John Austin was born in 1790. He served as an army officer for five years till 1812. He was called to the bar in 1818 after his graduation. His attention was on to equity, Draftmanship and legal practice.
He joined as professor of law in the newly founded benthamite university college in London.
In 1826 he was elevated to the chair of jurisprudence in the university of London. Thereafter he went to Germany to study Roman law in Heidelberg and Bonn universities.
He was much impressed by the scientific treatment of Roman law and drew inspiration to introduce the same method to the legal exposition of law in England.
The army life of strict discipline and command had its reflection in the austinian concept of law.
Austin published “Province of jurisprudence determined” in 1832.
In 1883, he was appointed as a member of the first Criminal Law Commission but soon he resigned. He also resigned professorship in 1835 in despair due to insufficient fees.
In 1836, Austin was appointed as one of the commissioners to inquire into the government and administration of Malta and, thereafter, remain abroad till 1848.
He died in 1859 and his works were later published by his wife Sarah Austin in 1861.
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 means law properly so called as Distinguished from morals and other laws which he described as law improperly so-called which lack force or sanction of the state.
Austin described positive law as the aggregate of rule set by man as politically superior to men as politically inferior subjects.
Essential attributes of Positive Law
According to Austin’s concept of positive Law, the four essential attributes are –
Austin was the first 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 organized society.
Positive Law and Positive Morality
Austin distinguishes positive law from positive morality which is devoid of any legal sanction. He identifies law with command, duty and sanction.
According to Justice Holmes, Austin’s distinction between positive law and positive morality seeks to exclude the considerations of goodness or badness in the realm of law. In Austin’s positive law there is no place for ideal or justness in law.
In his own words, “the existence of law is one thing, its merit and demerits another. Law which actually exists, is a law, though we happen to dislike it or though it may vary from the text by which we regulate our approbation or disapprobation”.
Austin’s Imperative Theory of Law
Dr. allen preferred to call Austin’s analytical school as Imperative school. He stated that, 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,
- Laws set by god for men; and
- Laws made by men for men.
According to Austin, the study and analysis of positive law alone is the appropriate subject-matter of jurisprudence.
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.