-I INTRODUCTION SCHOOLS OF JURISPRUDENCE

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1 Unit -I INTRODUCTION SCHOOLS OF JURISPRUDENCE Schools of Jurisprudence Different approaches to the treatment of jurisprudence are represented by its various schools of thoughts. Salmond preferred three schools: Analytical (dogmatic), Historical and ethical (legal exposition) School. III Analytical/ Imperative School (Positivism) The analytical school is 'positive' in its approach to the legal problems in the society. It concentrates on things as they are not as they ought to be The main concern of the positivists is 'law that is actually found', positum, and not the ideal law. The most important legal sources are Legislation, Judicial precedents and Customary law. This school, dominant in England, lays down the essential elements that go to make up the whole fabric of law ex. State sovereignty and the administration of justice. The motto of Analytical school is Ubi civitas ibi e. where there is State, there will not be anarchy: State is a necessary e The main proponents of this school are: Bentham, Holland, Austin, Sa'mond, etc. (a) Bentham's Concept of Law Truly speaking, Bentham ( ), the founder of Positivism. should be considered the "Father of analytical positivism", and not Austin as it commonly believed (In fact, Austin owes much to Bentham). He was Champion of codified law (legislation). Bentham's work was intended provide the indispensable introduction of a civil code (Paton). Bentham distinguished expositorial jurisprudence (i.e what the law from censorial jurisprudence (i.e what the law ought to be). His concept of law is imperative one i.e. "law is assemblage of signs. rations of volition conceived or adopted by sovereign in a State". while supporting the economic principle of Laissez faire (minimum interference of State in the economic activities of individuals), he propounded the principle of utilitarianism. 'The proper end of every law is the promotion of the greatest happiness of the greatest number.' He defined 'utility' as the property or tendency of a thing to prevent some evil ('pain') or procure some good ('pleasure').' (b) Austinian Concept of Law John Austin ( ) was a lecturer in London University. He applied analytical method 'Law should be carefully studied and analysed and the principle underlying therein should be found out' and confined his field of study only to the Positive Law - Jus positivism ('Law, simply and strictly so called': 'Law set by political superiors to political inferiors'). Therefore, the school founded by him is called by various names-'analytical', 'positivism', 'analytical positivism'. Austin is considered as the "Father of English Jurisprudence". His lectures were published under the title 'The Province of Jurisprudence Determined'. Austin defined law as 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him'. According to him, so-called 'proper law' includes: Law of God, Human laws an Positive laws. The law 'improperly' so-called includes: Laws by analog and Laws by metaphor. According to him, "positive morality" consists of Law not set by men (as political superior) or in pursuance of a legal right and, laws by analogy as laws of fashion. The improper laws lacked sanction of the State. Every law, properly so called, must have three elements of command sanction and sovereign. According to him, "law is the command of sovereign", requiring his subjects to do or forbear from doing certain acts. There is an implied threat of a sanction if the command is not obeyed A 'command' is an expression of a wish by a determinate person, or body of persons, that another person shall do or forbear from doing some act subject to an evil in the event of disobedience i.e 'sanction'. So every law is a command, imposing a duty, enforced by a sanction. According to him a command may be particular (addressed to one person or group persons) or general (addressed to the community at large and inform classes of acts and forbearances; they are also 'continuing commands) A particular command is effective when the commanded person or group obeys; a general command is effective when the bulk of a political society habitually obeys it. 1

2 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, for he observed: "Existence of law is one thing, its merit and demerit another...a law which actually exists, is a law, though we happen to dislike it or though it may very from the text by which we, regulate our approbation or disapprobation " (d) Kelsen's Concept of Law Hans Kelsen ( ), belonging to 'Vienna School' of legal thought proposed a "pure theory of law" i.e. a theory which is free from social historical, political, psychological, etc., influences (thus, excluding everything which is strictly not law) and is logically self-supporting. The law is a normative ('law as a coercive order') and not a natural science there are sanctions attached to the law itself. The test of lawness is to be found within the system of legal norms itself He defined law as ' order of human behaviour' According to Kelsen, laws are ought propositions i.e. 'norms': if X happens. then Y ought to happen'. Thus, if a person commits theft, he ought to be punished. Law does not attempt to describe what actually occurs ('is') but only prescribe certain rules Norm is a legal mean attached to an act of will. It is the meaning of an act by which certain behaviour is commanded, permitted or authorized. A norm is valid only because it has been derived from or is ordained by another (superior) norm This presupposes a 'hierarchy of norms each norm being valid on the presupposed validity of some other norm Further, there are 'dependent' norms or facilitative norms which do not coerce people (e.g. right to make a will, powers of President, judges, use of force in self-defence). The 'independent' norms are coercive norms. The dependent norms are dependent for their validity on the indepent norms (viz. Sec. 299 of IPC derives its validity from Sec 302) Thus, does not have exclusively a commanding or imperative character. " No theory of justice can form part of pure theory of law. However, Oen presented a formal, scientific and dynamic picture of the legal structure. NM considerably influenced the modern legal thought. The great jurists * 'None and Friedmann have strongly defended Kelsen's theory. (I) (II) (III) For Austin law is a command of the sovereign. For Kelsen, law is not the command of a personal sovereign but a hypothetical 'judgement, which visits with a sanction for the non-observance of the conduct prescribed. Kelsen denies also the existence of State as an entity distinct from law. In the Austinian sense, a sanction has a moral or psychological basis, the motivation by fear makes people to submit to law. Kelsen rejected the idea of command, because it introduces a psychological element into a theory of law which should, in his view, be 'pure'. In the Kelsenian sense. coercive act means forcible deprivation of liberty. There is no idea of fear involved, because the norms prescribe. Although sanction is an essential element of his law, validity of a rule has nothing to do with its sanction. In the Austinian sense, the sanction was something outside a law imparting validity to it While, according to Kelsen, a sanction is in-built in every legal norm. (iv) Austin's theory denies to 'custom' the character of law as it has not been created by the sovereign. Kelsen, however, is able to accommodate custom within his concept of law viz. popular practice may generate legal norms (v) Austin didn't regarded international law as a positive law. Kelsen, on the other hand, accepted the primacy of international law over national law. (II) Historical School Law touches actual life so intimately that it is only natural to view operation of laws in their social setting. The "functional approach" to law (Historical and Sociological Schools) emphasises actual social circumstances as give rise to law and legal institutions, and is concerned with man not as an individual but with man in association. 2

3 The historical school emerged as a reaction to legal theories propounded by analytical positivists (as they failed to meet the needs of Ihe people) and the natural law thinkers. The motto of this school is Uhi societas ibi lex i.e. where there is society, there is law. Sir Fredrik Pollock aptly remarked that historical method is nothing but the doctrine of evolution applied to human institutions and societies. The historical school emphasise that the historical factors influenced the origin, formation and development of laws. Law is found, not made. Laws are not of universal application, as traditions and customs determine the law. Laws are rules consisting partly of social habits and partly of experience. Germany was the cradle of this school and Savigny ( ) its main exponent. The historical school derived its inspiration from the study of Roman law Montesquieu - the first jurist of this school in his Espirit des Lois (Spirit of the Laws) said that all laws should have the basis of historical observations. Maine described Montesquieu as the first jurist who proceeded on historical method Montesquieu emphasized that, "Laws of a particular nation should be determined by its national characteristics child and must bear relation to the climate of each country." According to Hugo, law is the result of the habits and ways of the people themselves, acquired through necessities, accidents and other processes Burke considered evolution of law as an organic process and an expression of common beliefs, faiths and practices of the community as a whole. Puchta, a staunch supporter of Savigny, opined that neither the State nor the people alone are a source of law but law comes into existence no a result of conflict between general and individual will. He laid down the concept of Causa instrurnentalis and Causa principalis of law: both stand respectively for people and State According to him, self-interest Causes a conflict between individual will and general will. This brings out the idea of law. Then, State comes into existence. Neither the people (as the natural unit) nor the State (as the organic unit) alone is the source of law. Savigny According to Savigny, law is not an 'artificial lifeless mechanical device.' His work on Law of Possession (Das Recht des Bestiges) is said to be the starting point of his historical jurisprudence. Savigny's view was that law is closely connected with the people and it closely contained the germs of future sociological theory. That is why Savigny is called "Darwinian Wore Darwin and a sociologist before sociologists." Savigny consideredthe growth of law as a continuous and unbreakable process bound by common cultural traditions and beliefs. Law is the natural manifestation of popular life and by no means product of man's free will. Law, language, customs and government have no separate existence There is but one force and power in a people and it underlines all these institutions. The law, like language, develops with the life of people. He wrote: "Law grows with the growth, and strengthens with the strength of the people. and finally dies away as the nation loses its nationality'. Thus, law has a national character. He said: "The law, like language. grows with the growth of social consciousness and organization: the law can only be evolutionary, and not revolutionary." Because law is a matter of unconscious or organic growth i.e. not made suddenly and deliberately. Any law-making should follow the course of historical development. Reforms should await the result of the historians' work. The legislators should look before they leap into reform He, thus, opposed the codification of law. Savigny was, however. not totally against codification of laws. He opposed the codification of the German law on the French (Napoleonic Code) pct'ern at that time because Germany was then divided into several smaller States and its law was primitive, immature and lacked uniformity. He considered Roman law as an inevitable tool for the development of unified system of law in Germany. As law grows into complexity, the common consciousness is represented by lawyers who formulate legal principles. But the lawyers remain only the mouthpiece of popular consciousness and their work is to shape the law accordingly. Legislation is the last stage of law-making and therefore, the lawyer or jurist is more important than the legislator. The crucial weakness of Savigny's approach was that he 3

4 venerated past institutions (traditions, customs, etc.) without regard to their suitability to the present. He said: "Custom is the sign of positive law". Savigny's contention was that legislation should conform to existing traditional law or it is doomed. Thus. Savigny's theory tended to hang traditions like fetters upon the hands of 'reformative' enterprise. It discouraged creative activity and legal reform. R. Pound, thus, criticized Savigny for his 'juristic pessimism'. He said: "Savigny's statement was simply to watch the unfolding of laws from popular consciousness with folded hands." Prof Porkunove pointed out that Savigny's theory "does not determine the connection between what is national and what is universal." Savigny did grasp a valuable truth about the nature of law, but ruined it by overemphasis. Savigny's Volksgeist helped many nations to pervert it for promoting their own ideologies. Thus. Nazi twisted it by giving a racial colour, the Marxists used it giving economic interpretation of history and Italy used it to justify fascism. Savigny's work was, nevertmeless, a salutary corrective to the methods of the naturalists. It provided great stimulus to the historical study of laws and legal institutions. The greatest contribution of historical school lay in positing "social pressure" behind law in place of moral authority or sovereign's will, paving way, thereby, for smooth transition of juridical thought to sociological school. Savigny's theory marks the beginning of modern jurisprudence, viz. sociological approach to law. Ehrlich devised his theory of interest on the foundation laid by Savigny. Savigny's approach also gave birth to 'comparative jurisprudence'. Maitland supported Savigny's approach and pointed out that the course of development of common law in England was determined by socio-political conditions obtaining in England at that time. Maine Maine ( ) inaugurated both the comparative and anthropological approaches to the study of law. Historic- Comparative School of jurisprudence belongs to Sir Henry Maine. Unlike Savigny, he favoured legislation and codification. He wrote: 'Ancient Law' Village Communities', 'History of Institutions,' etc. He is labelled as 'Social Darwinist' for he envisaged a social order wherein the individual is finally liberated from the feudalistic primitive bondage. He said The penal law of ancient communities is not the law of crimes but the law of torts." According to him, there are four stages of development of law' (i) Law made by the commands of the ruler, (ii) Crystallization of commands Into customary law, (iii) Administration of customs by priests, etc, and, (iv) Codification of law. The societies which do not progress beyond the fourth stage are 'static' societies. The societies which go on developing law by now methods are called 'progressive', which develop their law by three methods: Legal fiction, Equity, and, Legislation. Further. in early societies, both static and progressive, the legal condition of the individual is determined by status i.e. his claims, duties, etc. are determined by law. The march of progressive societies witness the disintegration of status and the determination of the legal condition of the individual by free negotiation on his part The movement of progressive societies has hitherto been a movement from Status to Contract". According to Maine, most of the ancient communities are founded. on patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family With the march of time the institution of pater familias withered away and now rights and obligations were dependent on individual contracts and free negotiation between persons. The freedom of individual in economic field (leissez faire) struck a blow to the notion of status as the basis of law. Thus, Maine said that 'movement of progressive societies has hitherto been from status to contract'. The word 'hitherto signifies 'until then': thus, he left options open for a change in future time to come (viz individuals might have to fight for their rights and liberties collectively in groups). The Maine's theory of 'Status to Contract' does not have much force in the twentieth century Vinogradoff asserted that Maine's expression of status to contract does not hold good in communities following collectivist ideology. He emphasized that law is not a command of the State but it is an expression of the general will of the people 4

5 (111) Sociological School Sociological jurisprudence arose as a reaction to positivism ('Law as a set of rules enforced by the State') According to it, law is not an isolated phenomenon but is a part of the social reality. This school has emerged as a result of synthesis of various juristic thought. The supporters of this school linked law with other social science disciplines and treated it as a synthesis of 'psychology, philosophy, economics, political science, sociology, etc.' The major stages through which sociological school evolved and developed are: Empirical scientific approach to law; Impact of Darwinian evolutionary theory: Impact of psychological theories; Unification stage (unification with other social sciences). This school finally culminated into Realist school of the 20th ceiltury. The "functional' role of law and its effect on society constitutes the basic philosophy underlying this school. R. Pound rightly pointed out, "the sociological jurists look more for the working of law than for its abstract content." Roscoe Pound can be said to be the father of sociological jurisprudence in America. Montesquieu is the forerunner of the sociological method in jurisprudence. Other noted jurists of this school includes: Auguste Compte, Herbert Spencer, Rudolph Von Ihering, Ehrlich, Duguit, Francois Geny. Auguste Compte. He is regarded as the founding father of science of sociology. He applied scientific methods to the study of socialism which has been termed as 'scientific positivism'. According to him, society, like any other organism, can progress when it is guided by scientific principles. Further, it is the 'society' and not the 'individual' which should be the focal point of law ('Law as a Fact'). The only right which man can possess is the right always to do his duty. Herbert Spencer He gave a scientific exposition to the "organic theory of society". He deduced four sources of law, namely, (i) divine laws having quasi-religious sanctions, (ii) injunctions of the past leaders, (iii) will of the ruler, and (iv) collective opinion of the society He considered law nothing more than a "hardened custom". The purpose of law is to resolve the conflicting interests of the individuals in the society According to Dr. Allen, the essence of Spencer's organic theory lay in the inter-dependence of organism in its sociological aspect, which means the mental relation of all members of civilized society and the distribution of a sense of responsibility far wider than can be comprised with the formula 'sovereign and subject'. It directed attention to the necessity of considering law in relation to other social phenomenon. Rudolph Von Ihering: He laid the foundation of modern sociological jurisprudence by his insistence on treating law as one of the important factors to control the social organism (Friedmann). For him, 'Law is a coercion organized in a set form by the State', 'Law is the guarantee of the conditions of life of society, assured by the State's power of constraint'. He wrote: 'The Spirit of Roman Law in the Various Stages of Its Development' In his work 'Law as a Means to an End', he criticized the notion of individual freedom and liberty. According to him law, though not alone, is an important factor to control the social organism. Law has a coercive character; it has only a relative value, and, it has to be evaluated in the social context. Ihering, "The birth of law, like that of men has been uniformly attended by the violent throes of child birth." The origin of law is to be found in social struggles He opined that social interest of the society must gain priority over individual interest His theory has been called as 'social utilitarianism' He considers punishment as a means to a social end. His system combined Austinian positivism with Bentham's utilitarianism (Friedmann). lhering's legal philosophy is known as 'jurisprudence of interests'. Like Bentham. he defined 'interest' in terms of pleasure and pain (i.e. pursuit of pleasure and avoidance of pain). Ehrlich: His theory of "living law" is that law need not be necessarily created by the State or applied by the courts or have a coercive legal compulsion behind it. but it is created by life of groups living within the society (extra-legal controls). In other words, law arises in society in the form of spontaneous ordering of social relations of marriage, family associations, possession, contracts, etc. His theory of living law came as a vigorous reaction against the analytical positivism and State-made laws. 5

6 In his opinion. "the centre of gravity of legal development in the present time or the past lies neither in juristic science nor in judicial decisions, but in society itself'. He made an exhaustive study of the variety of customs, traditions, etc. of tribes. The central point in Ehrlich's theory is that the law of a community is to be found in social facts and not in formal sources of law. "Ehrlich's sociology of law is always on the point of becoming a necessarily sketchy, general sociology (Friedmann). Ehrlich's theory has been named 'Megalomaniac jurisprudence' by Allen. Duguit: His theory of "social solidarity" was based on the fact that interdependence of man is the essence of society. He developed the concept of 'Syndicalism'. He said: "Law is rule which men possess not by virtue of any high principle whatever good, interest, or happiness but by virtue and perforce of facts, because they live in society and can live in society." He established a standard "social solidarity" to which all positive law must conform It is nothing but natural law in different form. Therefore, it has been rightly observed that Duguit "pushed natural law out through the door and let it come by window." Duguit pointed out that law is a rule which men obey not by virtue of any higher principle but because they have to live as members of society. He rejected the traditional notions of rights, State, public and private law, legal personality as fiction and unreal, not based on social reality His entire thrust was on mutual co-operation and division of labour for the purpose of social cohesions. Thus, law consists of 'duty' and not 'rights'. According to him, State regulations should be directed towards achieving the ends of social and economic justice for common good. He contended that legislators do not make law but merely give expression to judicial norms formulated by the consciousness of the social group. Thus, he denounced the omnipotence of the State and acknowledged the superior role of judiciary. He also rejected the notion of natural rights of men which made individual hostile to larger interests of the society. Francois Geny: His sociological approach emphasized 'free scientific research' as a solution to social problems, which is based on (i) autonomy of will, (ii) maintenance of public order and interest, and (iii) proper balancing of conflicting private interests of individuals. He gave primacy to courts; a Judge should try to find out the solution freely and scientifically. Roscoe Pound Pound's approach to sociological jurisprudence was different as he attempts to cover social life as a whole unlike the predecessors who considered law as the main subject of study and society merely subsidiary to it. He concentrates more on functional aspect of law - need for study of law in relation to and as a part.of the whole process of social control. Before Pound, Bentham maintained that the aim of legislation should be to achieve social ends and in order to do this there has to be a balancing of individual interests with communal welfare. R Pound ( ) wrote: 'Spirit of the Common Law', 'Law and Morals', 'Social Control Through Law', 'The Task of Law". He defined law as containing "the rules, principles, conceptions, and standards of conduct and decision as also the precepts and doctrines of professional rules of art." According to him, "law is not a set of rules but is a method or technique for harmonizing conflicting social interests." The task of law, in his opinion, is to build as effective a structure of society as possible by satisfying the maximum of wants with the minimum of friction and waste This will involve adjustment of human relations, ordering of human behaviour, and above all "balancing of competing interests" in the society. To this essential task he gives the name of "social engineering". The courts, legislators, jurists, etc. must make an effort to maintain a balance between the competing interests in society. Pound classified interests as: Private, Public and Social interests. 'Private interests' include interests of personality (safeguarded by law of crimes, contract, constitutional law, etc.), marital life, property, etc. 'Public interests' include interests in the preservation of the State, and, State as a guardian of social interests such as administration of trusts, protection of environment, etc. 'Social interests' include interests in the preservation of peace, health, social institutions, general morals, general progress (freedom of trade and commerce, freedom of speech and expression, etc.). and, interests which promote human personality. In order to evaluate the conflicting interests in due order of priority, Pound suggested "jural postulates" - a sort of ideal standards which law should pursue in society. Every society has these basic assumptions upon which its ordering rests There are five jural postulates of the legal system of a society, viz.- In civilized society, men must be able to assume that 6

7 (I) (II) (III) (IV) (V) Others will commit no intentional aggression upon him. They may control for their beneficial purposes what they've discovered and appropriated to their own use, what they've created by their own labour. etc Those with whom they deal as a member of the society will act in good faith. and hence will make good reasonable expectations which their promises create, etc. Those who engage in some course of conduct will act with due care not to cast an unreasonable risk of injury upon others. Others who maintain things or employ agencies, harmless in sphere of their use but harmful elsewhere, will keep them within their proper bounds. Thus, the jural postulates provide guidelines for righteous and civilized life, and seek to strike a synthesis between reality and ideal as also power and social accountability of men in the community. Pound confessed that these postulates are not absolute but they have a relative value. They are of a changing nature. The law, thus, is a means of social control. The aim of social engineering is to build as efficient a structure of society as possible Thus, for example, if a factory is polluting the environment, and an injunction suit is filed for closing the factory, the court must balance various claims and interests e.g. the claim of the mill owner to do his business, the claims of the workers in the factory to retain their jobs, the claim of local residents to have a clear environment, etc. In short. Pound's theory is that the interests are the main subject-matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of law to make a 'valuation of interests', in other words. to make a selection of socially most valuable objectives and to secure them'. This all is nothing more than an experiment. Pound, through his 'experimental jurisprudence' helped to bring home the vital connection between laws, their administration and the life of society. Pound's greatest contribution to jurisprudence is his attention on the actual functioning of law in the society. Allen described Pound's approach as 'experimental jurisprudence'. His theory is nothing more than an experiment. Justice Cardozo rightly remarked, "Pound attempted to emphasize the need for judicial awareness of the social values and interests." Allen, however, said that, "Pound completely ignored the personal freedoms which are equally important for a happy social living." Pound's metaphor of 'engineering' has been criticized as suggesting a system of merely mechanical expedients mechanically administered to social exigencies. Secondly, his thesis presupposes an advanced state of society inhibiting wider application of his conclusions. For example, in mass society, like India, it is difficult to see how the people would articulate their claims, desires, etc., where majority of people lacks means to articulate and are illiterate. Thus. Pound's theory cannot be accepted too generally. Lastly, his somewhat sterile preoccupation with arrangement of various interests and too little with the means of giving effect to them robbed his work of having any desired practical impact. 7

8 SCHOOLS OF JURISPRUDENCE (Detailed Account) ANALYTICALSCHOOLAUSTIN Austinian Concept of Law John Austin ( ) applied analyticalmethod (law should be carefully studied and analysed and the principle underlying therein should be found out) and confined his field of study only to the positive law. Therefore, the cchool founded by him is called by various names-'analytical', 'positivism', 'analytical positivism'. Austin is considered as the "Father of English Jurisprudence'. His lectures were published under the title 'The Province of Jurisprudence Determined'. The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. (Note - The term 'positive law' denote the law that is actually found, positurn, as contrasted with what it oughtto be.) Law in its most comprehensive signification was defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power overhim. LAW "Laws properly so called" (General Commands) "Laws improperly so called" Law of God Law of Human set by men to men: Laws by analogy Laws by metaphor (a) as political superiors or in pursuance of rights conferred by such superiors.( Positive law) (b) not as political superiors, nor in pursuance of rights conferred by such superiors. (Positive Morality) Note : The aggregate of rules, established by political superiors, is called positive law or laws existing by position. Positive morality are still laws properly so called, because they are commands e.g. those set by a master to a servant or the rules of a club. : Laws by analogy includes laws set and enforced by mere opinion, such as the laws of fashion, international law, etc. : Laws by metaphorcovers expressions of the uniformities of Nature. Law as a Command Every law or rule, properly so called is a command or a species of command. A "command" is an expression of a wish by a determinate person, orbody of persons, that anotherperson shalldo or forbear from doing some act subject to an evil in the event of disobedience (sanction). Being liable to evil...,a person is under a duty (obligation) to obey it The evil is called a sanction or an enforcement of obedience. Thus, the command or the duty is said to be sanctioned or enforced by the chance of incurring the evil... So every law is a command, imposing a duty, enforced by a sanction. If a law held out a reward as an inducement to do some act, an eventual right is conferred,and not an obligation imposed upon those who shall act accordingly. Thus, it is only by the chance of incurring evil, that one is obliged to compliance. 8

9 Commands are of two species- (a) General Commands (laws or rules), which obliges generallyto acts or forbearances of a class; (b) Occasionalorparticularcommands. which obliges to a specific act or forbearance, or to acts or forbearances which it determines specifically or individually. Examples : (1) If Parliament prohibited simply the exportation of corn, either for a given period or indefinitely, it would establish a law or rule. But an order issued by Parliament to meirl an impending scarcity, and stopping the exportation of corn then shipped and in port, would not be a law or rule, though issued by sovereign legislature. [2) An act which is not an offence moves the sovereign to displeasure; sovereign commands punishment for the authors of the act. As enjoining a specific punishment in that specific case, the order is not a law or rule. [3] Judicialcommandsare commonly occasional orparticular, although the commands which they are calculated to enforce are commonly laws or rules. For instance, the law-giver commands that thieves shall be hanged. The judge commands that a specific thief shall be hanged, agreeably to the command of the law-giver. Now the law-giver determines a class or description of acts: prohibits acts of the class generally and indefinitely, thus his command is a law or rule. But, the command of the judge is occasional, for he orders a specific punish-ment, as the consequence of a specific offence. The difficulty of drawing a distinct boundary between laws and occasional commands, is clear from the following two points : (i) Commands which oblige generally the members of given community (or persons of given classes ) are not always laws or rules - Where the sovereign commands that all corn actually shipped for exportation be stopped, the command is obligatory upon the whole community. but as it obliges them only to a set of acts individually assigned, it is not a law. Where the sovereign issue an order, enforced by penalties. for a general mourning on occasion of a public calamity: the order obliges generally the members of entire community, but it is not a law or rule because it obliges to acts which it assigns specifically (instead of obliging generally to acts of a class). If the sovereign commanded that black snould be the dress of his subjects, his command is a law. But if he commanded them to wear it on a specified occasion, his command is occasional or particular. (ii) Command which obliges exclusively persons individually determined, may amount to a law or rule For example. a father may set a rule to his child or children: a master, to his slave or servant. And certain of God's laws were as binding on the first man, as they are binding at this hour on the millions Most of the laws established by political superiors are general in a two-fold manner: as enjoining or forbidding generally acts of kinds or sorts; and as binding the whole community (It is inevitable because to frame a system of duties for every individual of the community is impossible). Laws established by political superiors, and exclusively binding specified or determina e persons (e.g. to a office created by Parliament), are styled privilegia. Thus. a law may be defined as a command which obliges a person/persons to a course of conduct. All laws are NOT commands The proposition that 'laws are commands must be taken with limitations'. The term law is extremely ambiguous. Taken with the largest signification which can be given to the term properly. laws are a species of commands. But, there are objects which have nothing of the imperative character (not being commands) and thus improperly termed laws and yet properly included within the province of Kinsprudence:- (i) Declaratory laws :-Acts on the part of legislatures to explain laws already in force can hardly be called laws. But, they are frequently styled laws. They thus form an exception to the proposition that laws are species of commands'. Declaratory laws are imperative in effect: Legislative interpretation (like judicial interpretation) establish new laws under the guise of explaining the old. (ii) Repealing laws:- Laws to repeal laws and to release from existing duties,must also be excepted like declaratory laws. They release from duties imposed by existing laws, and named permissive laws or permissions. But, such laws are often imperative. For the parties released from duties are restored to liberties or rights; and duties answering those rights are tl :IS created. (iii) Imperfect laws 9

10 (laws of imperfect obligation) :- These must also be excepted. An imperfect law is a law which lacks a sanction and which. therefore, is not binding e.g. a law declaring certain acts as crimes, but annexing no punishment. An imperfect obligation, in the other meaning of the expression, is a religious or moral obligation (duty imposed by positive morality). The term denotes that the law imposing ihe duty is not a law established by a political superior: that it wants that perfect sanction, which is imported by the sovereign or State. There are also certain laws (properly so called) which may seem not imperative and are thus not commands:-(i) Laws which merely create rights : And, seeing that every command imposes a duty, laws of this nature are not imperative. However, every law, really conferring a right, imposes expressly or tacitlya relative duty. For example, if it specify the remedy to be given, in case the right shall be infringed, it imposes the relative duty expressly. (ii) Customary laws:- Considered as rules of positive morality, customary laws arise from the consent of the governed (i.e. masses). and not from the position or establishment of political superiors. But, considered as moral rules turned into positive laws, customary laws are established by the State'e.g. when the customs are incorporated into statutes, when customs are turned into legal rules by judicial decisions, it is tacitly commanded by the sovereign legislature (because a judge is merely a minister, possess only delegated sovereign powers). Thus, the positive law styled customary is established by the State and, therefore, is imperative. (Note- A command is express, if desire be signified by words - written or spoken. A command is tacit it desire be signified by conduct.) Criticism against command theory (i) Association of duty with command- Prof. Olivercona points out that duties are 'ought' propositions which are phrased imperatively ( You must or 'You shall'), and it is a non sequiturto suppose that such troseology of itself implies command (ii) Idea of command inapplicable in modern society -Command supposes some determinate person who commands In modern Ns the machinery of State remains always changing and it is run by a number of persons. Therefore, law can't be treated as the dartimand of anyone in particular. (iii) Law and command- The function of a law is to regulate Atilure conduct indefinitely and to serve as a standard by which to Ridge deviance; a command is more usually directed to a specified wlvidual or individuals with reference to a particular act or forbearance Sild does not serve as a general standard of judgement Further, there are many laws which are not commands e.g. Ails that no action to succeed when the limitation period has expired, ;it that merely defines what constitutes contract or murder, or power..(or privilege) conferring rules (e.g. power to make a will under the Wills Act, Article 32 of the Constitution, etc.). The term 'command' Nitplies coercive character while these laws are of permissive tharacter. Procedural laws, in the same way, do not fit into the Austin's definition of law. (However, Buckland has tried to defend Austin's theory by arguing that the statute as such and not a particular )revision is a command Further, declaratory statutes could have boon treated as repealing earlier commands, while repealing statutes May be said to create fresh claims and duties by their cancellation of atelier ones and so be said to command. Thus, Austin wrongly concluded that such laws were exceptions). (iv) Inapplicability to modern social legislations- Duguit asserted that the notion of command is inapplicable to modem social legislations. which do not command people but confer benefits, and which binds the State itself rather than the individual. (v) Conventions of the Constitution - These operate imperatively. though not enforceable by court, shall not be called law, According to Austin's definition, although they are law and are a subject-matter of a study in jurisprudence. (vi) Judge-made law -In Austin's theory, there is no place for judge-made law. Although he emphasised that the judges act under the power delegated to them by sovereign, therefore. they are commands (tacit) of the sovereign and judgements made by them are thus rules of positive law. According to Salmond. judges are not administers ordelegates of the crown. but they do create rules of positive law. iwhen Austin developed his theory of command, he took into account that legislature is supreme, he couldn't imagined about the judicial review. Under the present-day context, judicial interpretabon of laws has become an inevitable feature. Further, judicial precedents are binding laws while no body has commanded these. (vii) Commands of a sovereign - It has been pointed out that even actual commands of a sovereign only acquire the character of laws when certain procedures (parliamentary) have been followed. If these procedures are laws it is difficult to square 10

11 them with command. If they are not laws, they are not different from the dictates of etiquette and morals. While they must be different. (viii) Sanction is not the only means to induce obedience-according to Austin, it is the sanction alone which induces the man to obey law. It is submitted that it is not a correct view. Various motives such as sympathy, fear, indolence, and reason induce a man to obey law. The power of the State is ratio ultima -the force which is the last resort to secure obedience. (ix) Relation of law and morals over-looked - According to Austin, "the science of jurisprudence is concerned with positive law, or with laws strictly so called, as considered without regard to their goodness or badness." The basis of law is the power of superior and not the ethics or the principles of natural justice. This is not a correct proposition. Ethical and moral elements cannot be excluded from law. Morals have taken important place in the sphere of law in the name of justice, equity, good faith. etc. Morals play important role in restraining powers of legislature because it cannot enact a law against the morals of the society. Concept of Sovereignty The great contrast between positive law and positive morality was, in Austin's view, the fact that the former was set by a political superior. He elaborated this notion and evolved his theory of sovereignty. The superiority which is styled sovereignty. and the independent political society which sovereignty implies, is distinguished from other superiority or might, and from other society, by the following marks or characters. Sovereignty involved two "marks" a positive and a negative one. The positive mark was that the bulk of a given society was in the habit of obedience to a determinate common superior. The negative mark was that the determinate superior was not in the habit of obedience to some other superior. (However, that superior may be influenced by law set by opinions, or he may yield occasional submission). Such determinate superior is sovel eign in that society. and the society including the superior is a society political and independent, and other members of that society are subjects and dependent or that superior. The basis of sovereignity is thus the fact of obedience 7 The sovereign's power is unlimited and indivisible (no division of authority). Austin's definition of law as the " command of the 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 the sovereign can enforce his commands with an effective machinery of administration. Austin's definition ignores customs. Examples To show that union of those two marks renders a given society a society political and independent :- (i) When obedience is rare or transient and not habitual or permanent, the relation of sovereignty and subjection is not created thereby. For example, in 1815 the allied armies occupied France and the commands of the allied sovereign were obeyed by French Government and through French Government, by the people gener-ally. But since the commands and the obedience were comparatively rare and transient, they were not sufficient to constitute relation of sovereignty and subjection. And the French Government was sovereign or independent. Similarly, a feeble (weak) State, inspite of the commands of a powerful State, is a sovereign State. (ii) Unless habitual obedience be rendered by bulk of society to one and the same superior, the given society is either in a state of nature of anarchy or is split into two or more independent political societies. For example, in case a given society be torn by intestine war, and in case the conflicting parties be nearly balanced, the given society is in one of the two positions. (iii) When that certain superior habitually obeys the command of a certain person or body, the society is not independent. although It may be political. For example, a viceroy receives habitual obedience from the bulk of the person inhabiting his province. But, the viceroy and the bulk of its inhabitants, are habitually obedient to the sovereign Of a larger society. (iv) International law - The law obtaining between nations is not a positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. International law is law ( improperly so called ) set by general opinion. The duties which it imposes are enforced by moral sanctions only (e.g. by fear on the part of nations, of provoking general hostility). Criticism of Austinian Sovereignty (i) According to Dias, sovereignty cannot be defined in terms of obedience It cannot be said that sovereignty of the Crown in Parliament was established by the "habitual obedience" of the judges that 11

12 established the sovereignty of the Crown in Parliament. (ii) The negative mark of sovereignty is not so much the concern of municipal lawyers as of international lawyers. ft makes no difference to municipal lawyers that the law-constituting body obeys some other body in the international sphere if in fact in municipal sphere it makes laws. (iii) The attribute of continuity of the sovereign may be questioned by asking " where sovereignty resides during a dissolution of Parliament." In one place, Austin said correctly that the sovereign body is the Crown, the Lords and the Commons; but elsewhere he asserted that it is the Crown, the Lords and the Electorate. The latter interpretation renders the whole of his conception meaningless. Who. in that case, is the commander and who the commanded? (iv) The attribute of indivisibility has also created difficulty. The question is whether sovereign authority can be vested in more than one body. not whether it may be exercised by more than one. Austin said that its exercise may be delegated to several. Austinian theory could be applied to the British Parliament which is supreme (there is no division of power in England into different organs of State i.e. legislature, executive and judiciary ). However, Austin's notion that sovereignty is indivisible is falsified by federal Constitutions e.g. India; USA.; old Roman Law, communist power of colonial legislature and West Minister Parliament ( a "colony' has power to make law within its territorial limits, but the West Minister Parliament can also legislate for it, thus sovereignty is divided). Th9 ultimate authority may be vested as to different matters in various bodies. The indivisibility of sovereignty has now been judicially rejected. (v) Illimitability - The question whether the sovereignty can limit or bind itself is an extremely debatable one. Sir Matthew Hale had challenged Hobbe's conception of absolute sovereignty by arguing that sovereign powers accrue to sovereign by certain laws of the kingdom and that there are, therefore, certain qualifications of these powers. According to Austin, a sovereign cannot be under a duty, since he cannot command himself. To be under a duty implies that there is another sovereign, above the first who commands the duty and imposes a sanction. In such a case, the first sovereign is not a sovereign. It must be admitted that the whole notion of the sovereign being unable to command itself is a wholly unrealistic one, in the ambit of the complex web of modem public law. This unreality is underlined, for instance, by Austin's treatment of Constitutional law es not being positive law (since it is either mere question of fact as to who is habitually obeyed, or it consists of commands to the sovereign by itself). In modern conditions, the exercise of sovereign power may be limited by special procedure. Sovereignty may be divided in such a way that each component has a limited power to prescribe for the other... tnis creates self bindingness on a sovereign. Unlimited sovereignty, therefore, can properly only refer to a body being without o superior in the structure of the State, but this implies nothing either logically or legally as to the degree of its freedom of action. (vi) Law as the command of a sovereign - This notion of Austin Is criticised by the Dias: no one can command at least the rule which entitled him to command. As Olivercona pointed out, the bulk of the 18w existed before the individuals, who comprise the legal sovereign in England. attained their positions, and they did so by virtue of rules of law. There is no sense in saying that the rules which brought them to these positions are their own commands. Further, why should the commands of a former sovereign continue to be "laws" under his successor? Austin reconciled this with the command theory by saying that what the sovereign permits he commands "tacit commands'. Hart objected to this by saying that a decision not to interfere with previous commands can't impart a fresh maw - quality" to something already "law". It is "law" though it has not been commanded by this sovereign, even tacitly. Continuance of majority of previous sovereign's laws are due to non -repealby default which is in no sense an "expression of wish". In modem times, law is nothing but the general will of the people, therefore, law cannot be said to be a mere command of the Sovereign. The sovereign cannot stand above and apart from the Community giving arbitrary commands, as State itself is a sovereign. The view that 'law is the command of sovereign', treats law as artificial end ignores its character of spontaneous growth. (vii) International law - According to Austin, international law locks sanctions because there is no sovereign. hence no command which is to be obeyed by the States in mutual dealings. But, in the present day context, no body accept that International law is not law ( even if it lacks sanctions ). The States who violates international law does not deny the existence of international low, rather tries to defend their action within the rules of such law. Sovereignty under Indian Legal Order/ Constitution 12