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CRITICAL ANALYSIS OF AUSTIN AND SALMOND’S DEFINITION OF LAW

By Akarsh Raj


·       INTRODUCTION-

Law is a concept of social phenomenon which at different point of time defined by different jurists highlighting different aspects of the society or end purpose. The end product of their definition was the result of their way of looking at the society and the ideas from which those jurist where influenced. Based on their prism through which they studied the society, their definition varied. For some jurist the main aim of law is justice, for some it is a tool for controlling the society and for some it is a way of protecting one’s right. The definition of these jurist where given in order to summarize the knowledge of law which is immense in order to grasped by a layman personality and to describe how these law affects one’s life. These jurists defined the term law as a concept of universalism varying from the term and medium through which they reach to a individual. Two such personality were John Austin and John William Salmond, who belongs to the analytical school of law. Before jumping to the definition of the law given by them, one needed to be aware about the concept of schools in law and further about the analytical school of law. So, based on the believe of the jurists about the characteristics of law and its evolution in the society, the schools are created and been divided into five parts namely philosophical, historical, realist, sociological and analytical. The analytical school is also referred as the imperative school or positive school, since it regards law as a direction of the sovereign. This school is based on the legal maxima “ubi civitas ibi lex” which means where there is a state, there will be no anarchy. To define this school in simple words, one may can say that this school takes a firm stance against the ethics and concentrate itself solely on the aspect of the sovereign and its power to control the society. This school is even also referred as the Austinian school since this methodology was set up by John Austin and further the approach was taken over by other jurists like Salmond, Bentham, Holland. Both Austin and Salmond in their definition of law discussed about the state or the sovereign, referring it as the main or the highest authority for setting up the rules and regulations, which should be followed by the individual in the society either on own liberty or by compulsion. Further, adding to it Salmond also point out about the role of judiciary in administering the justice in the society. These things will further be discussed in later part.

·       BODY-

Law varied from place to place but the inception and the motive behind making these laws remains the same throughout the world. Sir john Austin and Sir john Salmond plays a major role in shaping the definition of law and highlighting the essentials of the law, that is needed to be considered before making any laws. According to Austin, “law is a command of the sovereign backed by sanction”, in this definition he quoted about the three features that are needed for any rule to be termed as a law. These are: (i) it must be a type of command (ii) it must be laid down by a sovereign (iii) it must be enforceable by the sanction. For example- a case for Environment protection act, 1986 can be considered in this section because it is a command by the India as a state and in India legal system repercussions are there for its non-compliance. He through his definition created a relation of superior to inferior where the other part is enjoying power over the other counterpart. He also later in his thesis differentiate among the commands that are laws and the commands that are not laws. According to him, laws are general command and not like transitory commands which are given on parade grounds by the troops and then seizes in its effect but it is actually a command which remains standing for all and others for lifetime. Austin had differentiated this command into two types namely commands coming from gods as the divine law and human laws coming from the political superiors.

This theory of law had been criticised on various ground and once also termed as “gunman law” on the ground that its is no different from the one of the command given by a thief or robbers by pointing gun on once’s head. According to Austin, a sovereign is a body of people or group of people and command can only be given by them and no other body can preside or govern over it. Austin theory of law is called the imperative theory of law as it talks about the law as a command and it has some compliance over the people. Austinian theory of law can be criticised or condemned on various ground and one can easily find the lacuna in it. For example one can question that, how come the talk about the mentioning of state when there were still the laws but we had no state ?  This argument was given by some philosophers but reject by Salmond on the ground that law prior to the origin of state were no laws but mere a custom, tradition, usage or anything else. One can also criticise the view of the Austin on the ground that not all laws are a command, some laws also form and are the kind of explanatory or descriptive law that describe about the law in force or how one should follow such laws, according to this Austinian definition these laws cannot be termed as a law.

For example, in Indian context there are constitution laws where DPSP (directive principles of state policies) that are part of law but not act as a command but it is a mere suggestion to the one to follow.  Also, there are some parts in IPC of 1862 that describe about the wrong but form a part of law in action, example is section 302 of IPC which talks about the definition of the same, explaining what are the terms required for any wrong to called as a murder. Same as describe for the command, not all law in its natural sense comes with the effect of sanction, for example that of laws describing the nature of any act or anything else. For example, the terms of international laws sometime comes with a binding sense but it does not consists the feature of the sanctions with itself. What lacks the most in the Austinian definition is the seclusion of the term justice or its effect in controlling and maintaining the status quo and preventing the society from anarchy. Justice and judiciary form a major part in the society and no society can be imagined without the body of the judiciary, in these ways the definition failed in giving the purpose of the law and thus it cannot be regarded as a well suited definition, what it talks majorly is about the controlling power of  a state and its power to impose sanction over the other and hence loses its major purpose in defining law.

The definition of Austin had been discarded on various ground but one cannot rejects its effect in shaping the mind of other philosophers while defining law. One such philosopher and thinker was the John Salmond belonging from the same school of law defined the term law in more of its true sense. According to him, “law may be defined as the body of principles, recognized and applied by the state in the administration of justice”. His definition covers those minute but significant area of law that Austin missed to mention, justice as a tool in serving the society. Also the definition of Salmond doesn’t give the definition of law as an absolute and rigid value and used ‘may be’ showing the acceptance to all the new changes to its characteristics. Since both the Austin and Salmond belonged to the positive school, their definition cover law more in its real sense rather in its abstracted or in the form of morality but highlighting the area of justice make the definition of Salmond more significant. On breaking more to his definition, one may find that basis on which state such things, he through his definition describes that one practice like that of custom and usage could also become law, when recognized and accepted by the courts and hence become law, but he ignored the functioning of the state administration in accepting and proposing custom as a law.

No definition of law came without any criticism and the same also goes with the Salmond’s definition. The inception of term state again challenges the laws like international and military laws were various body came together in making of laws. Also, not all laws comprise the concept of justice with it, for example the international laws were made for the functioning of international bodies and not for providing justice to one. Same as that of the Austin’s definition the definition of Salmond also revolve around the formal and actual recognition ignoring that of its societal, historical and cultural factors. He classified law into eight sections namely imperative law( rule imposed upon by some authority as a form of command and backed by any repercussion if not followed), physical or scientific laws( law of physics based on evidences), natural or moral law, conventional law( law based on the agreement between bodies), customary laws( law arising out of custom and practices), practical or technical law( like law of axioms, Pythagoras law),international law, civil law(law of land , enforced by the courts and lawyers).

Sources from where these laws came were divided by Salmond into two parts:

(i)              Formal source- Sources from which law derives its validity and force. For example in Indian context the IPC can be considered as the formal source.

(ii)            Material source-Sources from which law derives its matter or content. For example in Indian context Vedas, Upanishads and Manu smriti acts as a material source.

Different philosophers even after this much explanation by the Salmond, criticised his theory. Few such people are Vinogradoff, justice Cardozo, holland etc. Vinogradoff described that the direct purpose for which a judge act is for application of law and any definition not considering their role could not be a right definition. He said that law should be formulated before its application in the courts and after which those rules could be applied in the court, hence rejecting the rule making power of court given by the Salmond. Even after such anomalies and lacunas, this definition remained a significant part of study in the subject of jurisprudence due to its covering of vast areas such as state, its application, its body of principle and administration of justice in the end.

·       CONCLUSION-

The definition of Austin and Salmond acts as a foundational stone in shaping the minds of legal philosophers, thinkers, and student but it also comes with certain issues and dilemma due to its simplicities and limitations. The Austin’s definition talks majorly about the command given by the state and if not followed, then its repercussions. This perspective majorly focuses on the importance of state in shaping and maintaining legal system.

On the other hand, John Salmond focuses more on content of the law rather than its coercive nature and enforcement. He emphasized the role of principles and its application in solving the conflicts in society. However, both belonged to the imperative or analytical school of law and their mentioned essentials for the law were based on the theories and societal structure.

However, both Austin and Salmond's definitions had been also faces some criticism. They overlook the complexities of legal systems and fail to account for the broader societal context in which law operates. Legal positivists argue that these definitions neglect the influence of social norms, morality, and cultural values on the development and application of law. Additionally, natural law theorists contend that the law should not be reduced to mere commands or principles recognized by the state but should reflect higher moral principles inherent in human nature.

One needed to be well aware with the fact of law in order to understand different theories of law but these definition make the horizon of law, a little bit less complex for the understanding to a layman person. Their contribution to this filled is immense and plays a major role in shaping  the reasoning of people from different genre.

 

 

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