This post is written by Srishti Rajpoot, a 2nd year law student from Gautam Buddha University.
Austin’s theory of law-
This theory is called as the imperative theory of law. According to Austin, positive law has three main features. It is a type of command. It is laid down by a political sovereign. It is enforceable by a sanction.
According to him request, wishes etc. are expression of desires, while commands are expressions of desire given by superior to inferior. The relationship of superior to inferior consists of Austin in the power which the former enjoys over the other, i.e. his ability to punish him for disobedience.
There are commands which are laws and there are commands which are not laws. Austin distinguishes laws from other commands by their generality.
A sovereign is any person or body of persons whom the bulk of a political society habitually obeys and who does not himself habitually obey some other person or persons.
Law is law only if it is effective and it must be generally obeyed.
Laws are of two kinds, viz., divine law and human law. Divine law was given by God to men. Human laws are set by men to men. Human laws are of two kinds. There are certain human laws which are set by political superiors and are called positive laws and there are others which are not set by political superior.
Law is law because it is made by the sovereign and sovereign is sovereign because it makes laws.
Criticism of Austin’s theory of law-
Laws before state- law is prior to and independent of political authority and enforcement. A state enforces it because it is already law. It is correct that it becomes law because the state enforces it.
Generality of law- a law in the sense of the Act of the legislature may be particular in the fullest sense of the word.
Promulgation- promulgation is usually resorted to but not essentially for the validity of rule of law.
Law as command– the greater part of a legal system consist of laws which neither command nor forbid things to be done. They empower people by certain means to achieve certain results. The term command suggests the existence of a personal commander. In modern times it is impossible to identify any commander. In modern legal system, it is impossible to identify any commander in this personal sense.
Sanction- the sanction behind law is not the force of the state but the willingness of the people to obey the same. If law is opposed by all the people no force on earth can enforce them. Sanction is found in case of criminal law but there is no sanction in case of civil law.
Not applicable to international law– international law is not the command of any sovereign, yet it is considered to be law by all concerned.
Not applicable to constitutional law- constitutional law of the country defines the power of the various organs of the State. Nobody can be said to command himself.
Not applicable to Hindu law- Sovereign does not create Hindu law.
Disregard of ethical elements- this theory is silent about special relation between law and justice. Main criticism of Salmond against Austin theory of law is it disregards the moral or ethical elements on law.
Salmond on Austin theory of law– Salmond said that this theory is one sided and inadequate. It eliminates all elements except that of force. It missed the elements in law or the idea of right or justice. It over emphasis its imperative approaches.
Merit of the theory-
By separating law completely from morality, Austin tried to avoid a lot of confusion. His theory of law contains an important element of universal and paramount truth.
Salmond’s theory of Law-
According to Salmond law consists of the rules recognized and acted upon by the courts of justice. He defined law in the abstract sense. It also brings out also the ethical purpose of law. Law is an instrument of justice and idea is prominently brought out in the definition of Salmond.
This theory suffers from the vice of running in a circle. The definition of Salmond is defective as it assumes that law is logically subsequent to the administration of justice.
The definition of law adopted by Salmond destroys the very nature of the thing which it seeks to define, if a statute is not law because it may be misinterpretated, it is also not judicial decision because it may be overruled.
He use the term “body of principle”, it is more abstract, basic principles and fails to give due importance to concrete law, the law made of statue.
The goal of justice is not the only purpose of law. Today the ends which seem to be universally accepted are those of securing order in society, the greatest happiness of the largest number and the reconciliation of the will of one with the liberty of other.
Certain laws are recognized and enforced solely by administrative officers and the courts of law are not permitted to take cognizance of them.