1.

AUSTIN’S THEORY OF LAW

“Law is the command of the sovereign.”

Austin defines law as the command of the sovereign. His theory of law is also known as the
imperative theory of law. According to Austin, positive law has 3 main features:-
a) It is a type of command
b) It is laid down by a political sovereign
c) It is enforceable by a sanction

CRITICAL ANALYSIS OF AUSTIN’S DEFINITION OF

LAW
What is a Command?

According to Austin, requests, wishes, etc. are expressions of desire, while commands are
expressions of desire given by superiors to inferiors. The relationship of superior to inferior
consists for Austin in the power which the former enjoys over the other, i.e., his ability to
punish him for disobedience. In a sense, the idea of sanction is to build into the Austinian
notion of command. Logically, it might be more correct to say that law has two rather than
three distinguishing features.

There are commands which are laws and there are commands which are not laws. Austin
distinguishes laws from other commands by their generality. Laws are not like the transitory
commands given on parade grounds and obeyed there and then by the troops. Laws are like
the standing orders of a military station which remain in force generally and continuously for
persons on the station. However, there can be exceptions. There exist laws such as acts of
attainder which lack the characteristic of generality. Hence, generality alone is neither
necessary nor sufficient to serve as the distinguishing feature of law.

Some have criticised the positivist theory of law as a theory of ‘gun-man law’ on the ground
that it makes no real distinction between a law and the command of a bank robber who points
his gun at the bank clerk and orders him to hand over the contents of the till. This criticism
overlooks Austin’s second requirement of law which requires that only that command is law
which is given by a political superior or sovereign. To Austin, a sovereign is any person or
body of persons whom the bulk of a political society habitually obeys and who does not
himself habitually obey some other person or persons. One difference between the order of a
gunman and the decree of a dictator is that the later enjoys a general measure of obedience
while the former secures a much more limited compliance.

Who or what is the Sovereign?

Austin formally defines the sovereign as a determinate or determinable person or group of

persons in an independent political society to whom the population as a whole has a habit of
obedience, but who has no habit of obedience to a political superior. Persons who comprise
the sovereign entity are not just the vague “them” of positivity morality. It must be possible
to identify them as if by name, address, and social security number. The reasons for this
requirement are not made clear.

The most serious problem with this definition is the combined complexity and vagueness of
the sovereign when so described. The sovereign in England has three constituent parts. The
first two are the monarch (whoever is upon the throne) and the members of the House of
Peers, all of whom are clearly determinate. The third part is not, as one might expect, the
House of Commons, but rather the electorate who voted them into office and who are
theoretically determinable. In the United States, the situation is less complex, but the notion
of the sovereign is equally amorphous. The sovereign is not Congress, the President, nor any
other officers of state; it is the electorate. This unwieldy and almost unimaginable concept is
made manageable by the notion of delegation. The electorates in the UK and the US exercise
their function directly only periodically, at elections. Between elections they delegate their
powers in the officials whom they have elected.

Another problem is that Austin, by making absence of a habit of obedience to a political

superior the defining characteristic of the sovereign, seems to suggest that the matter is one of
power and not of right. The sovereign is the unconditioned conditioner. This is not, of course,
what he wishes to say. He specifically states that might is only one condition of right,
although a very necessary one, since one cannot be a sovereign without the power to make
orders “stick”. But he is never very clear so as to what the other conditions are.
The notion of an independent political society, which is closely related to that of sovereignty,
is couched in the same terms. It is a society whose sovereign person or persons do not have a
habit of obedience to a political superior. Thus, the viceroy of India, when that country was
under British rule, was not a sovereign even though his word was law, since he was subject to
the crown.

The distinction between a political and a non-political society is not very clearly explained.
Austin says that there are several conditions, but the only one which he mentions is size; a
community must have substantial population to be considered a political society. He therefore
denies (contra Savigny) that the customs of a primitive tribe are laws. Customs only become
laws when they are officially stamped and approved by the sovereign, and the chief of a tribe
is not a sovereign – even though his very command is obeyed and the tribe is totally
independent – since a tribe is too small to be a political society. Loose confederations of
small groups, as when several tribes or small cities unite periodically for mutual defence or
some other purpose, may satisfy the numerical requirement on these occasions, but such
combinations are not considered to be independent political societies by Austin since they are
not united under one sovereign for a sufficient period of time.

Austin is, of course unable to say how large a group must be to become such an independent
political society (i.e., How many stones make a heap?). He admits that quite small city-states
in ancient times were political societies, but he does not really make it clear why this is so.

What must be the Sanction?

A Sanction is an evil of some sort. According to Austin the degree of the sanction is not a
matter. However, mild the sanction is, if there is a sanction for the disobedience of the
command of the sovereign, then that command is law. This principal is to be applied to all
fields of law. Whether the law is civil or crime, disobedience of law must be met with
sanction.

According to Austin, law is law only if it is effective and it must be generally obeyed. Perfect
obedience is not necessary. Many contravene the law without depriving it of all effectiveness.
Without general obedience, the commands of the law-maker are as empty as a language
which is no longer spoken or a monetary currency which is no longer in use. They have the
appearance of law but not the reality of law. A sovereign may enjoy obedience through
conquest, usurpation or election. What is sufficient for a legal theorist is that such obedience
exists.

According to Austin, laws are of two kinds, viz., divine law and human law. Divine law was
given by God to men. Human are laws are set by men for men. Human laws are of two kinds.
There are certain human laws which are set by political superiors and are called positive laws
and there are others which are not set by political superiors. To the second category belong
the rules of a club or any other voluntary association. Austin puts great emphasis on the
relation between law and sovereign. Law is law because it is made by the sovereign and
sovereign is sovereign because it makes the law. The relation between the sovereign and law
is the relation between the centre and the circumference.

INTERPRETING AUSTIN’S THOUGHT

Even if we assume that Austin’s purpose was to create an empirical legal science by verbal
definitions, his work poses a number of interpretive problems. First, it is difficult to
determine whether the law, for Austin, is to be identified with that actually happens in fact, or
with what was supposed to happen according to the rules and regulations of the jurisdiction.
Hobbes, and the legal realists of the twentieth century, would say that the law is what actually
happens, and that anything else is just empty talk with no legal significance. The mainline
legal tradition, on the other hand, views law as prescriptive, in the sense that it indicates what
is supposed to happen if its rules are followed.

Austin appears to have had a foot in both camps, but his Hobbesian shoe is a very large one
and rather firmly planted. This may explain his rather odd and awkward representation of the
sovereign as a set of actual identifiable persons, a view that it is open to the criticism that it
does not distinguish between the proper and the corrupt administration of the law. A realistic
view of the outcome of a Chicago courtroom trial in the era of Al Capone might be that the
party supported by the mob will prevail in the court of a judge who is in Capone’s pocket.
But, as Roscoe Pound pointed out, this would not show the application of law but its absence,
as law has been replaced by a totally illegal system.
Most modern interprets have taken the view that this is a serious problem for Austin and
rather than a descriptive study, W.L. Morrison contends that the revisionists are mistaken and
Austin is right; the normative and descriptive elements in law can exist together in the
manner in which Austin portrays them.

Austin is by no means saying that the law should be static and unchanging or independent of
morality. He is saying, rather, in line with Bentham’s views, that law reform is not the
function of jural science, but is the business of ethics in general and the science of legislation
in particular. Unlike Bentham, however, Austin does not confine law-making to Parliament,
but allows for judicial legislation also. This means that the judge may wear two hats, one
representing the interpretative functions of the bench and the other its legislative activity.
This is awkward enough, but if we consider that the court may be accepting and endorsing
ideas argued by counsel and that many legal minds may lie behind counsel’s opinion, we are
left with the conclusion that everyone connected with law has both legal and legislative hats,
which must be taken off or put on during the course of legal business. In short his view of the
relationship of law to morals is not only subtle, but awkward.

CRITICISMS OF AUSTIN’S THEORY OF LAW

Austin’s theory of law has been criticised on many grounds:-

1. Laws before State

The definition of law in terms of state has been criticised by jurists belonging to the historical
school and sociological schools. Critics belonging to the historical school concede that in
modern societies where there are established States, laws maybe in the nature of command,
but there existed laws even prior to the existence of the State. The law which existed prior to
the State was not the command of the sovereign. It had its source in custom, religion or
public opinion and not in any authority vested in a political superior. According to this
school, law is prior to and independent of political authority and enforcement. A state
enforces it because it is already law. It is not correct that it becomes the State enforces it.
Although Salmond is not a supporter of the imperative theory of law but he does not accept
the criticism of the historical school. He points out that the rules which were in existence
prior to the existence of a political State were not laws in the real sense of the term. They
resembled law. They were primitive substitutes for law but not laws. Salmond considers it to
be a virtue of the imperative theory of law that it excludes those rules which resemble law but
are not laws. Salmond supports his arguments with an analogy. Apes might have resembled
human beings. They might be in existence prior to men, but it is not a defect of a definition of
man if it excludes apes from definitions. As a matter of fact, it is a merit of the definition.

Malinowski maintains that even in primitive society there are rules behind which the
community throws the whole weight of its organisation. The very structure of society is such
that primitive man suffers if the rules are disobeyed. Although there is no intricate system of
Courts or police, the community directly entrusts itself in securing the observance of those
rules which it considers essential. If primitive man does not meet his customary obligations,
he knows that in future no one will help him. Apart from the community, primitive man is
helpless. The threat of expulsion or death is salutary one for prospect offenders. Because in
so many