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
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:
- All laws are laid down by a certain procedure or person.
- 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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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 are subject to the law as being passive. The law was a set of commands, backed up by the threat of sanctions from a sovereign to whom people are in a habit of obedience, the subjects were passive. From Hart’s point of view, this understanding of the law was superficial as it only depicted how the law looked on the outside.
The key point from Hart’s argument is that legal theorists cannot adequately understand the law until they understand the law as it is understood by those subject to it. For example, an extra-terrestrial being may observe cars stopping at a red traffic light and conclude that cars are in the habit of stopping at red traffic lights. What is not taken into consideration is the internal viewpoint, there is a person in that car that using the law to guide his or her actions. Since Austin did not consider the internal aspect of the law, one can reason that there are subjects that follow the law irrespective of sanctions. This is because internally, they have come to regard the law as necessary. The theory of command has been challenged because it presumes that sanctions are a necessary part of the law and are needed for the population to follow the law (Morris & Hart, 1962). However, Austin could argue that by including the internal aspect of law, one only brings the idea of morality to law which is otherwise best understood in value unbiased terms.
Hart and Kelsen each gave different perspectives on the internal aspect of law. The concept was that legal theorists must understand law from an internal point of view, however, that point of view must not be so internal as to involve a moral aspect of the law.
Hart’s Criticism of Austin’s Theory
Austin’s theory of command is an order backed up by a threat of punishment in the case of non-compliance. Nonetheless, not all laws fit this model. Austin’s model has a strong case in criminal law, however, what about other aspects of the law such as wills, contracts, and marriage? For example, suppose my father wrote a will and left his collection of highly detailed toy car models to the neighbor’s son. Is he being threatened to do so? Suppose he does not write a will at all, shall there be repercussions? In such a case, it would be better to describe the law of wills as enabling my father to do something rather than a command backed up by a threat.
In this context, some have argued that there is a sanction. The sanction of “nullity”. My father failing to obey the law of wills shall be threatened with nullity where he will not have the support of the sovereign. The sovereign will not carry out his will and as a result, the toy car models may become part of his estate and in the absence of a will may end up being inherited by me and my sister and not his neighbor’s son. Which indeed, is a punishment to him. On the other hand, the concept of the sanction of nullity misses the basic purpose of such types of laws. Arguably, such types of laws are about empowering, not punishing non-compliance.
Another issue that arises with Austin’s command theory is the identification of the sovereign. Do all systems of law have sovereigns? Austin did not define the sovereign as one who had a right to rule. Instead, the sovereign was quite simply a person or entity to whom people within a given territory are in a habit of obedience. A sovereign is a person or entity that is to be obeyed and does not obey. In regions such as France, the president of the republic can be seen as the head that embodies sovereign. However, in regions such as the United Kingdom, where the monarch coexists with representatives elected by the people, who is the sovereign?
One may argue that the sovereign can be seen as a constructive metaphor; that law should be perceived as if it mirrored the view of a single will, but then again, this would contradict with Austin. The sovereign cannot be a constructive metaphor since the command originates from him. Additionally, the emphasis on the term ‘sovereign’ makes it difficult to understand the continuity of legal systems. A new ruler will not come with the populations ‘habit of obedience’ that Austin deems essential for a system’s rule-maker. Some legal theorists defended Austin and argued that, by the term sovereign, Austin meant the office or institution which symbolizes supreme authority and not the individuals who happen to hold that office or hold that institution at any particular time (Woozley, Kelsen & Knight, 1968).
The great strength regarding Austin’s definition of law lies with its simplicity. However, it is in this simplicity that the definition fails to capture aspects that we deem closely bound to the law. Various modern theorists believe that Austin’s definition of law captures the connection of law and power, and places the importance of that connection at the forefront of analysis. According to one supporter:
“Austin’s theory is not a theory of the Rule of Law: of government subject to law. It is a theory of the ‘rule of men’: of government using law as an instrument of power. Such a view may be considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent." (Cotterrell 2003: p. 70)
When a situation requires a more realistic or critical approach to law, Austin’s definition of law and force is attractive (Brian, 2019).
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- Cotterrell, R. (2011). The politics of jurisprudence: a critical introduction to legal philosophy. Oxford: Oxford University Press.
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