JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL

OF

LAW

AND

GOVERNANCE

ASSIGNMENT
SUBJECT:
JURISPRUDENCE
PROJECT:
IS LAW REALLY COMMAND OF SOVERIGN
Submitted To: Mr.
Mr. Anirudh Babar
Submitted By: Tapesh
(VI SEMESTER)
B.A.LL.B (HONS)

INDEX
1.
2.
3.
4.
5.
6.
7.

Acknowledgement
Introduction
Austins command theory of law
Criticism
Harts criticism
Conclusion
References

Acknowledgement
This case study is made possible through the help and support from everyone, including: parents,
teachers, family, friends, and in essence, all sentient beings. Especially, please allow me to dedicate my
acknowledgment of gratitude toward the following significant advisors and contributors:

First and foremost, I would like to thank Mr.Anirudh Babar sir his most support and encouragement. He
kindly read my paper and offered valuable detailed advices on grammar, organization, and the theme of
the paper.
I would also like to thank all my professors who taught me and made me capable of making this
research paper.
Finally, I sincerely thank to my parents, family, and friends, who provide the advice and financial
support. The product of this research paper would not be possible without all of them.
Thank you.

INTRODUCTION
John Austin (1790-1859) was a nineteenth century British legal philosopher who formulated the first
systematic alternative to both natural law theories of law and utilitarian approaches to law. Bentham and
Mill were utilitarians, advancing the view that there should be a separation between law and morality,

and that law should be about maximizing utility, or personal pleasure or pain, and the effect or wisdom
of a particular policy could be calculated by adding together all the pleasure and subtracting all the pain
it brought everyone. Austins analytic approach to law offered an account of the concept of law, that is,
what law is. This was termed Legal Positivism because it set out to describe what law is in terms of
what humans posited it was, thus the link between positive law and Legal Positivism. Austins
theory of law is a form of analytic jurisprudence in so far as it is concerned with providing necessary
and sufficient conditions for the existence of law that distinguishes law from non-law in every possible
world. Austins particular theory of law is often called the command theory of law because the
concept of command lies at is core: law is the command of the sovereign, 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 (ie 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. If what makes a rule a legal rule is not determined by
its content but by its source, then why should we obey the law under Austins account? Well, to avoid
sanction - since the theory of law, under this account, provides a reliable prediction of what will befall a
person, at the hands of those in charge, if you disobey the law. Not a particularly compelling ground
upon which to build a theory of why we have a duty to obey law. H.L.A. Hart, in A Concept of Law
sought to provide a positivist account of law that at once improved upon that developed by Austin and
destroyed Austins central concept: the command theory of law. A Concept of Law was a step by step
effort to provide an account of the nature of law that i) rejected the notion that laws moral force was
grounded in morality, and having done so, ii) provided an analytic account of the criteria of legality: the
criteria a norm must satisfy in order to count as a legal norm.

AUSTINS COMMAND THEORY OF LAW

John Austin (3 March 1790, Creeting Mill, Suffolk 1 December 1859, Weybridge, Surrey) was a noted
British legal theorist who strongly influenced Anglo-American law by means of his analytical approach
to jurisprudence and his theory of legal positivism. In opposition to traditional natural-law approaches to

law, Austin argued that there are no necessary connections between law and morality. Human legal
systems, he claimed, can and should be studied in an empirical, value-free way.1
Austins 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. 2 The Province also contains a version of
Utilitarianism in which utility is regarded as the index of Gods commands and the test of the moral
quality of general rules of conduct rather than of particular actions.
Austin viewed the doctrines in The Province as merely prefatory to the study that he termed general
jurisprudence: the exposition and analysis of the fundamental notions forming the framework of all
mature legal systems. He devoted the main part of his lectures (published in 1863) to an analysis of such
pervading notions as those of right, duty, persons, status, delict, and sources of law. Austin
distinguished this general, or analytical, jurisprudence from the criticism of legal institutions, which he
called the science of legislation; he thought both were important parts of legal education.
It may be simply stated in his own words:
39. "Every positive law is set, directly or circuitously, by a sovereign individual or body, to a member or
members of the independent political society wherein its author is supreme . The party or parties to
whom a law is set, or the party or parties on whom a duty is laid, are necessarily obnoxious to the
1 https://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)
2 P. J. Fitzgerald, Salmond on Jurisprudence, 12th Ed., Sweet & Maxwell, (1996)

sanction which enforces the law and the duty. It is set by a party armed with might, to a party or parties
to whom that might can reach"3. Austin's first pre-occupation was to differentiate "law" in the juristically
relevant sense from other usages which are not or only indirectly the concern of the jurist. Austin
regarded law as the command of the sovereign; positive law is a general rule of conduct laid down to a
political inferior. A command requires a determinate body or individual to issue it and the threat of an
evil in case it is not obeyed.
Austin realised that "law" in the juristically relevant sense might be confused with
1. Laws of God ("God's law")
2. Rules of Positive Morality ("the moral law")
3. Rules of etiquette, games, etc ("the laws of chess")
4. Empirical Generalizations, the so-called laws of nature and of physics ("the law of gravity"
"McCavity, McCavity, there'e no one like McCavity/ He's broken every human law; He breaks the law
of gravity")
The notion of "command" excludes this last. The law of gravity is not commanded. The idea of
a determinate superior excludes the rules of positive morality and of etiquette; or, where one can point to
a moral rule being posited by a determinate person it is still excluded as not being a command; it does
not involve threat. The so-called laws of God are not positive; they do not issue from a human source.
Positive law is human law; law made by men and women; posited by men and women for men and
women, and not created by God or Nature.
For Austin
40. "Every law is a command". 4 Thus the concept of "command" is the "key to the science of
jurisprudence". As the key concept it must be explained : 36 "A command, then, is a signification of
desire. But a command is distinguished from other significations of desire by this peculiarity: that the
party to whom it is directed is liable to evil from the other, in case he comply not with the desire" 5. This
leads directly to Austin's conception of duty: 41. "Being liable to an evil from you if I comply not with a
3

John Austin, op.cit., p.350

John Austin, op.cit., p.13

John Austin, op.cit., p.14

wish which you signify, I am bound orobliged by your command, or I lie under a duty to obey it" 6.
Command and duty are therefore correlative terms. Thus wherever a duty lies, a command has been
signified;

wherever

command

has

been

signified,

duty

is

imposed.

Indeed,

for

Austin, Command, Duty, and Sanction are inseparable terms 42 "... the evil which will probably be
incurred in case a command be disobeyed or in case a duty be broken is called a sanction". For
Austin, sanctions are necessarily evils and though reward is a motive to action, it is not a sanction.
Advantages of Austin's Conception of Duty:1. Demystification: we are not faced with transcendental entities; or irrefutable intuitions. Duty is not
her logically tied to conscience, or moral sense, or human happiness , or benefit. This conception of duty
is explained solely in terms of facts. This demystification is, of course, highly desirable since the
concept of duty, and of legal duty is frequently surrounded by mystery and obscurity. Yet there may be
other ways of demystifying the concept which do not run counter to the logical gap between "is" and
"ought".
2. Generality: the sanction theory of duty seems to provide a truly general theory of duty. The same
account can be given for legal, moral, and religious duties - the difference merely being in their sources,
i.e. (1) sovereign; (2) men and women, not as political superiors; (3) god. As against which it is by no
means self-evidently true that the various forms of duty can be or must be analysed in terms of one
common, central aspect. It may be that the different forms of duty have nothing in common and that a
general theory of duty therefore distorts.
3. Sanctions: the important connection between duty and sanction is emphasised. However one analyses
"duty", the idea of sanctions is closely related ... there clearly is some relationship between duty and
sanction. None the less it need not be the case that "duty" simply means "the possibility of a sanction".
4 Systemic import: this analysis does provide a basis for the explanation of other fundamental legal
concepts. Thus we start with "command" as the key concept; this relates to "duty" which connects up
with "sanction" and the concept of "punishment". Further duty implies "right", "liberty", "claim",
privilege", "immunity" etc. Thus from the sanction theory of duty flows the whole gamut of fundamental
6

John Austin, op.cit., p.14

legal concepts - what Austin would call the concepts of General Jurisprudence. Thus the conception of
duty adopted by Austin provides a systemic basis for the explanation of legal concepts.
The following points can be made against the identification of duty and the possibility of a sanction:
1. The likelihood of suffering a sanction is not a sufficient condition of an act being a duty. Take the case
of vicarious liability. I can be liable to a sanction without having a duty. If there is a duty in such a case
it has a different content and refers to a different person than the act which is the condition of a sanction.
Thus one person may be liable to a sanction while the duty lies on another (e.g. road hauliers,
publicans).
2. The likelihood of suffering a sanction is not a necessary condition of an act being a duty. Given the
certain knowledge that a man has 24 hours to live, it would follow on this account that he had no duty
not to kill, since there is zero probability of his being visited with an evil for his wrongful killing before
he ceases to exist. Yet one might still want to say that he has a duty not to kill.
3. Further we can conjoin statements about the likelihood of a sanction with statements about the
obligatoriness of the act without any sense of redundancy or tautology:- e.g. "If you steal you are almost
certain to be punished and, furthermore, there is an obligation not to steal. If "almost certain to be
punished" actually meant "there is an obligation" the above statement would be tautologous - a
pleonasm merely adding to the Left Hand Side a Right Hand Side restating in different words that which
has already been said. The type of linguistic redundancy involved is obvious from the following
example: "You had better not start dating him because he is married and, furthermore, he is not a
bachelor" ! This seems to show that "Duty" does not mean "Probability of a sanction"
4 Indeed, to assert an action to be a "duty" is not to assert that anything will probably or certainly happen
in the future. To assert an act to be a duty is to provide a reason for the imposition of a sanction; it is not
to assert that something will occur. "Duty" involves justification, not prediction and "justification"
involves relating behaviour to a rule or norm. The behaviour which is a duty is that which ought to be
according to a rule or norm and not that which will be according to a prediction. This, the most telling
criticism of Austin's concept reveals that duty is a normative concept whereas the imposition of a
sanction is a factual circumstance. But one cannot derive an "ought" from an "is"; or a norm from a fact.

An "ought" cannot have the same meaning as an "is" and therefore "duty" cannot mean the probability
or the actuality of the imposition of an evil
Austin's concept of law rests upon his notion of the sovereign. The sovereign is characterised by two
criteria: the one "negative" and the other, "positive": 43. "If a determinate human superior, not in a habit
of obedience to a like superior, receive habitual obedience from the bulk of a given society, that
determinate superior is sovereign in that society, and the society (including the superior) is a society
political and independent".7 And, again, 44. "... the power of a monarch properly so called or the power
of a sovereign number in its collegiate and sovereign capacity, is incapable of legallimitation".8 And
compare with Tom Paine's remark: 45 "... governments arise either out of the people or over the people.
The English Government is one of those which arose out of a conquest, and not out of society, and
consequently it arose over the people; and though it has been much modified from the opportunity of
circumstances since the time of William the Conqueror, the country has never yet regenerated itself, and
is therefore without a constitution" 9.
The concept of "independent political society" which is closely tied up with sovereignty is an
assumption of Austin's which he does not analyse. Further, the classification of "political superiors" and
"political inferiors" without reference to the law is either metaphysical, relying upon some such idea as
the divine right of some to rule or some notion of "natural rulers"; or it rests upon the idea of power in
its crude physical sense. For Austin law is the command either of a specially qualified group or
individual; qualified by virtue of metaphysical factors, or by crude power. This seems highly antidemocratic; it seems that Austin's account is elitist or is the voice of power; the command of a gang of
robbers which many might think of as the very negation of law. 46 "The right of a Parliament is only a
right in trust, a right by delegation, and that but from a very small part of the Nation; and one of its
Houses has not even this. But the right of the Nation is an original right ..."10
7

John Austin, op.cit., p.194

John Austin, op.cit., p.254

Rights of Man, p 94

10

Paine, op cit p 142

Criticism
The idea that a law is not a command backed by force that such an assertion is hopelessly crude and
antiquated dates back at least to the late 1800s, having gathered momentum in subsequent decades It
reached hegemonic status, however, with the postwar writings of Herbert Lionel Adolphus Hart of the
University of Oxford, perhaps the most prominent legal philosopher of the last half of the last century.
Hart rejected the views of earlier philosophers such as Jeremy Bentham and John Austin. Bentham,
writing in the 1770s, had been concerned to bring clarity to the mist-enshrouded world of natural law
and arbitrary taxonomy that had descended from the Middle Ages to William Blackstone, Benthams
conventionally authoritative contemporary. Bentham argued that no one can be under a legal obligation
without the threat of punishment. Indeed that threat is, he said, what constitutes obligation and
therefore wrong is synonymous with punishable. Bentham declared, furthermore, that to be
authoritative a decree must come from the sovereign. Austin, fifty years later, sought more carefully
and exhaustively to enumerate essentially the same point of view as Benthams. Austin said Every law
is a direct or circuitous command; and every command imposes an obligation . What does it mean for
a person to be under an obligation? It means, said Austin, to be liable to the evil of a sanction which
he wants to avoid. This is what is meant by obligation.A sanction is a conditional evil which he will
incur if he violates the obligation. Moreover either directly or remotely, the sovereign, or supreme
legislator, is the author of all law, and all laws are derived from the same source.
There it was: Law is a form of command, direct or indirect, from a sovereign to its subjects, backed by
the threat of evil. According to Austin all laws can be understood this way, even laws that dont seem
to take the form of commands. Rights, for example, are to be understood as a subset of this same
overall scheme: To say someone has a legal right is to say the sovereign has commanded everyone
else to permit that right to be exercised
Thus lancien rgime of legal philosophy, which seems to have predominated, not without challenge, for
something over 100 years, until around the time Hart found himself in full-throated disagreement with
all these views of things. Although various writers had by then questioned whether coercion6was

really an essential element of law, Harts restatement, extension and promotion of these arguments
were regarded by his peers as having settled the matter once and for all.
The command theory, viewed as an effort to identify even the quintessence of law, let alone the
quintessence of morals, seems breathtaking in its simplicity and quite inadequate. There is much, even in
the simplest legal system, that is distorted if presented as a command.
The situation which the simple trilogy of command, sanction, and sovereign avails to describe, if you
take these notions at all precisely, is like that of a gunman saying to his victim, Give me your money or
your life. The only difference is that in the case of a legal system the gunman says it to a large number
of people who are accustomed to the racket and habitually surrender to it. Law surely is not the gunman
situation writ large, and legal order is surely not to be thus simply identified with compulsion.
This scheme, despite the points of obvious analogy between a statute and a command, omits some of the
most characteristic elements of law.. It is wrong to think of a legislature (and a fortiori an electorate)
with a changing membership, as a group of persons habitually obeyed.Even if we waive this point,
nothing which legislatures do makes law unless they comply with fundamental accepted rules specifying
the essential lawmaking procedures.These fundamental accepted rules specifying what the legislature
must do to legislate are not commands.
Harts Criticism
Austin defined the law as the command of the sovereign, backed up by sanctions. The three crucial
components of this definition are the words command, sanction andsovereign. This essay will analyze,
in turn, the scope and meaning of each of these terms, as envisioned by Austin, and Harts criticism of
each

of

these

conceptions.

Austin believed that law is a species of command. He further defined a command as an intimation or
expression of a wish to do or forbear from doing something, backed up by the power to do harm to the
actor in case he disobeys. Furthermore, the person to whom the command is given is under a "duty" to
obey

it,

and

the

threatened

harm

is

defined

as

"sanction."

According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain
modern legal systems. Modern legal systems have laws governing the formation and implementation of
contracts, of wills, marriages and other executory instruments. Hart calls these types of laws power

conferring rules, and argues that they are less in the nature of orders backed by threats, and more in the
nature of rules creating a framework within which individuals can define the scope and limit of their
rights,

obligations

and

liabilities.

Hart also considers another variety of laws, laws which define the scope and limitations of judicial and
legislative power, laws which confer jurisdiction upon courts and govern the functioning of
governmental institutions. He argues that it is impossible to view these laws as mere orders backed by
threats

either.

Attempts, however, have been made to assimilate power-conferring rules within the broad ambit of
orders backed by threats. According to the first of these theories, the nullity that is a consequence of not
complying with the framework established by power-conferring rules is the Austininan sanction.
However, Hart argues that the two are fundamentally different in nature: in a criminal statute, which is
more in the nature of an order backed up by threats, the sanction is necessarily consequent upon the
forbidden action (it is possible, for instance, to conceive of an order that prohibits something without
imposing a sanction); however, in the case of power-conferring rules, the provision for nullity is part of
the rule itself. For instance, it would be impossible to conceive of the provisions that govern how to
make a valid will without conceiving that the will cannot exist without these provisions. Hart has a
number of subsidiary objections as well, such as nullity not always being a source of evil (for instance,
to

the

judge

who

rules

without

jurisdiction).

A second theory argues that power-conferring rules are not genuine laws. This theory views as all laws
as directions to officials to apply sanctions in case of non-compliance. A power-conferring rule,
therefore, would be viewed as a direction to the requisite official not to confer validity upon a particular
transaction if the rules of procedure are not adhered to. Hart argues, however, that such a theory achieves
uniformity at the high price of distorting the true nature of laws. For instance, the point of criminal law
is to establish certain standards of behaviour, which the citizens are expected to conform to. Sanctions
are there only as ancillary measures in case the system breaks down. It is therefore misleading to
consider criminal law as directions to officials to apply sanctions. The same logic applies to powerconferring

rules

as

well.

The second basic objection Hart has to Austin is regarding the range of application of laws. As Hart
points out, the word command implies a top-down stable hierarchy of men, with rules being purely
other-regarding. However, this is not true in modern legal systems, as legislations often have a selfbinding force. In an attempt to respond to this, it has been argued that a legislator has two personalities:
his legislative personality, which gives the command, and his ordinary personality, as a citizen, which is
bound to obey. However, Hart argues that such a complicated device is unnecessary to explain the selfbinding nature of legislation. A legislation can be viewed as a promise, which creates obligations upon
the promisor. And in any event, much of legislation is done under the ambit of pre-existing rules of
procedure,

which

bind

the

legislators.

Harts third objection to Austin is with regard to laws such as customary laws, whose mode or origin
excludes them from being treated as commands. To this, it has been argued that the validity of customs
depends upon tacit acceptance by the sovereign; that is, if Courts are implementing customary law, and
the legislature does not repeal such laws, then this might be said to be an implied command that
customary law is to be followed. However, Hart argues that absence of objection does not mean implied
consent. It could equally well mean a lack of knowledge, or a lack of awareness, or numerous other
reasons.
On the three grounds of content of laws, range of application, and mode of origin, Hart rejects the idea
that

law

is

merely

an

amalgamation

of

coercive

orders

backed

up

by

threats.

The third important prong of the Austinian definition is the term sovereign. Austin defines a sovereign
as someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of
obedience to anyone. Harts criticism is directed both at the idea of habitual obedience, and at the
idea

that

the

sovereign

is

an

uncommanded

commander

of

the

society.

Hart argues that habitual obedience, which is merely convergence of behaviour, is inadequate to explain
the continuity of laws. Mere habits of obedience to orders given by one legislator cannot confer on the
next legislator any right to succeed the old, or to give orders in his place. Why is the law made by the
successor to legislative office already law before even he has received habitual obedience? To answer
this question, it becomes essential to distinguish between a habit and a rule. Rules require not only

convergence of behaviour, but also convergence of attitude. That is to say, rules are viewed as standards
of

behaviour,

where

deviance

is

considered

as

meriting

criticism.

Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law made by an
earlier legislator, long dead, still be law for a society that cannot be said to habitually obey him? Once
again, this requires us to replace the notion of habits of obedience with a concept of rules that delineate
rights

of

succession.

Harts final objection to Austin is that the sovereign does not possess, as Austin believed, a legally
untrammeled will. Most modern legal systems have legal limitations upon the power of the sovereign
(and this is not inconsistent with his supremacy within the legal system as the highest known legislative
authority). Recognizing such a problem, Austin had argued that in democracies, it was the electorate that
formed the sovereign. However, according to Hart this leads to the absurd conclusion of the bulk of
the society habitually obeys itself. It may be argued that legislators make rules in their official capacity,
rules which then apply to them in their personal capacity. However, the very notion of official capacity
presupposes the existence of rules that confer such official capacity. This, therefore, is again
incompatible

with

the

Austinian

idea

of

sovereignty.

On all these grounds, therefore, Hart rejects Austins command theory of law as sufficient to explain
the legal systems of modern societies.
Conclusion
We argued that Harts objection to Austin is not that one cannot derive legal obligations from habits of
obedience; rather it is that there is nothing in Austins account of law that could explain the
appropriateness of the language of obligation or the role it plays in legal discourse and our thinking
about the role of law in our lives. On the other hand if law is conceived of in terms of rules and the
internal point of view, the first person perspective in legal practice becomes intelligible, for those who
adopt rules from an internal point of view treat the behavior mandated by rules as normatively
significant in their lives and the lives of others. The evidence for that is in the behavior that displays the
internal point of view, namely, the role of the rules in the explanation of compliance and the criticisms of

noncompliance. The internal point of view is not the justification of either as critics of Hart implicitly at
least take him to be claiming.
REFERENCE:

Wikipedia.com
http://hubpages.com/education/John-Austins-Theory-of-Law
http://www.blackwellreference.com/public/tocnode?

id=g9781405106795_chunk_g97814051067954_ss1-113
http://peenef2.republika.pl/angielski/hasla/a/austin-john.html