A CRITICAL ANALYSIS ON AUSTIN'S THEORY OF LEGAL POSITIVISM AND RELEVANCE IN DEMOCRATIC GOVERNANCE

IN INDIA

SWAMI VIVEKANAND SUBHARTI UNIVERSITY,

MEERUT, U.P.

SUBJECT: JURISPRUDENCE

PROJECT TOPIC: A CRITICAL ANALYSIS ON AUSTIN’S THEORY OF

LEGAL POSITIVISM AND RELEVANCE IN DEMOCRATIC

GOVERNANCE IN INDIA

SUBMITTED TO: SUBMITTED BY:

MR. AJAY RAJ SINGH GAURAV KASANA
(ASSISTANT PROFFESOR) (B.A L.L. B)
S.V.S.U. Meerut 3RD SEMESTER

SARDAR PATEL INSTITUTE OF LAW

MEERUT
(2022-2023)

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A CRITICAL ANALYSIS ON AUSTIN'S THEORY OFLEGAL POSITIVISIM AND RELEVANCE IN DEMOCRATIC GOVERNANCE IN INDIA JURISPRUDENCE AND SOCIAL JUSTIC
A CRITICAL ANALYSIS ON AUSTIN'S THEORY OF LEGAL POSITIVISM AND RELEVANCE IN DEMOCRATIC GOVERNANCE
IN INDIA

TABLE OF CONTENTS

Table of Contents.………………….…………………………………………….…………2
Acknowledgement……………………………………………………………………..……3
Abstract…………………………………………………………………………………...…4
John Austin (1790–1859)……………………………………………………………….......5
John Austin’s Theory Of Sovereignty………………………………………………………6
Legal Positivism: Austin…..………………………………………………………………..8
Austin’s Positivism: Relevance In India……………………………………………………9
India’s Theory of Legal Positivism………………………………………………………..14
the distinction between austin’s theory and indian theory of sovereignty: an analysis……16
Analysis……………………………………………………………………………………17
Conclusion…………………………………………………………………………………18
References…………………………………………………………………………………19

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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my professor MR. Ajay Raj Sir who gave me
the golden opportunity to do this project on the topic “A CRITICAL ANALYSIS ON AUSTIN’S
THEORY OFLEGAL POSITIVISM AND RELEVANCE IN DEMOCRATIC GOVERNANCE IN
INDIA” and helped me in doing a lot of research and completing my project. I came to know about so
many things. I am thankful to him. Secondly, I would like to thank my parents, friends and seniors who
helped me a lot in finalizing this project within limited time frame.
I would like to express my gratitude to our Dean Dr. Vaibhav Goel Bhartiya Sir for providing me with
all the facility that was required.
I want to thank all my friends who helped me in completing my work. Last, but not the least, my thanks to
all who have helped directly or indirectly in the completion of my work.

GAURAV KASANA

B.A. LL.B.

3rd Semester

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ABSTRACT

The element of good governance is designed by the rule of law. The doctrine „rule of law‟ has very broad
prospective, because it concentrates on justice, liberty and fairness. Good Governance is prerequisite for
democracy. Such governance includes some factors such as transparency, accountability, rule of law and
people’s participation. Legal Positivism is often understood as the theory that valid legal norms are
precisely those norms which have been created in the manner prescribed by the Constitution or the basic
norms. India is a democratic country and in every democratic country, there is a need of good governance
and transparency. Good Governance does not occur by chance. It must be demanded by citizens and
nourished explicitly and consciously by the national state. It is therefore necessary that the citizens are
allowed to participate freely, openly and fully in the political process. India incorporated a number of
basic human rights as guaranteed Fundamental Rights embodied in Part III of the Constitution of India. In
Part IV of the Constitution, certain „Directive Principles of State Policy‟ which are principles that would
be fundamental for “good governance” of this country. Thus, Good Governance entails effective
participation in public policy-making, the prevalence of the rule of law and an independent judiciary,
besides a system of institutional checks & balances.

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JOHN AUSTIN (1790–1859)

John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the
Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his
book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in
the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University
of London.

He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on
become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833.
After working for the government at certain reputed designations, he died in 1859 in Surrey, UK.

John Austin was a legal expert whose Analytical Approach to Jurisprudence and the Theory of Legal
Positivism significantly influenced Legal Systems around the globe. His thesis of "Law as a Command"
supported his "Legal Positivism" theory. Austin makes the decision to ignore all outside influences,
including history, and fully commits to learning the fundamentals of law exactly as they are, without
regard to their moral worth or "goodness" or any other attributes. According to Austin's Theory of Legal
Positivism, this method results in the interpretation of "Law as it is" or "Positum" (and not the ideal law),
also known as "Positive Law." Positive law is essentially a law created by humans. It includes laws passed
by legislatures or guidelines established by organizations governed by individuals. This research paper
will critically analyze the idea of Austin's positivism in law and if it is relevant to democratic governance
in India.

John Austin is revered as the father of the Analytical school of law and its creator. He is renowned for his
legal positivism and sovereignty theory, both of which are stated in his work "Province of Jurisprudence."
Austin asserts that "Law is a command of the sovereign supported by a sanction."

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JOHN AUSTIN’S THEORY OF SOVEREIGNTY

John Austin propounded the Analytical School of law and supported the Positivism Theory. Austin
defined law as, “Law is a command of the sovereign backed by a sanction.” His notion was that where
there is no sovereign, there is no independent political society and vice versa is also applicable. For him,
Law, was a set of rules established by men as politically superior, or sovereign, to men as politically
subject. The fundamentals of his theory are: Command, Sovereign and Sanction.

1. Command: Commands are the rules or expressions of imposed by a superior authority (by force or
compulsion) on the Inferiors. The former is the sovereign which authorize the rules of conduct of the
latter, the general public. The commands may be General Command, that is issued for the guidance of a
whole community, or Particular command, that is issued for the guidance of a particular community/
individual. Austin emphasises that only General Commands form laws and they must be lawful and
continuous.

Observation: From the above definition we can conclude that Austin’s definition of commands gives the
sovereign authority status of ultimate supreme, and imply that the authority of the sovereign is absolute
which is the opposite of the constitutional framework which prevails in India, and for that matter in any
peaceful democracy. This definition expresses that the sovereign, that is, the person/people in power is
politically superior, but in democratic countries, it is not true. Every citizen has the same right same that
of a President/Prime Minister/Chief Justice.

2. Sovereign: Sovereign is a source of law and every rule emerges from a sovereign. A sovereign may be
any individual or body of individuals, whom the politically influenced mass of people habitually follow.
However, he himself does not obey an individually or body of individuals.

Observation: From the above definition of the sovereign, we can conclude that according to John
Austin, the sovereign is not accountable to anyone but the whole realm has to follow whatever the
sovereign dictates which are in stark contrast with the idea of democracy and Indian federalism. Also,
Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will make
laws, the sovereign will execute the laws and the sovereign only will administer the law. This philosophy
is also in contravention with the idea of democracy and the Indian federal structure.

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3. Sanction: According to Salmond “Sanction is the instrument of coercion by which any system of
imperative law is enforced.” To ensure and administer justice the state, applies physical force as sanction.
Therefore, it is the sole crux of Positive Law. It instils fear of punishment in case one disobeys the laws.
Sanction is related to duty shaped by the command of a sovereign authority and sanction becomes
absolute necessity for enforcement of law.

Observation: From the above definition of Austin, we can conclude that sanction is the force/evil which
follows to if the individual if he/she fails to obey the command of the sovereign. His theories have put
sanctions as more of a physical force state uses to suppress the non-abiders, which is very autocratic and
narcist per say. This definition does not give room to people participation in government and we can say
that having a difference of opinion (which is very crucial for the development of any country socially,
politically and economically one can be subject to the sanction too.

In a modern democracy, people don’t abide by laws merely out of the fear of sanctions, but they do so
voluntary as well out of morality and responsibility. This leads to the cooperation between the state and
the subjects and this cooperation and understanding between the people and the state helps in the effective
execution of the law and smooth introduction of social change. Also, we should not ignore the fact that in
the modern era, even the sovereign can’t implement everything on brute strength or influence, especially
in a country like India which is so diverse in its every facet.

Even Austin has himself admitted in his book, Province of Jurisprudence, that his philosophies are very
objective and separates the law from morality, ethics, values or any other social norm and see the law as it
is and not as it ought to be. The same can be observed in his definition of law, where he has outrightly
ignored the subjective but very important elements of the law (like voluntary obedience of law, mutual
understanding between state and subjects, beliefs and disbelief of people regarding law and its
implementation) which applies on the humans who are themselves subjective beings.

Though Austin’s work has received criticism from other schools of law as well but the simplicity of
Austin’s work has continued to attract adherents. What is unique about Austin’s work is it separates law
form justice, morality, ethics, values or any other kind of social norms. The same is the reason for the
simplicity and spontaneity of his work. Also, we have to be cognizant of the fact that Austin has
formulated these theories when England was going under great legislative reforms.

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LEGAL POSITIVISM: AUSTIN

Austin has a distinct standard for separating moral from legal influence and order. As it happens, taking
into account this requirement will also be sufficient to establish Austin's theory of the abode of
sovereignty and pave the way for demonstrating how he conflates sovereignty with an organ of its
exercise. Austin starts off by defining positive law and moral law. He rejects the idea that anything other
than a command can properly be referred to as a law, so he is not amenable to one of the common
distinctions made between the two: I am referring to the idea that the moral law is a law of what "ought to
be," whereas positive law is a law that is actually in effect. Every law implies to Austin a person (or
individuals) who issues a command, the command being the connotation of a wish, along with the ability
and intention of inflicting an evil in the event that the wish is not fulfilled.

The moral law equally with the positive law implies an actual force and a sanction. The positive law
equally with the moral law establishes duty. According to Austin's thesis, both include actual authority, an
actual law-giver, and an actual law subject, and as a result, the former is accountable to the latter for the
latter's evil in the event of disobedience. As a result, the presence or absence of a personal authority giving
the command and enforcing obedience through punishments cannot be used to distinguish between the
legal and the moral. It must be a quality or feature of the person exercising authority to issue the directive.

Austin defined positive law as that which is imposed on a political inferior by a superior. It is necessary to
separate moral legislation into two categories. The moral law, as it is properly known, is a command that
comes from a specific source and has a duty and a consequence, but it is not positive law because it does
not come from a sovereign. Incorrectly referred to as moral law, this is the standard established by the
beliefs and ideals of an undefined populace. The distinction between positive law and moral law, as they
are properly known, then merely rests on whether or not the laws are established by a sovereign.

Austin's concept of sovereignty, which we find particularly interesting, is as follows:

An independent political society is divisible into two portions namely, the portion of its members which is
sovereign or supreme, and the portion of its members which is merely subject . . . In most actual societies,
the sovereign powers are engrossed by a single member of the whole, or are shared exclusively by a very
few of its members; and even in the actual societies whose governments are esteemed popular, the
sovereign number is a slender portion of the entire political community.

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AUSTIN’S POSITIVISM: RELEVANCE IN INDIA

If we examine Austin's definition, we might conclude that orders issued by sovereign authority are always
supreme and unalterable. Yet since there is no monarchy, no sovereign power or authority, and only
democracy exists in India, that portion of the term is not valid there because it is in conflict with
constitutional rules. In India, elected representatives of the people, such as M.P. and M.L.A., are in charge
of forming a partially sovereign government. The constitution's bounds must be respected by government
decisions. As a result, we can conclude that the assumption of habitual obedience, which forms the
cornerstone of Austin's sovereign theory, cannot be upheld in the current political and legal landscape of
India.

If we examine this portion of Austin's definition, we may conclude that while the entire kingdom must
obey the sovereign's directives, the sovereign is not answerable to anyone. The Sovereign will enact laws,
carry them out, and serve as the only person to administrate them. In that section, the concepts of
democracy and Indian federalism are opposed. Law-making in India is not the responsibility of a single
person like the sovereign because laws are formed by the Legislature, by Ordinance, by the delegation of
power, by the authority, and in every step of the process an institution or apparatus is involved. As
Austin's theory doesn't accommodate the fundamental concepts of democracy, constitutionalism,
decentralization, and separation of powers, we might deduce that it is incompatible with the contemporary
political and social environment of India.

People obeyed and followed in the ancient era when the law was not adequately codified, or introduced,
and was instead based on conventions and traditions solely because they believed they had an obligation
to do so lest they risk being rejected by society. People in contemporary democracies follow the law
voluntarily, out of moral obligation and responsibility because they have received a faultless political
education, rather than simply out of fear of punishment. In book 3, which he wrote towards the end of his
life, Austin acknowledged that his beliefs were quite objective and that they separated the law from
morality, ethics, values, or any other social standard, viewing it as it is rather than as it should be.

Given the foregoing debate, we can conclude that Austin's theory is not entirely applicable to India in the
modern era for the reasons listed below:

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1. Austin's thesis is entirely built on the concept of the "Sovereign," however India lacks a monarchy
and hence there is no concept of the sovereign. Here, the President of India, who is indirectly
elected and obligated to act within the bounds of the Constitution, is the head of the institution.

2. It has been established in the present period that "Sanction" is a component of "Law" but that the
idea that "Only sanction" is a component of the Law is incorrect.

3. Because of its rigidity, short-sightedness, and disregard for the fundamental principles of
democracy, Austin's theory is not applicable in the contemporary political and legal Indian culture.

4. Because Austin's theory promotes political instability, anarchy, and social disorder, it is not
appropriate for the contemporary Indian political and legal environment.

5. His view disregards a number of factors, including democracy, international law, the separation of
powers, etc.

From the critical analysis of Austin’s theory of sovereignty and legal positivism, the author has made the
following inferences and has tried to establish the relevance of the same to the modern Indian political and
legal society.

1. Presumption about the subjects

Austin’s theory of sovereignty presumes that people will exactly obey what the sovereign will command
which is not true in the present scenario in India politics. His theories put the habitual obedience by
subject on the bottom line of the philosophy. Those who deem the sovereign as the fit will obey
voluntarily. Those who think sovereign as faulty will obey in the fear that the evil of their resistance will
surpass the evil of obedience. And those who are not certain about will obey sovereign out of custom.
Also, Austin’s theory presumes that people are perfectly educated politically.

But that is not true in the modern scenario. The people who deem the government as unfit criticize, protest
and resist the government and its policies. Which sometimes causes even the total failure of constitutional
machinery like one observed in 1975 when Indira Gandhi (then PM) imposed emergency. There are many
other examples in India only where we have seen people like Anna Hazare, Ramdev and Kejriwal
protesting and organizing marches against the government and demanding changes in its structure or
introduction of new laws or amendment of existing. Also, in a country like India, where one-third of the
country (35million people approx) can’t read and write and where people can kill each other because of

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fake news and propaganda, it would be lethal and unfair to presume that most population is politically
educated.

Thus, we can say that the presumption of habitual obedience, which is at the very basis of Austin’s
sovereign theory can’t prevail in the present Indian political and legal society.

2. Doesn’t give room to common law other law-making bodies

According to Austin, only those commands that are given by a political superior i.e. sovereign are laws the
real sense. He has tried to define the law from the sources of its origin than its functions. Though, there is
a subtle acceptance of law made by judges (precedents) unless except it goes against the laws made by the
sovereign but it is not appropriate in any sense.

In India, the Supreme Court is the keeper of the constitution and it has the power to declare any legislation
as void if it contravenes any of the provisions of the constitution and thus protects the fundamental rights
of the people of the country. But according to Austin, courts/judges are the mere the subordinate sources
of law and they have to function within the parameters set by the sovereign. Also, executive bodies like
CBI, police, MCDs which are directly in touch with the public and understand their needs better, can’t
make laws for the public’s benefit because statutory instruments are the recognized source of law. If all
this is applied in the modern scenario it can lead to serious chaos and disrupt the country.

Also, according to Austin’s definitions, customs are also not a source of law and thus not applicable. Law
of the church, the law of the merchants, and many other personal and customary laws like Hindu Law,
Muslim law, etc which are in existence much before this theory, though not been acknowledged but
governing the day to day behaviour of the bulk of the population and is enforced by the state, none of
these would be law according to Austin’s definition. Thus, Austin was also not cognizant of the common
law which is the foundation of many countries’ governmental setup.

Thus, we can infer that Austin’s theory is incompatible with modern political and social scenario of
India as it doesn’t give room to the very basic ideas of democracy, constitutionalism and de-
centralization and separation of power.

3. Ignorance of human elements and the fundamental values of the constitution

In Austin’s definition of sanction, we can see that he has ignored the human elements like mutual
understanding and cooperation between the state and the subjects and on the other hand, we can see that

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he has made vague presumptions about the subjects like habitual obedience, which is an extremely rare
phenomenon in the modern world. He hasn’t established the right balance between the role of the state and
citizens and their relationship with each other.

Also, Austin’s theory has totally ignored the values and ethics like Liberty of thoughts and beliefs,
Equality of status, etc which are enshrined in the preamble and are the fundamentals of the Indian
constitution. Also, India because of its religious and cultural diversity, has not been considered as a federal
state where all the power is with sovereign by the constitution-makers. It has been beautifully made as a
“Union of states” as mentioned in U/A 1 of the constitution. This is to keep all the states integrated in
India but at the same time preserve their individual autonomy and give them a sense of freedom both of
which are in favor of the nation. But Austin’s theory is never short-sighted in this context and there is no
such arrangement in his theory.

Thus, we can infer from the above information that Austin’s theory can’t be applied in the modern
political and legal Indian society because of being very rigid and short-sighted approach towards running
the state and ignorance of the core values of democracy.

4. Absolute, unrestricted and indivisible powers to sovereign

Austin has postulated that the sovereign is free from all restraints of any kind of law and that no sanctions
of any nature can be imposed on him. The command of sovereignty is superior to overall individuals and
associations. The zero accountability of the sovereign in Austin’s theory brings the whole country and its
people at the mercy of a single person who can decide someone’s life and death according to his mood and
personal whims. Also, because there is only one body as sovereign, it is more prone to attacks and outside
pressure from foreign leading to political instability.

Austin seems to inject an anarchical element into the world order and was probably giving an excuse for
the worst excesses of 19th-century sovereigns like Nazi Germany, slaughtering of Jewish people, world
war, etc by imparting sovereign absolute power. Sovereign is not bound to obey anyone’s order. There is
no question of right or wrong, just or unjust, all his commands are to be obeyed. Again, the epitome of
absolute power can corrupt absolutely. In modern times, if such things into existence into any country, it
will become much more vulnerable to rebels, riots or even full-fledged war.

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Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will
make laws, the sovereign will execute the laws and the sovereign only will administer the law. This
philosophy is also in contravention with the idea of democracy and the Indian federal structure.

In Golak Nath v. State of Punjab, it was clearly laid down that separation of power is uncompromisable
provision of the constitution by C.J. Subba Rao in the following words: –

“The three organs of the government have to exercise their functions keeping in mind certain
encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three
organs minutely and expects them to be exercised within their respective powers without overstepping
their limits. All the organs must function within the spheres allotted to them by the constitution. No
authority which is created by the constitution is supreme. The constitution of India is sovereign and all the
authorities must function under the supreme law of the land i.e. the Constitution.”

Thus, we can infer from the above facts that all Austin’s theory is not suitable for the modern
Indian political and legal scenario because it leads to political instability, anarchy, and social chaos.

5. Not cognizant of international law

In the modern era, there are multiple international laws every country has to follow. The importance of
international laws can be understood from the fact that nowadays procedures exist to make the state liable
for injuries caused to foreigners in their land.

Various other principles of international law seem to have cored the concept of sovereignty. A sovereign
doesn’t have the power to perpetuate inhumane action against his citizens as the same shall come into
great criticism from the world order and it shall soon have to face the consequences of surviving in a
hostile world atmosphere if it continues to do so.[9] Also, violation of International laws is also not good
for a nation’s socio-economic well-being leading to serious crises and various other restrictions in terms of
imports/exports. Especially, in case of a country like India which is trying to boost its economy and GDP
by means of foreign investment and exports in recent times under the campaign like Make in India. But
Austin’s theory doesn’t give any room to international laws/relations and makes sovereign the supreme
and all-pervasive authority of the land who is not answerable to any.

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Thus, from the above facts, we can say that Austin’s theory is a bit impractical to apply in the modern era
of globalization and the influence of international organizations like United Nation Security Council
(UNSC), International Monetary Fund (IMF), United Nation Human Rights Commission (UNHRC).

INDIA’S THEORY OF LEGAL POSITIVISM

For time immemorial India’s Judiciary system has based its rulings and landmark decisions following the
Legal Positivism. The Judges have interpreted the laws and the guidelines have been laid down by the
legislatures. Few instances can be observed in the following cases which clearly evidenced the influence
of Positivist school of law:

In the landmark judgement of A.K. Gopalan v. State of Madras:-

The petitioner was detained under the Preventive Detention Act. The petitioner challenged the
constitutionality of the Preventive Detention Act. His contention was that the act had infringed Article 19
and Article 21 of the Constitution of India. The Petitioner argued that law does not only mean a body of
rules ‘lex’ but also ‘jus’ which means fair. Therefore, the law is not only restricted to what has been
written by the legislature but it must also encompass justice and fairness. The Supreme Court here, ruled
that the Preventive Detention Act is valid even though the law is ‘lex’ and not ‘jus’. Therefore, what the
legislature has noted, must be regarded as the law of the land even though it did not necessarily render
justice.

R. K. Garg v. Union of India (the Bearer Bond case):

The supreme law-making authority, the legislature passed a law that if black money was invested in
certain government bonds within a certain period of time, the government would immunize and exempt
questioning the source of the black money for the purpose of channelling the same for productive
purposes. The law was challenged because of its arbitrary nature under Article 14 of the Constitution of
India and it was deemed that it was encouraging tax-evasion. The court upheld the constitutional validity
of the law, and opined that there is an intelligible differentia between those who invest in bonds and those
who do not. The Doctrine of Pith and Substance was also applied, while clarifying the actual intent of the
legislation behind the ruling.

Jolly George Verghese v. The Bank of Cochin,

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A law stating imprisonment of a person who fails to repay a debt was valid by the Apex Court. It is
worthy to note that the said validity was against the United Nation Convention. Therefore, the Supreme
Court analysed this law drawn by the legislature and gave its verdict.

In the above cases, we can observe how despite the laws not fulfilling the requisites of a fair law,
nevertheless gave its decision considering what the law states. The Legal Positivism was incorporated in
the decision making and played a substantial role in the previous judgements.

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THE DISTINCTION BETWEEN AUSTIN’S THEORY AND INDIAN THEORY OF

SOVEREIGNTY: AN ANALYSIS

1. Apparently, as what can be perceived from Austin’s definition of command, the sovereign authority is
the ultimate supreme and he is endowed with absolute power. It implies that this theory is in direct
contravention to the Indian Framework which emphasizes on the Constitution as the supreme authority.
The focal point of the Constitution of India is Democracy and it guarantees rights and flexibility to
citizens. John Austin’s theory assert the power to a sovereign figure, whereas India’s Model grants
powers and rights to the public, similar to those of the President, Prime Minister or the Chief Justice.
The theory also disregards other sources of law like precedents, customs, laws executed as statutory
instruments. This phenomenon directly obstructs the jurisprudence of country. The sources of law form
basis of many new laws and judgements and are highly regarded in India’s judiciary system.

2. According to the John Austin’s Theory of Sovereignty, the sovereign himself is not held accountable to
any other figure but the General public must abide by everything he imposes upon them. As per the
theory his powers are indivisible and non-negotiable. The sovereign makes the laws, executes the laws
and also administers the law. This blatantly attack the very idea of India’s democracy and federal
structure. and but the whole realm has to follow whatever the sovereign dictates which are in stark
contrast with the idea of democracy and Indian federalism. Both the public and authorities are held
accountable on their part in case of any disobedience. Moreover, the powers are divided between the
different levels of government, which enables accountability and efficiency.

3. It can be clearly observed that’s sanction is an evil force, which leads to adverse consequences, it the
person fails to adhere to the same. The theory prioritizes oppression of the victims who disobeys the
sanction. Hence, the theory comes across as dictatorial force. It allows no room for people to voice their
opinions or participate. The participation in and freedom for people to pursue their opinion is very
imperative element India’s Democratic structure.

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ANALYSIS

Legal Positivism, as we have already seen, is one of the most influential schools in the jurisprudence of
law and relies on the law as a fact. The jurists of this school only analyses the law as it is and do not
consider how it should have been. According to the views of great jurists such as John Austin, the moral
principles do not determine the law of the land. However, there are certain positivists who do believe in
the existence of the principles of ethics and morality and moreover, they are of the opinion that these
moral principles are responsible, to some extent, in shaping the laws. Therefore, it can be clearly seen that
although the overall idea of the jurists of this school is similar, but certain differences in their thinking
does exist. The common notion of all the jurists belonging to the Legal Positivist School is that law is
what is laid down by the superior and backed by sanctions. Moreover, they are of the common opinion
that the moral principles are not to be taken into account while judging the validity of laws. All laws are
valid which flow from the determinate superior and is backed by sanctions.

However, there are certain shortcomings of the Legal Positivist School such as it fails to elucidate upon
any kind of legal system and sees sanctions as the only basis of law. Moreover, the concept of absolute
sovereignty given by John Austin is challenged by International Law as well as fundamental rights that are
available with the individuals. Although there are certain limitations, Legal Positivism is regarded as the
most influential school of thought in jurisprudence.

Analysing the above points, it can be said that Austin’s Theory is quite incompatible to the Indian
Democratic Structure. The theory undermines the needs of India’s legal, political and economic
environment, which is essential for maintaining integrity, prosperity and unity. His views can be criticised
on the following grounds:
 It presumes habitual obedience i.e.; public will abide by everything they are instructed and will
voluntarily obey their sovereign figure, with a constant fear of punishment as evil consequence.
They will consequently protest in resistance and cause disturbance in society.
 It also presumes that people are perfectly politically educated.

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 It provides on room for existence of sources of law like precedents and are against the very idea of
democracy and federal structure.
 The rigidity and short-sightedness, undermine the needs of a dynamic society.
 It grants unrestricted and absolute power to the sovereign figure which ultimately leads to
lawlessness, instability and chaos.
 It overlooks the international laws and policies.

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CONCLUSION

Austin's identification of the determinate element with a specific group of humans appears illogical, but by
maintaining that sovereignty requires determinate modes of exercise, he protects us from the fallacy that
would equate generality with ambiguity. Constitutional evolution has specifically focused on establishing
clear procedures by which sovereignty should exercise its authority. Austin's argument completely
disregards the preamble of the Indian constitution, which lists freedom of thought and opinion, equality of
status, and other crucial democratic principles. According to Austin, the sovereign is exempt from all legal
restrictions of any form, and no penalties of any kind can be placed on him. Individuals and organizations
as a whole cannot compete with the command of sovereignty. According to Austin's view, the sovereign
has zero accountability, placing the entire nation and its citizens at the whim of a single individual who
can decide someone's life or death based on his or her mood or personal interests. The notion of
democracy and the federal system in India are also at odds with this way of thinking. In the light of the
above discussion, we can say that Austin’s theory is not quite relevant to India in modern times as it does
not take into consideration multiple things like international law, separation of power, democratic form of
government, etc which have let India maintain its integrity, unity & prosperity and flourish over the course
of time from the colonial British rule to the biggest democracy of the world. Also, because of India’s vast
cultural, religious heritage and having the most youth in the world, not everything can be done in
accordance with the almost 150 years old theory formed under extreme legislative conditions.

But it can’t be denied that Austin’s work has made a very significant contribution in the evolution of law
and Jurisprudence as a subject. Austin was the one of the jurists who were able to articulate law with such
simplicity and clarity which has opened up the way for other jurists to evolve that work in modern day
legal system.

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REFERENCE

 V D Mahajan, Jurisprudence and Legal Theory (5th edition)

 A.K.Gopalan v. State of Madras, AIR 1950 SC 27.

 R.K.Garg v. Union of India, AIR 1976 SC 1559.

 Jolly George Verghese v. The Bank of Cochin, AIR 1980 SC 470.

 Pragalbh Bhardwaj & Rishi Raj, “Legal Positivism: An Analysis of Austin and Bentham IJLLJS <
http://ijlljs.in/wp-content/uploads/2014/10/Legal-Positivism-An-analysis-of-Austin-and-
Bentham.pdf > accessed on 21 July 2021.

 Monika Saraha, Austinian Concept of Sovereignty and its Existence in Indian Political Order’ <
http://www.legalservicesindia.com/articles/sover.htm > accessed 20 July 2021.

 Anubhav Garg, Austin’s sovereignty theory and its relevance in modern Indian political and legal
environment (ipleaders) < https://blog.ipleaders.in/austin-sovereignty-theory/ > accessed 20 July
2021.

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