Positive approach to law concentrates on things as they are not as they ought to be. This approach is opposed to the theory of natural law and is the imperative theory of law, which found its most forceful expression in the workers of Austin.
In 1832 the lectures delivered by John Austin at the University of London were published under the title “The Province of Jurisprudence Determined.” He was considered as father of English jurisprudence. According to Austin positive law is a proper subject of jurisprudence, He says “Every positive law, or every law strictly so called, is a direct command of a monarch or sovereign in the character of political superior…. to person or person in a state of subjection to its author.”
Thus the Austinian concept of law is characterised by four elements,
(3) duty, and
The idea comprehended by the term ‘command’ are,
An expression of wish or desire conceived by a determinate person, body of person, that another person shall do or forbear from doing some act subject to an evil in the event of disobedience.
Sanction is the evil which is to follow in case of non-obedience. In other words, every sanction properly so called is an eventual evil annexed to a command.
Duty implies the obligation to comply with command. So every law is a command, imposing a duty inforced by a sanction.
Austin’s notion of sovereign’s if determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of given society, that determinate superior is sovereign in that society. The basis of sovereignty is thus the fact of obedience. The sovereign power is unlimited and indivisible (no division) of authority, the sovereign is not bound by any legal limitation or by his own laws.Austin’s broad approach to law was to regard it as the command of the sovereign. The notion of command requires that there must be determined person to issue the command and that there is an implied threat of a sanction if the command is not obeyed. The aim of Austin was to separate positive law from such social rules as those of customs and morality. According to his theory international law lacking the power to impose sanctions, is not positive law but positive morality. Another aspect of the theory is that the sovereign is not bound by any legal limitation, whether imposed by superior principles or by his own laws.
Criticism of Austin’s Theory
(a) Customs ignored, According to Maine, in the early times, it was not the command of superior but customs regulated the conduct of people. Even after coming of State system into existence, customs continued to regulate the conduct. As Austin has not included custom as law, this theory is not comprehensive. Austin definition of law as the “command of sovereign” suggests that only the legal systems of the civilized societies can become the proper subject matter of jurisprudence because it is possible only in such societies that sovereign can enforce his commands with an effective machinery of administration.
(b) Law conferring privileges, Salmond has said that the Austinian theory of law is one sided because Austin has recognised only the formal sources of law and dis-regarded the ethical and material sources. The law which is purely of a permissive character and confers only privileges as the Wills Act, is not covered by Austinian definition of law.
(c) Conventions, Conventions of the Constitution, which operate imperatively, though not enforceable by law, shall not be called law. According to Austin although they are a subject matter of jurisprudence.
(d) International Law, Austin has put International Law under positive morality alongwith the law of honour and law of fashion. The main reason of his not calling International Law as “law” is that it lacks sanction, but this alone can not be sufficient to deprive it from being called “law”.
(F) Sanction is not the only means to induce obedience, The Austinian theory says that it is the sanction alone which induces men to obey law. It is incorrect to define law in terms of sanction is like defining health in terms of hospital and diseases. Law is obeyed because of its acceptance by the community. Universal disobedience can destroy the whole basis of the legal order.
(G) Purpose of law ignored, Austin has been criticised for non-inclusion of the element of purposes in his definition. Paton says “Justice is the end of law and it is only benefiting that an instrument shall be defined by a delineation of the purpose which is its “raison detre”
Applicability of Austinian Theory in India
In modern democratic welfare State like India, no single determinate sovereign can be regarded as an absolute authority to enact law.
(1) The Parliament has an absolute power to amend the Constitution. On this absolute power of the Parliament, our judiciary has imposed certain restrictions with the series of decision started from Keshavnanda Bharti Versis State of Kerala, AIR 1973 SC 1416, wherein, it was held that the Parliament cannot amend the ‘basic structure’ of the constitution.
(2) In Austinian theory, the importance of custom was entirely neglected. But, the Supreme Court in Raj Kapoor Versis State, wherein, Justice V.R. Krishna lyer examined the connotation of the term ‘law’ and held ‘custom’ as a part and parcel of the law. He observed that, “Jursiprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of the community’s cultural norms, not the State’s regimentation of aesthetic expression or artistic creation.”
(3) Austin never believed in division of sovereign power. So far as India is concerned there is a sharp division of power between Union and State. Under the provisions of the Indian Constitution even judiciary and executive can make laws. e.g. under Article 141 of the Constitution, the law made by the Supreme Court to be binding on all courts throughout the country. Besides, we have Article 370 in the Constitution, wherein, even law made by the Parliament is sometimes not applicable in the State of Jammu & Kashmir, which is a part of this country.