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Jurisprudence
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B.A. LL.B. (Five Years) · Sem 5
2019 Dec (100 marks) Examination
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B.A. LL.B. (Five Years) Sem 5 Jurisprudence 2019 Dec (100 marks) Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2019 Dec (100 marks) examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2019 Dec (100 marks) examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2019 Dec (100 marks) examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1Explain the Austin's Theory of Law.[16]
Answer
For full marks, cover: the statement and its source (Austin, The Province of Jurisprudence Determined, 1832; Bentham; the analytical school; law as it is, apart from morality); the elements of the definition: command, duty, sanction and sovereign, with the marks of Austin's sovereign; laws properly and improperly so called; the laws Austin admitted were not commands; the merits of the theory; the criticisms, each explained (custom and Maine's Ranjit Singh, judge-made law and "tacit command", power-conferring rules, Hart's gunman, the continuity of law, the illimitable sovereign, international law, the sanction as the essence of law); the Indian position (A.K. Gopalan v. State of Madras, 1950, read "law" as State-made law; Maneka Gandhi v. Union of India, 1978, departed from it; Kesavananda Bharati v. State of Kerala, 1973, and Minerva Mills Ltd. v. Union of India, 1980, deny an unlimited law-maker); a table; a conclusion.
The statement and its setting
"Law is the command of the sovereign" is the core of the imperative theory of law. It was stated most fully by John Austin in his lectures, published in 1832 as The Province of Jurisprudence Determined. Austin built on the work of Jeremy Bentham. Both belonged to the analytical school, which studies law as it is, not law as it ought to be.
Austin insisted that the existence of law is one thing and its merit is another. A rule may be unjust and still be law. That separation of law and morality is the starting point for understanding his definition.
The elements of the definition
Austin defined a law, in the strict sense, as a general command given by a sovereign to persons in subjection to him. Four ideas are bound up in it.
1. Command. A command is the expression of a wish that another person should do or refrain from some act. It is coupled with the power and purpose to inflict an evil if the wish is disregarded. A request without that power is not a command.
2. Duty. A person to whom a command is addressed is bound, or under a duty, to obey it. Command and duty are correlative terms.
3. Sanction. The evil threatened for disobedience is the sanction. In Austin's view, the sanction is what gives a command its binding force.
4. Sovereign. Only commands from the sovereign are positive law. Austin's sovereign has four marks.
- He is a determinate human superior, a person or a body of persons.
- The bulk of a given society is in the habit of obedience to him.
- He is not in the habit of obedience to any other superior.
- His power is indivisible and illimitable, legally speaking. A sovereign cannot be bound by law, because whoever could bind him would be the real sovereign.
Austin also required the command to be general. A particular order, such as an order to arrest one man, is a command but not a law.
Laws properly and improperly so called
Austin sorted rules into classes.
- Laws of God, set by God to human beings.
- Positive law, set by political superiors to political inferiors. Only this is the subject of jurisprudence.
- Positive morality, rules of honour, fashion and etiquette, and also international law. He called these "laws improperly so called", since no sovereign sets them.
- Laws by metaphor, such as the laws of physics, which are not commands at all.
He admitted three kinds of law that are not strictly commands. They are declaratory laws that explain existing law, laws that repeal others, and laws of imperfect obligation that carry no sanction.
Testing the theory on two laws
Take the offence of theft in the Bharatiya Nyaya Sanhita 2023. Parliament, the law-maker, forbids taking another's movable property dishonestly, and threatens imprisonment or fine. There is a command, a duty, a sanction and a law-making body. Austin's model fits it well.
Now take the rule that a will must be signed and attested by two witnesses. It commands no one to make a will. A person who ignores it is not punished; his will simply fails to take effect. The model does not fit this kind of law, as the criticisms below explain.
The merits of the theory
- Clarity. It gives a simple, testable account of what law is.
- Separation of law and morality. It lets a lawyer state what the law is without first deciding whether it is good.
- Fit with modern legislation. Most modern law is statute law made by Parliament, which looks much like a command backed by a penalty.
- Fit with criminal law. A penal statute says "do not do this, or you will be punished". That is the model Austin had in mind.
The criticisms
1. Custom. Much early law was custom that no sovereign commanded. Sir Henry Maine pointed to Ranjit Singh of the Punjab. He was an absolute ruler, yet he never issued a command that changed the customary law of his subjects. Law there existed without a sovereign command.
2. Judge-made law. Judges make law through precedent. Austin replied that what the sovereign permits, he commands, a so-called "tacit command". Critics answer that this stretches the word "command" until it means nothing.
3. Power-conferring rules. H.L.A. Hart showed that many laws do not impose duties at all. Rules on making wills, contracts and marriages confer powers. Failure to follow them leads to a nullity, an act without legal effect, not a punishment. A nullity is not a sanction.
4. Being obliged and having an obligation. Hart's gunman example asks how a law differs from a robber's demand backed by a threat. The victim is obliged to hand over his money, but he has no obligation to do so. Law creates obligations because it is accepted as a rule, not merely because it is backed by force.
5. The continuity of law. If law is the command of a particular person, it should end when he dies. Yet statutes made by a dead king remain law under his successor. Hart explained this through rules that confer the authority to legislate, not through personal habits of obedience.
6. The illimitable sovereign. In federal countries with written constitutions, no organ has unlimited power. Courts can strike down laws that exceed constitutional limits.
7. International law. Austin called international law positive morality. Yet States treat it as law, and courts apply it.
8. The sanction is not the essence. Many laws are obeyed because people accept them, not from fear. Scandinavian realists such as Olivecrona described laws as "independent imperatives", not commands of any person.
The Indian position
An Austinian reading. In A.K. Gopalan v. State of Madras, 1950 AIR 27, a detenu under the Preventive Detention Act 1950 challenged his detention under articles 19, 21 and 22. The majority held that "law" in article 21 meant State-made law. It refused to read it as law embodying natural justice. On that view, any procedure the legislature enacted would do. That is close to Austin's idea that whatever the sovereign commands is law.
The departure. In Maneka Gandhi v. Union of India, 1978 AIR 597, the Supreme Court held that the procedure under article 21 must be fair, just and reasonable. A law is no longer valid merely because the legislature made it.
No illimitable sovereign. In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the Court held that Parliament cannot amend the Constitution so as to destroy its basic structure. In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, it struck down clauses (4) and (5) of article 368. Those clauses had tried to make Parliament's amending power unlimited and beyond review. Indian sovereignty is therefore divided and limited. That is the opposite of Austin's sovereign.
| Element of Austin's theory | Criticism | Indian position |
|---|---|---|
| Command | Power-conferring rules are not commands (Hart) | Wills, contracts and marriage laws confer powers |
| Sanction | Nullity is not a sanction; acceptance matters | Many laws carry no penalty |
| Determinate sovereign | Custom existed without one (Maine) | Customary law recognised by article 13(3)(a) |
| Illimitable sovereign | Constitutions limit every organ | Kesavananda; Minerva Mills |
| Law apart from morality | Law must also be fair | Gopalan followed it, Maneka Gandhi departed |
Conclusion. Austin's statement that law is the command of the sovereign defines law by command, duty, sanction and a determinate, illimitable sovereign. Its merits are clarity and the separation of law from morality, and it fits penal statute law well. But it cannot explain custom, judge-made law, power-conferring rules, the continuity of law or constitutional limits. Gopalan reflected its approach, and Maneka Gandhi moved away from it. Kesavananda and Minerva Mills deny any Austinian sovereign in India. The theory remains a useful starting point, but not a complete account of law.
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