CHAPTER TWO:

THE COMMAND THEORY OF LAW

I. JEREMY BENTHAM’S LEGAL THEORY

The Command Theory of Law was first formulated by Jeremy Bentham. He defined law as an:

“assemblage of signs declarative of a volition conceived or adopted by the sovereign in a

state, concerning the conduct to be observed in a certain case by a certain person or class
of persons, who in the case in question are or are supposed to be subject to his power:
such volition trusting for its accomplishment to the expectation of certain events which it
is intended such declaration should upon occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those whose conduct is in
question.”1

According to this definition, a law may be considered in eight different respects: (i) to its source, “the
person or person whose will is the expression,”2 (ii.) to the quality of its subjects, “the persons and things
to which it may apply,”3 (iii.) to its objects, “the acts, as characterized by the circumstances, to which it
may apply,”4 (iv.) to its extent, “the generality of the amplitude of its application: that is in respect to the
determinateness of the person whose conduct it may seek to regulate,”5 (v.) to its aspects, “the various
manners in which the will whereof it is the expression may apply itself to the acts and circumstances
which are its objects,”6 (vi.) to its force, “the motives it relies on for enabling it to produce the effect it
aims at, and the laws or other means which it relies on for bringing those motives into play: such laws
may be styled its corroborative appendages,”7 (vii.) to its expression, “to the nature of the signs by which
the will whereof it is the expression may be made known,” and its remedial appendages, “certain other
laws which may occasionally come to be subjoined to the principal law in question; and of which the
design is to obviate the mischief that stands connected with any individual act of the number of those
which are made offences by it, in a more perfect manner than can be done by the sole efficacy of the
subsidiary appendages to which it stands indebted for its force.” 8

It is clear that his theory was more elaborate than that of Austin’s which will be discussed later. In any
case, it certainly encompassed the five elements of Austin’s definition of law as the general command of
the sovereign.

Despite his myriad contributions to legal theory, Bentham was more known as a moral and political
philosopher, and his name is associated with the philosophy of utilitarianism, as he is one of its founders
and popularized it. He not only contributed greatly to its development; he shaped the theory into what is
recognized today as its modern form. He defined the principle of utility as that “principle which approves
or disapproves of every action whatsoever, according to the tendency which it appears to have to augment
or diminish the happiness of the party whose interest is in question: or, what is the same thing in other
words, to promote or to oppose that happiness.”9 To him, the supreme moral principle was the Greatest
1
Bentham, Jeremy, Of Laws in General (H.L.A. Hart, ed., London: Athlone Press, 1970), p. 1
2
Id.
3
Id.
4
Id., italics Bentham’s.
5
Id.
6
Id.
7
Id., italics Bentham’s.
8
Id.
9
Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, ed. by J.H. Burns and H.L.A. Hart,
Clarendon Press: Oxford, 1996, p. 12.
Happiness Principle, which exhorted moral agents to act in accordance with the greatest happiness for the
greatest number.

The mental states of pleasure and pain constituted happiness.

“Nature has placed mankind under the governance of two sovereign masters, pain and
pleasure. It is for them alone to point out what we ought to do, as well as to determine
what we shall do. On the one hand the standard of right and wrong, on the other the chain
of causes and effects, are fastened to their throne. They govern us in all we do, in all we
say, in all we think.”10
In determining which act is productive of the greatest happiness, he devised the felicific calculus, a way
of measuring and calculating pleasures and pains. These mental states can be measured in accordance
with the following six criteria: intensity, duration, certainty, proximity, productiveness, purity, and extent.

Intensity is concerned with the degree of strength of the pleasure or pain; duration, with the length of time
it is experienced; certainty, with how surely it can be brought about; proximity, with the nearness in time
it is to be experienced; productiveness or fecundity with “the chance it has of being followed by
sensations of the same kind: that is, pleasures, if it be a pleasure: pains, if it be a pain;” 11 purity with the
chance it has of not being followed by sensations of the opposite kind: that is pains, if it be a pleasure:
pleasures, if it be a pain; 12 and extent, the number of persons to whom it extends; or (in other words) who
are affected by it.”13

Bentham, too, was a political and legal reformer. He used his philosophy of utilitarianism to generate
much needed reform in English society. Hence, he worked effectively to improve the conditions of
prisons; argued against capital punishment, advocated equal rights for women, maintained the right to
divorce, spoke out against slavery, strived to abolish corporal punishment, proposed the decriminalization
of homosexual acts, among others.

As a theorist, he distinguished censorial jurisprudence from expository jurisprudence. Censorial

jurisprudence is the science of legislation, which the legislator engages in in criticizing the law so as to
formulate better ones. Its concern is not with what law is but with what it ought to be, and the legislator
aims to make the law as it ought to be.

Expository jurisprudence belongs to the province of the judge. He is merely to apply the law as it is, and
not as it ought to be. It is of value in its own right; the judge must know what it is in order to apply it.
Moreover, the state of the law or what the law is must be ascertained or determined in order to improve
upon it. Expository jurisprudence is the concern, also, of the law professor, the law student, and the
ordinary citizen. The citizen must know the law in order to avoid conduct which may deprive him of his
freedom. Indeed, Bentham advised the citizen: “Under a government of Laws, what is the motto of a
good citizen? ‘To obey punctually, to censure freely.’”14

Most of Bentham’s works were not published in his lifetime. It was left to later legal theorists to edit his
works and make it known to the English public. Had “Of Laws in General” been published in his lifetime
however, there is no doubt that it, rather than Austin’s work, would have dominated English
jurisprudence and that analytic jurisprudence would have progressed far more rapidly and advanced in
10
Bentham, Jeremy. The Principles of Morals and Legislation (1789) Ch I, p. 1.
11
Bentham, supra., n. 2, p. 39.
12
Id., italic’s Bentham’s.
13
Id., italic’s Bentham’s.
14
Jeremy Bentham, Comment on the Commentaries and A Fragment of Government, ed. J.H. Burns and H.L.A. Hart
(London: Athlone Press, 1977), Preface, par. 17, p. 399.

35
more fertile and subtle ways than it had since Bentham’s days. Bentham was clearly the master while
Austin was merely the disciple. He expounded his ideas with far greater subtlety, flexibility, and
ingenuity than Austin did and illuminated aspects of law largely neglected by him.

In the end, Austin turned out to be the expositor of the Command Theory. His derivative work was the
far simpler system and he thus made the theory more generally accessible, understandable and popular. It
is therefore to Austin that this book now turns.

II. JOHN AUSTIN’S LEGAL THEORY

Austin had the good fortune of being appointed the professor of jurisprudence at the University of
London. Although a poor and unsuccessful lecturer, he somehow managed to communicate Bentham’s
ideas which he adopted in his works. These lectures were compiled into a book entitled: The Province of
Jurisprudence Determined; it took his wife, later on, to successfully publicize his works which allowed
him to acquire his jurisprudential fame and stature. By means of these lectures and the resulting book, he
became considered the originator of the Command Theory of Law, which we now know to be due
actually to his intellectual superior, Jeremy Bentham.

A. Methodology

He discussed his methodology in The Uses and Study of Jurisprudence. As previously stated, Austin
maintained that legal theory or “general or universal jurisprudence” is “the science concerned with the
exposition of the principles, notions, and distinctions which are common to systems of law: understanding
by systems of law, the ampler and maturer systems which, by reason of their amplitude and maturity, are
pre-eminently pregnant with instruction.”15

B. Definitions

The Province of Jurisprudence Determined was a technical work full of precise, technical legal
definitions. According to him, “law, in the most general and comprehensive acceptation, in which the
term, in its literal meaning, may be said to be a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him.”16 What is significant in this definition is the requirement
that the law be enacted by an intelligent being; by means of this requirement, he classified natural law as
law and distinguished it from positive law. “The whole or a portion of the laws set by God to man is
frequently styled the law of nature, or natural law;”17 while positive law embodies the “laws set by men to
men, some are established by political superiors, sovereign and subject: by persons exercising supreme
and subordinate government, in independent nations or independent political societies.”18 In short,
positive law is the law set by political superiors to political inferiors.

Also by means of this requirement, he distinguished positive law from positive morality, which is
“closely analogous to human laws of this second class (positive laws).” Its rules are “frequently but
improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or
sentiments held or felt by an indeterminate body of men in regard to human conduct. Instances of such a
use of the term law are the expressions—‘The law of honour;’ ‘The law set by fashion;’ and rules of this

15
John Austin, “The Uses of the Study of Jurisprudence,” in The Province of Jurisprudence Determined and The
Uses of the Study of Jurisprudence, 1954, p. 367, with an “Introduction” by H.L.A. Hart, The Noonday Press, New
York: 1954.
16
Austin, Id., p. 10.
17
Id.
18
Id., p. 11; italics Austin’s.

36
species constitute much of what is usually termed ‘International Law.’” 19 Hence, the two are to be
distinguished in that no intelligent being enacted positive morality. It is set by mere opinion or by an
indeterminate body of men.

Scientific laws, on the other hand, “rest on a slender analogy and are merely metaphorical or figurative.
Such is the case when we talk of laws observed by the lower animals; of laws regulating the growth and
decay of vegetables; of laws determining the movements of inanimate bodies or masses.” Although
Austin did not make the distinction between them, he perhaps realized that it could be made. Not strictly
speaking laws in the same sense that positive laws are, scientific laws are but empirical generalizations
which describe nature or reality, and therefore do not prescribe. Moreover, unlike positive law, they
cannot be violated. If somehow the world does not conform to the law, then there is something wrong
with its formulation. The law has to be amended in order to constitute a more accurate description of
reality.

He also defined the “sovereign,” to which the concept of an “independent political society” was
associated. “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, receive 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. 20 If he were in a habit of obedience
to a like superior, then that superior whom he obeyed would be the sovereign.

C. Elements of Law

A law to him was a species of a command. A command consisted of three elements. The “ideas or
notions comprehended by the term command are the following: 1. A wish or desire conceived by a
rational being, that another rational being shall do or forbear. 2. An evil to proceed from the former, and
to be incurred by the latter, in case the latter not comply with the wish. 3. An expression or intimation of
the wish by words or other signs.”21

Two more elements were needed to complete Austin’s exposition of law. The fourth element of law is
generality. A “law is a command which obliges a person or persons, and obliges generally to acts or
forbearances of a class.”22 It appears that Austin overlooked or neglected that a law must also oblige
generally over persons, and not just over acts. Finally, “(l)aws and other commands are said to proceed
from superiors, and to bind or oblige inferiors.”23 Actually, Austin was more specific and precise than
that; law must be issued by the sovereign for it to be positive law.

The definition of the “sovereign” has previously been supplied. To repeat, the sovereign is he whom the
bulk of the given society are in a habit of obedience or submission to and who, in turn, is not in a habit of
obedience to a determinate human superior.

Not inferior to any other determinate superior, the sovereign’s power is illimitable or incapable of legal
limitation. Moreover, it is undivided or inseparable.

Consequently, his characterization of law can be described as the general commands of the sovereign.

D. Law and Morality

19
Id., pp. 11-12; italics Austin’s.
20
Id., p. 194, italics Austin’s.
21
Id., p. 17.
22
Id., p. 24; italics, Austin’s.
23
Id.

37
Austin’s classic formulation of the separability thesis, the thesis that there is no conceptual connection
between law and morality, characterizes clearly and concisely the gist of this thesis. No wonder, it has
been considered as definitive of the positivist position.

“The existence of law is one thing, its merit or demerit another; whether it be or not be 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 our approbation and disapprobation.” 24

E. Comments and Criticisms

Austin’s theory of law may be criticized on various grounds. First, it relies on a misleading model of law,
confuses the nature of an obligation, introduces unnecessary psychological elements in the definition,
omits other kinds of law, limits the requirement of generality as well as extends its application, and is
mistaken about the nature and power of a sovereign.

1. In General

Austin’s model of law can be criticized, in general, for its misleading similarity to orders backed by
threats or to the orders of a gunman to a bank clerk to give up the bank’s money. “It is that illustrated by
the case of the gunman who says to the bank clerk, “Hand over the money or I will shoot.’ Its distinctive
feature which leads us to speak of the gunman ordering not merely asking, still less pleading with the
clerk to hand over the money, is that, to secure compliance with his expressed wishes, the speaker
threatens to do something which a normal man would regard as harmful or unpleasant, and renders
keeping the money a substantially less eligible course of conduct for the clerk. If the gunman succeeds,
we would describe him as having coerced the clerk, and the clerk as in that sense being in the gunman’s
power.”25

2. Obligation

As such, it confuses “being obliged” with “having or being under an obligation.” The bank clerk may be
obliged to surrender his money, lest he lose his life. However, he certainly does not have or is not under
any obligation to give it. “Having or being under an obligation” presupposes some legitimate authority to
whom an individual has the duty to obey.

A citizen, for example, has or is under an obligation to pay his taxes. This is so even if he is not
motivated by fear of punishment, for the chances of getting caught, particularly in the Philippines, are
minimal. The obligation persists despite the possibility of discovery being virtually non-existent.

Prof. Hart, who articulated and popularized this distinction, makes it clear:

“There is a difference, yet to be explained, between the assertion that someone was
obliged to do something and the assertion that he had an obligation to do it. The first is
often a statement about the beliefs and motives to which an action is done: B was obliged
to hand over his money may simply mean, as it does in the gunman case, that he believed
that some harm or other unpleasant consequence would befall him if he did not hand it
over and he handed it over to avoid those consequences. In such cases the prospect of

24
Id., p. 184.
25
H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, p. 19.

38
 what would happen to the agent if he disobeyed has rendered something he would
otherwise have preferred to have done (keep the money) less eligible.

Two further elements slightly complicate the elucidation of the notion of being obliged to
do something. It seems clear that we should not think of B as obliged to hand over the
money if the threatened harm was, according to common judgment, trivial in comparison
with the disadvantage or serious consequences, either for B or for others, of complying
with orders, as it would be, for example, if A merely threatened to pinch B. Nor perhaps
should we say that B was obliged, if there were no reasonable grounds for thinking that A
could or would probably implement his threat of relatively serious harm. Yet, though
such references to common judgments of comparative harm and reasonable estimates of
likelihood, are implicit in this notion, the statement that a person was obliged to obey
someone is, in the main, a psychological one referring to the beliefs an motives with
which an action was done. But the statement that someone had an obligation to do
something is of a very different type and there are many signs of this difference. Thus
not only is it the case that the facts about B’s action and his beliefs and motives in the
gunman case, though sufficient to warrant the statement that B was obliged to hand over
his purse, are not sufficient to warrant the statement that he had an obligation to do this; it
is also the case that facts of this sort, i.e. facts about beliefs and motives, are not
necessary for the truth of a statement that a person had an obligation to do something.
Thus the statement that a person had an obligation, e.g. to tell the truth or report for
military service, remains true even if he believed (reasonably or unreasonably) that he
would never be found out and had nothing to fear from disobedience. Moreover, whereas
the statement that he had this obligation is quite independent of the question whether or
not he in fact reported for service, the statement that someone was obliged to do
something, normally carries the implication that he actually did it.” 26

It does not follow that obligation automatically accompanies a rule.

“The statement that a person has or is under an obligation does indeed imply the
existence of a rule; yet it is not always the case that where rules exist the standard of
behaviour required by them is conceived of in terms of obligation. ‘He ought to have’
and ‘He had an obligation to’ are not always interchangeable expressions, even though
they are alike in carrying an implicit reference to existing standards of conduct or are
used to drawing conclusions in particular cases from a general rule. Rules of etiquette or
correct speech are certainly rules: they are more than convergent habits or regularities of
behaviour; they are taught and efforts are made to maintain them; they are used in
criticizing our own and other people’s behaviour in the characteristic normative
vocabulary. ‘You ought to take your hat off’, ‘It is wrong to say “You was”’. But to use
in connexion with rules of this kind the words ‘obligation’ or ‘duty’ would be misleading
and not merely stylistically odd. It would misdescribe a social situation; for though the
line separating rules of obligation from others is at points a vague one, yet the main
rationale of the distinction is fairly clear.”27

These are the conditions then for a rule to entail an obligation.

“Rules are conceived or spoken of as imposing obligations when the general demand for
conformity is insistent and the social pressure brought to bear upon those who deviate or

26
Id., p. 81; italics Hart’s.
27
Id., pp. 83-84.

39
 threaten to deviate is great. Such rules may be wholly customary in origin: there may be
no centrally organized system of punishment for breach of the rules; the social pressure
may take only the form of a general diffused hostile or critical reaction which may stop
short of physical sanctions. It may be limited to verbal manifestations of disapproval or
of appeals to the individuals’ respect for the rule violated; it may depend heavily on the
operation of feelings of shame, remorse, and guilt. When the pressure is of this last-
mentioned kind we may be inclined to classify the rules as part of the morality the social
group and the obligation under the rules as moral obligations. Conversely, when
physical sanctions are prominent or usual among the forms of pressure, even though these
are neither closely defined nor administered by officials but are left to the community at
large, we shall be inclined to classify the rules as a primitive or rudimentary form of law.
We may, of course, find both these types of serious social pressure behind what is, in an
obvious sense, the same rule of conduct; sometimes this may occur with no indication
that one of them is peculiarly appropriate as primary and the other secondary, and then
the question whether we are confronted with a rule of morality or rudimentary law may
not be susceptible of an answer. But for the moment the possibility of drawing the line
between law and morals need not detain us. What is important is that the insistence on
importance or seriousness of social pressure behind the rules is the primary factor
determining whether they are thought of as giving rise to obligations.” 28

3. Wish

In specific, each element of Austin’s definition may be criticized. A law is a wish only in a figurative or
metaphorical sense. It contains a psychological aspect, which is unnecessary to the analysis of law. Law
need not be conceived in terms of the desire or intent of the lawgiver; in the same way as legal obligation
need not be construed in terms of the motive of fear.

For sure, human beings have intent and there is the common reference to the legislative intent of a law.
But again that is a mere figure of speech. The law, instead, carries a determinate content; its content
prescribes that some state punishment will accompany certain behavior. The legislative intent therefore is
to prohibit such behavior. There need not be any excursus into the wishes or desires of the lawmaker in
order to communicate this point.

4. Evil or Sanction

The second element of law, to Austin, is the evil or sanction. It is true that many laws carry sanctions for
non-compliance. But not all laws are of this type. It is true basically only of the Criminal Law, and in a
derivative sense to the law of torts. Moreover, not all laws impose duties to which sanctions are attached
for non-compliance. Some confer powers, private or public, to which no sanctions attach.

“But there are important classes of law where this analogy with orders backed by threats
altogether fails, since they perform a quite different social function. Legal rules defining
the ways in which valid contracts or wills or marriages are made do not require persons to
act in certain ways whether they wish to or not. Such laws do not impose duties or
obligations. Instead they provide individuals with facilities for realizing their wishes, by
conferring legal powers upon them to create conditions, structures of rights and duties
within the framework of the law.”29

28
Id., p. 84.
29
Id., p. 27; italics Hart’s.

40
Private powers are conferred when the law makes possible the drafting of certain instruments which allow
an individual to realize certain wishes so as to give those wishes some legal protection. A father, for
example, wishes to leave the bulk of his estate to his eldest son. He drafts a will in order to do so. So
long as the will is valid, the law can be counted on for the will to be put into effect upon the father’s
death. Hence, the law grants him the power to transfer property upon his death. Were he to make an
invalid will, he is not punished but the will, being null and void, will not be put into effect.

Laws such as this allow individuals to enter into contracts, to marry, to sell property and the like. No
punishment befalls the individual if he mistakenly applies the law; it is simply that his wishes will not be
legally protected so as to be carried out.

In fact, Austin’s command theory of law is unable to account for the varieties of laws found in all legal
systems.

“The theory of law as coercive orders meets at the outset with the objection that there are
varieties of law found in all systems which, in three principal respects, do not fit this
description. First, even a penal statute, which comes nearest to it, has often a range of
application different from that of orders given to others; for such a law may impose
duties on those who make it as well as on others. Secondly, other statutes are unlike
orders in that they do not require persons to do things, but may confer powers on them;
they do not impose duties but offer facilities for the free creation of legal rights and duties
within the coercive framework of the law. Thirdly, though the enactment of a statute is in
some ways analogous to the giving of an order, some rules of law originate in custom and
do not owe their legal status to any such conscious law-creating act.” 30

5. Expression of the Law

The third element of a law is that it be expressed. This is nothing but the requirement of publication. All
laws have to be made known to the public. They have a right to know what the law is because they need
to know what conduct is prohibited so as to avoid doing it. Moreover, they are not excused from non-
compliance with the law due to ignorance. Ignorantia legis neminem excusat. Hence, the burden must
fall upon the state to make sure that the laws are made public.

6. Generality

The fourth element is that of generality. Austin made the mistake of requiring that laws be general only
over acts, and not over persons. That is a mistake. Laws generalize both over persons and over acts.

“Hence the standard form even of a criminal statute (which of all the varieties of law has
the closest resemblance to an order backed by threats) is general in two ways; it indicates
a general type of conduct and applies to a general class of persons who are expected to
see that it applies to them and to comply with it.”31

But not all laws are general in character. Laws naming streets, for example, are particular or specific in
character.

7. The Sovereign

30
Id., pp. 47-48.
31
Id., p. 21, italics Hart’s.

41
Finally, law must be made by the sovereign. A number of problems arise from this requirement, that of
the continuity of law, the persistence of law, the limitability of the sovereign’s power, the separability of
his power, and the failure to locate a sovereign in society.

a. The Continuity of Law

As to the problem of the continuity of law, Austin’s theory requires that, upon the death of the sovereign,
a new leader takes over. This new sovereign does not enjoy the habit of obedience of the bulk of the
population as of yet; therefore his edicts cannot be considered law since he is not yet the sovereign. In the
absence of a sovereign, there is an absence of law, since all law emanates from the sovereign and there is
none, no one being habitually obeyed. This flies against the face of reality.

“In explaining the continuity of law-making power through a changing succession of

individual legislators, it is natural to use the expressions ‘rule of succession,’ ‘title,’ ‘right
to succeed,’ and ‘right to make law.’ It is plain, however, that with these expressions we
have introduced a new set of elements, of which no account can be given in terms of
habit of obedience to general orders, out of which, following the prescription of the
theory of sovereignty, we constructed the simple legal world of Rex I. For in that world
there were no rules, and so no rights of titles, and hence a fortiori no right of title to
succeed: there were just the facts that orders were given by Rex I, and his orders were
habitually obeyed. To constitute Rex sovereign during his lifetime and to make his
orders law, no more was needed; but this is not enough to account for his successor’s
rights. In fact, the idea of habitual obedience fails, in two different though related ways,
to account for the continuity to be observed in every normal legal system, when one
legislator succeeds another. First, mere habits of obedience to orders given by one
legislator cannot confer on the new legislator any right to succeed the old and give orders
in his place. Secondly, habitual obedience to the old law-giver cannot by itself render
probable, or found any presumption, that the new legislator’s orders will be obeyed. If
there is to be this right and this presumption at the moment of succession there must,
during the reign of the earlier legislator, have been somewhere in the society a general
social practice more complex that any that can be described in terms of a habit of
obedience: there must have been the acceptance of the rule under which the new
legislator is entitled to succeed.”32

b. The Persistence of Law

The second problem is related to the first, and that is the persistence of law. Laws under the Philippine
legal system and many other legal systems do not have a theory of desuetude or obsolescence. In other
words, laws do not become obsolete so as to become invalidated when they are no longer observed.
Instead, they remain valid until sooner repealed. Article VII of the Civil Code states: “Laws are repealed
only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.”

In other words, laws persist. But under Austin’s theory, they are invalidated upon the death of the
sovereign. Until a new sovereign has been recognized who confers validity upon the old law by either re-
enacting it or applying it, this old law is no longer law.

“This is only a picturesque example of a very familiar phenomenon: a statute enacted

centuries ago may still be law today. Yet familiar though it is, the persistence of law in

32
Id., pp. 53-54; italics Hart’s.

42
 this way is something which cannot be made intelligible in terms of the simple scheme
which conceives of laws as orders given by a person habitually obeyed. We have in fact
here the converse of the problem of the continuity of law-making authority which we
have just considered.”33

Austin’s theory, in other words, cannot account for this phenomenon: that laws continue to be valid
despite the death of the sovereign. This is a conclusive reason that the validity of the law does not, in
fact, depend on the sovereign, but on rules which Hart later on will refer to as secondary rules.

c. The Limit of the Sovereign’s Power

Thirdly, the sovereign’s power is not illimitable or incapable of legal limitation as Austin’s theory
mandates. Under his theory, the sovereign’s power is absolute and all legal authority emanates from him.
He is inferior to no one and superior to everyone else. Consequently, his powers are unlimited in that
only he can delimit it. “Supreme power, limited by positive law, is a flat contradiction in terms.” 34

“There are, and can be, no legal limits on this law-creating power. It is important to
understand that the legally unlimited power of the sovereign is his by definition: the
theory simply asserts that there could only be legal limits on the legislative power if the
legislator were under the orders of another legislator whom he habitually obeyed; and in
that case he would no longer be sovereign. If he is sovereign he does not obey any other
legislator and hence there can be no legal limits on his legislative power.” 35

His claim, however, is quite incorrect.

“The objection to the theory as a general theory of law is that the existence of a sovereign such as
Rex in this imagined society, who is subject to no legal limitations, is not a necessary condition or
presupposition of the existence of law. To establish this we need not invoke disputable or
challengeable types of law. Our argument therefore is not drawn from systems of customary law
or international law, to which some wish to deny the title law just because they lack a legislature.
Appeal to these cases is quite unnecessary; for the conception of the legally unlimited sovereign
misrepresents the character of law in many modern states where no one would question that there
is law. Here there are legislatures but sometimes the supreme legislative power within the system
is far from unlimited. A written constitution may restrict the competence of the legislature not
merely by specifying the form and manner of legislation (which we may allow not to be
limitations) but by excluding certain matters from the scope of the legislative competence, thus
imposing limitations of substance.”36

In actuality, there exist legal limitations on the sovereign’s power in society. These “legal limitations on
legislative authority consist not of duties imposed on the legislator to obey some superior legislator but of
disabilities contained in rules which qualify him to legislate.” 37 In other words, secondary rules define
and constrain his power. In Philippine law, for example, the Bill of Rights, particularly the due process
clause and the equal protection clause, serve to limit the power of the legislature to enact laws violative of
the rights of its citizens under pain of nullity or unconstitutionality.

d. The Separability of the Sovereign’s Power

33
Id., p. 60.
34
Austin, supra. n. 15, p. 254.
35
Id., p. 65.
36
Id., pp. 66-67.
37
Id., p. 69.

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Finally, the sovereign’s power is not indivisible. In the Philippine legal system, as indeed in many other
systems, there is such a doctrine as separation of powers. Power is divided between the executive, the
legislative and the judicial branches of government. No branch is so superior to the others that it has
absolute power over them, as Austin’s theory requires.

In the United States there is the division of powers between the states and the federal government, and the
division of powers within the federal government itself. Two examples of states whose power has been
divided has been provided. In Raz’s words: “If the sovereign power is united, then it seems that not every
state has a sovereign. We may deduce that if every state has a sovereign, then it cannot be united.” 38

In comparison, Bentham’s command theory of law postulated a sovereignty which need not be united nor
unlimited.

“It may happen that one person or set of persons shall be sovereign in some cases while
another is as completely so in other cases. . . . On this supposition they may be
considered as composing all together but one sovereign. The truth of these propositions,
which may perhaps be found not very conformable to the most current notions, may
presently be made appear. Power over persons, is either power over their passive
faculties merely, or power over their active faculties: which latter may be termed power
of imperation. Now in point of fact not to meddle at present with the point of right (or to
speak more intelligibly with the point of utility or expediency, since right independently o
flaw and of utility is unintelligible) in point of fact, I say, the ultimate efficient cause of
all power of imperation over persons is a disposition on the part of persons to obey: the
efficient cause then of power of the sovereign is neither more nor less than the disposition
to obedience on the part of the people. Now this disposition it is obvious may admit of
innumerable modifications—and that even while it is constant, besides it may change
from day to day. The people may be disposed to obey the commands of one man against
the world in relation to one sort of act, those of another man in relation to another sort of
act, else what are we to think of the constitutional laws of the Germanic body; those of
one man in one place, those of another man in another place, as we see the world over:
;those of one man (for instance the dictator at Rome) at one time, those of another man or
set of men (for instance the assembly of the governing part of the Roman people) at
another; they may be disposed to obey a man if he commands a given sort of act: they
may not be disposed to obey him if he forbids it and vice versa. ” 39

e. The Location of the Sovereign

That is why, under Austin’s theory and this is the final problem, there exists extreme difficulty in locating
the sovereign. There simply does not exist in society a superior with unlimited and undivided power,
whom the bulk of the population habitually obeys and habitually obeys no one else. Indeed, Austin was
hard-pressed to locate the sovereign in England:

“Adopting the language of most of the writers who have treated of the British
Constitution, I commonly suppose that the present parliament, or the parliament for the
time being, is possessed of the sovereignty: or I commonly suppose that the king and the
lords, with the members of the commons’ house form a tripartite body which is sovereign

38
Joseph Raz, The Concept of a Legal System, Oxford: Clarendon Press, 1970, p. 9.
39
Jeremy Bentham, The Limits of Jurisprudence Defined, ed. by Charles Warren Everett, New York: Columbia
University Press, 1945, p, 101.

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 or supreme. Bu, speaking accurately, the members of the commons’ house are merely
trustees for the body for which they are elected and appointed: and, consequently, the
sovereignty always resides in the king and the peers, with the electoral body of the
commons.”40

Similarly, he experienced problems in locating the sovereign in the United States

“I believe that the common government, or the government consisting of the congress
and the president of the united states, is merely a subject minister of the united states
governments. I believe that none of the latter is properly sovereign or supreme, even in
the state or political society of which it is the immediate chief. And, lastly, I believe that
the sovereignty of each of the states, and also of the larger state arising from the federal
union, resides in the states governments as forming an aggregate body: meaning by a
state’s government, not its ordinary legislature, but the body of its citizens which
appoints its ordinary legislature, and which, the union apart, is properly sovereign
therein.41

This is absurd, for the electors are the subjects, and cannot be the sovereign. His theory therefore would
lead to the illogical and irrational conclusion that the citizens are both sovereign and subject at the same
time. “If we attempt to treat the electorate in such cases as the sovereign and apply to it the simple
definitions of the original theory, we shall find ourselves saying that here the ‘bulk’ of the society
habitually obey themselves.”42

III. CONCLUSION

There are indeed many faults and problems with the Command Theory of Law. It took Hart to elucidate
this point with great clarity and precision, leading to his more sophisticated and more plausible account of
law. Before Hart, however, lies the theory of Hans Kelsen, who himself made many important
contributions both to jurisprudence and legal positivism.

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REFERENCES

Austin, John, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence,
with an Introduction by H.L.A. Hart, New York: The Noonday Press, 1954.
Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, ed. by J.H. Burns and
H.L.A. Hart, With a New Introduction by F. Rosen, Oxford: Clarendon Press, 1996.
-----------The Limits of Jurisprudence Defined, ed. with an Introduction by Charles Warren Everett, New
York: Columbia University Press, 1945.
-----------Of Laws in General, ed. by H.L.A. Hart, London: Clarendon Press. 1970.
-----------The Theory of Legislation, ed. with an introduction by C.K. Ogden, London: Routledge and
Kegan Paul Ltd., 1931.
Hart, H.L.A., The Concept of Law, Oxford: Oxford University Press, 1961; Chs. 2 and 3.
----------Essays on Bentham, Oxford: Clarendon Press, 1982.

40
Austin, supra. n. 15, p. 230-231.
41
Id., p. 250-251; italics Austin’s.
42
Hart, supra. n. 25, 74.

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Rumble, Wilfrid E., “Introduction,” The Province of Jurisprudence Determined, ed. by Wilfrid E.
Rumble, Cambridge: Cambridge University Press, 1995.

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