Ownership In Jurisprudence (AUSTIN’S VIEW)

Ownership In Jurisprudence (AUSTIN’S VIEW)

Meaning Jurisprudence

Jurisprudence is derived from the Latin word “jurisprudentia” meaning “knowledge of the law” or ‘skills of law”. It is the study of theory and philosophy of law. This subject entirely differs from other social sciences. The meaning and nature of the law were first questioned by the Romans. According to Ulpian “law was the knowledge of things divine and human.” He also said that law is the science of right and wrong. Jeremy Bentham, who is also known as the FATHER OF JURISPRUDENCE said that “science of jurisprudence” has nothing to do with the idea of good and bad. Austin was a disciple of Bentham and stated that ‘Science of jurisprudence is concerned with positive law and that is laws strictly so-called. It has nothing to do with the goodness or badness of law.” He said that jurisprudence is a philosophy of positive law and mainly concerns with as law it is. It is difficult to define jurisprudence as there are several ideas with regard to it. The jurisprudence of every country is shaped by its own social and political conditions in which the development of law took place. Modern jurisprudence is tied to sociology on one end and to philosophy on the other end.

Jurisprudence had its origin in the Roman Civilization and was quite limited as the concept of law, morals and justice as confused with each other. Slowly the idea of positive law and positivistic approach gained popularity whereby the boundaries of the law were demarcated and its scope was limited. 

John Austin is also known as the FATHER OF ENGLISH JURISPRUDENCE and was associated with the analytical school of jurisprudence. He was born in 1790 to a Suffolk merchant family and served in the armed forces before joining the University Of London. He divided law into two parts being positive law and positive morality.

Positive law means law properly so-called were direct or indirect commands of politically superior authority and positive morality meaning laws improperly so-called which were laws that do not flow from any determinate source are neither directly nor indirectly formulated by a political superior.

Anything was considered as law if it contains the following four elements:-

  1. Sanction
  2. Command
  3. Duty
  4. Sovereignty

Austin never considered positive morality as law. This theory was also criticized by many jurists. They said that it carries some truth by it might not be totally perfect. E.g. – any particular custom of any family cannot be considered as law for the society. Judges made laws were also not included by him.

He said that once a law is made it must be followed irrespective of one’s personal choice and if anyone does not follow it then he must be punished. This was also criticized by many scholars. He basically focused on positive law and did not talk much about positive morality.

He said the law is a command of sovereign though the command was over emphasized by him. He said that law makers were supreme but this was not true.

Austin’s theory of positivism was criticized on the following grounds-

  1. Universality- the definition of law as a command is not universal and applies to only certain laws and ignores the major portion of the law.
  2. Identification of a commander- he suggested that commands are given by an individual who is politically superior. In present time it is difficult to identify such a personal commander due to the doctrine of separation of powers and the emergence of the legislature.
  3. Continuity of law- his understanding of commands were that commands were given by any political superior and that it stays in force as long as that political superior is alive. Its further continuance is subject to the will of the succeeding political superior. The modern state follows the principle of constitutionalism and thus this cannot be said true. In such States, only laws authorized by the constitution can be repealed.
  4. Real law- it refers to the judge made laws cannot be said to be a “law properly so-called” based on the parameters provided by Austin. His cannot be considered true in the modern era. Several parts of the modern legal system comprises of judges made laws and real laws.
  5. Procedural requirements- even a politically superior authority today has to follow a set procedure in order to formulate a law. All statements and wishes are not identified as a command or as a law.

An owner is a person who owns something or one who has a legal or rightful title over something OR one to whom a property belongs and ownership is the state, relation of fact of being and owner according to the Merriam Webster dictionary.


Back before when people were nomadic, they had no idea and sense of ownership. It only began ones they started building homes and cul6tivating lands of their own. Possession and ownership were considered as two different conceptions in the ancient Hindu Law as well as the Roman law.

According to KEETON, “a right of ownership is a conception clearly easy to understand but difficult to define with exactitude.”

The two main theories with regard to the idea of owning the great exponents of the two views are Austin and Salmond. Today we will discuss Austin’s view of ownership in jurisprudence.

According to Austin, ownership is a right which one person avails over everyone who is subject to the law conferring the right to put think to a user of indefinite user. He also says that ownership is right indefinite in point of the user; unrestricted in point of disposition and unlimited in point of duration it is rem which is available to the owner against the world at large.

Austin gave three elements of ownership:-
  1. Indefinite user- This was the first element of ownership by Austin where a person can use his property in a variety of ways which cannot be defined. For example- if a person owns the land he can use the land in many ways as he wishes to that is he can even build a house or can cultivate the land or can even grow a beautiful garden as he feels. However, restrictions can be imposed by means of an agreement or by the operation. State also has the power to restrict the use of the land by the user if the use is injurious in nature and is harmful to society.

This was held in the case of REYLAND v. FLETCHER, 1863, LR 3, HL 330. In this case, the defendant had employed an independent contractor to build a reservoir. While digging the land the contractor came across a mine which was not sealed properly and the water flooded through the mineshaft into the plaintiff’s mine on the adjoining property. The plaintiff secured a verdict at the Liverpool Assizes and The Court Of Exchequer Chamber also held the defendant liable and the House Of Lords affirmed their decision.

  1. Unrestricted disposition This was the second element according to Austin where it is right of transfer or disposition without any restriction. Yet certain restrictions can be imposed on the power to dispose of the property. Transfer to the property is not allowed if its object is to defeat or delay the creditor. A man cannot bequest his whole property without the consent of other sharers or he can bequest only up to one-third of his property, under Muslim Law. Under Mitakshara school of Hindu Law, it does not allow alienation of ancestral immovable property without the consent of the coparceners except the legal necessity.
  1. Unlimited duration this is the third and the last element of ownership by Austin which is the permanence of the right of ownership. Here the right exists as long as the thing exists. Once the thing is destroyed the right is extinguished. Ownership is succession inherited but it is not wholly correct as the state possesses the power to take the property of any person in the public interest.

Material objects like land, chattels, the wealth and assets of a person as an interest in the land, debts due on him, his company shares, patents, copyrights, etc and also intangible rights may constitute to the subject matter of ownership.

This definition by Austin has also faced many criticisms on grounds that ownership is not a single right but in fact, it is a bundle of rights including rights of user and enjoyment. Even if the owner gives away some rights involved in ownership still he may have the remaining rights.

For example- if the land is mortgaged, although he has transferred the right he is still the owner of the mortgaged land. The theory of the right of the indefinite user was also criticized because many limitations could be imposed on the use of the thing.       


Austin’s theory and ideas have been subjected to many criticisms as it does not perfectly fit to modern times but it has led to the emergence of many more theories and a lot of brainstorming.

Also Read: Labour and Industrial Laws in India

Ownership In Jurisprudence (AUSTIN’S VIEW)

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