John Austin, the father of English jurisprudence, was an English legal theorist, was born in 1790 and served as an army officer for five years till 1812. He went to the bar in 1818. He devoted his attention to equity, draftsmanship, and legal practice. He joined as the professor of law at Bentahmite University London and later became the chairperson of jurisprudence in 1826. After that, he went to Germany and studied Roman Law in Heidelberg and Bonn universities. When he was in Germany, he noticed that the people of Germany obeyed everything that was commanded by Friedrich, the Prussian king. He was greatly influenced by the scientific treatment of Roman law. He is the founder of the analytical school. Austin holds the view that law originates from the sovereign. He avoided a metaphysical approach to law which is a peculiar characteristic of law in Germany. The lectures delivered by him at the University of London were edited and published under the title ‘Province of Jurisprudence determined’ in which he dealt with the source and nature of law.

Austin’s analytical positivism

Austin who is considered to be the father of English jurisprudence has confined his study only to the positive law and applied analytical method for this purpose bi positive law Austin meant ‘laws properly so-called ‘distinguishing then from morals and other laws which he described as ‘law improperly so called’ which lakh sanction or force of the state.
Law according to Austin- the aggregate of rules set by man as politically superior to men as politically inferior subjects. He attributes command, sanction, duty, and sovereignty as the four essential attributes of positive law. Austin distinguishes positive law from positive moralities which are devoid of any legal sanction and identifies law with command duty and sanction.
According to Austin the existence of law and its merit and demerits were two different things. Thus, the major thrust in Austinian positive law was on the separation of law from morals. As a corollary of it he distinguished science of jurisprudence from ethics, the former is concerned with positive law irrespective of the goodness or badness.

Criticisms-

The trilogy of command duty and sanction which are implicit in the Austin concept of law has invoked criticism from many quarters. Professor H.L.A. Hart holds that it creates a situation where the law only obligates subjects and threatens them with physical coercion, unmindful of the legitimate social cum moral obligations of the sovereign towards his subjects, thus compelling them to obey, even if it is most unjust or unfair. Salmond also criticized Austin’s theory of law and holds that it completely divests law from morality and that law to be effective must have its elements of ethics, justice, and reasonableness. Austin’s positive law received criticism from Lon Fuller in the United States who propagated a view that the law passed in derogation of popular will and means of society would be short-lived and cannot master public support. He held that the purpose of the law is to subject the conduct of humans to the governance of rules. The law, therefore, cannot be devoid of morality which includes natural law, ideals, values, and notice of justice.

Austin’s conception of law

According to Austin, the rule laid for the guidance of an intelligent being by another intelligent being having power over him is the law. He divides law into two parts, namely,

1. Law set by God for men
2. Human law, laws which are made by men for men.
   Austin holds that positive morality is not ‘law properly so-called ‘but it is the law by analogy. He is also of the view that the study and analysis of positive law alone is the subject matter of jurisprudence. He considers command, duty, and sanctions as the chief characteristics of positive law.
   However, Austin accepts by way of exception that there are three kinds of laws that do not command.
3. Explanatory declaratory laws – they are already in existence and only dost to explain a law already in force.
4. Laws of repeal– Austin does not treat such laws as commands because these are the revocations of a command.
5. Laws of imperfect obligation– they are not treated as commands because they lack sanction. It is held by Austin that a command to become law must be accompanied by sanction for its enforcement and by duty.

Shortcomings of Austinian theory-

1. Customs overlooked- custom played a significant role in regulating human conduct and continues to be a potent source of law even after the coming into existence of the state but Austin’s view that law is the command of the sovereign is not supported by the historical evolution of law.
2. Permissive character of law ignored-this theory does not take notice of laws that confer privileges and are of a permissive character, for example, the law of wills, the bonus act, etc.
3. No place for the judge-made laws-Australian conception of law gives no place to judge-made law although the creative function of the judiciary as a law-making agency has gained importance in modern times all over the world.
4. Treats international law as mere morality- international law has not been treated as law by Austin because it lacks sanction. Austin regards international law as mere positive morality which is hardly been able in the present time because of the increasing role of international law in achieving world peace.
5. Command overemphasized- Olivecrona, a Swedish jurist, denounced Austin’s theory because it overemphasizes command as an inevitable constituent of law. In modern progressive democracies, the law is just an expression of the will of the people in general.
6. Interrelationship between law and morality completely ignored-perhaps the greatest shortcoming of this theory is that it completely ignores the relationship between law and morality. It is impossible to completely divorce law from the morality which provides strength to it.
7. Sanction alone is not the means to induce obedience – Austin is of the view that sanction alone induces a person to obey the law which is not correct. There are several other considerations like fear, sympathy, deterrence, etc. which may induce a person to obey the law.