COMMAND THEORY TOPICAL QS

2020 Oct B:

Q7. “Austin’s major flaw was that he thought all of law could be modelled on the basis of one kind of
rule: a rule of criminal law. But law is so much more varied in its forms and functions than this.”
Discuss.

2020 Oct A:

Q11. ‘Austin’s theory considers all law as modelled on the basis of one kind of rule – a rule of
criminal law – yet law is so much more varied in its forms and functions than this.’
Discuss and evaluate this position.

2020 B:

Q7. “The distinguished line of jurists – Hobbes, Austin, Bentham – who have emphasised that law
cannot exist without a sovereign exercising coercive force speaks for itself. How can anyone doubt
the necessity of coercion for the existence of a legal system?”
Discuss.

2020 A:

“The simplicity of Austin’s theory is its greatest virtue. Nothing is more simple, if not also more
obvious, than the idea that law is the command of the sovereign. Hart’s critique only complicates
matters.”
Discuss.

2019 B

No Question

2019 A

No Question

2019 Oct:

Check paper again for question

2018 B:

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.
General remarks
The question involves a statement and a ‘discuss’ element. Students needed to set out a clear
approach to answering the question in their introduction and to follow that throughout in a
coherent well-argued manner. This involved setting out arguments for and against the proposition
that coercion is at the heart of any law. Bentham and Austin are the primary sources here. However,
Hart’s criticisms need to be addressed, as well as broader issues of coercion and power and the
lineage from Hobbes and more recent literature, for example, that of Schauer. A clear focus on law’s
coercive dimension was required.
Law cases, reports and other references the examiners would expect you to use
Chapter 3 on Imperative or command theories of law in the module guide, especially Austin’s own
work and Hart’s criticisms in The concept of law referred to in Chapter 5 of the guide.
Common errors
Common errors were to demonstrate insufficient focus on the specific question and ‘coercion’,
which led to a general description and analysis of Austin’s theory, rarely anything about Bentham, in
an over-generalised and descriptive way.
A good answer to this question would… be well written and clearly structured, focusing on the
question. That is, does any theory of law depend on a notion of coercion, particularly perhaps as
experienced by those beyond the legal community? Analysis is required of the nature of Austin’s
command, aNd the imperative theory of law; exploring the generation of legal obligation, ‘fear’ of
the consequences for disobedience and the issue of sanctions. Some answers linked Austin to
Hobbes and drew on Cotterrell’s sympathetic reading of Austin in light of Hart’s critique. Some
analysed Hart’s critique of Austin with his focus on Austin’s theory as connecting to ‘duty-imposing
rules’ but not dealing with law beyond criminal law. Some discussion of the difference between fines
and taxes was evident in some good answers. Any more generalised discussion of law’s coercive
power – especially in terms of how Hart’s theory may arguably not take it into account enough
would also be welcomed.
Poor answers to this question… outlined Austin’s theory in very general terms and or as described
by Hart and did not engage with the aspect of the question requiring a strong and in-depth
assessment of law’s coercive element.

2018 A

Same as of 2018 B

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.

2017 B:

Q10: ‘Coercion is at the heart of law, especially as experienced by the citizen. Austin saw this
better than anyone.’ Discuss.
General remarks
Many students answered this question. It is a straightforward question on the importance of
coercion for legal theory. Students needed to address this through the work of Austin. However, it
was good to see many answers moving from there to raise broader issues and more recent
literature, for example, that of Schauer. It was expected that students addressed and focused on the
command aspect of Austin’s theory, in particular addressing the viability of Austin’s theory of
contract and also how Hart criticises it. A clear focus on law’s coercive power was required.
Law cases, reports and other references the examiners would expect you to use
Chapter 3 of the module guide, especially Austin’s own work and Hart’s criticisms in The concept of
law referred to in Chapter 5 of the guide.
Common errors
A common error was to demonstrate insufficient focus on the specific question, which led to a
general description and analysis of Austin’s theory, over-generalising and sounding somewhat
mechanical.
A good answer to this question would… discuss the nature of Austin’s command and the imperative
theory of law; exploring the generation of legal obligation, ‘fear’ of the consequences for
disobedience and the issue of sanctions. Some answers linked Austin to Hobbes and drew on
Cotterrell’s sympathetic reading of Austin in light of Hart’s critique. Some analysed Hart’s critique of
Austin with his focus on Austin’s theory as connecting to ‘dutyimposing rules’ but not dealing with
law beyond criminal law. Some discussion of the difference between fines and taxes was evident in
some good answers. Good answers were well written and clearly structured with a clear focus on the
question. That is, is coercion at the heart of the law and is this especially ‘as experienced by the
citizen’? Evident engagement and exposition of the theories and materials were rewarded with
some high marks being given for answers to this question. A more general discussion of law’s
coercive power – especially in terms of how Hart’s theory arguably does not take it seriously enough
would also be well received, drawing on other materials and subtle reflective arguments.
Poor answers to this question… outlined Austin’s theory in very general terms and/or as described
by Hart and did not engage with the aspect of the question requiring an analysis of coercion being at
the heart of law.
Student extract
Hart tries to note the difference between being obliged to follow, and being under an obligation to
follow. The first consists of some element of coercion and the latter is a voluntary obligation to
follow the law. Hart goes on to use the gunman example, where a banker hands over all the cash in
fear of safety for his life. However, Hart makes a mistake here as the sovereign who commands
according to Austin has authority to do so whereas a gunman does not. Furthermore, how do we
even prove that a person voluntarily follows the law. Austin’s contradiction then can be explained if
a different perspective is taken. Where sanctions causes [sic] fear to citizens, they tend to follow the
law out of their fear, but this then eventually becomes a habit, and it turns into habitual obedience
towards the commands of the sovereign. In my opinion, a habit is not something that is followed out
of fear. I do not start a habit…out of fear. But rather, it is a habit I have…I also think that there are
many other reasons why people follow the law, and we should not stereotype fear as the sole
reason. For example…
Comments on extract
A mark of mid- to high 70s was given by both examiners for this essay. As this short extract from a
clearly written and coherently structured answer shows, information is conveyed of the student’s
knowledge, s/he provides analysis, critique and a position on issues relevant to and focused on the
question asked.

2017 A:

Q9: ‘Austin’s theory has often been 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.
General remarks
Many students answered this question. The question lends itself to discuss and evaluate Hart’s
critique of Austin. This would involve both the command and the sovereign aspect, although it would
have been fine for students to focus on one or the other, with clear indications of their approach in
their introductions. A clear focus on law and power’s relationship was required.
Law cases, reports and other references the examiners would expect you to use
Chapter 3 of the module guide, especially Austin’s own work and Hart’s criticisms in The concept of
law referred to in Chapter 5 of the guide.
Common errors
A common error was to demonstrate insufficient focus on the specific question, which led to a
general description and analysis of Austin’s theory, over-generalising and sounding somewhat
mechanical.
A good answer to this question would… discuss the nature of command, and the imperative theory
of law; exploring the generation of legal obligation, ‘fear’ of the consequences for disobedience and
the issue of sanctions. Some answers linked Austin to Hobbes and drew on Cotterrell’s sympathetic
reading of Austin in light of Hart’s critique. An awareness of the debate about legal limitations on
power and whether Austin’s theory allows it was welcomed. A more general discussion of law and
power – especially in terms of how Hart’s theory arguably does not take it seriously enough would
also be well received, although a clear and critical exposition of Austin and Hart’s critique of him
needed to be evident.
Poor answers to this question… outlined Austin’s theory as described by Hart and did not engage
with the aspect of the question requiring an analysis of power and law.
2017 Resit:

‘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

2016 B:

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 laws they do not know,
understand or like.’ Discuss.
General remarks
The question makes an allusion mainly (but not exclusively) to Austin’s jurisprudence and his
argument that law necessarily entails coercion expressed as the threat of sanctions. The question
can be broken down as follows: can coercion confer normative force to a command? Did Austin
really argue that law’s normativity boils down to the threat of sanctions? Is the threat of sanctions
necessary in a different way?
Law cases, reports and other references the examiners would expect you to use
Good knowledge of Austin was essential. Hart’s critique of Austin in The concept of law (mainly
Chapter 3) was also central. Defences of Austin such as the ones advanced by Schauer and Cotterrell
would have been more than welcome.
Common errors
Many candidates misread the question as an invitation to write everything they knew about Austin’s
jurisprudence. For example, discussing the features and function of the sovereign would have been
redundant in this context unless it was linked to the question of sanctions (one might, for example
argue that Austin never said that sanctions alone account for law’s existence and normative force
but in combination with the habit of obedience to the sovereign issuing commands backed by
sanctions).
A good answer to this question would… discuss the imperative theory of law; explore whether the
threat of a harm can generate an obligation; ask whether Austin really reduced law’s normativity to
the threat of sanctions according to the best interpretation of his theory; ask whether sanctions are
necessary in legal systems anyway (for example, in order to provide a prudential reason to motivate
people to abide by law). Excellent scripts would compare Kelsen’s account of sanctions in law to
Austin’s. Linking Austin to Hobbes would have been rewarded.
Poor answers to this question… would simply outline the basics of Austin’s jurisprudence without
addressing the question and without making an attempt at discussing it critically.
Student extract
The gunman situation is often used to illustrate Hart’s criticism of Austin, who represents a more
classical branch of positivism. Austin’s view is that following the law can be described as citizens
habitually obey commands issued by the sovereign. Laws are a form of command issues by the
sovereign which citizens habitually obey. This is analogous to the gunman situation in which the
gunman gives command to a person backed up by the threat of violence (i.e. pointing a gun towards
that person) the person then obeys the command of the gunman in fear of violence (i.e. being shot).
The gunman situation is in turn used as an analogy for the enforcement of law. If a citizen does not
obey the law, he/she will face whatever sanctions according to the law, in fear of such sanctions, the
citizen hence obey the law. The analogy of law enforcement to the gunman situation may seem apt
on the face of matters, however, it is a rather narrow description of how the law is being followed by
citizens and mistakes a rule for a command.
Comments on extract
The extract identifies the crux of the issue: that, according to Austin, there is a link between law’s
existence and the imposition of sanctions. However, the extract remains on the surface. First of all, it
is very repetitive. Notice how many times the same point is reiterated almost verbatim. Secondly, it
lacks sophistication. Although it mentions the habit of obedience to the sovereign, it fails to discuss
whether this means that Austin never saw sanctions alone as constitutive of law (and therefore
whether Hart’s critique is unfair). Thirdly, it does not spell out that it is law’s validity and normativity
that ostensibly depend on the prescription of sanctions. Fourthly, it does not discuss why one might
think that law’s validity depends on sanctions (for example, as providing prudential reasons to law’s
addressees to follow the law).
2016 A:

Same as 2016 B

2016 Resit:

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.