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 it presupposes a duty in someone else.
In any event it is submitted that a “command” model seems to fit some aspects of law poorly (e.g., rules which grant powers to officials and to private citizens—of the latter, the rules for making wills, trusts, and contracts are examples), while excluding other matters (e.g., international law) which Austin labels as positive morality. It is argued that indeed in the modern context international law is accepted as a form of law and thus in this respect Austin’s theory is defective.
Moreover Hart argues that even in the case of criminal laws, Austin overplays the notion of a command in a way which obscures the distinction between predictive and normative statements about law. His approach cannot distinguish between a command ‘obliging’ someone to do an act between having an ‘obligation’ to carrying out the act. Therefore law is unlike the coercive command of a gunman, addressed generally rather than to a particular person.
It follows that sanctions are essential for the existence of commands and thus they are a fundamental component of law. Austin saw the idea of a sanction as a negative one, ‘inflicting an evil’, in the case of non compliance of the law. This form differed from Bentham’s, who proposed that sanctions could also include rewards as well as penalties. Austin rejected this idea and stated that a reward for compliance would indicate a promise or inducement but not a command, which in the technical sense specifies a non-optional conduct or an implicit threat of coercion. It can be argued that realistically in the present context it is beneficial to recognise ‘dominium powers’ to distribute rewards so as to promote and enhance compliance with laws (Terence Daintith).
Moreover Austin’s claim that sanctions are analytically essential to laws, meant that a sanction can be ‘the smallest chance of incurring the smallest evil’. Thus any disadvantage formally specified directly or indirectly by law, in the case of non-compliance can serve as that law’s sanction. A sanction could also lead to a further obligation but at the end of the chain a sanction must be present.
The major criticism of Austin’s conception of commands arose from ‘power-conferring’ rules (‘secondary rules’ in Hart’s terms). These include legal rules enabling people to make wills, or contracts or enter into other desirable and facilitative transactions that would lack security without legal guarantee (private power-conferring rules). They also include public power conferring rules (power given to officials). Hart criticises Austin’s theory by stating that these kinds of rules are not coercive but rather, they facilitate desirable activities. They are not duty imposing rules supported by penalties but enable officials or private citizens to act. Austin’s defence of this criticism was that private power-conferring rules have sanctions in the form of ‘nullity of transactions’. Therefore a will executed in violation of the formalities will not achieve legal effect as it will be held void in whole or part. Therefore the loss of an expected advantage is the sanction imposed in this case.
Similarly where public power-conferring rules addressed to legal officials are concerned, the nullity-as-sanction argument may equally apply. So if a judge exceeds his jurisdiction, his decision is liable to be turned over by an appellate court. Therefore the legal system provides a means of indirect sanctions because it enables (professional or social) sanctions to be imposed which may lessen the reputation of the official. So it can be said that nullity as a sanction can be argued to be a form of coercion as they inevitably result in a form of ‘disadvantage’ directly or indirectly if the law is not complied with.
It is important to note that not all laws can thus fit into the coercive model of law- especially power-conferring rules. Hart says to do this denies the variety of kinds of laws. Furthermore Hart has remarked that these sanctions are different from others Austin recognises (eg damages, imprisonment, fines) and to reduce all law to one type distorts the very different social functions of power-conferring and duty imposing rules. For example, rules that empower people to make wills and contracts perhaps can be re-characterized as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on those who fail to comply with the relevant provisions. However, such a re-characterization misses the basic purpose of those sorts of laws—they are arguably about granting power and autonomy, not punishing wrongdoing. However, it could be argued that Austin was an analytical jurist- explaining law in the terms of ‘science of law’ (law as it is) and not the ‘science of legislation’ (how law ought to be). Therefore the difference in the character of sanctions is not analytically important in this context.
Austin proposed that what makes a command a positive law is that it is a direct or indirect command of the sovereign of an independent political society. Austin writes of the sovereign as a person (eg an absolute monarch) or a body of persons (eg lawmakers or electorate of a democracy, or the members of an established ruling elite).Sovereignty exists when two conditions are satisfied- first the bulk of the society is in a habit of obedience or submission to a determinate and common superior (whether an
individual or body of individuals) and secondly, that individual or body is not, itself in a habit of obedience to a determinate human superior.
In response to Austin’s definition it should be noted that, in the context of international law, the authority is not coming from the force of a sovereign power but from the state agreements or customary practices. This has wholly been dubbed as positive morality, but is unrealistic as we tend to give it according legal status in the modern context. .
Many critics have claimed that Austin’s view of sovereignty portrays an image of a powerful and dictatorial monarch. However this may not be the case as we can ultimately see that in modern society that it is not only the sovereign who uses its force in the law. In modern complex societies, a dispersion of legislative, adjudicative and administrative authority could be involved in law enforcement. Therefore one can argue that not all law ultimately has some use to force by the sovereign power. However Austin’s counter-argument would be to say that ultimately all law relates to the sovereign authority. An example of this is his concept of delegation of sovereign power. Austin claims that power is delegated to private citizens, the judiciary and each delegation is a legitimate exercise of power to create legal obligations but ultimately it must be treated as a tacit command of the sovereign. Hart has claimed that this notion of tacit commands is unrealistic in the case of judicial law making as it blurs the distinction between separation of powers. However one could put this down to the fact that Austin’s critics treat his sovereign as legal, when it is a pre-legal notion.
In conclusion, I believe that a theory based purely on coercion fails to distinguish rules of terror from rules which are accepted as being created by a legitimate government for citizens. The theory fails to illustrate the difference between a law that ‘obliges’ a person to obey it and one where there is an ‘obligation’ imposed. Rather, it reduces them into a narrow concept; that they should be habitually obeyed or else a sanction will follow. Although it may be illustrated Austin’s model is an attempt to distinguish legal orders from moral orders, and that coercion is a fundamental nature of law, we must recognise that in the modern context the abundance of legislation has not only created facilitative rules to enable humans to benefit from transactions but has also meant that legislation may also be created by various institutions.
