A Project Report on

AUSTINS CONCEPT OF COMMAND AND SOVEREIGN IN TODAYS ERA

Subject:

Jurisprudence

Submitted to:

Ms. Anukriti Mishra

Submitted by:

Vivek Gurnani

(B.A.LL.B. (Hons.) 5th semester, Roll no. 173)

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR (C.G)

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ACKNOWLEDGEMENT

I feel highly elated to work on this dynamic and highly popular topic Austins theory of
command and sovereign in todays era. I want to make it clear that I am not a master in the
subject, but, I have tried my level best to give a clear picture. This project, however, does not
deal with the topic exhaustively.

Not to forget the deep sense of regard and gratitude to my advisor, Ms. Anukriti Mishra who has
played the role of a protagonist, who has always given me guidance to go ahead with my topic. I
also take up this opportunity to thank my colleagues for helping me in completing this project. I
also thank Librarian HNLU, Raipur, for assisting me and allowing me to use the library of the
University.

Finally I would like to thank God, the Almighty without whose blessings this project would
never have been a success.

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TABLE OF CONTENTS

Acknowledgements
Research methodology
Objective
Chapter I : Introduction
Chapter II : Life
Chapter III : Historical evolution of the doctrine of sovereignty
Command: an aspect of law.
Chapter IV : Prevalence and Relevance of Austins concepts in todays era
(Modern India and Pakistan)
Conclusion
References

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 RESEARCH METHODOLOGY

The Doctrinal Method of Research is used in this project. It included collection of materials from
secondary sources; the secondary data sources include form of books and articles.

OBJECTIVE

To study John Austins theory of sovereignty.

To study the concept of command.
To know about the relevance of these concepts in the contemporary times.

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CHAPTER I

INTRODUCTION

We seldom try to question the genesis of our legal theory. The way we gaze at the stars without
finding a reason for their origin, is exactly the way we follow laws without questioning them and
without even understanding their origin. Much ink has been spilt by legal philosophers trying to
provide with a solution to this ever-ending debate, as to what is law.

The project paper does not intend dealing with such wider a question, but emphasizes and
evaluates only one of the greatest thinkers ever who succeed in establishing law as the degree
course after much stride. Austin has marked a phenomenal change in the entire understanding of
legal theories.

Austin in Province of Jurisprudence Determined broke the shackles of natural law, following his
teacher Bentham, and provided for a newer legal theory, which was more scientific in nature.
What the paper intends is to find out the validity of his finding of law as the command of the
sovereign and its relevance to the present context. In doing so the paper has been divided into
various sections. It begins with tracing the evolution of the doctrine of sovereignty and how
Austin defined this concept. The next section deals with the critical analysis of the same. In this
section Austin's view on sovereignty has been criticized for reasons explained in detail. And
lastly a brief discussion ensues on the existence of a sovereign as postulated by Austin in modern
India and pakistan, the section concludes with the observation that Austin's sovereign does not
have any place in Modern India but is definitely standing tall in Pakistan.

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CHAPTER II

LIFE

John Austin's life (17901859) was filled with disappointment and unfulfilled expectations. His
influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas
Carlyle) were impressed by his intellect and his conversation, and predicted he would go far.
However, in public dealings, Austin's nervous disposition, shaky health, tendency towards
melancholy, and perfectionism combined to end quickly careers at the Bar, in academia, and in
government service (Hamburger 1985, 1992).

Austin was born to a Suffolk merchant family, and served briefly in the military before
beginning his legal training. He was called to the Bar in 1818, but he took on few cases, and quit
the practice of law in 1825. Austin shortly thereafter obtained an appointment to the first Chair
of Jurisprudence at the recently established University of London. He prepared for his lectures
by study in Bonn, and evidence of the influence of continental legal and political ideas can be
found scattered throughout Austin's writings. Commentators have found evidence in Austin's
writings of the German Pandectist treatment of Roman Law, in particular, its approach to law as
something that is, or should be, systematic and coherent (Schwarz 1934; Stein 1988: pp. 223
229, 238244; Lobban 1991: pp. 223256)

Lectures from the course he gave were eventually published in 1832 as Province of
Jurisprudence Determined (Austin 1832). However, attendance at his courses was small and
getting smaller, and he gave his last lecture in 1833. A short-lived effort to give a similar course
of lectures at the Inner Temple met the same result. Austin resigned his University of London
Chair in 1835. He later briefly served on the Criminal Law Commission, and as a Royal
Commissioner to Malta, but he never found either success or contentment. He did some
occasional writing on political themes, but his plans for longer works never came to anything
during his lifetime, due apparently to some combination of perfectionism, melancholy, and
writer's block. His changing views on moral, political, and legal matters also apparently hindered
both the publication of a revised edition of Province of Jurisprudence Determined, and the
completion of a longer project started when his views had been different.

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(There is some evidence that Austin's views later in his life may have moved away from
analytical jurisprudence (see below) towards something more approximating the historical
jurisprudence school (Hamburger 1985: pp. 17891).)

Much of whatever success Austin found during his life, and after, must be attributed to his wife
Sarah, for her tireless support, both moral and economic (during the later years of their marriage,
they lived primarily off her efforts as a translator and reviewer), and her work to publicize his
writings after his death (including the publication of a more complete set of his Lectures on
Jurisprudence) (Austin 1879). Credit should also be given to Austin's influential friends, who not
only helped him to secure many of the positions he held during his lifetime, but also gave
important support for his writings after his death (Hamburger 1985: pp. 33, 197; Morison 1982:
p. 17; Mill 1863).

Austin's work was influential in the decades after his passing away. E. C. Clark wrote in the late
19th century that Austin's work is undoubtedly forming a school of English jurists, possibly of
English legislators also. It is the staple of jurisprudence in all our systems of legal education.
(Clark 1883: pp. 45) A similar assessment is made by H.L.A. Hart, looking back nearly a
century later: within a few years of his death it was clear that his work had established the study
of jurisprudence in England (Hart 1955: p. xvi). As will be discussed, Austin's influence can be
seen at a number of levels, including the general level of how legal theory, and law generally,
were taught (Stein 1988: pp. 238244), and the use of an analytical approach in legal theory. At
such levels, Austin's impact is felt to this day. Hart could write that Austin's influence on the
development of England of [Jurisprudence] has been greater than that of any other writer, (Hart
1955: p. xvi) even while Austin's particular command theory of law became almost friendless,
and is today probably best known from Hart's use of it (1958, 1994) as a foil for the elaboration
of Hart's own, more nuanced approach to legal theory. In recent decades, some theorists have
revisited Austin's command theory (and other works), offering new characterizations and
defenses of his ideas (e.g., Morison 1982, Rumble 1985).

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CHAPTER III

THE HISTORICAL EVOLUTION OF THE DOCTRINE OF SOVEREIGNTY

The Roman province believed in the dictas in New Testament, which expressed the thought that
the supreme power actually has received divine sanction by being permitted to prevail, that it has
a rightful claim to obedience. These dicta are an evidence of the sentiments of roman provincial
under the earlier empire .The prevalent answer to any question about the source of legal
sovereignty and the moral claims of a sovereign to the obedience of its subjects was that god had
appointed certain powers to govern the world and to resist would be a sin. It was admitted that
there were two sovereigns and each was absolute-The pope in spiritual and the emperor in
temporal matters.

However, late around, the sixteenth century various changes took place which shook the existing
fabric of thought and belief. These included the crumbling of feudal structure of the society,
pope's authority being met with a revolt and half the Europe was taken from his sway, a new
sprit of inquiry, skeptical in its tendencies sprang up in Europe( a characteristic of renaissance).
Thus the traditional doctrine regarding the basis of authority which had been sufficient for the
middle ages had faded, morals began to be separated from theology, people started questioning
the basis of a kings' claim to obedience. A new explanation of the nature of political society was
now needed and from this time onwards new theories of state power began to appear.

The first theory which exerted wide influence was that of Jean Bodin In his view sovereignty
was the highest power in a state which is subject to no laws but is itself the maker and master of
them. It may reside in either on person or in a number of persons , but in either case it is above
law, incapable of any limitation and having an absolute claim to the obedience of all. He
admitted that in some way the sovereign is subject to Law of God and laws of nature , and is
therefore he is bound to respect the rights of property and personal freedom.

Nearly a century later a similar theory was put forward by Thomas Hobbes. He based his
sovereignty on a covenant of each member of a community with another member to surrender all
their rights and powers into the hands of one person or body who thereby becomes the sovereign.
Since the sovereign is not himself a party to the contract it cannot be annulled by those who

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made it . The authority of the sovereign is therefore permanent and unlimited. Jermy Benthem
revived Hobbes theory of absolute sovereign and justified it. Thus we see that much before
Austin , there were other great philosophers who had defined sovereignty

COMMAND: AN ELEMENT OF LAW

It is highly necessary to understand the meaning of command as referred by Austin before

proceeding any further. Command is distinct from requests, wishes and so on. As per Austin,
all the rest are simply expression of desire, while commands are expressions of desire given by
superiors to inferiors. This creates an hierarchy of status among those governed and those
governing. The governed are bound by the desires expressed by the superiors and cannot demur.
This relationship of superior to inferior consists for Austin in the power which the former enjoys
over the latter, i.e. his ability to punish him for disobedience. Consequently, the subjection of the
inferior to the superior consists in his ability to suffer a penalty for disobedience. In a sense, then,
the idea of a sanction is built into the Austinian notion of command.

Austin himself said that law is a species of command, and not vice versa. Thus, it again
becomes important to understand what is the characteristic feature of law which distinguishes it
from rest of the commands. Here, reference can be made to Salmond , where he tries explaining
this with the help of an illustration. Suppose a state governed by an absolute ruler R. Here the
law is what R commands. But the converse might not be true. All commands by R are not law.
He may command his servants to prepare for the banquet. This is not law. We have to distinguish
law and instructions, e.g., to close the window, to turn up the heater, etc. R being an absolute
ruler could have his servants executed for disobedience even otherwise . Austin distinguishes
laws from other command by their generality, and laws he classified are general commands . But
then he himself says that there can be exceptions. Generality alone, then, is neither necessary nor
sufficient to serve as the distinguishing feature of law.

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CHAPTER IV

Prevalence & Relevance Of Austin's Sovereign In Todays Era

(Modern India and Pakistan).

In this part of the paper an attempt has been made to analyze the existence of Austin's sovereign
in modern India and Pakistan.

1. .Austin's notion that all laws come from the sovereign may be true theoretically, and laws in
our country (i.e. statue made laws at least) are a result of the act of the politically superior that is
the legislators but the same is not true practically as they are not a reflection of the will of the
superior in the real sense. Though many laws come directly from the parliament, but they merely
reflect the desire of these politicians to maintain support of the major organized groups in the
country and to meet their interests satisfactorily. Under the conditions of the day the huge
combination of labor, capital, with their expert lobby sit in wealthy treasuries, any group is able
to compel recognition and secure desired legislation. Only the fact that these groups are
competing amongst themselves prevents the government from becoming a helpless tool in their
hands. Even then the grinding impact of competing pressures upon the government requires
political astuteness of a high order to keep them satisfied and prevent the withdrawal of support
in the next elections. Thus we can say that Austins emphasis that sovereign is the main stream
of law is not just. Law emanating only from the sovereign may be fit for a totalitarian regime like
Pakistan where the government can use its monopoly of law making and executive powers for
the re shaping of laws in disregard of the democratic processes, but in a democratic country like
India the same is not possible. The interplay between the public opinion and state action has
become very complex these days whether we are concerned with the abolition of dowry, the
creation of legal remedies against administrative action or the introduction of a new ground of
divorce there is always some interrelation between the state machinery that produces these
changes and social opinion of the community in which they are intended to operate. public
opinion on vital issue is expressed through the elected representatives in the house, and also
through public discussion in press , radio, public lectures .It can thus be concluded that
legislative practices in our country provide for opportunities to the public to participate in the
legislative activities of those to whom these powers are delegated. On the contrary, Musharraf

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regime in Pakistan has created an authoritarian rule which is a narrowly based government that is
not responsive to the needs and aspirations of those not connected with the government
Moreover; the on-going judicial crisis has convinced the world that Musharraf wants the total
submission of all state institutions to his personalized and centralized rule. The result is thus that
due to a lack of a credible popular base such a centralized and authoritarian power structure has
not been able to address the participatory pressure with reference to social, economic and
political development in Balochistan(suicide bombing and violence). In the case of Sindh, the
issues of provincial participation and access to water resources remain unresolved. The Frontier
province is threatened by the rising tide of violence and religious extremism. It also expresses
dissatisfaction with the federal governments management of water resources and sharing of
profit of power generation. The results of the government policies in the tribal areas are uncertain

2. Austin postulates a political superior in a political society who is habitually obeyed by the
majority of the population. This means that sovereign is the highest authority, the strongest
authority in a political system. According to Austin sovereign is the person who has the last word
in a particular connection. But the issue is that how can one determine the 'highest authority' in a
democratic country like India , to identify the strongest power would involve an investigation of
a lot of legal as well as well extra legal forces which determine how a state shall operate. Who is
the highest authority, is it the masses who choose the government, is the legislators who finally
make laws, is it the judiciary that has the power to strike down laws made by the parliament, is it
the executive as laws that are enforced are selected by administrators today, what they consider
worthy of implementing is duly enforced other laws are followed more in breach than in
obedience. Is it the constitution according to which all others are expected to act or is it again the
masse by whom the constitution has been formed? Who do we call supreme. Besides these forces
there are other socio - economic forces that have the power to exert a lot of pressure to finally
determine what laws are formulated and most often have the final say. But in Pakistan General
Pervez Musharaff presides over a hierarchical political order on military lines the
commanding officer supported by the army-intelligence establishment that has the backing of
the top bureaucracy for governance and political management. The next layer comprises the co-
opted political leadership (i.e. ruling Pakistan Muslim League and its allies) who deal with the
day-to-day administrative and political management. The government carefully controls the

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recruitment of civilians to the position of power and influence, making it clear to them that what
matters most is loyalty to the leader.

3. Austins theory that law emanate only from the sovereign authority fails in India as much as it
would fail in other common law countries. There are various other very important sources of law
which cannot be ignored at all. His theory would fit only one portion of law that is the law made
by the legislative body. However, the word law is of wilder amplitude and includes not only laws
but bye-laws, notifications, customs which are not made by the state. Another important category
that Austin does not include in his definition of law is Judge made laws , in this era of judicial
activism where judiciary does not only interpret law but also makes law this category cannot be
ignored. principles of justice, equity, good conscience are important principles that are always
kept in mind while implementing any law none of them. But the ongoing judicial crisis in
Pakistan gives a different story, suspension of the chief justice of Pakistan and the manner of his
treatment by the government states, another strategy that is to overawe the adversary with state
power. Here the chief justice was pressured by the president and the prime minister to resign.
The manifestation of this varies from case to case. Nawab Akbar Bugti was killed by the law-
enforcement agencies and Sardar Akhtar Mengal was arrested.

4. Similarly Austin's concept of unlimited and indivisible sovereignty is quite inappropriate in

the Indian set up or any democracy. The sovereign does not have the power to command
anything that it desires. It is as much bound by rules and regulation embodied in the constitution
and other laws as any common man. Legislature is bound by the constitution and in almost all
cases court has the power to decide whether an act done by the government is constitutional and
hence valid otherwise it can be struck down. On the other hand in Pakistan there is no
recognition of a General Will which guarantees freedom. Musharraf is the pivot of power in the
current political arrangements and exercises effective administrative power over the civilian and
military institutions. By exercising more powers than assigned by the constitution, he has also
stifled the natural evolution of the federal cabinet and the parliament. There is no equality of all
citizens before the law, and the protection of those human rights which a particular people deem
to be essential to them. This proposition has a vital implication for the integrity of the state and
society.

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Thus we can say that the notion of sovereignty in India at present certainly not what Austin
would define as sovereignty, the concept of sovereignty is under restraint which is very justified
as the concept of an unlimited illimitable and indivisible sovereignty is a superfluity that debases
the very cannon of Indian Jurisprudence. In Pakistan, though the Austins concept can be seen in,
the authoritarian government but the world has experienced that how ineffective it has been in
exercising force and, thereby creating disorder, including violence and religious extremism.
Currently, the Musharraf government faces four sets of problems: the judicial crisis, law and
order situation (including suicide bombings and violence in Balochistan), financial and political
autonomy for the provinces, and attempts by several extremist Islamic groups to impose their
version of Islam through coercion and intimidation. Thus it has embarrassed the Pakistani
Government at the international level.

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CONCLUSION

In the forgoing discussion, an attempt had been made to analyze Austin's notion of sovereignty
vis -a-vis the modern day state. His theory of sovereignty did not seem to be applicable in
modern day democracies. Though the concept of Austin are still in existence in countries like
Pakistan but now the legal community and the societal groups are in the forefront of the anti-
Musharraf protest. The crisis of state power and legitimacy was manifested with tragic clarity on
May 12 in Karachi. It is widely believed that on that day a political party allied to the federal
government tried to show its strength by preventing the chief justice from addressing the local
Bar Association: There was a breakdown of law and order and a blood bath ensued. The
following day there was a countrywide protest strike from Karachi to Khyber by the people of
Pakistan, united in their moral outrage against injustice. As Barrington Moore, Jr. has argued,
moral anger and the associated sense of injustice are rooted in the sense of injury that is felt
when a social rule is perceived to have been violated.

Nevertheless, that in no way undermines the importance of his excellent work. Austin's concepts
about various legal concepts might not seem true in modern times but we should not forget that
Austin is regarded as one of the noted jurist of all times as much for his work and theory of law
as for the methodology employed to arrive at his theory. In his case both the ends arrived at as
well as the means used to arrive at them provided a great stimulus to the study of both 'law' as
well as 'jurisprudence.' Austin made numerous effort to establish law and jurisprudence as
discipline .He succeed in his attempts in the year 1839 when the first batch of law graduates
passed out from the university. Austin propagated and established that law can be studied in a
scientific manner, in his times science had a very progressive and promising scope therefore the
only way law could be established, as a discipline was to link it with the scientific methodology.
Austin postulated a general theory of law and studied law with the help of verifiable facts.

Thus we can conclude that with change in times, Austin's views might not appear very true for
the preffered political and legal order of the world but his greatest contribution of establishing
law as a discipline that can be studies in a scientific manner secure an esteemed position for him
in the canals of jurisprudence.

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REFERENCES

P. J. Fitzgerald, Salmond on Jurisprudence, 12th Ed., Sweet & Maxwell, (1996)

R.W.M. Dias, Dias Jurisprudence, 5th Ed., Aditya Books Pvt. Ltd., (1994)
W. Friedman, Legal Theory, 5th Ed., Universal Law Publishing Co. Pvt. Ltd., (1999)
Lectures on Jurisprudence 86 (4th Ed., Campbell (1876))
Professor Olivecrona, Dias Jurisprudence, 5th Edi., (1994), p. 347
Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223
Kesavanand Bharati v. State of Kerala AIR 1973 SC 1461
Cotterrell 2003, p. 63
Brian Bix, John Austin, www.plato.stanford.edu
Daily Times Hasan Askari Rizvi H

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