“The existence of law is one thing; its merit or demerit is another.”
John Austin (1790-1859) began to study law in 1812 after five years in the army and from 1818 to 1825 practiced unsuccessfully at the chancery bar. His introspection and theory about law hugely reflected his life as an army personnel, the entire theory of law as a command and the discipline shows the same. His powers of rigorous analysis and his uncompromising intellectual honesty deeply impressed his contemporaries, and in 1826, when University College, London, was founded, he was appointed its first professor of jurisprudence, a subject that had previously occupied an unimportant place in legal studies. He spent the next two years in Germany studying Roman law and the work of German experts on modern civil law whose ideas of classification and systematic analysis exerted an influence on him second only to that of Bentham.
Commonly known as the father of the English Jurisprudence, Austin’s best known work, a version of part of his lectures, is ‘The Province of Jurisprudence Determined’, published in 1832. Here, in order to clarify the distinction between law and morality, which he considered to be blurred by doctrines of Natural Law, he elaborated his definition of law as a species of command. According to Austin, commands are expressions of desire that another shall do or forbear from some act and are accompanied by a threat of punishment (the “sanction”) for disobedience. Commands are laws “simply and properly so-called” when they prescribe courses of conduct, not specific acts, and are “set” by the “sovereign” (i.e., the person or persons to whom a society renders habitual obedience and who render no such obedience to others). This is the mark distinguishing “positive law” both from the fundamental principles of morality, which are the “law of God,” and from “positive morality,” or manmade rules of conduct, such as etiquette, conventional morality, and international law, which do not emanate from a sovereign. Austin is best known for his command theory of law, his controversial perspective on the nature of sovereignty, and his insistence on the separation of law and morality. His work marks a break from traditions of historical jurisprudence, which studies the development and evolution of law, and of natural-law theory, which holds that law, to be valid and binding must conform to the standards of morality.
Austin defines law as “rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” Here, the intelligent beings who lay down laws are God and political ruler, or sovereign; the body of rules set by God constitutes the divine law, while rules set by the sovereign make up the positive law. Thus, Austin was the vital individual who saw law ‘as it is’ and hence his theory came to be called the Positive theory or the Imperative theory and became a part of the Analytical school of Law, flourished by Jeremy Bentham. Austin classified law into two; law properly so-called and law improperly so-called. He chiefly focuses on ‘law properly so-called’ for the reason that he only considers Divine law and Human law as law per se.
Law as a Command
“Law is commands joined to threads of punishment”
Furthermore, Austin deliberates law as command of the sovereign hence, Command Theory of Law. Here he tries to expound that command lies at the very core of a sovereign. Law as a command, is backed by a threat of sanction in the event of non-compliance. Legality, on this account, is determined by the source of a norm, not the merits of its substance (i.e. it embodies a moral rule). Thus, the answer to the question “what is law?” is answered by resort to facts not value. On Austin’s view, a rule R is legally valid (i.e. is a law) in a society S if and only if R is commanded by the sovereign in S and is backed up with the threat of a sanction. The relevant social fact that confers validity, on Austin’s view, is promulgation by a sovereign willing to impose a sanction for noncompliance. A law is always a command that binds persons. A command contains three elements: (1) a wish (or desire) of a thinking being that another thinking being must carry out by acting in a certain way or abstaining from action; (2) an evil dealt by the first being and suffered by the second being in case he does not carry out the wishes of the first (a sanction); (3) an expression or some way of making others aware of a particular wish by words or other signs (the form in which the command is given is not essential). Only those commands that have a general character can be norms or rules, while commands that impose an obligation to perform a single action or prohibit a single action do not belong to law. A command to be a real law, or a binding law (positive law), must in addition be promulgated by a sovereign for his subjects, the members of an independent political society (a society subject to an authority who is not at the same time subject to any other authority). The sovereign also brings to life the positive law of his predecessors, giving it the attribute of sanctions, whereby he recognizes it as his own, as it were, and demands the same respect for it as he does for his own commands.
The Significance of Austin’s Theory
Austin’s theory is regarded as the classical form of legal positivism. Legal positivism is treated as a domain of theoretical knowledge about law. Its conception of law is also described as analytic jurisprudence (an analysis of legal concepts by formal-dogmatic methods) or as the utilitarian conception of law (law is a political instrument and a regulator of social law that carries a benefit).
Austin provided the foundation for a new object of the positive science of the philosophy of law. The aim of the new science was the precise definition of the object of study and its limits. This was intended to separate metaphysical discussions (the natural law) from scientific assertion on law. Austin thought that the conceptual apparatus of the system of common law should be set in order. He supported a reform of law with the aim of its codification. The major thesis of his theory: “only norms of conduct established or recognized by the sovereign which he orders to be observed under pain of punishment are real laws”, became a dogma of contemporary legal positivism. H. Kelsen, H. L. A. Hart, and L. L. Fuller, among others, have referred to this principle.
The subjects have the ability to protect themselves against a bad law by refusing obedience to the sovereign and thereby causing his downfall. They are guided by the calculus of what is most beneficial for society, whether it be an evil legal order or the anarchy that results from obedience. When they undermine one law, they undermine the meaning of the entire system of law. If resistance to the law and to the whole system who lead to the fall of the governing authority, then enlightened public opinion must establish whether this resistance is worthwhile. As long as a sovereign exists who is generally obeyed in society, the laws he promulgates must be observed by the subjects (his promulgation of laws that strike at the principle of utility cause justified resistance). However, one must consider the transitional anarchy, which, according to Austin, will exist after the overthrow of the sovereign. Government (or a sovereign) is necessary to do good for society.
Critical Analysis
As regards Austin’s “command” model, it 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 we are not inclined to exclude from the category “law.” More generally, it seems more distorting than enlightening to reduce all legal rules to one type. 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. It should also be noted that Austin’s work shows a silence on questions of methodology, though this may be forgivable, given the early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was blazing a new path. On matters of methodology, later commentators on Austin’s work have had difficulty determining whether he is best understood as making empirical claims about the law or conceptual claims; elements of each sort of approach can be found in his writings.
The reaction to Austin’s work at the turn of the century was severe. His command theory was condemned as a misidentification of all law with the product of legislation and a distortion of many types of legal rule. The severance of a purely analytical jurisprudence from moral criticism of law was criticized as sterile verbalism obscuring the social function of law and the judicial process. Some critics consider that Austin’s doctrine of sovereignty confuses the ideas of legal authority and political power; others hold “legal positivism” responsible for subservience to state tyranny or absolutism.
Some of these criticisms are well founded, but even so Austin’s work is of permanent value. The rigor and clarity of his analysis have demonstrated the complexity of many important legal and political concepts and the perennial need for just such an analytical study as he proposed, and repeated efforts to show precisely where his simple distinctions between law and morality are wrong have increased the understanding of both.
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