AUSTIN’S CONCEPT OF POSITIVE LAW
Austin’s conception of law can be reduced to the simple statement: “law is the command of a sovereign backed by sanctions”. He says “every positive law, or every law strictly so called, is a direct command of a monarch/sovereign in the character of a political superior to person or persons in a state of subjection to its author.” Austinian law has following features:
- Every law is a specie of command
- It is laid down by a sovereign authority either directly or indirectly
- Every laws prescribes a course of conduct (duty)
- Every law has for its sanction the physical force of the state.
Thus the Austinian Concept of law is characterized by four elements: (i) Sovereign; (ii) Command; (iii) Sanctions; (iv) Duty. This is called command-duty-sanction (CDS) model.
- SOEVREIGN: The sovereign is the essential source of all law in society and where there is no sovereign there can be no law. The sovereign must be a determinate and common political superior, that is, it must be possible clearly to identify and determine a person or a group of persons who is habitually obeyed by the bulk of the members of society and who does not habitually obey anybody else. The sovereign must be legally illimitable and indivisible and be the sole of legal authority.
- COMMAND: The sovereign’s will is expressed in the form of a command. A command is an imperative form of statement of the sovereign’s wishes, and it is different from an order in that it is general in its application. It is also different from other expressions of will in that it carries with it the threat of a sanction which may be imposed in the event of the subject of the command not complying with it. According to Austin, a law is a command of the sovereign having following characteristics; (1) Commands by which acts/forbearance of a class are enjoined generally, (2) Commands that lay down a rule for the guidance of future conduct, and, (3) Commands that regulate the behaviour in continuum.
- SANCTION: A sanction is some harm, pain or evil which is attached to a command issued by a sovereign and which is intended as a motivation for the subjects of the sovereign to comply with his/her commands. The sanction is a necessary element of a command and there must be a realistic possibility that it will be imposed in the event of a breach. It is sufficient that there be he threat of the possibility of a minimum harm, pain or evil.
COMMAND AND DUTY
Command is an expression of wish or desire of an intelligent/ determinate person, directing another person to do or to forbear from doing some act, the violation of which will be followed by evil consequences on the person so directed. Duty implies the obligation to comply with command. Command and duty, therefore, are correlative terms, the meaning denoted by each being implied and supposed by the other. Whenever a duty lies a command has been signified and whenever a command is signified a duty is imposed. Concisely, commander is the one who can inflict an evil and one who is liable to be inflicted the evils bound or obliged by the command.
COMMAND AND SANCTIONS
The evil which probably incurred in case of a command be disobeyed or in case a duty is broken is frequently called as sanction or an enforcement of obedience. Thus, every sanction properly so called is an eventual evil annexed to a command. A command is distinguished from other signification of desire not by the style in which the desire is signified but by the content, power and purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. The form may be that of request or appeal but content may be of compulsion and vice versa.