2. INTRODUCTION
Sir John Austin is considered to be one of the greatest jurists who made an immense contribution to this field of
study. He is also referred to as the Father of Analytical School of jurisprudence and is Command Theory laid the
foundation of Analytical Positivism that formed a base of numerous further positivist theories.
Austin came up with the theory that law should be what the sovereign wishes it to be and anyone going outside its
ambit shall be punished.
International Law, which is also considered as a vanishing point of jurisprudence, is a diverse field of study of law as
it governs various nations having their own independent laws and they are independent sovereign states. Austin's
theory, therefore, comes in conflict with the very nature of International law as the basic necessity what Austin
pointed out for law was the existence of a Sovereign, which international law clearly lacks. In this project we will
deal with this inadequacy or flaw in Austin's theory or jurisprudence to deal with International law.
3. AUSTIN’S THEORY
Austin defined Law as “the command of the sovereign backed by sanctions” and he further what command
is; according to Austin “A command is an intimation or expression of a wish to do or forbear from doing
something, backed up by the power to do harm to the actor in case he disobeys”. According to him the
person who is commanded has a duty or an obligation to comply with it under the fear of the “sanctions”
imposed by the sovereign.
According to him, fear of sanctions compels people to follow a command and after a substantive amount of
time they are recognized as customary practices which people consider binding on them, therefore Law is
nothing but the Command of Sovereign.
According to Austin international law lacks a sovereign therefore there is no fear of sanctions and hence it
is followed just as a positive morality, therefore not a true law.
4. NATURE OF INTERNATIONAL LAW
International Law or Law of nations refers to various conventions or customary practices that govern the
relations between two or more sovereign independent nation-states of the world.
International Law is neither a command nor a compulsory obligation, but still it is called a law. International
Law is followed not with the fear of punitive sanctions but maybe because of the threat of economic
sanctions or in the matter of international cooperation.
Almost every country has to rely on one or the other country for their subsistence as none of them are self-
sufficient in every field. Strongest of strongest to the weakest countries everyone relies on each other
therefore it becomes necessary to follow international conventions or treaties.
The principle of “Pacta Sunt Servanda” which says the countries in an international community shall respect
their treaty obligations towards each other is an important feature of International Law as the nations follow
it out of their own will.
5. CONFLICT
Austin's theory of Command is in great conflict with international law mainly due to the following reasons:-
Presence of Sovereign- In the case of International Law we see the clear absence of a Sovereign authority
rather the subjects are independently sovereign. Therefore the reality or nature of international law blatantly
goes against the condition set up by Austin’s theory.
The imposition of Sanctions- In the case of International law, we see no strict sanctions being imposed on
nations violating the law as they can simply claim their sovereign immunity. Hence, there exists a conflict
with Austin’s theory that believed economic or punitive sanctions give binding force to the law.
Duty to Follow or oblige- The independent sovereign nations are not under any obligation or duty to abide
by the rules of International Law. This duty or obligation is an essential feature of any law according to
Austin’s theory and international law being void of it could not be called a law according to Austin’s theory.
6. CRITICAL ANALYSIS
Ignorance of Popular Sovereignty: Austin’s theory consolidated all power in the hands of one Sovereign, by completely
ignoring the concept of General Will stating that power and sovereignty should lie only in the hands of one King or ruler
which is in itself undemocratic.
Ignorance of Public Discourse: Austin's theory gives absolute power to formulate Laws and has completely ignored the role
of Public Discourse in the formation of Laws.
Outdated: Austin's theory has lost its importance as a very viable theory in recent times, the kind of political Organization
Austin assumed is not possible and hence his ideas are not followed in any Legal system across the world.
Sovereign Immunity: In Austin's Law, no restrictions existed on the sovereign and an individual Sovereign was seen above all
laws, however, in modern times law of the land is considered supreme.
Lack of Evaluation: According to Austin law cannot be evaluated, anything ordered by a sovereign was Law irrespective of
whether the society accepts it or not. However, according to naturalists law must be backed by public opinion for it to be
considered as law.
7. CONCLUSION
From the above-detailed study of Austin's views about International law, we can surely
conclude that Austin's theory is insufficient in explaining the legality of International Law.
Austin’s views on International law do not hold power in a modern society and can be
considered to be framed upon medieval times.
Austin’s theory lacked grounds for evaluation of law therefore it cannot be accepted as a
justice-oriented law and hence is not capable of being applicable to society.
Adopting a modern approach to study law and observing International Law as a full-fledged
law thereby neglects Austin’s view on it and points the irrelevance of it now.
