JURISPRUDENCE SURI RATNAPALA

JOHN AUSTIN THE COMMAND

THEORY OF

LAW

An Introduction:
Legal Positivism is a doctrine about the nature of law according to which
laws are posited (laid down). The legal validity of a rule or decision
depends on its sources (e.g. its pedigree) rather than its merits (e.g.
whether or not it is a good rule).
According to the command theory, something is law if it has been
commanded by a Sovereign, and is backed up by the threat of a sanction
in case of non-compliance. Command theories have some things going for
them which explained their sway over us for so long: They urge us to
identify and understand what law is before considering whether it is
morally good or bad; they give a central role to sanctions which are
ubiquitous in the law.
Austin, like Hobbes and Bentham before him, embraced the idea of law
as a sovereign command. His theory of law was heavily criticised by
scholars within and outside the legal positivist tradition; his sternest
critics being Hart and Kelsen.
Austins Utilitarianism
For Bentham, the principle of utility was the only basis of moral
judgement. He rejected the notion that scriptures were a source of law
and argued that Gods will is unknowable and what can be gathered from
the scriptures is only which is presumed to be his will.
Conversely, Austin regarded the law of the god revealed in the scriptures
as a primary source of moral rules. The status of these laws was laws
properly so called. There is a part of God that is unrevealed and must be
discovered through reason. If our actions affect the greatest happiness of
all or diminish that aggregate, we can infer those laws which he has
given, but not expressed or revealed.
Like Bentham, Austin reasoned that aggregate happiness is served by
identifying the law with sovereign will. Since he wanted the moral
dictates of the scriptures too, he created a subset of laws properly so
called named positive law to signify the laws made by the sovereign
and its delegates. It is the law set by political superiors to political
inferiors.
Austins respect for the Common Law

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In Benthams ideal world, the law is fully codified and the courts have no
role in legal development. Austins utilitarianism led him to a different
conclusion: that judicial law making is not only inevitable but is also an
unambiguous public good. Judges cannot refuse to judge for want to
legislative direction. The language by which statutes lay down the law is
open textured and their application depends on a judicial choice. Even in
civil law systems, where the law is extensively codified and the code is
preeminent, there is a need for judicially established principles.

Austins taxonomy
Austin sought to classify laws like international law, moral laws,
customary laws, divine law in addition to the laws of the sovereign. The
criterion for a law to be properly so called is that it derives from
authority. The others are laws by analogy laws only in the figurative
sense. They resemble proper laws to some varying degrees but are
merely the opinions of persons as what ought or ought not to be done.
Laws properly so called
Proper laws derive from authority. As per Austin, there are two kinds of
authority the source of the divine law and the political superior the
direct of human law properly so called which he termed positive law.
The law of God is not a part of his legal universe since it is founded upon
opinion and not text.
As mentioned earlier, common law is made by sovereigns through their
delegates, the judges. Sovereign commands may be express or tacit.
Austin says: When customs are turned into legal rules by decisions of
judges, these emerging legal rules are tacit commands of the sovereign
legislature.
Austin, in his fifth lecture introduces a subdivision of positive law. He
distinguished laws set directly by the political superior/sovereign from
laws set by private citizens in pursuance of their legal rights. The former
consist of laws made by ministers, judges. For the latter, he cited
instances of rules made by guardians for their wards, provisions in the
will of a testator and rules of a corporation. However, since all legal
rights are established by the laws of the sovereign, the ultimate source of
these private laws remain with the sovereign.
Laws improperly so called

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These laws are based on opinion and not authority. They resemble
proper laws to varying degrees. The ones resembling closely are called
laws with reason or laws by analogy. The laws remotely analogous are
called law by caprice of the fancy. They are laws only in the figurative
sense, aka laws by metaphor. Laws by analogy are not law but positive
morality. It encompasses customary law, international law and
constitutional law, which are considered to be binding according to
general opinion. These rules do not fit into the category of laws properly
so called because they derive their force not from the sovereign or
divine command but from opinions. They remain positive morality until
transformed into legal rules by legislation or judicial recognition.
International law is consigned to positive morality as it does not flow
from the will of the sovereign but consists of opinions and sentiments
current among nations. What about customary law? Sometimes a custom
is so useful that it demands recognition as positive law. Austin did
acknowledge that a customary law may have the same practical effect as
a positive sovereign law. But in his legal universe, it is not a positive law
since it does not flow from the will of a political sovereign. Thus if no
political sovereign, then no law.

Austins positive law

Positive law comprises the commands of a political sovereign supported
by sanctions on those who disobey. Three key elements (1) A political
sovereign (2) Command (3) Sanction. If a society does not have a political
sovereign then it doesnt have law in the strictest sense of positive law.
A sovereign possesses five essential attributes.
1. The sovereign is a determinate human superior.
It may consist of a single person an absolute monarchy or a group
of persons- the Crown in U.K. The persons who make up the
sovereign must be identifiable. This is why customary law is not
positive law. The sovereign must not only be determinate, it must
also be human. The law of God (in scriptures) is law properly so
called but not positive law as it is not promulgated by a human
superior.
2. The bulk of the people habitually obey the sovereign
Stable and functioning society Rules are observed by most of the
members.
Ineffective political authority and legal system There is a
widespread disobedience of the law. State of Nature.

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If each warring section of the society habitually obeys its own

separate political superior, then original society disintegrates into
independent societies leads to civil wars. There is no Austinian
positive law until the supremacy of one faction or the other is
established.
3. The Sovereign is not in the habit of obedience to any other human
superior.
The monarch of a kingdom, or the government of a state in a
federation will not be sovereign within Austins definition since the
authority is subject to the will of a superior. Bentham did not insist
on this element.
4. The Sovereigns power cannot be legally limited.
Austins sovereign, by definition has no superior. If a sovereigns
power is limitable it is because there is a superior power than can
impose limits. In that case the superior power is the real sovereign.
Political authority in some countries is limited due to constitutional
provisions enforced, judicial review by courts to strike down
unconstitutional acts of the legislature and the executive.
Hart argued that law is prior to sovereignty. Each change is
brought about by an Act of Parliament that was enacted according
to existing law. According to him, the search for a legally unlimited
sovereign is doomed.
Austin asserts that a sovereign cannot place legal limitations on
itself or its successors. Such a limitation is merely a recommended
principle or maxim. A sovereign may abrogate or disregard any self
imposed limitation. If the limitation is binding then the sovereign is
not the sovereign but some other superior by whose will it is
binding.
5. Sovereignty is indivisible
The notion of a divided sovereign is absurd according to Austin. In
many modern states, power is divided between amongst the
legislative, executive and the judiciary. In Austins view, judicial and
executive actions are simple different ways of executing sovereign
commands. Officials and judges are mere delegates of the ultimate
law making body; the legislature. Its hard to see the Austinian
sovereign in the U.S. The U.S. Supreme Court can invalidate any
federal or state law that offends the constitution. This doesnt make
the Supreme Court the political sovereign. But does this make
federations like U.S. and Canada lawless? No.

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Austin offered a response to this. The regional units and federal

government are jointly sovereign in each and every unit of the
federation. A regional unit is simultaneously a part of the sovereign
(aggregate) body and a subordinate entity a minister/delegate.
He was saying that in a federation the sovereign is the constituent
body, the body competent to change the constitution.
Problem of the sovereign in representative democracy
Representative democracy complicates the task of identifying the
sovereign. The House of Commons is elected by those who have the right
to vote. Austin believed them to be a part of the sovereign. Here is the
problem. According to Austin, the sovereign cannot both be the
commander and the commanded. If the sovereign is in the habit of
obedience to the electorate, then it is not the sovereign. The search for
the sovereign in representative democracies ends in hopeless circularity.
Command, Duty and Sanction
Positive law, according to Austin, is produced by a sovereigns command.
A Command is not a request but an imperative that creates a duty by the
presence of sanction. It cannot be separated from duty and sanction.
They are aspects of a single event. Where there is a duty, there is a
command and vice versa. In each case the duty arises from the existence
of a sanction for breach.
Law producing commands may be general. E.g. Criminal law. They can
also be occasion or particular. E.g. Command by which an individuals
property is appropriated to the State. In each case, the command creates
positive law.
Austin noted three kinds of commonly termed laws that are not
imperative. These are not laws properly so called, but maybe justifiably
included within jurisprudence.
(1)Declaratory laws They do not create new duties but clarify or
interpret existing legal relations.
(2)Laws to repeal law are not imperative commands Repeal of some
laws may create new duties or revive old ones.
(3)Laws of imperfect obligation lay down rules without attaching a
sanction for their breach. E.g. Statutory duty of the city council to
keep the streets clean.
Laws that create rights and liberties in individuals are imperative and
hence, they are laws so properly called.

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Law and Morality

Austin distinguished positive law from positive morality. Positive morality
is an aspect of morality. E.g. giving charity etc not moral rules but
moral values. In Austins system, positive morality is made up of moral
rules that resemble positive law. When a rule of positive law offends a
rule of positive morality one can give a legal or a political answer.
Austins view the legal answer is that the positive law prevails. Political
answer depends on how the conflict plays out in the society.
If a rule of positive law is obnoxious to the moral sense of the society
then its enforcement is resisted but nevertheless, the rule remains legally
valid albeit without practical effect. He maintains that though there is a
moral duty, if the sovereign legislates against divine law, it will
nevertheless be law.
Austins achievement
Despite the stipulative and often arbitrary nature of his definitions and
classification, Austins system sheds a great deal of light on the legal
universe. He presented a model that offered 20th century legal positivists
a clear set of ideas to adopt, criticise and refine.
Austins theory is ultimately a thesis in utilitarian moral philosophy. The
rigid separation of law and morality rests on the belief that if one denies
bad laws as laws, then the object of knowing and improving the law is
impeded. Austin sough to demystify the law to make it more clear and
certain. His recognition of the worth of judicial law making is an
example. Although he consigned constitutional law, customary law and
international law to the category to positive morality, he duly
acknowledged their regulative force.