How Can Law Be Regarded As Command Sanction Of The Sovereign? Austin's Theory.

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How Can Law Be Regarded As Command Sanction Of The Sovereign?

Table of Contents

  1. Introduction to Legal Positivism and Austin’s Model


Positivism stems from the Latin root ‘positus’ which means to firmly put in place the existence of something. Legal positivism is a thesis about the nature of law according to which:

  1. All laws are laid down by a certain procedure or person.
  2. Something only counts as a legitimate law once recognized by a particular procedure or person. 

In other words, the legitimacy of law solely depends on its sources rather than its merits (Lyons & Dworkin, 1977).


This perspective was popular during the nineteenth century due to the command theories of law presented by Jeremy Bentham and John Austin. According to these theories, the law is the command of the sovereign, which is backed up by the threat of a sanction in the case of non-compliance. Law is the expression of a desire, (for example, “I would like for you to file your returns by June 30th”) backed up by a form of punishment or force. These command theories of law help us understand the positive nature of law and allow for us to determine what law is before considering whether it is morally good or bad. In summary, they equip us with a legal theory that works to inform each citizen subject to the law exactly what is required and the consequence once the requirement is not met.

Nevertheless, while the theory of command may seem ideal, there are various aspects of the theory that have been challenged through the years. Firstly, it is difficult to understand how legal systems work as a system. Each law is law because it was laid down by an act of the sovereign, hence, each law appears to be self-contained. Furthermore, the theory fails to explain how legal systems continue to live on and have an impact even when a sovereign dies and a new one takes its place. 

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  1. Internal Aspect of Law

Legal theorists Herbert Lionel Adolphus Hart and Hans Kelsen both criticized these flaws in Austin’s theory of law and went on to define what law is. The two investigated what is was that unified the laws and created legal systems, and what allowed legal systems to control their creation and seemingly have a life of their own.


During the twentieth century, Hart and Kelsen worked to build upon Austin’s legal positivism by providing a better account of laws internal aspect. The argument was that the theory of command had portrayed those who ...

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