AUSTIN’S THOERY OF JURISPRUDENCE

John Austin ’was the greatest exponent of this School ,who is the father of English Jurisprudence .He
was born in 1790 .At a very age he entered the army in which he served for five year .In1826 he
appointed to the Chair of jurisprudence in the University of London .His lectures delivered in London
University were published under the volume entitled “The Province of Jurisprudence Determined”. In his
lectures he discusses the nature of law and its proper bounds. He also discusses the sources of law and
presented an analysis of English legal system

Some importance books: -

 The Province of Jurisprudence Determined

 A Plea for the Constitution.
 Lectures on jurisprudence or Philosophy of positive law 1863
 On Parliamentary Government

Austin ‘s Analytical Positivism

Austin ‘s definition of law

Austin is the father of English jurisprudence.he confined his only to the positive law. Austin defined law
as “A rule laid down for the guidance of an intelligent being by an intelligent being having power over
him. He also stated that “Law is the command of the Sovereign”. Austin believed that in the society,
subjects are bound by the command issued by the sovereign from time to time.

Classification of law

According to Austin law are two type

1) Laws properly so called

2) Laws improperly so called

1) Laws properly so called: - These laws are commands which are backed by sanctions of the state, are
called law properly so called. Law properly so called is the positive law, which means law “as it is” rather
than law “as it ought to be” with which he is not at all concerned. It is divided in two part.

A) Laws of God
B) Human laws

A) Laws of God: -these are the laws which are made by God for men.

B) Human laws: -These are the laws which are made by one human being for other human beings. They
may be further divided into two parts.

a) Positive Laws

b) Other Laws

a) Positive Laws: - These are the laws set by political superiors as such, or by men not acting as political
superiors but acting in pursuance of legal rights conferred by political superiors, only these laws are the
proper subject matter of jurisprudence.

b) Other Laws: - Other laws is known as positive Morality, other laws which are not set by political
superiors or by men in pursuance of legal rights. This class includes International Law.

2) Laws improperly so called: -These laws are not commanding and thus, are not backed by sanctions.
These laws are not obligatory.

Austin’s Imperative Theory of Law or Analytical Positivism: -This theory is known as Positive theory of
law, Command theory, Imperative theory of law. Austin opined that only positive law is the proper
subject matter of the study of jurisprudence. He defined” the jurisprudence is the philosophy of positive
law.

Positive law has four element

1) Sovereign

2) Command

3) Sanction

4) Duty

1) Sovereign: - Law is the command of sovereign which obliges a person or persons to a course of
conduct. Sovereign means ,such a person who is superior ,nobody can interfere. He is the supreme,
irresistible, absolute and uncontrolled authority.

There are some importance salient features of sovereignty :-

a) Indivisibility

b) Illimitability

c) Essentiality
d) Inalienability

2) Command :-A command means a wish or desire conceived by a rational being to another rational
being who shall do or forbear .it is an evil to proceed from the former to be incurred by the latter in case
of non -compliance and it is an expression or intimation of will by word or otherwise

Command are two type

a) General Command

b) Particular or specific Command

a) General Command: - A general command is a law or rule where it is obliges generally to acts so
forbearances of a class. All command is not law, it is only the general command.

b) Particular Command: -It is particular when it obliges to a specific individual act.

3) Sanction: -Sanction is an evil which will be incurred if a command is disobeyed and is the means by
which a command or duty is enforced. It is wider sense of punishment. A reword for obeying the
command can scarcely be called a sanction.

4) Duty: -when the party commanded and threatened is under an obligation to obey it. It is called duty.
Thus, in Austin’s theory duty and command are co-relative and fear of sanction is the motive for
obedience of such command i.e law .The chief characteristics of positive law are Sovereign
Command ,Duty and Sanctions .
 NORTH KOREA
Applying Austin's theory of jurisprudence to the context of North Korea provides an interesting
perspective on the legal system and governance of the country. While North Korea is a unique case with
its own distinct political and legal dynamics, we can analyze certain aspects of its system through the
lens of Austin's theory:

Sovereign Authority:

1. Supreme Leader as Sovereign

In North Korea, the concept of sovereign authority is embodied in the Supreme Leader, who
holds ultimate political power and control over the state and its institutions. The Supreme
Leader, currently Kim Jong-un, is the highest-ranking official in the country and is revered with
almost divine-like reverence. Here's how the Supreme Leader functions as the sovereign
authority in North Korea:

Absolute Political Authority:

1. Supreme Leadership Position

- The Supreme Leader holds the highest position of authority in North Korea, both within the
government and the ruling Workers' Party of Korea (WPK).
- The position of Supreme Leader is hereditary, with succession typically passing within the Kim
family dynasty.

2. Centralized Control
- The Supreme Leader exercises centralized control over all aspects of governance, including
the military, economy, judiciary, and political apparatus.
- Decisions made by the Supreme Leader are considered final and binding, with little to no
dissent permitted.

Commands and Directives

1. Issuance of Commands
- The Supreme Leader issues commands and directives that govern all aspects of life in North
Korea, from political loyalty to economic activities and social behavior.
 - These commands are disseminated through official pronouncements, decrees, and directives,
often delivered through state-controlled media outlets.

SANCTION

Enforcement through Coercion

- Non-compliance with the commands of the Supreme Leader is met with severe sanctions,
including imprisonment, forced labor, or even execution.
- The regime employs a pervasive system of surveillance and propaganda to ensure obedience
to the Supreme Leader's commands.

DUTY OF CITIZENS
In North Korea, the duty of citizens to perform duties issued by the sovereign, particularly the
Supreme Leader, is paramount and rigorously enforced through various mechanisms. The regime
expects unwavering loyalty and obedience from its citizens, and failure to comply with directives issued
by the sovereign can result in severe consequences.

In North Korea, the duty of citizens to perform duties issued by the sovereign, particularly the
Supreme Leader, is enforced through a combination of propaganda, indoctrination, surveillance,
social pressure, and economic coercion. Non-compliance is met with severe repercussions,
reinforcing the regime's authoritarian control over the population and perpetuating a culture of
fear and obedience
Source of Law and Legitimacy:

1. Source of Law
- In North Korea, the commands of the Supreme Leader serve as the primary source of law.
Legal norms and regulations are derived from the directives issued by the leadership.

2. Legitimacy
- The Supreme Leader's authority is upheld through a combination of propaganda, state
ideology (Juche), and the cult of personality surrounding the Kim family.
- The regime portrays the Supreme Leader as a benevolent and omniscient figure, whose
commands are deemed essential for the prosperity and security of the nation.

-
Validity of Law:
1. Sole Authority of the Regime

- In North Korea, the validity of law is derived solely from the commands of the ruling regime,
particularly the Supreme Leader and the Workers' Party of Korea.

- Laws and regulations are not subject to scrutiny or validation by independent legal institutions but
are rather imposed top-down by the regime.

Separation of Law and Morality:

1. Primacy of Political Ideology

- The legal system in North Korea is closely intertwined with the country's political ideology of Juche
(self-reliance) and the cult of personality surrounding the ruling Kim family.

- Legal norms and commands are often justified and enforced in accordance with the political
objectives and interests of the regime, rather than moral or ethical considerations.