Question

1. Can the definition of law that Austin proposes in The Province of Jurisprudence Determined ever apply to a democratic society in which the citizens themselves are said to be sovereign? Why or why not?

Answer 1

The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt in the context of the modern state to formulate a system of analytical legal positivism Historical Context-Austin places the notion of sovereignty on the basis of his theory of law. Austin borrowed from the European experience he had. The sudden breakdown of the Roman empire after thousands of years of peaceful rule made people realize that peace can only be maintained through a singe unified authority with infinite command power at their disposal. Moreover Austin wrote his works at a time when England was in need of vast legislative reforms.

He attributed this chaos to loose thinking and did not consider natural law to be a useful tool for bringing about sound changes and since his goal was to seek a coherent system of law he divorced law from morals, ethics, religion and other social norms. Considering this factual context in which he wrote, we will now address his thoughts of Austin's sovereignty's most significant contribution to legal theory was his replacement of the sovereign's command for any ideal of justice in the definition of law.

Even then the grinding effect of conflicting public pressures needs high-order political astuteness to maintain them satisfied and stop the withdrawal of assistance in the next elections. So we can say that Austin's emphasis is not just on the sovereign being the primary stream of law. Law emanating from the sovereign alone may be fit for a totalitarian regime such as Pakistan where the state can use its law-making monopoly and executive powers to re-form legislation in disregard of democratic procedures, but the same is not feasible in a democratic nation such as India.

The interplay between government view and government intervention has become very complicated these days, whether we are worried with the abolition of dowry, the development of legal remedies against administrative action or the introduction of a fresh ground of divorce, there is always some interrelation between the government equipment that generates these modifications and the social opinion of the society in which they are Public opinion on essential issues is articulated through the House's elected members, as well as through government debate in the media, radio, public conferences