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Austin's Sovereign: A True Legal Theory?: February 2020
Austin's Sovereign: A True Legal Theory?: February 2020
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1. INTRODUCTION
John Austin’s sovereign command theory is not without its merit. His work “left an
viewed law as independent from morality. Austin’s influence in the field is evident, with
thought3. However, his theory’s prominence does not negate the multitude of
controversies that can be found within its contents. This paper will serve as a critique of
the substance of Austin’s theory. It will be presented, from section 3 onwards, that
Austin’s work does not properly perform the functions of a legal theory. Firstly, however,
the essence of a legal theory shall be examined. This will provide a framework against
The primary duty of a theory of law is to provide an answer to the Daedalean question:
“what is law?”4 H.L.A Hart begins his seminal work, The Concept of Law5, with this
inquiry as to “what is a law?”7 Both Bentham and Hart, in addition to others such as
Ronald Dworkin, Lon Fuller, and Joseph Raz, attempted in their works to “describe the
nature of law at its most general level”8 and “to identify what is important and significant
1
Wilfrid E Rumble, The Province of Jurisprudence Determined (Cambridge University Press, 1995) vii
2
David Campbell, ‘The Province of Jurisprudence Demolished’ (2011) 20:2 Soc & Legal Stud 253
<http://heinonline.org/HOL/Permalink?a=NOTHING&u=http%3A%2F%2Fheinonline.org.ezproxy.nottingham.a
c.uk%2FHOL%2FPage%3Fpublic%3Dfalse%26handle%3Dhein.journals%2Fsolestu20%26collection%3Djournal
s%26id%3D251> accessed 14 January 2018
3
Richard Nobles and David Schiff, ‘Debating with Natural Law: The Emergence of Legal Positivism’ in James
Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory:
Commentary and Materials (Oxford University Press 2005) 142
4
H L A Hart, The Concept of Law (Oxford University Press 1961) 1
5
Hart (n 4).
6
Hart (n 4) 1.
7
Nobles and Schiff (n 3) 99.
8
Nobles and Schiff (n 3) 94.
1
rather than what is mundane or inessential.”9 Thus, in the discourses of legal
philosophers both preceding and succeeding Austin, the function of a legal theory is
affirmed as being the defining of law. This function, as argued by Raz, “is successful if it
meets two criteria: first, it consists of propositions about the law which
are necessarily true, and, second, they explain what the law is.“10 Hence, legal theories
must aim to provide clarity as to what is law and what is not. They must “ identify the
essential elements of the legal systems set down”, generally by positing a series of
technical and procedural criteria against which to measure a system that claims to be
law. Austin himself cites the aim of his work as “distinguishing the matter of
Austin is, however, unsuccessful in his attempt to describe law. His theory is
law”12, he himself admitting that his “definition is imperfect.”13 The elements that
comprise law within his theory are also either impractical or archaic, as they cannot be
precisely met by many modern recognised legal states14. This narrowing of the scope of
law does not satisfy the requirement for legal theories to be an “exposition of the
principles, notions, and distinctions which are common to systems of law.”15 Lastly,
anti-democratic stance. This, as will be presented, is against “the nature of law.”16 These
are the three primary criticisms of Austin’s theory deployed within this paper. The
subsequent section (3) details the narrow scope, simplicity, and unworkability of Austin’s
theory. The overarching consequences of these are outlined in the penultimate section
9
James Penner and Richard Nobles and David Schiff, ‘Approaches to Jurisprudence, Legal Theory, and the
Philosophy of Law’ in James Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence
and Legal Theory: Commentary and Materials (Oxford University Press 2005) 3
10
Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (OUP, 2009)
ch 2
11
John Austin, ‘The Province of Jurisprudence’ in Wilfrid E Rumble (ed), The Province of Jurisprudence
Determined (Cambridge University Press, 1995) 18
12
Nobles and Schiff (n 3) 103.
13
Rumble (n 1) xix.
14
James Bryce, Studies in History and Jurisprudence (Oxford: Clarendon Press, 1901) 538
15
Nobles and Schiff (n 3) 95.
16
Joseph Raz, ‘Teoría y conceptos: replica a Alexy y Bulgin’ trad R Sánchez Brigido in H Bouvier and P Gaido
and R Sánchez Brigido (eds), Una Discusión sobre teoría del derecho: Joseph Raz, Robert Alexy, Eugenio
Bulygin (Madrid: Marcial Pons, 2007) 112
2
(4). This essay will adopt Hart’s structure17 of analysing the different components of
Austin’s theory individually, all the while interweaving the criticisms identified above.
Austin insists that there is a distinction between that which is truly law and that which is
not, but merely resembles it. He terms the former “law properly so called”18, and
includes within its scope man-made positive law, or “law established…in an independent
government.”19 His sovereign command theory underpins this separation of law properly
so called from law improperly so called and he uses it to determine the validity of a law:
a law which is a command by a sovereign is law properly so called, that which is not is
law improperly so called. There are two key components of this theory to be analysed:
the sovereign and the command. They will be discussed in turn below.
a. THE SOVEREIGN
The first requirement of positive law in Austin’s theory is the existence of a sovereign:
“every positive law or every law simply and strictly so called, is set by a sovereign
political society wherein that person or body is sovereign or supreme.”20 This notion of
sovereignty can be sub-divided into three sections: monism, obedience from society,
and supremacy/despotism.
i. Monism
In developing his theory of legal positivism, Austin sought to escape one of the greatest
difficulties of natural law theory: identifying the transcendental truth that the law is
presumably sourced from21. However, Austin himself has fallen victim to the same
obstacle. The first strand of sovereignty in his theory is monism: that the sovereign or
supreme body must be, as noted by Cotterrell, “determinate.”22 For Austin, a law is only
17
Hart (n 4).
18
Austin (n 11) 18.
19
Austin (n 11) 19.
20
21
Nobles and Schiff (n 3) 118.
Nobles and Schiff (n 3) 104.
22
Nobles and Schiff (n 3) 135.
3
properly so called if it “flow[s] from a determinate source…a determinate rational being,
“in any society where there is law, there actually is a sovereign”24, Austin’s construction
concrete method of identifying the one true sovereign, save for the sovereign’s
supremacy and society’s obedience to it (two conditions which will be analysed below as
inadequate). This problem of identifying a single sovereign is one of the most “prominent
and frequent target for his critics.”26 It uncovers one of his many oversights, as his
The first is a situation, such as in Spain, where there are competing sovereignties
(Spanish and Catalan). Where does either sovereign fall in Austin’s classification? The
only possible solution would be to define the laws of Spain as improperly so called, as
they do not “flow from a determinate source”27 but rather two conflicting sources. This is
despite its modern recognition as a legal state. Hence, Austin’s definition of sovereignty
identify a single sovereign. Complex systems, such as Spain’s, are thus relegated to
The second situation which Austin’s monistic sovereign does not account for is the
existence of separate legal powers. Such is the case in the United States of America,
where law-making power is dispersed between the states each as a small sovereign.
Austin’s theory thus falls short when applied to both real-world examples of established
create a theory of law that was simpler than that of natural law, Austin does little more
than create a simplistic legal theory that can only operate within the era that it was
23
ibid [112].
24
Hart (n 4) 49.
25
Hart (n 4) 18.
26
Rumble (n 1) xxi.
27
Nobles and Schiff (n 3) 112.
28
Rumble (n 1) xxi.
4
created in. His “ahistorical”29 thesis is unsuccessful at being a theory that, in Austin’s
own words, is “universally applicable.”30 He fails, even in his first steps, to consider the
possible variations to sovereignty that may arise, and in doing so creates a “culture-
Austin’s sovereign requires its subjects to be in a “state of subjection”32 to it: “the bulk
common superior.”33 Two factors of this definition require elucidation: bulk and habit.
Austin’s theory would be saved from this criticism were he to have defined the term
of ‘habit’ beyond expressing that the “obedience [cannot] be rare or transient.”35 This
two weeks enough to render the obedience transient? Viewed comprehensively, more
questions arise: what if 55% of the population is in a habit of obedience for twenty years
and then, by some change of circumstances, that percentage drops to say 40%? Is there
When given the condition of obedience, one cannot say with precise certainty that
any society which exists or has existed was or is in a state of subjection to its sovereign
or not. Austin’s theory fails to prescribe the positivistic elements necessary for law with
cannot be used to measure the validity of a legal system as the terms within it are too
vaguely constructed. Thus, the imprecision and uncertainty that shroud this aspect of
29
Rumble (n 1) xxi.
30
Nobles and Schiff (n 3) 98.
31
Rumble (n 1) xxi.
32
Nobles and Schiff (n 3) 118.
33
ibid [118].
34
ibid [121].
35
ibid [119].
36
Hart (n 4) 50.
5
Austin’s theory make it unfit for purpose. Austin’s response to this is equally betraying of
his vagueness. When propositioned with questions, such as the ones above, Austin
replies that “these questions cannot be answered precisely, the positive mark of
cases. It would not enable us to determine of every independent society, whether it were
political or natural.”37 Yet the self-professed aim of his theory, and that of any legal
theory38, is to posit rules of requirement that allow one to determine whether a law is
valid or not. By his own admission, Austin has failed to do this, and thus, his theory is
revealed to be inadequate.
sociological phenomenon; the relationship between sovereign and ruled becomes the
theoretical focus. This comes at the cost of real gravity and consideration being given to
the content of the law. The obvious ramification is that law ceases to be an exercise in
justice and becomes one in human behaviour. Thus, law does not exist of its own accord,
but does so in relation to the nature of humans and their behaviour. This integrates law
with sociology and contravenes one of the pillars of legal positivism; the mutual
ii. Supremacy/Despotism
legally despotic.”40 He claims that a sovereign rightly so called has no legal limitation
and is not bound by the laws it creates, merely by a moral obligation to follow these
laws. This notion is supported by both Blackstone, who argues that “in every legal
system there is a supreme, absolute and unlimited legislative power”41, and Thomas
37
Nobles and Schiff (n 3) 121.
38
See section 2.
39
Hart (n 4) 50.
40
Nobles and Schiff (n 3) 129.
41
Nobles and Schiff (n 3) 132.
6
Hobbes, who similarly believes that “to the lawes which the sovereign maketh, the
sovereign is not subject…”42 Blackstone, Hobbes, and Austin all err, either in practice, in
which case they are archaic, or in theory, in which case they are anti-democratic.
On a national level, sovereigns are often subject to lateral checks and balances by other
institutions. The prime example is the United States government, where “the powers of
[its] legislature…are subject to legally binding limitations.”43 This prevents it from being
truly despotic in the Austinian sense. Such is the case in many other modern legal
systems. On a global scale, sovereigns may also be punished under international law44.
Thus, as noted by Dicey45, Austin’s theory is inapplicable outside the context of the
English Parliament, and “his theory of sovereignty may have been a generalization from
English law.”46
problematic. Despite Cotterrell’s defence that “Austin’s discussions relate primarily to the
rightly so called they must be illimitable by law arguably encourages tyranny, exposing
sovereign authority through the separation of powers and legal limitation not only allow
democracy to flourish but also uphold the rule of law that all mean are equal before the
law. Austin’s theory would elevate the sovereign above the usual ambit of the law. It is
hard to argue that this is what any legal theory sets out to do. Rather, it can be seen as
modern ideologies on politics. The contemporary world holds “the democratic ideal”48, in
its various forms, to be the most desirable system of governance. Austin’s theory is hard
to reconcile with this opinion, and thus its application is impractical in the modern age.
42
ibid.
43
Rumble (n 1) xxii.
44
See section 3(b)(ii).
45
Rumble (n 1) xxii; Albert Venn Dicey, Law of the Constitution (Liberty Fund Inc, 1982) 26-7
46
ibid.
47
Nobles and Schiff (n 3) 136.
48
Allan C Hutchinson, The Province of Jurisprudence Democratized (OUP USA, 2008) ch 8
7
A closing criticism of Austin’s sovereign is raised by Hart in relation to the “scope
and persistence of laws”49. Austin elucidates very little on the concept of succession. As
a result, many questions are left unanswered. Questions such as “how do we know when
and where a new sovereign emerges when an existing one dies or is destroyed? Why do
laws enacted hundreds of years ago survive today, given successive changes in the
adequately. It “contains unresolved tensions”51 and by virtue of these does not satisfy
the criteria of clarity outlined in section 2 of this paper. Hence, the first requirement of
and being anti-democratic. Its failure to properly perform the functions of a legal theory
b. THE COMMAND
obedience is given, becomes a law. Austin sees law as a type of command52. He defines
with an evil to be inflicted in case the wish be disregarded.”53 There are two elements to
this definition: the evil (or sanction) and the expression (or addressment).
Firstly, Austin argues that an essential requirement of a command, and thus a law, is
the expression or intimation of a wish is not a command.”54 This line of reasoning leads
to the simple deduction that if there is not a sanction or “an evil to be incurred”55 there
is not a law. With this argument, Austin performs a defect and a linguistic fallacy.
49
Nicola Lacey, ‘Modern Positivism: HLA Hart and Analytical Jurisprudence’ in in James Penner and David Schiff
and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford:
Oxford University Press 2005) 161
50
ibid.
51
Rumble (n 1) xxiv.
52
Nobles and Schiff (n 3) 108.
53
Nobles and Schiff (n 3) 111.
54
Nobles and Schiff (n 3) 110.
55
Nobles and Schiff (n 3) 109.
8
His defect is in overlooking that not all laws which are recognised as laws impose
sanctions (Hart)56. These laws are permissive laws or power-conferring laws, such as
contract laws. Austin fails to identify these as laws ‘properly so called’. This is a
narrowing of the variety of laws and constructs “a simple model of law as coercive
orders”57. It over-simplifies law by creating a slender framework into which laws must fit
construction of sanctions. Hart argues that Austin fails to make a crucial distinction,
leading to a misconception of sanctions and the obligations they impose. Austin, in Hart’s
view, does not distinguish between the state of “having an obligation – there being a
standard which one recognises ought to be followed” and that of “being obliged – in the
sense of having to do something ‘or else’”58. This failure to distinguish, as Hart notes,
means that under Austin’s theory one would have no difference of obligation between a
tax collector and a gunman. This misconstrues the notion of legal obligation. If one is
said to have an equal obligation to a gunman and tax collector, the power of the law
would become immaterial. As the gravest consequence, legislation would lose its
capacity for coercion. Thus, in an attempt to construe the commanding power of law,
Austin inadvertently de-authorises the law and empowers the bandit. This is a far cry
from the aims of any legal theory and displays the inconsistency of Austin’s thesis.
“set by political superiors to political inferiors.”59 This yet again presents an oversight as
there is a crucial case in which laws are not set by political superiors to political inferiors
and are arguably still valid; international law. Austin holds that international law is not
law properly so called as it is “not set by its author in the character of political
56
Hart (n 4) 18.
57
Hart (n 4) 49.
58
Lacey (n 49) 162.
59
Nobles and Schiff (n 3) 107.
60
Nobles and Schiff (n 3) 114.
9
another”61 and thus the laws set out between them are not positive laws, he is able to
“deny the ontological reality of international law.”62 This denial is inaccurate. Austin may
be correct in saying that international laws are set by custom. Their adoption by states
is, as seen by the likes of Oppenheim and Anghie63, consent-based. That being said,
Austin is inaccurate in representing the obligations these laws impose. He states that
international laws are merely positive moral rules and thus sovereigns have a moral not
a legal obligation to follow these rules and the sanctions imposed on them are moral not
legal sanctions64. However, jus cogens, or peremptory norms, are international laws that
sanctioning in the form of the conflicting law being held null and void and the guilty state
being punished. Austin’s non-recognition of international law leaves a wide gap in his
theory, with Westlake contending that Austin “had narrowed his enquiry too far...”66
Many critics have also presented a different theory on the source of international
law’s authority. Law professor, Antony Anghie, argues that “society, rather than
sovereignty, is the central concept used to construct the system of international law.”67
has already been deconstructed and shown to be inadequate. Another critic of Austin’s
views on international law is Hart, who states that “to argue that international law is not
necessary for the validity of law, as highlighted in the preceding section. Thus, Austin’s
61
ibid.
62
Richard Collins, ‘Classical Legal Positivism in International Law Revisited’ in Jörg Kammerhofer and Jean
D’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014)
39
63
Collins (n 61) 41.
64
Nobles and Schiff (n 3) 120.
65
Ulf Linderfalk, ‘Understanding the Jus Cogens Debate: The Pervasive Influence of Legal Positivism and
Legal Idealism’ in Maarten den Heijer and Harmen van der Wilt (eds), 46 Netherlands Yearbook of
International Law (TMC Press, 2015) 51-84
66
Collins (n 61) 42.
67
Collins (n 61) 41; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge
University Press 20015) 124, 127-131
68
Hart (n 4) 212.
10
theory is shown to come to a rudimentary conclusion on the nature of law; a conclusion
A last critique of Austin’s notion of command is its association with sovereignty. What
argument raised by Sir Henry Maine69. Maine employed the example of Maharaja Ranjit
Singh, a leader who was despotic in the Austinian sense, yet “never once in all his life
issued a command which Austin could call law…The rules which regulated the life of his
subjects were derived from their immemorial usages and these rules were administered
the complex nature of law; it is more than mere commands issued by sovereigns and
extends to encompass customs, traditions and general opinion; things Austin would term
There are two possible consequences of Austin’s sovereign command theory. The first
definition of law is accepted as correct it will mean that there are few, if any, laws
properly so called in the modern world. His overly-simplistic theory fails to recognise the
complex legal systems existing today as being governed by positive law, leaving many
contemporary legal systems outside the ambit of law where they would be recognised as
valid by other positivist theories. This narrowing of the scope of law is opposed by
members of Austin’s own camp. Defender of legal positivism, Matthew H Kramer, called
“for the term ‘law’ to be used broadly”71, highlighting legal positivism’s aversion to
Austin’s constriction. Whilst students of the Austinian school of thought may view his
simple theory as a call for reform of modern states, its simplicity is not a benefit. A
complex legal system should be favoured over a simple Austinian one, as the latter
69
Rumble (n 1) xxi.
70
Mahmood Mamdani, Define and Rule: Native as Political Identity (Harvard University Press, 2012) 22
71
Matthew H Kramer, In Defence of Legal Positivism (Oxford University Press, 1999) 5
11
cannot take into account the intricacies of dealings between men themselves and men
and the state. Austin’s theory views the world through a predominantly social lens,
failing to take account for many political and legal factors that weigh into the
sovereigns. It is a fluid exchange between the governed and the governing with each
The second possible consequence is that Austin’s theory has failed, itself, as a
theory of legal positivism. It does not “examine the [evident] nature of stable rule
systems”72 nor does it “develop concepts useful for analysing and understanding actual
systems of law”73; its purpose as prescribed by Julius Stone, Robert N. Moles, and
Michael Lobban. This consequence is more existent, as many view his theory to have no
“particular intrinsic value”74. It is no longer used as more than a mere legal reference,
and subsequent theories have challenged his ideas, repealing his work.
5. CONCLUSION
the features are either too imprecise to be used in practice, or their antiquity renders
them irrelevant to modern day legal systems. He does little to elucidate the elements of
actual legal frameworks. This, along with the theoretical controversies strung within its
contents, cast doubts on its legitimacy as a reputable legal theory. As a result, his theory
His lack of success in creating a valuable legal theory highlights the difficulties
legal philosophers face in their quest to produce a definition of law. The study of
encompasses varied schools of thought that philosophers may find difficult to align into
one cohesive theory. Yet, a probing into the nature of law is imperative. Austin’s work
should not serve as a deterrence to future attempts, but rather a challenge to do better.
72
Nobles and Schiff (n 3) 92.
73
Rumble (n 1) xxi.
74
Campbell (n 2) 253.
75
ibid.
12
BIBLIOGRAPHY
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Theory: Commentary and Materials (Oxford: Oxford University Press 2005) 161, 162
13
Linderfalk U, ‘Understanding the Jus Cogens Debate: The Pervasive Influence of Legal
Positivism and Legal Idealism’ in den Heijer M and van der Wilt H (eds), 46 Netherlands
Mamdani M, Define and Rule: Native as Political Identity (Harvard University Press,
2012) 22
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Online Journals
Campbell D, ‘The Province of Jurisprudence Demolished’ (2011) 20:2 Soc & Legal Stud
253
<http://heinonline.org/HOL/Permalink?a=NOTHING&u=http%3A%2F%2Fheinonline.org.
ezproxy.nottingham.ac.uk%2FHOL%2FPage%3Fpublic%3Dfalse%26handle%3Dhein.jour
15