This post is important as it will outline Austin’s theory on law. Austin is important as he will be examined from two angles in the examination. One of his questions will be a part of Section B in the examination. In that question, (depending on the question of course) what needs to discussed is his theory as illustrated by Morrison. Another side of Austin’s will be examined in Section A, where you will see a question on Hart vs. Austin and this will be posted soon on the blog in different post. So this post is strictly speaking on Austin’s work, with fewer critiques on him and more detailed theory of his. As Austin is more famously known for his critique put forward by various jurists and academics, this post will see what his theory is about with a limited amount of critique on him. So here we go: Every theorist is influenced by his predecessors and similarly Austin was influenced by his predecessors both Hobbes and Bentham.
An overview of Austin’s background. Austin strongly believed in the demarcation of law from morality and this classified him as a legal positivist. Legal positivism exists on the polar opposite end of the Natural Law school of thought. Naturalists blurred the distinction between law and morality and considered law to exist in the realm of normative jurisprudence thereby asserting the overlapping thesis. Legal Positivists on the other hand asserted a clear separation of law and morality and didn’t delve into the content of laws or their evaluations thereby strictly remaining within the parameters of descriptive jurisprudence and asserting the separation thesis. For them therefore, there was no necessary connection between law and morality. Every Jurist has a thesis or grand work of his and similarly Austin’s Command Theory of Law is a true depiction of his stance on legal positivism. Moreover, positive laws are “rules set for subjects by a sovereign in a politically independent society”. Legal positivism for Austin was asserted in his famous definition of it which reads as follows:
“The existence of law is one thing; its merit or demerit another….”
This statement maintains that, Austin like his predecessors- Hobbes and Bentham; discounted subjectivity from law and argued for an analytical analysis of law. Austin’s theory is considered as a reductionist and crude account of law and it combines both legal positivism and analytical jurisprudence as an edifice to establish ‘The Command Theory of Law’. Legal positivism insists that a descriptive approach to law is valuable, thereby divorcing the content of law and morality, believing that it is in the concept of law that morality is either a part of it or not necessarily a part of it. There exist positivists differing on the spectrum of legal positivism and on such spectrum Austin, more or less seems to align himself with his predecessors i.e. both Hobbes and Bentham, albeit, more towards a Hobbesian positivism as he presents his theory of law as an ‘authoritarian positivist’ theory of law. Professor Morrison claims that Austin’s jurisprudence took its foundations from the work of Hobbes and Bentham. Bentham was a constitutional radical and Austin was a disciple of his who had turned conservative, however, sharing many of the ideas of the Bethamite philosophical radicals such as notions of progress, rule through knowledge, political economy etc. From Hobbes, Austin borrowed the definition of the sovereign:
“The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law.”
Austin’s work of substance was his ‘Province of Jurisprudence Determined’ and he held a dogmatic belief that aristocracy through the institutions of the Parliament, Courts, Church and the Army, promoted their self-interests, which because they were the interests of a class were “sinister”. For Austin, the key to the social progress was in the combination of a rational government coupled with the “educated” populace. For him it was really important that men should think distinctly and speak with a meaning. The ‘Command Theory of Law’ of Austin’s was a way for law to become a powerful and rational instrument of modernity. The command theory of law states that laws (properly so-called) are commands of a sovereign who is habitually obeyed by the bulk of the population and defiance of his commands leads to the enforcement of sanctions. Austin’s ‘Command Theory of Law’ thus revolved around four objects: The Sovereign, The Command, Habitual Obedience and The Sanction.
Austin, influenced by the Roman and Prussian (present-day northern Germany and northern Poland) school of thought, specified that ‘a law is a command which obliges a person or persons to a course of conduct which proceeds by way of a relationship of ‘superiority’. The Command Theory asserts that there is a hierarchy of laws stemming from apolitical sovereign – who, by nature is illimitable (without limits or an end) and indivisible (unable to be divided or separated) and his command is habitually obeyed by those whom he governs and that the element of sanction is closely linked and it is an integral part of his theory as sanctions are imposed upon the non-compliance with the Sovereign’s command.
Analyzing the Command Theory further, Austin bases sovereignty upon habitual obedience. For him, moreover, the element of sanction is an essential or perhaps an even more important element in the functioning of law. Austin’s theory of law can be classified as ‘authoritarian’ or ‘imperative’, as the sovereign in his model is habitually obeyed by those whom he governs, but there is no reciprocity as he himself obeys no one. Without the element of reciprocity- which if existed, would have given way for a more democratic model of law- the sovereign or supreme power becomes absolutely free from the fetters of positive law. Where Austin and Bentham again differ is where – ‘Bentham’, Austin claims, forgets to notice that it is crucial for the Supreme Commander that he must himself be completely obeyed and at the same time be completely uncommanded.
Austin’s sovereign turns into a demi-god because he is completely unfettered and follows no authority- which is a flat contradiction of the separation of powers. Austin puts forward a version of what Bernard Williams and Amartya Sen aptly describe in “Utilitarianism & Beyond”, as “Government House Utilitarianism: An outlook favouring social arrangements under which a utilitarian elite controls a society in which the majority may not itself share[the belief of the elite].” Austin’s Command Theory is reduced to a theory of law whose prime objective is deterrence due to the fact that he so resolutely inculcates the element of coercion which helps build an extremely crude theory of law and takes it back to the position of Aristocracy, which Austin himself wanted to revolutionize.
According to Wayne Morrison, the standard criticism leveled against Austin’s Command Theory of Law is that it has reduced the idea of law to those of sovereignty, command, habitual obedience and sanction and neglected the empirical inquiry about actual societies thus concerning himself with the clarification of the concepts only. Professor Morrison claims that Austin remains blind to the subtle meaning of his chosen words and labels him as an arch-positivist or a naive empiricist. On the other side of the spectrum of legal positivism, there exist the contemporary legal positivists like Hart and Raz and the same kind of ‘authoritarian-analytical’ positivist stances tension does not manifest in their work. They, as David Dyzenhaus rightly points out – reject Austin’s Command Theory of Law. In place of the image of the Sovereign as the uncommanded commander, they propose as the basis of a legal system the “rule of recognition”.
In Chapter Six of ‘The Concept of Law’, Hart maintains that the idea of the Rule of Recognition cures at least two defects of the command theory of law – first he said that “law is not a Gunman Situation writ-large” as he said that there is more to a legal order then compulsion and secondly he pointed out that the Command Theory of Law is putting the Sovereign outside the law. David further adds that Austin’s conception of law as the commands of an uncommanded Sovereign or omnipotent commander lends itself to the legitimation of law as an oppressive regime. There is however, no doubt that Austin was a Benthamite reformer as he held a positive view on judicial legislation as Bentham was an opponent of judicial law-making whereas Austin had no objection to it and deemed it as highly beneficial and absolutely necessary thereby incorporating Judicial law-making into his command theory of law.
Apart from that, Rumble asserts that Austin’s theory encourages students to clarify if not, develop their own ideas on a number of most basic questions on jurisprudence. All of this contributes to the fact that Austin’s theory, albeit simple in our understanding towards jurisprudence remains crude by all necessary means and although it does help us understand the concept of law, it remains at the benign stages of development of law as it might not survive if it is implemented in contemporary society unless of course the society is an authoritarian one.