmond differentiated between ‘a law’ and ‘the law’ and said that the former refers to the concrete and the latter to the abstract.
According to him, this distinction demands attention for the reason that the concrete term is not co-extensive with the abstract in its application. In its abstract application, we speak of civil law, the law of defamation, criminal law etc. Similarly, we use the phrases law and order, law and justice, courts of law. In its concrete sense, on the other hand, we talk about specific laws like the Indian Penal Code or the Right to Information Act.
According to Salmond law is the body of principles that are recognized and applied by the state in the administration of justice. His other definition said that law consists of a set of rules recognized and acted on in courts of justice. ‘Law’ in this definition is used in its abstract sense. The constituent elements of which the law is made up are not laws but rules of law or legal principles.
Criticism of Salmond’s theory
- Salmond’s assertion that justice is the end and law is only a medium to realize it does not always hold true because there are a number of laws that can be called ‘unjust’. Example POTA, SARFAESI etc
- The pursuit of justice is not the only purpose of the law, the law of any period serves many ends and these ends themselves change with the passage of time.
- There is a contradiction when Salmond says that the purpose of the law is the administration of justice but limits ‘jurisprudence’ to the study of the ‘first principles of civil law of a national legal system because justice is a universal concept, the jurisprudential analysis of law should not be constrained by national boundaries.
Hans Kelson was an Austrian philosopher and jurist who is known for his ‘Pure Theory of Law’. Kelsen believed that the contemporary study and theories of the law were impure as they were drawn upon from various other fields like religion and morality to explain legal concepts. Kelson, like Austin, was a positivist, in that he focused his attention on what the law was and divested moral, ideal or ethical elements from the law. He discarded the notion of justice as an essential element of law because many laws, though not just, may still continue as law.
Kelsen described law as a “normative science’ as distinguished from natural sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered whereas the science of law is knowledge of what law ought to be. Like Austin, Kelsen also considered sanction as an essential element of law but he prefered to call it ‘norm’.
According to Kelsen, ‘law is a primary norm which stipulates sanction’.
According to Kelsen, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’. He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms which comprised legal order. Kelsen distinguished moral norm with the legal norm and said that though moral norms are ‘ought’ prepositions, a violation of it does not have any penal fallout. The ‘ought’ in the legal norm refers to the sanction to be applied for violation of the law.
According to Kelsen, we attach legal-normative meaning to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm. This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelsen as ‘Grundnorm’. Thus, Kelsen’s pure theory of law is based on the pyramidical structure of hierarchy of norms which derive their validity from the basic norm.
Criticism of Kelsen’s Pure Theory
- The Pure Theory also did not give the timeframe for which the effectiveness should hold for the
requirement of validity to be satisfied. Validity is a matter to be determined in the context of a given point of time and depends on what judges are prepared to accept at that moment as imparting lawquality.
- International law does not sit well with Kelsen’s Pure theory. He advocated a monist view of the relationship between international and municipal law
Jeremy Bentham was the pioneer of analytical jurisprudence in Britain. According to him ‘a law’ may be defined as an assemblage of signs, declarative of volition, conceived or adopted by a sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or a class of persons, who in the case in question are or are supposed to be subject to his power. Thus, Bentham’s concept of law is an imperative one.
The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all. The justification for having laws is that they are an important means of ensuring the happiness of the members of the community generally. Hence, the sovereign power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.
Bentham said that every law may be considered in eight different respects:
- Source: The source of a law is the will of the sovereign, who may conceive laws which he personally issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he may adopt laws to be issued in future by subordinate authorities. Sovereign according to Bentham is any person or assemblage or person to whose will a whole political community is supposed to be in a disposition to pay obedience, and than in preference to the will of any other person.
- Subjects: These may be persons or things. Each of these may be active or passive subjects, i.e., the agent with which an act commences or terminates.
- Objects: The goals of a given law are its objects.
- Extent: Direct extent means that law covers a portion of land on which acts have their termination; indirect extent refers to the relation of an actor to a thing.
- Aspects: Every law has a ‘directive’ and a ‘sanctional’ part. The former concerns the aspects of the sovereign will towards an act-situation and the latter concerns the force of law. The four aspects of the sovereign will are command, prohibition, non-prohibition and non-command and the whole range of laws are covered under it. These four aspects are related to each other by opposition and concomitancy.
- Force: The motivation to obey a law is generated by the force behind the law.
- Remedial appendage: These are a set of subsidiary laws addressed to the judges through which the judges cure the evil (compensation), stop the evil or prevent future evil.
- Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection with will raises the problem of discovering the will from the expression.
Criticism of Bentham’s theory of law
- Due to Bentham’s strait-jacketing of laws into an imperative theory- all laws have to be either command or permission, it does not take proper account of laws conferring power like the power to make contracts, create title etc.
- Bentham did not give fair treatment to custom as a source of law. He said customs could never be
- Bentham’s theory did not allow for judge-made laws and hoped that such laws would be gradually eliminated by having ‘complete laws’.