AUSTIN

Past Year Questions

2018 Q8: ’Bentham’s and Austin’s theory was exactly right where Hart thought it failed, namely in its search for the
coercive dimension accompanying any law.’ Discuss.

2017 ZA Q9: ‘Austin’s theory is often misunderstood. It is certainly not as crude as Hart makes it out to be. Indeed,
it is the best account we have of the relationship between law and power.’ Discuss.

2017 ZB Q10: ‘Coercion is at the heart of law, especially as experienced by the citizen. Austin saw this better than
anyone.’ Discuss.

2016 Q4: ‘More often than not, law is indeed like the gunman situation writ large. Legal theory ought to take more
seriously the idea that persons are mostly subjected to law they do not know, understand or like.’ Discuss.

2015 ZA Q4: ‘Austin’s biggest mistake was that he failed to consider that there must be something other than the
threat of sanctions that explains why people are under an obligation to follow the law.’ Discuss.

2015 ZB Q5: ‘Law does not just tell us what to do. It also helps us to plan out our lives. Ultimately, Austin’s theory
is blind to this function of law.’ Discuss.

2014 ZA Q4: ‘John Austin’s command theory of law fails mainly because it relies on a misunderstanding of the
nature of sovereignty.’ Discuss.

2014 ZB Q8: ‘If one does not believe there is such a thing as objective morality, then the only legal theory one can
accept is the command theory of law.’ Discuss.

Remarks: Many candidates misunderstood the question as an invitation simply to give an exposition of Austin’s
jurisprudence and Hart’s criticism. Good: 1) go beneath the surface and ask whether the command theory goes hand in
hand with moral scepticism as well as whether the latter necessitates something like the command theory. Excellent
answers would make the connection to Hobbes. They might also ask whether the command theory is complete or
whether it must offer some other ground for law’s authority. In making this argument they might discuss coercion (as
opposed to moral obligation) as the ground of legal normativity; 2) The Q tacitly refers to Bentham’s and Austin’s
accounts of law. If a candidate decided to disagree with the statement in the question, then one could employ Finnis
(or perhaps Dworkin) to argue for an objective account of morality. Or one could both agree with the rejection of

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objectivism and disagree that the only alternative is coercion by referring to a social contractarian conception of the
state and law.

2013 ZA Q10: What is an ‘imperative’ theory of law, and what are the strengths and weaknesses of such a theory?

2013 ZB Q10: ‘John Austin failed to give an accurate account of law because he did not pay sufficient attention to
law’s nature as a set of social rules.’ Discuss.

2012 ZA Q10: ‘Austin’s theory fails because it rests on a misunderstanding of sovereignty.’ Discuss.

2014 Oct Q4: ‘Law is full of sanction-less rules. The command theory of law is therefore at least incomplete
because it fails to account for such rules.’ Discuss.

2015 Oct Q4: ‘Law is about telling people what to do and forcing them to do it. Only the command theorists
recognised this obvious truth about law.’ Discuss.

2016 Oct Q4: ‘Recent work defending the central place of coercion in law (by Schauer) vindicates Austin’s theory
of law. We cannot build a theory of law as if it wasn’t coercive.’ Discuss.

2017 Oct Q9: ‘Austin’s theory of law has been mischaracterized by Hart. It is more than the ‘gunman writ large’
and offers a clear and useful view of the role law plays in our society.’ Discuss with particular reference to Austin’s
theory.

2018 Oct Q9: ‘However we may wish to think that we live in conditions of rule of law, we live in fact in a world that
is vulnerable to virtually unlimited executive power. In other words, Bentham and Austin were right all along.’
Discuss.

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A. Introduction – Roger Cotterrell
a) John Austin’s wife wrote that he lived ‘a life of unbroken disappointment and failure (in a letter quoted in

Rumble (1985)).

b) Yet, Austin, more than any other writer, provided the compact and systematic formulation of a conception

of law that allowed an escape from the tradition-bound theory implicit in classical common law thought.

c) Equally, Austin provided what historical jurisprudence could not: a clear designation of the scope of legal

knowledge, and orderly theory of law that firmly distinguished the legal from the non-legal and made explicit
logical connections between legal ideas.

d) Finally, he offered a way of looking at law that made legislation central rather than peripheral. Thus, his theory

recognised the reality of modern state as a massive organisation of power. It tried to show law’s relationship

with this centralised and extensive power structure. It seemed in tune with modern circumstances in which
government, not community, was the apparent source of law.

B. As a Positivist

1. Austin strongly believed in the demarcation of law from morality and this classified him as a legal positivist.
Legal positivist exists on the polar opposite end of the Natural law school of thought. Naturalists blurred the
distinction between law and morality and considered law to exist in the realm of normative jurisprudence

thereby asserting the overlapping thesis. Legal Positivists on the other hand had asserted a clear separation
of law and morality and did not delve into the content of laws or the evaluations thereby strictly remaining
within the parameters of descriptive jurisprudence and asserting the separation thesis. Therefore, for them,

there was no necessary connection between law and morality.

2. Legal positivism insists that a descriptive approach to law is valuable, thereby divorcing the content of law

and morality, believing that it is in the concept of law that morality is either a part of it or not necessarily part

of it.

3. Austin’s work as a positivist is contained in his major work entitled, The Province of Jurisprudence Determined.

4. His aim is to distinguish law from other phenomena, in particular, rules of morality.

The matter of jurisprudence is positive law: law simply and strictly so-called or law set by political
superiors to political inferiors.

Immediately, law is defined as an expression of power. In its widest proper sense, a law is ‘a rule laid
down for the guidance of an intelligent being by an intelligent being having power over him.’ Austin’s

view of law recognises it not as something evolved or immanent in community life, as in the implicit law
conception, but as an imposition of power (will be discussed below). For now, we will focus on the
classification of laws.

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 Law properly so called Law improperly so called

Law of God Human Laws Laws by Analogy Laws by Metaphor

Positive Laws set by men,

Laws (law not as political
strictly so superiors or in
called) pursuance of
legal rights.

Positive Morality

5. Austin distinguished laws ‘properly so called’ from phenomena ‘improperly so called’ as law.

6. There are 2 classes of law properly so called:

a) divine laws (set by God to humankind) which quickly appear in Austin’s jurisprudence to be largely the

dictates of utility;

b) human laws (set by human beings for human beings).

i) The most significant category of human laws comprises of what Austin calls positive law. These are laws
set by political superiors acting as such or by people acting in pursuance of legal rights conferred on them

by political superiors (that is, acting as the delegates of political superiors in making laws).

Note: The term ‘positive’ refers to the idea of law placed or laid down in some specific way and, as such,
could apply to divine law, which Austin conceives as God’s commands. But he wants to reserve the term
positive law for human laws laid down by, or on the authority of, political superiors – the true subject of

legal science. So, the word ‘positive’ indicates a positing or setting of rules by human creators.

ii) The other category of human law consists of rules laid down by persons having power over others but
not as political superiors in pursuance of legal rights. This seems to cover many rules which lawyers would
not usually regard as law, although Austin has no doubt that the term ‘law’ can be used here ‘with absolute
precision or propriety’. Since he uses the word ‘power’ in a general sense, it seems to include the capacity
of any authority figures (eg: priests or religious leaders, employers, teachers, parents, guardian or political
orators) to control or influence the action of followers, dependant or those in their charge. Austin clearly
regards rule-making in such cases as significant in shaping the attitudes, opinion or moral sentiments of
individuals or groups. Indeed, it forms part of what he called positive morality. As morality, it is
distinguished from positive law; and it is positive because it is laid down by human beings for human
beings.

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7. There are 2 classes of laws improperly so called as well:

a) Those without particular creators but set by the opinion or sentiment of an indeterminate body of people –

that is, by public opinion or community opinion. This is part of positive morality. Austin calls these rules ‘laws
by analogical extension’; they are not laws ‘properly so called’ even though we sometimes talk of laws of
fashion, etiquette or honour.

b) Scientific laws are not laws in the jurisprudential sense. They are the regularities of nature which science
discovers but which are not laid down as laws. Austin calls them ‘metaphorical laws.’

8. According to Austin, positive law is separate from the laws of God, from moral imperatives and from any
natural law philosophy.

Austin states that the existence of positive law is dependent upon the goodness, the morality or justice of

its contents. The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law which
actually exists, is a law, though we happen to dislike it or though it vary from the text by which we regulate
approbation or disapprobation (Austin, Lecture V, p. 157)

C. Command/ Imperative Theory of Law

1. Every jurist has a thesis or grand work of his and similarly, Austin’s Command Theory of law is a true depiction
of his stance on legal positivism.

2. There exist positivists differing on the spectrum of legal positivism and on such spectrum Austin, more or

less seems to align himself with his predecessors, ie. both Hobbes and Bentham, albeit more towards a
Hobbesian positivism as he presents his theory of law as an ‘authoritarian positivist’ theory of law.

3. Professor Morrison claims that Austin’s jurisprudence took its foundations from the work of Hobbes and
Bentham. Bentham was a constitutional radical and Austin was a disciple of his who had turned conservative,
however, sharing many of the ideas of Benthamite philosophical radicals such as notions of progress, rule
through knowledge, political economy etc. From Hobbes, Austin borrowed the definition of sovereign:

“The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law”.

Austin’s work of substance was his PJD and he held a dogmatic belief that aristocracy through the institutions

of the Parliament, Courts, Church and the Army, promoted their self-interests, which because they were the

interests of a class were ‘sinister’. For Austin, the key to social progress was in the combination of a rational
government coupled with the ‘educated populace’. For him, it was really important that men should think
distinctly and speak with a meaning.

4. The Command Theory of Law of Austin was a way for law to become a powerful and rational instrument of
modernity (monopolization of power). The command theory of law states that laws (properly so-called) are

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 commands of a sovereign who is habitually obeyed but the bulk of the population and defiance of his
commands leads to the enforcement of sanctions.

D. Command and Sanction

1. According to Austin, every law or rule is a command or rather, laws properly so called, are a species of
commands. Since the term command comprises the term law, the first is simpler and larger of the two.

A law is a command which obliges a person or persons…But, as contra-distinguished or opposed to

an occasional or particular command, a law is a command which obliges a person or persons, and
obliges generally to acts or forbearances of a class…In language more popular but less distinct and
precise, a law is a command which obliges a person or persons to a course of conduct.

General commands Particular commands

(Laws properly so (not law)
called)

Commands of God

Commands of the sovereign Command of others (Divine laws)

(Positive laws) (Positive Morality)

2. If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with
an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A

command is distinguished from other signification of desire, not by the style in which the desire is
signified, but by the power and purpose of the party commanding to inflict an evil or pain in case the

desire is disregarded. If you cannot or will not harm me in case I comply not with your wish, the
expression of your wish is not a command, although you utter your wish in imperative phrase. If you

are able and willing to harm me in case I comply not with your wish, the expression of your wish
amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of

a request.

A command is then a signification of desire. But a command is distinguished from other signification
of desire by this peculiarity: that the party to whom it is intended is liable to evil from the other, in
case he complies not with the desire.

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 Being liable to evil from evil if I comply not with a wish, which you signify, I am bound, obliged by your
command, or I lie under a duty to obey it. If, in spite of that evil in prospect, I comply not with your wish

which you signify, I am said to disobey your command, or to violate the duty which it imposes.

Thus, command and duty are correlated terms. Wherever a duty lies, a command has been signified; and
wherever a command is signified, a duty is imposed.

3. “The evil which will probably be incurred in case a command is disobeyed or (to use an equivalent expression)
in case a duty is broken, is frequently called a sanction, or an enforcement of obedience... the evil to be

incurred by disobedience is frequently styled a punishment. But as punishments, strictly so called, are only a
class of sanctions, the term is too narrow to express the meaning adequately.”

4. According to Davies and Holcroft’s analysis of Austin:

a) It is the ‘evil’, the power to inflict punishment (sanction) in the case of non-compliance which converts an
expression of a wish into a command. All laws being a species of command, necessarily entails the presence
of punitive sanctions for non-compliance.

b) The commander’s intention to inflict evil or sanction is not included in the subject matter of what is expressed.

“I want you to refrain from X” is good enough.

c) The presence of sanction leads to the conclusion that the person to whom the command is addressed is
obliged or is under a duty to obey it.

d) Although a valid law must have a sanction in the case of non-compliance, the sanction itself can be feeble

or insufficient. It is difficult to conclude that Austin is using the presence of a sanction (a threat of punishment)
as a psychological reason for compliance with the command.

e) The sanction in the event of non-compliance is a necessary defining characteristic of all valid law.

Though physical compulsion or restraint is commonly the means or instrument by which suffering is
inflicted, suffering may be inflicted without it certain obligations are sanctioned by nullities; others
again are sanctioned by penalties which are purely infamising.

f) Valid laws, according to Austin, are thus commands from the superiors that because of the threat of sanction

(which now includes the threat of nullity) in the case of non-compliance. According to Raz, law is thus reduced

to a bare social fact based on power, the power wielded by the political superior.

g) Evidently, clubs are trumps. The content of command could be morally iniquitous: it is still valid law. Legal
rules, as such, are not moral rules even if they coincide with moral rules as they frequently do.

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5. According to Roger Cotterrell in The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy
(Chapter 3, pp. 47-77):

E. Sovereign
1. According to Austin, ‘laws and other commands are said to proceed from superiors, and to bind and oblige
inferiors.’ Superiority is often synonymous with precedence and excellence (ie. in rank, in wealth, in virtue)
but here the term superiority signifies might: the power of affecting others with evil or pain, and of forcing

them, through fear of that evil to fashion their conduct to one’s wishes.

2. Austin also stated that in all or most cases of human superiority, the relation between the superior and the
inferior is reciprocal, in that the party who is viewed as a superior from one aspect, is inferior from the other.

(he talked about the relation between a monarch and the governed, and a member of the sovereign assembly

and a judge)

3. Superiority is one of the constituent elements of a command, for it is the power of enforcing compliance with

a wish.

It appears, then, that the term superiority (like the terms duty and sanction) is implied by the term command.
For the superiority is the power of enforcing compliance with a wish: and the expression or intimation of a

wish, with the power and the purpose of enforcing it, are the constituent elements of a command.

4. Austin discusses sovereignty (and an independent political society) in terms of a habit of obedience. Thus,

before a sovereign can only be said to exist if the bulk to the society is in the habit of obedience and the
sovereign is not in the habit of obeying any other superior. Thus, there are positive and negative aspects of

the sovereign.

The superiority which is styled sovereignty and the independent political society which sovereignty implies
is distinguished from other superiority and from other society, by the following marks or characters:
(1) the bulk of the given society are in the habit of obedience or submission to a determinate and common

superior: let that common superior be a certain individual person or a certain body or aggregate of
individual persons;

(2) That certain individual or that certain body of individuals is not in a habit of obedience to a determinate
human superior.

Laws (improperly so called) which opinion sets or imposes may permanently affect the conduct of that

certain individual or body.

Or the notions of sovereignty and independent political society may be expressed concisely thus – If a
determinate human superior, not in a habit of obedience to a like superior; receives habitual obedience

from the bulk of a given society, that determinate superior is sovereign in that society, and the society
(including the superior) is a society political and independent.

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 …It is the union of that positive, with this negative mark, which renders that certain superior sovereign or
supreme, and which renders that given society (including that certain superior) a society political and
independent.
Hence it follows, that it is only through an ellipsis, or an abridged form of expression, that the society is
styled independent. The party truly independent (independent, that is to say, of a determinate human
superior) is not the society, but the sovereign portion of the society: that certain member of the society, or
that certain body of its members, to whose command, expressed or intimated, the generality or bulk of its
members render habitual obedience.

By ‘an independent political society’ or ‘an independent and sovereign nation’, we mean a political society

consisting a sovereign and subjects, as opposed to a political society which is merely subordinate: that is
to say, which is merely a limb or member of another political society, and which therefore consists, merely

of persons in a state of subjection.

But, in order that the bulk of its members may render obedience to a common superior, how many of its
members, or what proportion of its members, must render obedience to one and the same superior? And,
assuming that the bulk its members render obedience to a common superior, how often must they render

it and how long must they render it, in order that the obedience may be habitual? Now since these
questions cannot be answered precisely, the positive mark of sovereignty and independent political society

is a fallible test of specific or particular cases.

5. Davies and Holcroft:

a) If it can be said that the bulk of the people are in the habit of obeying commands set by the Queen in

Parliament and the latter is not in itself in the habit of obeying any other superior, the Queen in Parliament

is an Austinian sovereign. It issues valid laws and there is an independent political society.

b) Austin does not state why the habit exists. It may be through voluntary approval or fear of death. It is unclear.

The sovereign being the political superior, its presence is indispensable as the source of the command.

F. Custom and Case Law

“…customary laws must be excepted from the proposition ‘that laws are a species of commands’.”

1. Originally, a custom is a rule of conduct which the governed observe spontaneously. Judges transmute a

custom into a legal rule (positive law) when it is adopted as such by the court of justice and when the judicial
decisions fashioned upon it are enforced by the power of the state. Such legal rules as established by judges

are established by the state or sovereign. Judges are merely a minister which the sovereign power at this
disposition is delegated to. The rules made derive their legal force from authority (expressly conferred or by
way of voluntary acquiescence) that is given by the state. In the context of a command, the legal rules which
emerge from the customs are tacit (via conduct) commands of the sovereign legislature.
(note: before the above mentioned occurs, a custom is mere positive morality)

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2. Austin refers to custom and case law conclusively as follows:

“…customary law is imperative….and that all judge-made law is the creature of the sovereign or state”
“My present purpose is merely this: to prove that positive law styled customary (and all positive law

made judicially) is establish by the state directly or circuitously, and is therefore, imperative.”

3. Thus, as far as not revoked, the judicial acts can be considered tacit commands of the sovereign legislature.

It is to be noted that Austin has no difficulty with accepting the idea that judges are actually making law. He
also doubted that law made judicially (improper legislation) and by statute (proper legislation) are
distinguished by weighty differences.

A. PREFACE TO THE COL

1. Hart states that the aim of the book is to further the understanding of law, coercion and morality as different
but related social phenomena.

a) Law and coercion: Austin as the predecessor of Hart’s asserts in his Command Theory of Law that sanctions
are an important element of his theory. Thus, emphasizing on the importance of using coercion as a binding
force to establish a coherent legal system. Hart on the other hand emphasise in Chapters 2 to 4 that coercion
is not synonymous to law and that both are related but separate. Hart does not see the legal system as one
that is built on an edifice of sanctions, rather one that is internalized as well.

b) Law and morality: Like all other legal positivists, Hart also asserts that natural lawyers blur the distinction
between law and morality. Thus, he asserts that law and morality are not synonymous and that they are
‘separate but related.’ However, it is an interesting observation that Hart has been labelled as a ‘soft positivist’
and it is for this reason that he does in one of his chapters assert another claim, one that says that there is
a bare minimum content of morality in law.

2. He further indicates that he is going to produce an ‘essay in descriptive sociology’ about the law, that is, he
will be describing the law in a sociological setting and analyse how the system works. It fairly clear that he
intended to describe for us how we understand our shared ‘concept’ of law and he was going to do this by
describing the ‘social phenomenon’ of law. Hart appears to make two assumptions at this point.

a) First, that there is a ‘concept’ of law that ‘we’ share, and

b) Second, that discovering this concept is a matter of description only.

This seems to be in accordance with common sense. Perhaps it is unfortunate that Hart used the word
‘sociology’ since that word invites us to ask why we do not find in the COL anything that passes for standard
sociological, empirical enquiry into legal systems.

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3. Hart will pay great attention to the importance of examining language and the meaning of words, with the
object of finding out what the social phenomenon of law. He is clear, however, that his endeavour is not one

of mere semantics – the language of law/ the way we use words (although he focuses on this); instead he

aims to give an account of law through the increased attention to legal-related language. In his lectures in
Oxford in the 1950s, he used to draw an analogy with a captain on a ship who concentrates on focusing his
telescope while his main object is to find land, since there is no other way to find in which direction to steer
his ship. Likewise, Hart says, it is only by focusing on legal language that we use that we can find out more
about our real object: the social phenomena of law to which the language refers. In other words, Hart’s aim
is to pay attention to the language of the law although only to find out more about the social phenomenon
itself. Hart was greatly influenced by Ludwig Wittgenstein, a philosopher who concerned himself with

language and the greater meaning of words. Hart does emphasize a great deal on the use of words and

criticizes Austin’s work on the same grounds. Hart’s work is also called as an essay in descriptive sociology
as it enquires into the meaning of words, and Hart further emphasizes that ‘in this field of study it is
particularly true that we may use, as Professor J. L. Austin said, ‘a sharpened awareness of words to sharpen

our perception of the phenomena’.

4. Another important aspect of the preface is where Hart discusses the nature of the underlying theme of his
work. He says: “The lawyer will regard the book as an essay in analytical jurisprudence, for it is concerned with

the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy.”

What this means is that Hart puts forward the claim for an analytical jurisprudence: simply speaking, analytical

jurisprudence comes from the root-word analysis. Which in this context means to retrace steps backwards to

understand a given idea. Hart is a proponent of analytical jurisprudence by use of which he delves into the

meaning of law and its structure from an objective view point, thereby rejecting any standards which take
detours into explaining what law can be (ie. morality). Hence accordingly, his work is ‘concerned with the

clarification of the general framework of legal thought’ and the second limb of this aim states that his work
is not concerned with ‘the criticism of law or legal policy.’ Thus, even where he does dedicate for instance, one
third of his book in the criticism of Austin’s legal theory, it will be seen later that that criticism is merely where
Hart provides the mechanism for the clarification of a proper legal system, thereby building on the

incomplete blocks of Austin’s work. In essence, concerning himself with the clarification of the general
framework of legal thought.

5. Another one of his aims is that his book caters to students of various fields. As he claims that it is ‘suitable
for students interested in moral and political philosophy as well as sociology.’ Thus, in his book a student of
jurisprudence and legal theory comes across a variety of topics that help in understanding the edifice on not
only which the law stands but functions as well
6. Hart also emphasises the need to appreciate the distinction between ‘internal’ and ‘external’ points of view
in order to understand law or any other form of social practices (eg. rule-following). This point of Hart’s is
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 very important for understanding his analysis of a rule in his Chapter 4, and in general for appreciating what
is involved over and above the mere recording of regularity of behaviour in explaining rule-governed

behaviour. As Hart says in the preface: ‘Indeed, one of the central themes of the book is that neither law nor

any other form of social structure can be understood without an appreciation of certain crucial distinctions
between two different kinds of statement, which I have called ‘internal’ and ‘external’ and which can both be
made whenever social rules are observed’. For Hart, it is essential that officials of a legal system take an
internal point of view towards rules, that is – ‘internalize’ them as well as having taken an external point of
view – where a person observes the operation of the rules. For Hart, a legal system is based on the
assimilation of these two types of point of views. Whereas since Austin’s theory of law is standing on the
mere idea of habitual obedience as well as predictions (as discussed above which mean that if rules are

defied, sanctions will follow and it can clearly be predicted), it is said to attach with itself the external point

of view alone, as the internalizing of the rules or the internal point of view is clearly missing in Austin’s theory.

A representation of both the external and the internal points of views in the Concept of Law.

Much of the book is concerned with the deficiencies of a simple model of a legal system, constructed along the
lines of Austin’s imperative theory. There is also Postscript at the end of the book edited by Raz. This manuscript

was written by Hart just before he passed away and it contains qualifications to his earlier works, especially COL
as a response to some of his critics (particularly Dworkin in Chapter 2 of his Taking rights seriously. He claimed
that Hart’s theory gave an account of law as rules which could not take into account the controversial nature of

legal argument).

B. PERSISTENT QUESTIONS (CHAPTER 1 COL)

I. Perplexities of Legal Theory

1. According to Hart, few questions concerning human society have been asked with such persistence and
answered by serious thinkers in so many diverse, strange and paradoxical question as to the question of

‘what is law’. He cites some definitions given by other jurists:

a) “What officials do about disputes is…the law itself.”: Llewellyn, ‘The Bramble Bush’.

b) “The prophecies of what the courts will do…are what I mean by law”: O.W Holmes, ‘The Path of Law’

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 c) “Statutes are sources of law…not part of the law itself.”: JC Gray

d) “Constitutional law is positive morality merely.”

e) “The existence of law is one thing; its merit or demerit is another.”: Austin, ‘The Province of Jurisprudence’

f) “One shall not steal, if someone steals he shall be punished. If at all existent, the firm norm is contained in

the second norm, law is the primary norm which stipulated the sanction.”: Kelsen, ‘General Theory of Law
and State’

2. Hart’s view is surely statutes are law, at least one kind of law even if there are others. Surely law cannot mean

what officials or the courts will do, since it takes a law to make an official or a court. According to Hart, such
statements are both illuminating and puzzling.

II. The Nature and Sources of Law

1. Hart states that almost every part of the world which is thought of as a separate country, there are legal

systems which are broadly similar in structure in spite of some important differences. The salient features

include:

a) rules forbidding or enjoining certain types of behaviour under penalty.

b) rules requiring people to compensate those whom the injure in certain ways.

c) rules specifying what must be done to make wills, contracts or other arrangements which confer rights
and create obligations. (power-conferring rules)

d) courts to determine what the rules are and when they have been broken, and to fix the punishment or
compensation to be paid.

e) a legislature to make new rules and abolish old ones.

f) laws to establish courts, judges and power of judges. (eg.: PA 1949 and 2011, and CRA 2005)

2. Hart states that besides the clear standard cases, legal systems of modern states are constituted by doubtful

cases (‘difficult’) like international law and primitive law. Not only that, there are also arrangements in social
life while sharing some salient features, also lack others of them. According to Hart, these are disputed cases
where there can be no conclusive argument for or against their classification as law.

3. Hart states that if we consider the standard (skeletal municipal legal system) laws of various sorts go together.
For example, a court and a legislature are themselves creatures of law. Only when there are certain types of
laws giving men jurisdiction to try cases and authority to make laws, do they constitute a court or legislature.

III. The Recurrent Issues

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1. Hart observes that the most prominent general feature of law at all times and places is that its existence
means that certain kinds of human conduct are no longer optional, but in some sense obligatory.

2. According to Austin, where one person gives another an order backed by threats and in this sense of ‘oblige’
obliges him to comply, we have the essence of law and key to the science of jurisprudence.

3. Hart argues that the penal statute in a legal system may appear similar to the gunman situation writ large,
only difference is that in the prior, the orders are addressed generally to a group which customarily obey
orders. Hart poses that question: What is the difference between law and coercion?

4. Hart further states that moral rules impose obligations and withdraw certain areas of conduct from the free
option of the individual to do so. A legal system contains elements closely connected with certain aspects of
morality. All municipal legal systems reproduce the substance of certain fundamental moral requirements.

One idea that of justice seems to unite in both fields. Hart distinguishes between the sort of justice that
attaches to law (procedural justice, or justice ‘according to the law’), and justice that attaches to substantive
law (or justice ‘of the law’). According to Hart, it is the latter concept which is more important from the moral

point of view.

5. Hart observes that some speak of law as containing if not consisting largely of rules. What are rules and what
does it mean to say a rule exists? Do court really apply rules or merely pretended to do so? Even within the
law, some rules are made by legislation, others are not. More importantly, some rules are mandatory (eg.

abstaining from violence) and other rules merely prescribe procedure and formalities (eg. wills and contracts).

6. Hart states that there is a divergence of opinion that a rule of this simple mandatory type exists. Mere
convergence in behaviour between members of a social group may exist and yet there may be no rule
requiring it. Words like ‘must’, ‘should’, ‘ought to’ indicate the existence of a social rule as opposed from a

convergent behaviour.

7. What about the difference between a social rule and a legal rule? Hart states that in the case of social rules,

the crucial difference is that deviation from certain types of behaviour will probably be met with hostile
reaction and in the case of legal rules, be punished by officials (sanctions). Besides, the latter is officially
organized while the former is not organized or definite in character.

8. Predictability of punishment in the event of violation of rules, is one aspect of legal rules but not exhaustive.

According to a whole school of legal theory in Scandinavian (realism), the judge in punishing, take the rules
as his guide and the breach of the rule as his reason and justification for punishing the offender.

9. Hart then poses the question: Can there really be something over and above these clear and ascertainable
facts, some extra elements, which guides the judge and justifies or gives him a reason for punishing? They

14
 could be powerful feelings of compulsion to behave in accordance with the rule and to act against those
who do not. Does a legal system consist primarily of rules? Rules skeptics state no.

10. According to Hart, in the field of statutory interpretation, the judges has to choose between alternative
meanings and by tradition, it is said that judges ‘find’ and do not ‘make’ law, conceals judge’s role in altering
rules. Yet, all rules have a penumbra of uncertainty where the judge must choose between alternatives. Hart
then poses another question: Is the conception of law as a matter of rules of gross exaggeration if not a

mistake?

IV. Definition
In view of Hart’s aim in linguistic philosophy, he thus, greatly emphasizes upon the subtle meaning of words

he uses in his book. ‘I have raised questions which may well be said to be about the meanings of words.’ In
Hart’s point of view, the three recurrent issues are:

(1) How does ‘having an obligation’ differ from ‘being obliged’ (difference between law and coercion)?

Answer: Here lies the comparison between what Austin and Hart use in terms of showing the degree of

obligation. This is an important distinction.

(a) ‘being obliged ‘is used by Austin where he talks about the bulk of the population’s obligation to the sovereign.

But Hart interjects and reminds us that where ‘being obliged’ is used, then we are talking about

‘forced/coerced’ obligation. Thus Hart borrows a term from another legal positivist (Kelsen) and says that this
situation of being coerced resembles very much to ‘the gunman situation‘. Now Hart labels Austin’s theory

as ‘gunman situation writ large’, for the sole purpose of its emphasis on coercion being the integral part of
law.

(b) Hart then compares the term ‘being obliged’ to a gunman situation where a gunman barges into a bank and
orders the teller to hand over the money or else she will be shot. If the teller complies with this order of the
gunman, she is said to ‘being obliged’ to the gunman. Since much of Austin’s work is based on the use of
sanctions, thereby asserting the use of coercion, Hart classifies the meaning of an obligation with the use of

coercion when it comes to defining the parameters of the Austin’s theory. In its place, Hart says that ‘having
an obligation’ is the term that denotes the example of obligations within a legal system. And here he gives
the example of the tax inspector, who under law has an obligation to collect tax. There are many other

examples within this domain, where the law creates obligations and the officials as well as the people in
general are have an obligation to follow the law. In essence, where on the one hand Austin uses the words
‘being obliged’, Hart says that the appropriate words are ‘having an obligation’ as the former only points to
extreme situations where coercion is used as a tool to regulate obligations within a legal system.

15
 (2) How does the statement that a rule is a valid rule of law differs from a prediction of the behaviour of officials?
Answer: According to Hart, Austin’s theory is predictive in nature: if a person does not follow a rule A then B

occurs in the form of a sanction, in essence, every negation of a rule attached with it a sanction. Since Austin

emphasizes in great detail about sanctions and their important position within the legal system, Hart claims
that predictions don’t establish the character of valid rules. For they are bereft of a very important element
crucial in a legal system and that is the internal point of view. Hart would further in Chapters 2 – 4 assert the
fallacy of the predictive nature of a legal system and illustrates it by way of a closed room. So, for instance a
person finds herself in a closed room with no one supervising her and no one to see what she’s doing, she
is likely to break the rules as the predictive behaviour of the officials will fail. In short, if a person is
unsupervised and believed in only the degree of sanctions contingent upon how the officials see her breaking

the rule, she is most likely to break the rule when she finds herself in a situation where no one is watching

her. Similarly, when you find yourself in a predictive environment but there is no one watching you, would
you steal the small book in a bookshop, or would you refuse to stop by a red light when the roads are clear
and no one is watching? Here Hart is asserting that a legal system is operative when you couple both the

internal and the external point of views. And he claims that since Austin’s theory of law is predictive in nature,

it is likely to be more external in nature, thereby losing the important ingredient of a legal system where
people are likely to stop by a red light on the roads when no one is watching as they have internalized the

legal system as well.

(3) What does it mean to say that a social rule exists in a particular society and, how this differs from and

resembles the assertion that its members habitually do certain things?

Answer: According to Austin’s Command Theory of Law, ‘The “sovereign” is defined as a person (or

determinate body of persons) who receives habitual obedience from the bulk of the population.’ Now Hart
finds a problem with the term ‘habitual obedience’. What is a habit? The English dictionary defines it as ‘a

settled or regular tendency or practice, especially one that is hard to give up.’ Now the other question, is a
habit similar to rule-following, or in other words, when we follow a rule, is it equivalent to being called habitual

obedience? Hart begs to differ and in Chapter 4, gives his case for the changing of the sovereign thereby
challenging the persistent nature of laws. In short, say that Sovereign A is succeeded by Sovereign B. If the
bulk of the population in Austin’s theory was in habitual obedience of Sovereign A, how can they overnight
habitually obey Sovereign B? Or in simpler terms, since habits take time to develop, Sovereign B would still

herself be habitually following the Sovereign A, wouldn’t she? How can habitual obedience explain the

persistence of laws when the new Sovereign takes over?

C. ALL LAW IS A SPECIES OF COMMAND? (CHAPTER 2 & 3 COL)

1. Hart’s major dissatisfaction of the Command Theory model is that it is ubiquitous, in a sense that it ignores
rule-following (seen under 3.4) and it reduces the element of law to the legitimate use of coercion on the
pretext of defiance.
16
2. He goes into linguistic subtleties and embarks on explaining the difference between laws and orders (‘having
an obligation’ vs ‘being obliged’ as well as internal-external point of view) (see above).

3. According to Hart, the account of a legal system (command, sanction and sovereign) is like that of gunman
situation writ large.
Law is surely not the gunman situation writ large and legal orders are surely not be identified with compulsion.
(HLA Hart in Essays in Jurisprudence)

4. Gunman addresses his victim face-to-face; law is general in that it indicates a general type of conduct and
applies to a general class of persons. Hart also states that to command is characteristically to exercise
authority over men, not power to inflict harm. Hart further indicates that the gunman has only temporary

superiority on his victim; law has persistent or ‘standing’ characteristic.

5. Hart argues that Austin’s theory cannot explain the variety of different types of laws encompassed within a
legal system. According to him, there is a species of laws which cannot be construed as orders backed by
threats. For example, the laws that prescribe the way in which valid contracts, wills or marriage are made.
These laws do not compel people to behave in a certain way. Not all laws are imperative or coercive and
adds that Austin has neglected the crucial distinction between duty-imposing rules and power-conferring
rules.

6. The social functions of these laws are different from those laws that assert the gravity of sanctions such as

criminal law. These laws ‘provide individuals with facilities for realizing their wishes by conferring legal powers
upon the to create, by certain specified procedures and subject to certain conditions, structures of rights and
duties…’ These laws are regarded as power-conferring rules because they confer power over individuals to
enter into contract and act in a capacity of a private legislator.

7. The power-conferring rules are not confined to private individuals but also to public officials (ie. judicial,
legislative or administrative) to change, create or enforce laws. For example, there are rules relating to a court,
ie. subject matter and content of the judge’s jurisdiction and power to try certain cases. An order in excess

of jurisdiction is valid until set aside.

D. THE AUSTINIAN SOVEREIGN (CHAPTER 4 COL)

I. Range of Application

Austin says in one of his Lectures: ‘Supreme power limited by positive law, is a flat contradiction in terms…Every
supreme government is legally despotic.”

Question: How is that the sovereign in Austin’s theory gives commands whilst remaining unaffected by them? Is

the sovereign bound by no rules at all? (the negative aspect of the habit of obedience)

1. The range of application of law is not the same as the range of application of an order backed by threat. In
Austin’s theory, there is a relationship between the sovereign and the subject, but this relationship is not a

17
 reciprocal one. The law-maker is not himself bound by the command he gives and he is unfettered by his
chains of legal positivism. The order he gives is always directed to others and not to himself.

2. Hart concedes that in some systems of government, this may occur in certain circumstances but in many
systems of law, legislation has a force that is binding on the body that makes it. He also denies that the
existence of a sovereign subject to no legal limitations is a necessary condition for the existence of a legal
system. He gives an example where a written constitution may restrict the competence of the legislature by

excluding certain issues from the scope of its legislature power.

It imposes not legal duties but legal disabilities…such restrictions are part of the rule conferring authority to

legislate and vitally concern the courts since they use such a rule as a criterion of validity of purported
legislative enactments coming before them. They cannot be expressed as absence or presence of habit of

obedience.

3. As such, the Austinian concept of sovereign – command – obedience – sanction cannot be of universal
application and so it fails.

4. To rebut this, it can be stated that for Austin, there was a distinction between the law-maker in his official

capacity and private capacity. In the first capacity, he makes laws and in the second capacity, he is bound by
them. Hart dismisses this view of law-making process as failing to account for what actually occurs. According
to him, the legislator exercises powers conferred by rules, within the ambit which he himself may often fall.

5. Thus, in Austin’s scheme of legal system, the sovereign remained by the law he created, such as the gunman,
who is the only source of commands and who is not subject to others’ commands. Hart argues that this is an
inaccurate description of law, noting that legislators are very often subject to the law they create because of

the mechanisms such as democracy, accountability, transparency for instance the prevalence of the VIP
culture in Pakistan and consequences such as revolutionary regimes ie. Imran Khan’s challenge of the status
quo and the struggle to uphold social rights and justice.

6. On the other hand, Cotterrell asserts, that despite the fact that Austin’s view of sovereignty conjures up the

image of a despotic monarch, an archaic and wholly inappropriate way of thinking, if we look more closely
this is not necessarily so.

a) First, Austin does not suggest the sovereign is free of limitations but only legal limitations. Positive morality

(reflected in public opinion, widespread moral or political expectations and, ultimately the threat of rebellions)
may provide important constraints.

b) Second, most of Austin’s discussions of sovereignty relate primarily to the conditions of representative
democracies (especially Britain and the US).

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c) Third, Hart’s concept of delegation by the sovereign is used by him to express the possibility which has
become a reality in most complex modern industrialised societies) of very extensive dispersion of legislative,

adjudicative and administrative authority within the overall hierarchical framework of a centralised state.

II. Persistence and Continuity

1. What is a habit? The English dictionary defines it as ‘a settled or regular tendency or practice, especially one
that is hard to give up.’ Now the other question, is a habit similar to rule-following, or in other words, when
we follow a rule, is it equivalent to being called habitual obedience?

2. Hart points out that there are 2 major problems in defining sovereign in terms of habitual obedience both in
positive and negative aspects. The habit of obedience fails to accommodate 2 features of most legal systems
namely:

a) Continuity of the authority to make laws by a succession of sovereign; and

b) Persistence of laws after the death of the law maker.

3. Hart then goes on to give a hypothetical example. He supposes that there is a population living in a territory
in which an absolute monarch (Rex) reigns for a very long time; he controls his people by general orders
backed by threats requiring them to do/abstain from acts they would otherwise do/not do. Though there

was trouble in early years, things have long settled down and in general people can be relied on to obey him.

4. According to Hart, if we interpret the Austinian model literally, on death of the reigning sovereign called Rex
I, the bulk of the society cannot be habitually obeying his son Rex II. Supposing, after Rex I dies (after a

successful reign) leaving Rex II who then starts to issue general orders, the habit of obedience of Rex I need
not be translated to the habit of obedience for Rex II.

5. Therefore, any idea that sovereignty can be identified as ‘a person or group of persons’ (Austin’s description
of the sovereign) that relied of its existence on the continued ‘habits of obedience’ to it, would meet severe

difficulties when there was a change of sovereignty. In such a case, the new sovereign would have to wait

and see whether a habit of obedience occurred and at the very least there would be a period of uncertainty
– an interregnum.

6. But, Hart says if we use the idea of rule-following rather than a habit of obedience, we can see that that the
rule-related idea of a ‘right to sovereignty’ is possible, such a succeeding sovereign (Rex II) gains the right to
succession. The sovereign itself is constituted by rules, in any modern and sophisticated legal system, and so
the appropriate people are seen as occupying the offices of the sovereign rather than being sovereign
themselves. This is why, for example, in the United Kingdom, the sovereign is ‘Crown-in-Parliament’ and is

not ‘a person or group of persons’ but a complex set of rules. Like a corporation, there is an existence without
a specific body of persons, in the rule-created institution itself. In sum, the OBT theory, where those orders

19
 issue from a determinate body of people, must fail because it ignores the corporate nature of the legal
sovereign.

7. According to Hart, rules differ from habits because:

a) A deviation from rules is open to criticism, habits are merely convergent behaviour.

b) Criticism is a good reason and accepted to deal with deviation from standard behaviour.

c) Rules have an internal aspect; some at least look upon behaviour as a standard to be followed by a group
as a whole (internal aspect).
(In general, the concept of rule-following includes the idea of standards against which conduct may be
appraised).

There is a possibility that people accept rules without any feelings of compulsion. What is necessary is that

there should be a critical reflective attitude to certain patterns of behaviour as a common standard in terms
of criticisms, demands for conformity and acknowledgement that such demands and criticisms are justified.

8. Hart explains that these rules cannot be explained by a habit of obedience by the bulk of the people, since

these rules have an internal aspect. A mere habit of obedience does not confer any right on Rex II. Thus,

where a rule is accepted that Rex specifies is to be done, Rex would have a right and authority to legislate. A

rule can best be explained for continuity of legislative authority in terms of acceptance. Such a rule looks
forward. It refers to the future as well as the present law maker.

9. Hart concedes that this acceptance cannot be in the heads of the mass population for example, matters of

constitution. It is sufficient that such understanding exists among officials or experts; the courts. Officials
accept explicitly, ordinary citizens tacitly.
The weakness of doctrine of habitual obedience to orders backed by threats distorts other active aspect
– law making, law identifying and law applying operations of the officials or experts of the system.

10. Can anything be done to salvage the Austinian Sovereign? Why can’t the habit of obedience be to Queen in
Parliament? This corporation or institution does not die on the death of Rex I. How would Austin have to

define such an institution. According to Hart, Austin would have to do so by reference to legal rules which he
notably states all emanate from the sovereign. These rules in actual fact cannot come from the sovereign.

11. Next, Hart deals with the issue of the persistence of laws. Hart gives the example of the case of R v Duncan

(1944), where a woman was convicted for telling fortunes in violation of the Witchcraft Act 1936. A statute
enacted centuries ago – may still be law today. How can the orders of a legislator who is now dead still be
law for societies that cannot be said to habitually obey him?

12. Hart states that another rule rather than looking forward (rule of succession) may look back at the operations
of a past one – persistence.

20
 The notion of an accepted rule conferring authority on the orders of past, present as well as future
legislators – more complex that the idea of habit of obedience to a present legislator.

Unless the officials of the system and above all the courts accept the rule that certain legislative operations,
past or present, are authoritative something essential to their status as law will be lacking.

III. Identification of Sovereign

1. According to Hart, the Austinian doctrine of sovereignty runs into difficulties in a modern democratic state.

Where did Austin actually locate the sovereign? According to Hart, in Britain and USA, Austin located it in
the electorate. Hart states that this would lead to the uncomfortable observation of the bulk of society
habitually obeying itself.

2. Hart states that as we require rules to constitute an electorate, where do these come from? They cannot

come from the sovereign and since not emanating from sovereign, they cannot be valid law. Hart contends
that what is required is the idea of a rule conferring powers which may be limited or unlimited on person
qualified in certain ways to legislate by allowing a definite procedure.

BENTHAM
Jeremy Bentham was a product of the 18th century Enlightenment or ‘age of reason which was an attack on old
habits of thought which were alleged to rest on the dark forces of superstition, irrationality and religion. One
doctrine which came under attack was the doctrine of natural law. Bentham and other thinks such as Montesquieu
attacked the idea that there was a universal natural law applicable to and binding on all mankind, created by God
and discoverable through reason and which formed a basis for the promulgation and authority of man-made law.
Bentham argued that the natural law was ‘a mere work of the fancy’ having no basis in reality and that it was not
a God-given natural law which gave man-made law authority but rather it was human authority alone. The
historical context in which Bentham founded his ‘command theory of law’ was when Bentham was keen to refute
the idea of natural law thinkers such as Grotius. For Grotius, the ultimate origin of the right of property was that
God at creation had given the earth to mankind and so there could ‘natural’ rights of property before the say-so
man-made law. This was completely rejected by Bentham who argued that only such goods and property that
had been assigned to a man by positive law (man-made law) could be said to belong to him and thus, there could
be no property rights before man-made law had spoken. Indeed, natural law theory went into steep decline in
the 19th century following the Enlightenment attack of Bentham and others and natural law theory only revived in
the 20th century. For Bentham, the man-made law derived authority not from God or the natural law but from the
fact of promulgation by a sovereign – the law was the ‘commands of the sovereign’ – no more no less. It is now
seen as a theory whose account of law is too simplistic and too ‘thin’ to account for the important legal phenomena
that we find in complex legal systems. However, on reconsideration, the ‘command theory’ does have some
valuable insights into the relationship between law, coercion and power.

Early in his career, Austin came under the influence of his mentor, Bentham although Austin’s work on legal theory
was more influential, especially Province of Jurisprudence partly due to accidents in publication. Cotterrell has

21
further stated that the other reason was that ‘the form of Austin’s legal theory and the ordering of its concerns
enable it to provide a normative legal theory particularly appropriate to the political and legal professional
concerns of its time…Further, it exemplifies a certain general conception of law in an extremely concise and
straightforward manner…Lacking Bentham’s restless intellectual curiosity…diverted the greater writer into a vast
range of projects – Austin meticulously worked on the theory of law which was merely a part of Bentham’s
concerns. Where his ideas differ from Bentham’s it is often because he prefers a stubborn logic (ie. on the nature
of sovereignty) or a hard-headed realism (ie. on judicial law-making), where Bentham equivocates or tries to
develop more radical analyses in the cause of legal or political reform.’ Both Austin and Bentham had shown
profound hostility to the methods and outlook of English common law due to the absurdities of common law
thought and the irrationality of the legal system. However, they had different reactions to it. Bentham’s views are
of note because they reveal a legal positivist distaste for judge-made law in contrast to the certainties and forward-
looking nature of legislation. Indeed, it was Bentham who first used the term ‘judge made law’, using it as a term
of abuse and contempt for English common law. In fact, Bentham compared judge-made common law to the way
people train dogs, as he commented. Bentham viewed judge-made law as like waiting for one’s dog to do
something wrong and then beating it. Austin, however, was no longer opposed to judicial law-making. Indeed, he
has said that judges are like deputy legislators. He recognises that judge-made law is an inevitable component of
a modern legal system and that, despite many disadvantages, it has some virtues and is often the only practical
means of legal development at certain times and in certain fields. Codification is admirable om theory but in
practice, requires immense legislative skill, juristic knowledge and political vision. Austin’s lectures presuppose the
doctrine of utility as elaborated by Bentham and warmly, even fanatically, defend it. But Austin’s course was
devoted to the theory of law as it is (science of law) not the theory of law as it should be or might be (science of
legislation). Thus, the principle of utility did not occupy the central place in the body of Austin’s writings.

VIRTUE OF THE COMMAND THEORY

The ‘command theory’ of Austin and Bentham saw a clear conceptual separation between the identification of law
and the claims of morality, which remains a basis of legal positivism today. The method by which legal positivism
distinguishes law from other system of norms (such as morality) is by the stipulation that the law is to be identified
by reference to social facts alone and not by engaging in a moral argument. This is called the ‘sources thesis’ by
Raz. Both the ‘command theory’ and the Hartian ‘rule of recognition’ are examples of Raz’s ‘sources thesis’.
However, note that Raz has commented in About Authority and the Nature of Law (2006) that there can be no
doubt that there are necessary connections between law and morality and that legal positivism does not deny
this. The command theory of law also captures valuable insights into the relationship between law, power and
coercion which may reflect the reality of power even in so-called democracies.

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It is now widely accepted that Austin’s ‘command theory’ account of law is inadequate as an explanation of key
legal phenomena. Although not without critics in the 19 th century, the mortal blow to the command theory was
delivered by HLA Hart in The Concept of Law (1961) where, in Chapters 2 – 4, Hart effectively demolishes the
edifice of the Austinian account of law. Hart argues persuasively that Austin’s model of law as ‘the sovereign’s
coercive orders’ failed to reproduce some of the key features of a legal system. There are 2 main attacks on
Austin: 1) the different kinds of rules in a modern legal system which cannot be reduced into ‘commands and; 2)
the ‘internal aspect of rules.’

[Austin’s theory and Har’s criticism in brief]

Law is far more than just the gunman writ large, Hart argued, and to fail to appreciate the distinction between the
gunman writ large and a legal system of primary and secondary rules whose officials internalize those rules is
fundamentally to misconceive the very nature of law itself. Schauer: It is less clear, however, that this dimension is
as important to understanding the nature of law as Hart supposed, and less clear still that sanctions or coercion
are as unimportant as Hart appeared to insist.

Sanctions
Power-Conferring Rules

1. It may be argued that Austin’s theory will be able to encompass power-conferring rules as he has stated that
a sanction can be ‘the smallest chance of incurring the smallest evil’.

2. Cotterrell has acknowledged the absurdity in seeking sanctions in attaching to the power holder with regard
to the power-conferring element itself. Alternatively, Cotterrell has reminded us of the fact that Austin has
stated right in one person are merely the consequence of duties attaching to other people. In the context of
power-conferring rule, insofar as rule confers powers on X, it is to be understood as a command to all other
people concerned to recognise and respect the authority of X. The sanctions attached to the rule which gives
X power are those that support the duty of others to accept X as having an authority with the scope of the
rule. This seems to make sense.

3. However, Hart has stated that the extension of the concept of sanction to include nullity would be to cause
confusion, since nullity is a notion totally different from punishment that follows from the breach of a criminal
statute. Nullity cannot be assimilated a punishment attached to a rule as an inducement to abstain from
activities which the rule forbids. It is possible that sanction can be removed form a rule of obligation (ie.
criminal law) leaving only a standard of behaviour. In the case of attempts to remove nullity, it could not exist
as a non-legal rule. Nullity is part of the rule itself.

4. Once again, Cotterrell who seemed to have adopted a sympathetic reading of Austin’s theory, argued that
Austin’s analytical concern with sanctions is purely formal and therefore the differences in social functions of
law is not pertinent here.

Internal Aspect

1. Davies and Holcroft’s analysis

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2. Cotterrell: ‘…the prominent place sanctions occupy in his definition of law entails in itself, no sociological
claims about the significance in ensuring compliance with law.’

Schauer, Was Austin Right After all

1. Schauer has suggested that Hart’s criticism of Austin is ‘empirically problematic’. First, the experience of
modern complex legal systems may indeed be more coercive than Hart supposed. It is true that there exists
the largely non-coercive and non-sanction-based realm of contract, wills, trusts, and much of private ordering.
But just as the possibilities for private ordering have increased, so have the forms of state regulation, and
arguably even more so. For every citizen who enters into a contract, there is likely to be more than one who
organizes his personal and business behaviour in ways that are shaped by the threat of the state to punish
him if he does not. Insofar as it is (at least) one goal of a theory of law to capture the most important or most
salient features of modern legal systems, it is not Austin’s focus on sanctions and coercion, but rather Hart’s
on the non-coercive dimensions of law, that seems most empirically distorting and unrealistic.

2. Schauer has also criticised Hart for asking us to focus on the ‘bad man’ (no internalisation, unwilling) but
rather focus on the puzzled man (internalise, willing). He questioned ‘how common such individuals in reality
are’. Hart’s claim that his work is based on ‘descriptive sociology’ seems to have defeated for there is no
empirical existence of such persons in significant numbers and so, it ignores dimensions of legal systems that
are widely present in the world.

3. Schauer has doubted whether there is any real difference between ‘being obliged’ and ‘having an obligation’.
This distinction has been heavily relied on by Hart and his followers to come up with the distinction between
law and the gunman situation. Schauer has provided several American examples and one of them is that of
Longpre v Diaz whereby the Court has used the term ‘obliged’. This seems to suggest that there is not much
of a difference between these terms. He further explained that he is not contending that there is no such
difference but he argues that it is too far-reaching to rely on such a distinction to come up with a distinction
between law and the gunman situation. As he puts it, ‘But the linguistic data for that conclusion is remarkably
thin, and if the conclusion is sound it must rest on something other than it being a distinction that is embodied
in our language and the concepts that our language reflects.

Power
Persistence, Continuity and Identification of the Sovereign
Austin writes of the sovereign as a person (ie. a monarch) or a body of persons (ie. the lawmakers or electorate of

a democracy). Cotterrell, however asserts that Austin always meant the office of institution which embodies the

supreme authority. It was never individuals who happen to hold that office or embody that institution through
their relationship at any given time. Austin’s sovereign is an abstraction, the location of the ultimate power that
allows the creation of law in a society. He also suggested that in the tradition of political authority which Austin

has relied on, sovereign is explicitly abstract. In particular, Hobbes from whom Austin has adapted the theory of
sovereignty, has described the sovereign as the ‘artificial soul’ of an ‘artificial man’.

24
Illimitable
o Hobbes had defined the independent political society as one that could defend itself, unaided, against any

attacks from without. Austin realistically notes that few, if any societies would qualify on this basis. Bentham

and Austin following him, has discarded Hobbes’ social contract basis of sovereignty and replaced it with the
idea of a factual basis of sovereignty on actual habitual obedience. For Austin, then, it is the sovereign which
defines independence, assuming the society is of a certain minimum size. Sovereign exists when 2 conditions
are satisfied: 1) bulk of the society is in the habit of obedience of submission to a determinate and common
human superior (whether an individual or a body of individuals); 2) that individual or body is not in itself, in
a habit of obedience to a determinate human superior. The idea of a habit of obedience introduces a factual,
sociological, criterion of the existence of sovereignty. Hobbes founded the existence of a sovereignty in an

assumed ‘social contract’ by which individuals could be thought of as joining together to form a society and

entrusting the absolute power of government to a sovereign in order to escape the state of nature, the war
‘of every man, against every man’. The social contract between the men and not the sovereign and thus, the
sovereign can be viewed as an absolute monarch. This seems to presuppose that individuals have natural

rights which, by the social contract, they agree to forego so as to institute a sovereign power over them.

However, neither Austin nor Bentham was prepared to accept ideas of natural rights, treating them as
irrational dogma. Thus, while Hobbes’ social contract gave the sovereign the right to rule, both Austin and

Bentham deny that it makes any sense to talk of a right in this sense. The existence of sovereignty is a political
fact, not a matter of right or wrong.

o Though Maine seems to suggest that obedience of the sovereign in Austin’s theory is not based upon reason

and has emphasised the irrational, customary basis of the acceptance of authority, Cotterrell provided an
alternative explanation. He stated that Austin’s view became increasingly conservative and his last published

writings polemicized against constitutional reforms that would extend democracy. Not only that, Both John
and Sarah Austin believed fervently in the need for universal education to enable the population to
distinguish sound policy ‘from the lies and fallacies of those who would use them sinister purposes and from
the equally pernicious nonsense of their weak and ignorant well-wishers’. A soundly educated people who

have reason. This is not surprising given that he held a dogmatic belief that aristocracy through the
institutions of the Parliament, Courts, Church and the Army, promoted their self-interests, which because
they were the interests of a class were “sinister”. For Austin, the key to the social progress was in the

combination of a rational government coupled with the “educated” populace. For him it was really important

that men should think distinctly and speak with a meaning. Thus, to treat Austin’s view of law as much like
a view of mere orders backed by threat or gunman situation writ large is misleading.

Cotterrell: ‘legal philosophy enquiry cannot be demarcated from the finding of conceptual enquiries which
sociology of law is concerned’ – clearly suggests that it is unfair to Austin to criticise him without taking into
account the sociological context of his theory.

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