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This book contains all the necessary information on jurisprudence.
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JURISPRUDENCE Break up of topics: Introduction to jurisprudence and legal theory
A note Jurisprudence is one topic which is only in the prelims of the Civil Services Examination. Therefore, it is suggested to the aspirants that they should not try to get too much into the depth of the subject. There are approximately twenty questions on jurisprudence in the prelims. Broadly, the trend is that they ask you around 12-13 factual questions specifically pertaining to: (a) Definitions and statements (b) Jurists and their schools (c) Books and authors (d) Some cases (particularly pertaining to the chapter on ‘Possession’), etc. The other 7-8 questions are pure concept based questions in which your understanding of the subject matter is tested. In such questions, it is suggested that one should always go by the way of elimination. One should particularly focus upon, for such questions, those areas on which assertion-reasoning type of questions can be asked. Particularly while doing the schools of jurisprudence, one should take care of understanding the difference between the various schools.
a blue print of success
R a h u l ’ s
Bentham and his disciple Austin, in early 19th^ century that the word began to acquire a technical significance. The various attempts at defining jurisprudence have been as follows: Ulpian (Roman jurist): “Juris prudentia est divinarum, atque humanarum rerum notitia, justic atque injustic scientia” i.e. Jurisprudence is the knowledge of things divine and human, the science of right and wrong. Paulus (Roman jurist): The law is not to be deduced from the rule but the rule from the law. Hobbes: In ‘Elementeae philosophiae’ deals with the nature of national law, political government and sovereignty. Black Stone: ‘Jurisprudence is the study of science of law’. Wurzel: “Jurisprudence was the first of social science to be born.” Bentham (1748-1832) : Some important points about Bentham: He distinguished between examinations of the law as it is (expositional) and as it ought to be (censorial) jurisprudence. His theory is called a “utilitarian individualism” – He was an individualist. He criticised the method of law making corruption and inefficiency of the administration of justice and restraints on the individual’s liberty. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. Once the individual was made free he himself shall be looking after his welfare. In this way he was a supporter of laissez faire principle of economics. He pleaded for codification and condemned judge- made law and customs etc. He was a utilitarian also. According to him, the end of legislation is the ‘greatest happiness of the greatest number’. He defined utility as the ‘property or tendency of a thing to prevent some evil or to procure some good’. The theory of pleasure and pain. The purpose of law is to bring pleasure and avoid pain. Bentham gave the concept of “felicific calculus” – Under this, Bentham presented a chart as per which the pleasures and pains could be calculated. Friedman in his book “Legal Theory” has criticised Bentham on true accounts – (1) Bentham’s abstract and doctrinaire rationalism which prevents him from seeing an in all his complexity, in his blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This leads Bentham to an overestimate of the powers of the legislator and an underestimate of the need for individual discretion and flexibility in the application of law....... (2) Bentham’s failure to develop clearly his own conception of the balance between individual and community interests. Bentham wrote – (1) Theory of Legislation (2) Limits of jurisprudence defined (written in 1782 but published in 1945) Bentham defined law as follows – “A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expection of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question.” John D Finch in “Introduction to Legal Theory” has criticised Bentham as – “With Bentham came the advent of legal positivism and with it the establishment of legal theory as a science of investigation as distinct from the art of rational conjecture, Bentham laid the foundations of this new approach, but, far from containing the solution to problems involving the nature of positive law, his work was only the beginning of a very long and varied, series of debates, which are still going on today.” Salmond: “Jurisprudence is the science of first principles of the civil law”. Jurisprudence, according to Salmond, deals with law of state consisting of rules applied by courts in
administration of justice. There are three kinds of law which govern the conduct of human beings i.e.
However, in the modern times, the law has been secularised and has grown into an independent branch of social science. Therefore, now the earlier theological definitions no longer hold ground. Nevertheless, “justice” still happens to be an important element in some of the modern definitions. But the concept of justice now is seen in the sense of legal justice and not an abstract justice. Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice.” Salmond therefore gives emphasis upon two aspects:- (1) It is the courts and not the legislature which will determine the true nature of law. (2) In order to understand the true nature of law, one should understand its purpose.
Criticism (1) Vinogradoff criticises Salmond on the ground that his definition of law proceeds from the action of the judges. It is somewhat ‘like the definition of a motor car as a vehicle driven by chauffeur.’ He asks: “What should we think of a definition of a medicine as a drug prescribed by a doctor?” (2) Another point of criticism against Salmond’s definition is that he confuses ‘justice’ with law. Law and ‘justice’ are not the same thing. Law is that which is actually in force whether it be evil or good. ‘Justice’ is an ideal founded in the moral nature of man. However, Salmond never means that law is justice but the utmost that he says is that only by law justice can be achieved. From this interpretation it appears that law has been defined by Salmond in terms of its purpose. Defining law in terms of its purpose may help in understanding the nature of law but law serves many ends and by confining it only to the pursuit of ‘justice’, Salmond has narrowed the field of law. According to Salmond’s definition, a rule is law because courts would recognise, apply and enforce it rather than the courts would recognise, apply and enforce it because it is law. Salmond’s definition presents a picture of law in which law is subsequent to the administration of justice and thus more-importance is attached to the law courts. Salmond’s definition may be of some use to lawyer but otherwise it has no wider application. A definition must have, if not universal, at least very wide application and Salmond’s definition is lacking in this respect. His definition is very narrow. It is applicable only to the common law of England which is judge- made law.
Positivist definition According to Austin , “law is the aggregate of sovereign, to men as politically subject.” In other words, law is the ‘command of the sovereign.’ Thus, the command, duty and sanction are the three elements of law. The law which has these elements of characteristics is called ‘positivist law’. He distinguishes ‘positive law’ from ‘positive morality’. According to Austin, sovereign, command and sanction are the three basic and essential elements of law.
Criticisms (1) All law is not command. (2) Much of the law is enabling rather than restrictive (it means it is not duty). (3) It is not the sanction alone that makes the obedience of law possible but there are other factors also. (4) Austin’s definition does not cover customs and International law because they have not all the essentials which “law” must have according to Austin. He completely ignored the social aspects of the law and the psychological factors which secure its obedience. Kelson: Kelson defines law as the ‘depsychologized command.’ Though Kelson defines law in terms of command, he uses it in a sense quite different from Austin’s. By command, he simply means that it imposes a duty. Austin’s ‘sovereign’ does not come into picture in Kelson’s definition.
Sociological definition They define law in terms of its relation with the society. Duguit defines law as essentially and exclusively as social fact. It is in no sense a body of rules laying down rights. The foundation of law is in the essential requirements of the community life. It can exist only when men live together. Therefore, the most important fact of social life is the interdependence of men (this Duguit calls as ‘social solidarity’ ). The aim of the social institutions is to safeguard and further it. Only those rules can be called laws which further this end. The basis of the validity of law is the popular acceptance and not the will of the sovereign. The sovereign is not above the law but is bound by it. The law should be based on social realities. Ihering : Ihering defines law as ‘the form of the guarantee of the conditions of life of society, assured by State’s power of constraint.’ There are three main implications of this definition: (1) Law is treated as only one means of social control. (2) Law is to serve social purpose. (3) It is coercive in character, in other words the obedience to law is secured by the state through external compulsion. Ehrlich: He includes in his definition all the norms which govern social life within a given society. This definition goes to include even those fields where the law no longer remains law, but becomes sociology. Pound: Pound defines law as ‘a social institution to satisfy social wants’. It lays down a constructive scheme for the study of law in the context of social problems. Realist movement (applicable in U.S.A.) which is considered to be a part of the sociological approach, defines law in terms of judicial proposes. Holmes J. , the father of Realist Movement, says that ‘the prophesies of what the courts will do, in fact, and nothing more pretentious, are what I mean by law.’ Jerome Frank, Lewellyn, Cardozo to this belongs to schools. According to them, the formal law is simply a guess as to what the courts would decide and the law is that what the courts actually decide. In the ultimate analysis all the definitions have to be seen together. The combined effect of all the definitions is as follows: (1) Law presupposes state. There may be law even without the state, as the primitive law, but law, in modern sense of the term, implies state. (2) The state makes or authorises to make, recognises or sanctions rules which are called law. (3) For the rules to be effective there are sanctions behind them. (4) These rules (called law) are made to serve some purpose. The purpose may be a social purpose, or it may be simply to serve some personal ends of a despot.
HISTORICAL SCHOOL In this Historical school, the basic presumption is there is a link between the society and law. The law grows as per the needs of society. The societal necessities are specific for particular society and, therefore, accordingly the behaviour of society is also specific to that particular society. This behaviour is based upon particular society. As the necessities of society vary, the behaviour also varies. One it is found that a particular behaviour has been consistently practiced in society and followed because of legal compulsion such a behaviour will be said to have value at customary law. It is the customary law at which existing law come into the society. Though the basis theory of Maine, Puchta are not have essentially the same element, essential premise is same. The historical school approach to law originated in the beginning of 19th^ century. Savigny is considered to be its chief exponent. The basis of historical approach lies in Roman law. MONTESQUIEU anticipated historical school and stated that “laws were creation of climate, local situation, accident or imposture.” Maine calls him the first jurist who proceeded on historical method.
Savigny opposed the codification of law on several grounds. In the first place, he pointed to the defects of contemporary codes. Secondly in matters on which there is no Volksgeist, a code might introduce new and unadaptable provisions. Thirdly, he argued that codification could never cater exhaustively to all problems that arise in the future and hence was not a suitable instrument for the development of law. Fourthly, he argued that codification would highlight the loopholes and weaknesses of the law and so encourage evasion. Codification in Savigny’s view, should be preceded by ‘an organic, progressive, scientific study of the law’, by which he meant historical study. Reforms should await the results of the historians’ work. The legislators should look before they leap into reform. In essence, the theory of Savigny –
Criticism of Savigny’s Theory (1) Inconsistency in the theory – On the one hand, he asserted that the origin of law is in the popular consciousness, and on the other hand, argued that some of the principles of Roman law were of universal application. Savigny’s view of adopting principles of Roman law was vehemently opposed by Beselor, Eichorn, and Gierke. (2) ‘Volksgeist’ not the exclusive source of law – Savigny’s view that popular consciousness is the source of all law is not true. Sometimes, an alien legal system is successfully transplanted in another country. (3) Customs not always based on popular consciousness – Many customs originated only for the convenience of a powerful minority, as slavery. Many customs are adopted due to imitation and not on the ground of their righteousness or any conviction of the community. Sometimes, customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community. (4) He ignored other factors that influence law – Another criticism against Savigny is that he was “so occupied with the source of the law that he almost forgot the stream”. He overlooked the forces and factors which influence and determine the growth of law. The creative function of the judge has also been ignored in Savigny’s theory and the contribution of the jurist has been taken very lightly. Many rules, in modern time, are the result of a conscious effort. For example, the law relating to trade unions is an outcome of a long and violent struggle between conflicting interests within a society. (5) Many things unexplained – Certain invariable traits, like mode of evolution and development noticeable in all the legal systems of the world are left unexplained in Savigny’s theory. Legal developments in various countries show some uniformity to which he paid no heed. Prof. Korkunove says: ‘It does not determine the connection between what is national and what is universal’. (6) Juristic pessimism – According to Pound, Savigny encouraged ‘juristic pessimism’. According to his theory, legislation must accord with popular consciousness. Such a view will not find favour in modern times. No legal system would like to make compromise with abuses only because that people are accustomed to it. It is rightly said
that Savigny’s theory tended to hang traditions like fetters upon the hands of reformative enterprise. ‘It discouraged creative activity and legal reform’.
Applicability of Savigny’s Theory to India The applicability of Savigny’s theory to India is limited. (1) Federal Constitution – In a federal Constitution, there is a division of powers between the federal (central) and the State Governments and both are independent in their own spheres. The basis of such distribution of powers is that in matters of national importance in which a uniform policy is desirable in the interest of the units, authority is entrusted to the Union (Union List) and matters of local concern remains with the States (State List). Thus, in a federal Constitution, law lacks a ‘national’ character as envisaged by the Savigny. India is a federal State. However, it enshrines the principle that inspite of federalism, the ‘national interest’ ought to be paramount. The Indian Constitution is mainly federal with unique safeguards for enforcing national unity and growth. At the time of emergency, it acquires a unitary character, and the normal distribution of powers between Centre and States undergoes a vital change. The Union Parliament is empowered to legislate on any subjects mentioned in the State List. During normal times also, the Parliament has power to legislate in the national interest (Article 249). The Preamble of the Constitution declares India to be a “Sovereign, Socialist, Secular, and Democratic Republic”. The term ‘democratic’ indicates that the Constitution has established a form of Government which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential characteristics of a democracy are declared in the Preamble as the very objectives of the Constitution. Democracy would indeed be hollow if it fails to generate this spirit of brotherhood among all sections of the people – feeling that they are all children of the same soil and the same motherland. It becomes all the more essential in a country like India composed of many races, religions, languages and culture. The Preamble declares that the Constitution of India is adopted and enacted by the people of India and they are the ultimate master of the Republic. Thus, the real power is in hands of the people of India, both in the Union and in the States. (2) Source of Indian Constitution – The Preamble indicates the source from which the Constitution comes, viz., the people of India. However, the framers of Indian Constitution incorporated various provisions of the Constitutions of world in order to avoid defects and loopholes that might come in future in the working of Indian Constitution. Accordingly, they framed the Chapter on Fundamental Rights on the model of American Constitution, and adopted the parliamentary system of Government from the U.K.; they took the idea of Directive Principles from the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the Constitution of Germany. Thus, the Constitution of India which is the supreme law of the land has many features borrowed from other nations, so not fitting properly in the Savigny’s scheme. (3) Received common law in India – The process of reception of English law through the agency of the judiciary continued unabated during the 19th^ and 20th^ centuries in India. For example, in the law of torts, the Indian courts lifted bodily the whole mass of English law, as there was nothing in India to fall back upon for the courts in this area. At times, the native law and usage were supplemented, modified and superseded by English Law. The ancient personal law was found to be too rigid and outdated in the modern socio-economic conditions of the society. The legislature, however, moved mostly in response to the strong pressure of reformist section of the Hindus favouring the proposed changes. Thus, laws ameliorating the condition of Hindu women, getting free Hindu society of some long standing social evils, loosening the rigidity of joint family system, etc. were introduced. The Hindu Law never recognised any form of wills, but the
The origin of this method is owed to Montesquieu. Post , Dahn and Fouillee belong to this school. The main proponent of this school is Sir Henry Maine (1822-1888). He was a Professor of Civil Law at the University of Cambridge. He was also a law member in the Council of The Governor General of India between 1861 and 1869. He wrote to the books Ancient Law , Village Communities , Early History of Institutions , and Early Law and Customs. The basic differences between this school and the historical school are: This school took a more balanced approach to history. Comparative school used history to know the past of law and not to decide its future course whereas the historical school used history for both the purposes. Savigny explained the relation between community and the law whereas Maine went a step further and pointed out the link between the developments of both and purged out many of Savigny’s exaggerations. Comparative school gave the theory on the basis of comparison between various legal systems. Comparative school favoured legislation and codification whereas the historical school was opposed to it. The theory – There are four stages of the development of law:- (1) Commands of the ruler under the divine inspiration (Themistes). (2) Commands crystallise into customary law. (3) Knowledge and administration of customs goes into the hands of minorities e.g. priests. (4) Codification: Law gets codified. Maine says that Static societies do not go beyond 4th^ stage. But Progressive societies go beyond the 4th^ stage. This happens by three methods – (a) Legal fiction – Letter of law does not change but its operation changes e.g. law of adoption. Maine is against this as it makes law more complex. (b) Equity – Inherent ethical superiority changes the law and the principles of ethics start governing the law. (c) Legislation – Most desirable method. But should not conflict with deep seated traditions of the community. The movement of progressive societies has hitherto been a movement from status to contract : In the early stages, the legal condition of an individual is determined by his status as determined by law e.g. caste etc. But in the later stages (Progressive society) status disintegrates and legal condition is determined by free negotiation on the part of the individual. Maine defines status as: “A fixed condition due to an individual’s belonging to a group.” There is no individual will. He cannot change his status by his own will since family is a unit. (Pater familias) Contract – Individual becomes important and therefore he can enter into a contract. Since human will becomes important, therefore individual creates his own status by his own endeavours, achievements and negotiations. Application – Earlier, the change was from status to contract. But now, group bargaining has become important resulting into collective contract (standardised contracts). Individuals will declines. As a result, shift is from contract to status now. Therefore, Maine’s theory does not apply to totalitarian states. Hart (Analytical Positivist/Primary and Secondary rules) Book – “Concept of Law”. He bridges the gap between Savigny, Ehrlich and others, on one hand and Austin, Kelsen and others on the other. Hart is also said to be belonging to the modern ‘natural school’. Two conditions necessary for the existence of a legal system:
(a) hose rules which are valid according to the system’s ultimate criteria of validity and must be obeyed. (Primary rules) (b) Rules of recognition. They must be effectively accepted. (Secondary rules). International law is a ‘Primary Rule’ and therefore, it is ‘Law’. Law as a system of Rules - Rules are concerned not with what happens but with what ought to happen; they are prescriptive i.e. they prescribe a code of conduct. Rules can be defined as code of conduct which is observed with the attitude of feeling that such conduct is obligatory. This feeling is not a psychological illusion and a person who is required by the rule to act in a certain way and who conforms to such a pattern of behaviour, will require the same from others. Hart defines law: “Law then consists of rules which are of broad application and non- optional character, but which are at the same time, amenable to formalisation, legislation and adjudication.” According to Hart, a legal system arises from a combination of primary and secondary rules. Primary rules are those which simply impose duties while secondary rules are power conferring rules. According to Hart, it is secondary rules of recognition, which transfer a set of unrelated rules into a unified dynamic legal system capable of adaptation to social change. Thus IPC – Primary Rule, Constitution – Secondary Rule Sanction is not an essential element. Emphasizes upon the socially constructive function of law. Hart’s System of Rules:
Social Rules
Etiquette Dress Obligation
Law Morality
Primary Rules Secondary Rules
However, every society has got its own influential factors
Primary Rule Secondary Rule The code of behaviour which society prescribed However, the primary rule can not be are called primary rules because these set of static. They got inherent dynamism rules are the once on which basis the entire because the society is dynamic.
Survival is the prime concern of any society.
He was attempting to examine keenly the structure, conceptions and functioning of the legal system in order that outworn abuses may be swept away – that every privilege should be justified by utility. He analyses legal terms such as power, right prohibition, obligation and attempts to show what infact, they mean in the world practice. According to Bentham – “a law may be defined as an assemblage, of signs, declarative of a violation conceived and adopted by the sovereign in a state concerning the conduct to be observed in certain cases by a certain persons or class of persons who in the case in question are supposed to be subject to his power”. Bentham further says that the individual should be liberated from his bondage and restraints on his freedom. Once that is done the individual would be able to take care of himself. He emphasized on the theory ‘pain and pleasure’ and believed that the main function of law was to bring pleasure and avoid pain. He firmly believed in the introduction of a civil code as he had a hatred for judge made law. His desire for reform was based on the doctrine of utility. The two sides of Bentham’s work each created a separate school – The pure analyst interested in the law as such, and the teleological writer interested in the ends which law should pursue. Criticism: Overestimates the powers of the legislator (the sovereign). John Austin (1790-1859) – “law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” Austin made distinction between “law properly so called”. And “Law improperly so called”. According to him, ‘law is the general command of the sovereign backed by sanction’
Types of law as per Austin: a) Law set by God or Divine law and b) Positive law set by men to men acting as political superior or in pursuance of rights conferred by political superior. c) “Laws improperly so called” are those laws which are not set by political superiors, but which are laws by analogy. Example: - i) A law set and enforced by mere opinion ii) Laws of fashion iii) International Laws
Austin’s “Province of Jurisprudence Defined”
Laws Properly so called Laws Improperly so called
Law of God Human Laws Laws of Analogy Laws by Metaphor
Positive Laws Laws strictly so called
Laws set by men not as Political Superior or in pursuance of Legal Rights
Positive Morality
The central feature of Austin’s theory is of course, the notion of law as command of the sovereign. Anything that is not command is not law. Only general commands are law. And only commands emanating from sovereign are positive law.
Austin’s Commands
Particular Commands General Commands Not law
Commands of God Commands of Sovereign Commands of others Positive Law Positive Morality
There are five elements of his definition of positive law expressed as (1) wish, (2) sanctions, (3) expression of wish, (4) generality and (5) a sovereign. Or L = W + S + E + G + S. This insistence on law as commands has been a major focus of attention of attack on Austinian theory. Not only does it require the exclusion of customary, constitutional and international law from the fields of jurisprudence but it drives Austin to somewhat artificial conception of tacit commands, circuitous commands (when a sovereign’s desire to require obedience to the commands of his predecessors is affected by his refraining from repealing them) and of nullity of, say, a contract as constitutional sanction. Bentham on the other hand, argues that commands are merely one of five methods by which the sovereign enacts law. In developing his (far more sophisticated) theory of structure of law , he distinguishes between law which command or prohibit certain conduct (imperative law) and those which permit certain conduct. Of laws in general Bentham is concerned with distinction between penal and civil laws. Every law has penal and a civil par; thus even in the case of title to property there is a penal element as Bentham puts: “let the proprietary subject then be a certain piece of land, a field, the offence of which consists in the wrongful occupation of this property will be any act in virtue of which the agent may be said to meddle with this field - -- the offence then being the act of meddling with the field, the act which is the object of the law the act commanded is the negative act of not meddling with the field. In other words, the owner’s title is derived from general (penal) prohibition against meddling with the field. The owners himself, of course, is exempted from this prohibition. What Bentham seeks to show is that laws which impose no obligation or sanction are not complete law but merely parts of laws. The chief work of Austin was to give a definiteness and precision to Bentham. Austin therefore represents a combination of utilitarianism and juristic positivism. Austin’s view may be discussed under three heads. a) Basis of jurisprudence b) Method of jurisprudence c) Law and ethics A) Basis of jurisprudence: Command of sovereign: the imperative definition of law. In the broadest sense in which the term law can be used, it signifies a command which obliges a person to a course of conduct. Being a command, it must issue from determinate person with the threat of displeasure if the rule is not obeyed. But every command does not create a law. B) The method of jurisprudence: distinguishes the species which is of interest to the jurists’ Positive law - Positive law is laid down by the sovereign either mediately or immediately. It is a rule laid down by political superior for a political inferior. Austin’s theory of sovereignty: If a determinate human superior not in the habit of obedience to like superior receives habitual
Criticism against command theory (1) Association of duty with command – Prof. Olivecrona points out that duties are ‘ought’ propositions which are phrased imperatively. (‘You must’ or ‘You shall’), and it is a non sequitur to suppose that such phraseology of itself implies command. (2) Idea of command inapplicable in modern society – Command presupposes some determinate person who commands. In modern times, the machinery of State remains always changing and it is run by a number of persons. Therefore, law cannot be treated as the command of anyone in particular.
(3) Law and command – The function of a law is to regulate future conduct indefinitely and to serve as a standard by which to judge deviance: a command is more usually directed to a specified individual or individuals with reference to a particular act or forbearance and does not serve as a general standard of judgment. Further, there are many laws which are not commands e.g. rule that no action to succeed when the limitation period has expired, or that merely defines what constitutes contract or murder, or power – (or privilege) conferring rules (e.g. power to make a will under the Wills Act, Article 32 of the Constitution, etc.). The term ‘command’ implies coercive character while these laws are of permissive character. Procedural laws, in the same way do not fit into the Austin’s definition of law. (However, Buckland has tried to defend Austin’s theory by arguing that the statute as such and not a particular provision to a command. Further, declaratory statutes could have been treated as repealing earlier commands, while repealing statutes may be said to create fresh claims and duties by their cancellation of earlier ones and so be said to command. Thus, Austin wrongly concluded that such laws were exceptions). (4) Inapplicability to modern social legislations – Duguit asserted that the notion of command is inapplicable to modern social legislations, which do not command people but confer benefits, and which binds the State itself rather than the individual. (5) Conventions of the Constitution – These operate imperatively, though not enforceable by court, shall not be called law, according to Austin’s definition, although they are law and are a subject-matter of a study in jurisprudence. (6) Judge-made law – In Austin’s theory, there is no place for judge-made law. Although he emphasised that the judges act under the power delegated to them by sovereign. Therefore, they are commands (tacit) of the sovereign and judgments made by them are thus rules of positive law. According to Salmond, judges are not administers or delegates of the crown, but they do create rules of positive law. When Austin developed his theory of command, he took into account that legislature is supreme; he could not imagined about the judicial review. Under the present day context, judicial interpretation of laws has become an inevitable feature. Further, judicial precedents are binding laws while no body has commanded these. (7) Commands of a sovereign – It has been pointed out that even actual commands of a sovereign only acquire the character of laws when certain procedures (parliamentary) have been followed. If these procedures are laws, it is difficult to square them with command. If they are not laws, they are not different from the dictates of etiquette and morals. While they must be different. (8) Sanction is not the only means to induce obedience – According to Austin, it is the sanction alone which induces the man to obey law. It is submitted that it is not a correct view. Various motives such as sympathy, fear, indolence, and reason induce a man to obey law. The power of the State is ratio ultima – the force which is the last resort to secure obedience. (9) Relation of law and morals over-looked – According to Austin, “the science of jurisprudence is concerned with positive law, or with laws strictly so called, as considered without regard to their goodness or badness.” The basis of law is the power of superior and not the ethics or the principles of natural justice.” This is not a correct proposition. Ethical and moral elements cannot be excluded from law. Morals have taken important place in the sphere of law in the name of justice, equity, good faith, etc. Morals play important role in restraining powers, of legislature because it cannot enact a law against the morals of the society.
Criticism against Austinian Sovereignty
