JOHN AUSTIN & THE COMMAND THEORY

Meaning of Legal Positivism:

If Austin is a legal positivist, then it is inevitable to address what legal positivism is all
about. ‘Legal positivism’ is used to signify a doctrine which rejects any metaphysical
speculation concerning law. In other words, it is considered as a view of law which takes
into account the positive law only i.e. law as it ‘is’ and not law as it ‘ought’ to be.
It is essentially an aspect of analytical jurisprudence, which is a methodology committed
to rigorous separation between two questions: what is law and, what ought to be law.
Thus, the ‘separation thesis’ on which legal positivism rests is on the belief or
assumptions that the questions of what ‘is’ law is separate from what law ‘ought’ to be.
This is to say, proper role of legal philosophy is not to speculate about morality but
to come to understanding about the nature of legal systems.

The term ‘legal positivism’ can best be summarised by this statement: “The existence of
law is one thing; its merits and demerits another, whether it be or be not
comfortable to an assumed standard is a different inquiry”.
Positivists do not reject the importance of morality, but argue that the existence, validity
and authority of law must be kept separate from issues of evaluating such law. For legal
positivists, ‘what is law?’ is a question of facts- empirical reference to, and analysis of
collective social phenomena.

Austin on the Command Theory:

• Austin view law as A rule laid down for the guidance of an intelligent being by an
intelligent being having power over him (political superior to political inferior)
• A command is an intention of will backed by sanctions (the power to inflict evil in
the event of disobedience)- that makes particular expressions of will into
obligations or duty. The sanction is analysed by Austin as ‘the evil/fear which will
probably be increased if a command is disobeyed’
• To sum up the discussion on ‘command’, Austin viewed it as an expression of the
Sovereign’s will i.e. imperative statement of its wishes. It is general in its
application and different from an order. It is also different from other expressions of
will in that there is a threat of sanctions for non-compliance. On the other hand,
‘sanction’ is some harm, pain or evil attached to a command
• Hart & Kelsen- sanctions are necessary.
Hart- people obey the law because they reason and appreciate the
consequences which would result if they do not comply with the law.
Kelsen- view ‘sanctions’ as being applied by the authority on the commission
of the ‘delict’ by citizens.
Austin- existence of law has to do with issues of Sovereignty, command/power
and sanctions. Notion of sovereignty- people with power in a politically
independent society set rules governing certain acts, for those who are in the habit
of obeying them.
The idea of ‘Sovereignty’
Austin’s idea of ‘Sovereignty’ is grounded on the notion of an independent political
society. The purpose of the ‘Sovereign’ is to indicate the location of the ultimate
power in which the laws of a particular society reside.
According to Austin, the ‘Sovereign’ possess certain characteristics e.g. a common,
determinate and political superior human being or body of human beings; receives
habitual obedience from the bulk of the society; legally illimitable; indivisible and
not in the habit of obeying another.
Unlike Hobbes who looks for the ultimate power of a society through the concept of
a ‘social contract’, he (Austin) has a more factual and sociological account of the
Sovereign. To Austin, the ‘Sovereign’ exists as a matter of the political lad of the
actual habit of obedience.
All in all, to Austin, there are two aspects to ‘Sovereignty’: (a) ‘habitually obeyed’ by
the bulk of the society, which is referred to as the ‘positive mark’ & (b) must not be
in a state of habitual obedience to another body, which is referred to as the ‘negative
mark’.
Classification of Law:
These are general commands and may be divided into two: (i) Laws of God/Natural
Law, set to his human creatures. However, it should be noted that Austin’s jurisprudence
does not regard God as ‘Sovereign’ in this perspective because his idea of ‘Sovereign’ is
something human & (ii) Laws set by men to men. These ‘human law’ are made up of
‘Laws strictly so-called’- comprise of laws set by men to other men in the relationship of
a political superior to political inferiors and laws set by men as private individuals in the
pursuance of legal rights. The aggregate of the first group is the appropriate matter of
jurisprudence.
‘Laws not strictly so-called’-consist of laws set by men not as political superiors, nor in
the pursuance of a legal right. They do not involve the commands of the Sovereign, nor
do they involve legal sanctions. For example, rule made by a father to his children.

The Imperative Theory: (The practice)

Constitutional law
It is not ‘strictly so-called law’. According to Austin, it is not a command of the
Sovereign. It merely arises through ‘popular opinion’ and thus, is a positive morality
(laws set by men, but not as political superiors).
Constitutional law guides the law. Although the ‘Sovereign’ is not answerable to law, it is
answerable to utilitarianism in the garb of constitutional law.
International law
International law is not law. Like Constitutional law, it is positive morality. It is
posited by virtue of ‘popular opinion’ or the ‘spirit of kingship’ amongst member
states.
The critics argue that Austin analysis of international law is archaic in the modern
world where international ties are getting complex and sophisticated. For example,
international law may now possess a coercive nature i.e. economic sanction, use of
military force from the security council, etc. But that ‘resolutions’ issued by for
 example the Security Council of the UN could not be said to be issued by a
‘Sovereign’ unless one considers the Security Council of the UN as ‘Sovereign’.
Customs/Conventions
The role of custom in law is always a nagging problem. On one hand, courts seem to
recognise custom to be part of law. On the other hand, it is difficult to comfortably fit
custom into a theory which identifies law from a particular source, such as Austin
sovereign, as it is difficult to pinpoint the origins of a particular customary practice.
Austin concluded that customs are not ‘laws properly so-called’ since it is not in a nature
of commands and no necessary coercive element and also cannot be traced back to the
‘Sovereign’. However, he categorically stated that custom (s) can crystallise into law if
the judges decide to make it law, until then it is merely positive morality. Judges can
make customs into law, since they are delegated with this power by virtue of the ‘tacit
commands of the Sovereign’.
Common law
Austin recognises that judges can and do make law, and this law would be ‘law strictly
so-called’ because it can be traced back to the ‘Sovereign’ who by his tacit command has
allowed the courts to be his deputy legislators e.g. Statutory interpretation giving effect to
the intention of Parliament.
Revolution/Coup d’etat
Austin explains that where there is a state of anarchy, then there is no determinate
Sovereign, and therefore any ‘command’ made would not be considered ‘law’.

Command Theory & its Contribution to our Understanding of the Law:

Law is only to be regarded as law if it can be backed up by force; & so it has real
meaning in the practical world. Sanction is an important element in our understanding of
the law and that is why we are under a duty to follow or obey a given law in order to
follow the wish of the Sovereign. In a purely formal sense, where there is a duty there is a
sanction.
By viewing law as a ‘Command of the Sovereign’, to a certain extent it helps one to
understand the law as being clear and certain because there is a clearly identifiable author
of the law and this has advantages for all subjects as they can ‘know where they stand’
Through the ‘Command theory of law’, we are able to know how law can also account
for power-conferring rules since the commander can simply command his subjects to
obey the person of his choosing. This is by way of ‘conferring power’ on that person.
Also, through viewing law as a ‘Command of the Sovereign’, we are able to understand
the operation of the law by putting it in a sociological dimension. For
By viewing law as a ‘Command of the Sovereign’, it helps us to draw a line between
what is a law and what is not
Austin’s command theory helps us to understand the law making process in a given legal
system. For example, before a ‘Bill’ becomes law it has to go through certain
parliamentary procedures in the House. To Austin, this the process where the ‘Bill’ will
have to be scrutinised thoroughly well before it becomes law. However, the
parliamentary scrutiny of a ‘Bill’ may not all that be adequate enough especially in a
situation whereby one political party has more than 2/3 majority in the House.
 Criticisms of Austin’s Command Theory:
Rights and duties
His thesis is seen as having no room for rights i.e. Hart’s division of law into
primary (generally duty imposing) and secondary (generally power-conferring) tend
to undermine Austin’s theory in this manner. The critics pointed that it is ‘common’
to say that the local authorities or certain officials are being ‘conferred’ with a
‘right’ to make delegated legislation. It is indeed odd to hear of the tacit command
to obey the delegated legislator. Also, we talk of a ‘right’ to make a will, never the
duty on the judge to grant probate to the will.
Sanctions
Hart, on the ‘orders backed by threats theory’ equates it with the enforcement of
obedience. The problem stems from this particular statement by Austin: “The
greater the chance of incurring an evil, and the greater the evil is, the greater is the
obligation”. Hart is particularly critical of this. Hart is of the opinion that such a
view of law which centres around sanctions is bound to be predictive. This means
that the agent must upon the infringement of the command, predict the ‘real
likelihood’ of the sanction being imposed upon him. The ‘orders backed by threats’
thesis emphasis on fear misses out an important view- the internal point of view.
The internal point simply means that we do no just obey the law out of fear of the
sanction; there is a critical reflective attitude when we view law (the rational and
appreciation of that given law). For example, the ‘orders backed by threats’ model
fails to distinguish between the coercive wills of a tax officer from that of a gunman
writ.
Furthermore, on ‘orders backed by threat of application of sanctions’, Hart notes that
there are many laws in which there is neither ‘order’ nor ‘threat’ e.g. failure to
comply with the Wills Act 1837 as it relates to the necessary number of witnesses to
a will is no ‘offence’. Thus, to Hart, the concept of law as ‘order plus threat’ is an
inadequate explanation of this of much law as we know today.
Austin views ‘nullity’ as part of sanctions
Hart disagrees this is so because ‘nullity’ cannot be considered a punishment or a
sanction. He says that ‘nullity’ is not an evil that visit one who has breached a law.
For example, a judge who decides on something and this is later overruled by a
higher court. Even though his decision is nullified, the judge is not faced with
sanctions. Thus, to Hart, Austin does not make a clear definition of what
“sanctions” cover-only as an evil.
Range of application of the law/The law-maker is above the law
His version of the law is that the ‘Sovereign’ himself is not bound by the commands
he issued. It is this aspect of this theory that is criticised by Hart. According to Hart,
in most legislatures, the binding force of law is binding even on those who make it.
Obedience to law/habits of obedience among subjects
Hart criticises the word “habitual obedience”. It is not always true according to
Hart, we have the habit of obeying the law because of sanctions or commands.
 Some people obey the law because they want or that they have something to gain
even where the law does not have a coercive element. The word “habit” according
to him is not accurate because certain law like laws on taxation are not obeyed as a
matter of habit.
Furthermore, Hart says that if we go by obedience to the Sovereign, then when one
Sovereign succeeds another, there would be a transitional period before the new
Sovereign attains ‘habitual obedience’ and thus, have the ability to make valid law.
His theory (Austin) does not explain the persistence of law. It does not also explain
how the command of the earlier Sovereign is still law today. Hart explains this by
viewing the ‘Rule of Recognition’ which is timeless and provide a criterion of
validity of law independent from any human factor.
Illimitability of the Sovereign/The Omnipotent Sovereign
Austin says that there can be political limits but not legal limits on a Sovereign’s
power. Hart’s reacted by saying that Austin’s concept of a ‘Sovereign’ with
unlimited power has no application to our style of democracy. For example, effect
of the Factortame’s case , the ECA 1972 and the HRA 1998.

Defences in support of Austin’s view/theory:

Rights & duties
Austin was of the view that the two operates side by side. For example, the
correlative rights and duties fit into the model of contract law.

Sanctions & ‘nullity’ as part of sanctions

Austin never intended to equate legal validity with the fact of obedience-
effectiveness. Austin recognises that disobedience do occur but, at least, sanctions
must be executed. The role of sanction is purely formal. It is important not to forget
the importance Austin places on enlightenment-of knowledge. Austin advocates
universal education for enlightened population (Hobbes influence). This means that
the citizens must understand the rational principles (utility) which the government
elitist should follow. Citizens ought not to obey the law blindly nor do they obey
merely out of fear of sanction. The subjects must know at least some basic
principles behind the law. (This is the sociological dimension of Austin)

Range of application of the law/The law-maker is above the law

Austin does not deny this i.e. the Sovereign can be limited but the limitations are
political and not legal. He explains that the Sovereign has two identities in his
official capacity as Sovereign, he is unlimited but in his private capacity he is bound
by the law.

Obedience to law/Habits of obedience among subjects

Austin’s ‘Sovereign’ is pre-legal and also try to make reference to the importance
he attached to knowledge. In other words, obedience to law comes with
enlightenment of-knowledge i.e. citizens are able to appreciate the importance of
 such law.

Illimitability of the Sovereign/The Omnipotent Sovereign

The ‘Sovereign’ is still supreme. This is due to the fact that no Court in the UK
would declare an Act of Parliament as invalid.
Conclusion:
Austin advocated for universal education for enlightened population. This means that the
citizens must understand the rational principles (utility) which the government elitist
should follow. Citizens ought not to obey the law out of fear of sanction. The subjects
must know at least some basic principles behind the law.

All in all, Austin need to be viewed as saying that only with a strong government
(effective government), achieved with the fact of obedience to the bulk of citizens, can
there be enjoyment, property, rights, duties and culture. But as a matter of caution, it
should be noted that although this strong and rational government is not answerable to
law, it is answerable to positive morality and crucial morality (the principle of utility, in
particular).