Austin's theory of law is based on coercio

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Hema Pindolia

Tutor- David Schiff

2008 Q2a) ‘Despite its obvious inadequacies; the command theory of law tells us something important: that at the heart of law is coercion, and ultimately every law has some relation to the use of force by sovereign power.’ Discuss.

Although it can be stated that the fundamental nature of laws are coercive in order to ensure compliance of them, it should be acknowledged that in the modern context this notion has to give way to power-conferring rules which indicate autonomy of citizens and public officials rather than having an obligation to follow commands. Cumulatively this results in a need to recognise that ultimately, not every law will have relation to the force by sovereign power as illustrated customary practices and international law.

The command theory of law proposes that law is ‘the command of a sovereign backed by a sanction’. Bentham bases his definition on expression of will. However, his conception of the nature of law essentially conforms to Austin’s direct description; both theories proposing that law is always imperative in its expression. Austin states: ‘a command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and purpose of the party commanding to inflict an evil or pain in the case the desire be disregarded’, (1832:21). Thus the power to inflict a sanction (punishment) in the case of non compliance is what makes an expression a command. This constitutes Austin’s positive law (posited by humans). The form of the sanction and whose commands will constitute law will be considered below. Austin believes that for a command to be a law, it is only necessary for it to have generality as to acts; and thus not all commands can be law.

This coercive nature of law indicates that power is made central to law. It also illustrates Austin’s emphasis on law being an ‘instrument of government’ (Cotterrell); thus it is a centralised power for the benefit of the common good as determined by utility. This is important in the modern context as law is seen as a simple and clear order legitimised by a democratic government as opposed to the incoherent nature of common law. Whereas Bentham radically opposed the idea of judge-made law and believed that legislation should be codified; Austin saw judge-made law as inevitable and practical for the development of law. However Austin saw that judge-made law failed to illustrate a systematic structure of rational principles. Thus it is suggested that although this theory may be said to be simplistic it is well defined and distinguishes the legal from the non-legal.

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Conversely it may be suggested that this ignores and liberty or rights of humans against arbitrary state power. However, it is submitted that the purpose of government is to serve the common good and thus it will in theory be limited by constitutional laws and public opinion (named ‘positive morality by Austin). Following this notion it is clear that duties are more fundamental than rights. This is because command and duty are correlative terms and therefore a duty arises as the consequence of being addressed by an enforceable command. In contrast rights are derivative from duties and arise because ...

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