Introduction- Austin's Analytical Positivism

Austin is considered to be the 'father of English Jurisprudence'. He confined his study only to the positive law and applied analytical method for this purpose. By positive law, Austin meant ‘laws properly so called’ as distinguished from morals and other laws which he described as ‘laws improperly so called’ which lack force or sanction of the State. Austin described positive law as the aggregate of rules set by man as politically superior to men as politically inferior subjects. He attributes (1) command, (2) sanction, (3) duty, and (4) sovereignty as the four essential attributes of positive law.

It was Austin who for the first time treated jurisprudence as a science of law concerned with analysis of legal concepts-their exposition, examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organised society.

Austin distinguishes positive law from positive morality which is devoid of any legal sanction. He identifies law with command, duty and sanction.

Austin's analytical school as Imperative school

Austin defined law as "a rule laid for the guidance of intelligent beings by an intelligent being having power over him." He divides law into two parts, namely, (1) Laws set by God for men; and (2) Human Law, that is laws made by men for men. According to Austin, the study and analysis of positive law alone is the appropriate subject-matter of jurisprudence. To quote him, "the subject-matter of jurisprudence is positive law-law simply and strictly so called; or law set by political superior to political inferiors."

The chief characteristics of positive law are command, duty and sanctions, that is, every law is command, imposing a duty, enforced by sanction. Thus, he strongly believed that law is the sovereign's command carrying with it threat of evil which is called sanction, and the party commanded and threatened is under an obligation (or duty) to obey it. Duty and command are co-relative and fear of sanction (punishment) is the motive for obedience of such command, i.e., law.

Austin, however, accepts that there are three kinds of laws which, though not commands, may be included within the purview of law by way of exception. They are:-

1. Declaratory or Explanatory laws- These are not commands because they are already in existence and are passed only to explain the law which is already in force.
2. Laws of repeal- Austin does not treat such laws as commands because they are in fact the revocation of a command.
3. Laws of imperfect obligation- They are not treated as command because there is no sanction attached to them.

Criticism of Austin's Imperative Theory of Law

Austinian theory of law and analytical positivism has been criticised by jurists like Bryce, Olivecrona and others. Bryce characterises Austin's work as full of errors which hardly has any significance in juristic thought. Austin's theory has been criticised on the following grounds:

1. Customs overlooked- Austin's view that 'law is the command of sovereign' is not supported by historical evolution of law when customs played a significant role in regulating human conduct. Further, customs still continue to be a potent source of law even after the coming into existence of the State.
2. Permissive character of law ignored- Austin's theory does not take notice of laws which are of a permissive character and confer privileges eg. the Bonus Act, or the law of Wills etc.
3. No place for Judge-made law- Judge-made law has no place in Austinian conception of law although the creative function of judiciary as a law-making agency has been accepted in modern times all over the world.
4. Austin's theory treats International law as mere morality- Austin does not treat international law as 'law' because it lacks sanction. Instead, he regards international law as mere positive morality.
5. Command over-emphasised- The Swedish Jurist Olivecrona has denounced Austin's theory of law because of its over-emphasis on ‘command’ as an inevitable constituent of law. In modern progressive democracies law is nothing but an expression of the general will of the people. Therefore, the command aspect of law has lost its significance in the present democratic set-up where people's welfare is the ultimate goal of the state.
6. Inter-relationship between Law and Morality completely ignored- Perhaps the greatest shortcoming of Austin's theory is that it completely ignores the relationship between law and morality. Law can never be completely divorced from ethics or morality which provide strength to it. The legal concepts such as 'right', 'wrong', 'duty', 'obligation' etc. themselves suggest that there is some ethical or moral element present in them.
7. Sanction alone is not the means to induce obedience- Austin's view that it is sanction alone which induces a person to obey law, is not correct. There are many other considerations such as fear, deterrence, sympathy, reason etc. which may induce a person to obey law. The power of the state is only the last force to secure obedience of law.
8. Indivisibility of sovereignty criticised- While bringing out distinction between positive law and positive morality, Austin opined that the former was set by a political superior called the sovereign. According to him, the sovereign could not be under a duty because his being under a duty would impliedly mean that there is another sovereign above him. But Jethro Brown has contended that the sovereign could well be bound by a duty towards his subjects.

The Austinian view regarding indivisibility of sovereignty has also been criticised by some writers particularly, Bentham who showed here sovereignty could be divided by conferring concurrent power of law-making between colonial legislature and British Crown during the colonial rule in India and elsewhere.