2018 RESIT

9. ‘However we may wish to think that we live in conditions of rule of law, we live in
fact in a world that is vulnerable to virtually unlimited executive power. In other
words, Bentham and Austin were right all along.’
Discuss.

2018 A/B QUESTION 8

‘Bentham’s and Austin’s theory was exactly right where Hart thought it failed,
namely in its search for the coercive dimension accompanying any law.’
Discuss.
General remarks
The question involves a statement and a ‘discuss’ element. Students needed to set
out a clear approach to answering the question in their introduction and to follow
that throughout in a coherent well-argued manner. This involved setting out
arguments for and against the proposition that coercion is at the heart of any law.
Bentham and Austin are the primary sources here. However, Hart’s criticisms need
to be addressed, as well as broader issues of coercion and power and the lineage
from Hobbes and more recent literature, for example, that of Schauer. A clear focus
on law’s coercive dimension was required.
Law cases, reports and other references the examiners would expect you to use
Chapter 3 on Imperative or command theories of law in the module guide,
especially Austin’s own work and Hart’s criticisms in The concept of law referred to
in Chapter 5 of the guide.
Common errors
Common errors were to demonstrate insufficient focus on the specific question and
‘coercion’, which led to a general description and analysis of Austin’s theory, rarely
anything about Bentham, in an over-generalised and descriptive way.
A good answer to this question would…
be well written and clearly structured, focusing on the question. That is, does any
theory of law depend on a notion of coercion, particularly perhaps as experienced
by those beyond the legal community? Analysis is required of the nature of Austin’s
command, and the imperative theory of law; exploring the generation of legal
obligation, ‘fear’ of the consequences for disobedience and the issue of sanctions.
Some answers linked Austin to Hobbes and drew on Cotterrell’s sympathetic
reading of Austin in light of Hart’s critique. Some analysed Hart’s critique of Austin
with his focus on Austin’s theory as connecting to ‘duty-imposing rules’ but not
dealing with law beyond criminal law. Some discussion of the difference between
fines and taxes was evident in some good answers. Any more generalized discussion of law’s
coercive power – especially in terms of how Hart’s theory may
arguably not take it into account enough would also be welcomed.
Poor answers to this question…
outlined Austin’s theory in very general terms and or as described by Hart and did
not engage with the aspect of the question requiring a strong and in-depth
assessment of law’s coercive element.

2017 R10
10. ‘Austin’s theory of law has been mischaracterized by Hart. It is more than the
‘gunman writ large’ and offers a clear and useful view of the role law plays in our
society.’
Discuss with particular reference to Austin’s theory.

2017 B QUESTION 10
‘Coercion is at the heart of law, especially as experienced by the citizen.
Austin saw this better than anyone.’
Discuss.
General remarks
Many students answered this question. It is a straightforward question on the
importance of coercion for legal theory. Students needed to address this through
the work of Austin. However, it was good to see many answers moving from there
to raise broader issues and more recent literature, for example, that of Schauer. It
was expected that students addressed and focused on the command aspect of
Austin’s theory, in particular addressing the viability of Austin’s theory of contract
and also how Hart criticises it. A clear focus on law’s coercive power was required.
Law cases, reports and other references the examiners would expect you to use
Chapter 3 of the module guide, especially Austin’s own work and Hart’s criticisms in
The concept of law referred to in Chapter 5 of the guide.
Common errors
A common error was to demonstrate insufficient focus on the specific question,
which led to a general description and analysis of Austin’s theory, over-generalising
and sounding somewhat mechanical.
A good answer to this question would…
discuss the nature of Austin’s command and the imperative theory of law; exploring
the generation of legal obligation, ‘fear’ of the consequences for disobedience and
the issue of sanctions. Some answers linked Austin to Hobbes and drew on
Cotterrell’s sympathetic reading of Austin in light of Hart’s critique. Some analysed
Hart’s critique of Austin with his focus on Austin’s theory as connecting to ‘dutyimposing
rules’ but not dealing with law beyond criminal law. Some discussion of
the difference between fines and taxes was evident in some good answers. Good
answers were well written and clearly structured with a clear focus on the question.
That is, is coercion at the heart of the law and is this especially ‘as experienced by
the citizen’? Evident engagement and exposition of the theories and materials were
rewarded with some high marks being given for answers to this question. A more
general discussion of law’s coercive power – especially in terms of how Hart’s
theory arguably does not take it seriously enough would also be well received,
drawing on other materials and subtle reflective arguments.
Poor answers to this question…
outlined Austin’s theory in very general terms and/or as described by Hart and did
not engage with the aspect of the question requiring an analysis of coercion being
at the heart of law.

Student extract
Hart tries to note the difference between being obliged to follow, and being
under an obligation to follow. The first consists of some element of coercion
and the latter is a voluntary obligation to follow the law. Hart goes on to use
the gunman example, where a banker hands over all the cash in fear of
safety for his life. However, Hart makes a mistake here as the sovereign who
commands according to Austin has authority to do so whereas a gunman
does not. Furthermore, how do we even prove that a person voluntarily
follows the law.
Austin’s contradiction then can be explained if a different perspective is
taken. Where sanctions causes [sic] fear to citizens, they tend to follow the
law out of their fear, but this then eventually becomes a habit, and it turns into
habitual obedience towards the commands of the sovereign.
In my opinion, a habit is not something that is followed out of fear. I do not
start a habit…out of fear. But rather, it is a habit I have…I also think that there
are many other reasons why people follow the law, and we should not
stereotype fear as the sole reason. For example…

Comments on extract
A mark of mid- to high 70s was given by both examiners for this essay. As this short
extract from a clearly written and coherently structured answer shows, information
is conveyed of the student’s knowledge, s/he provides analysis, critique and a
position on issues relevant to and focused on the question asked.

2017 A QUESTION 9
‘Austin’s theory has often been misunderstood. It is certainly not as crude as
Hart makes it out to be. Indeed, it is the best account we have of the
relationship between law and power’.

Discuss.
General remarks
Many students answered this question. The question lends itself to discuss and
evaluate Hart’s critique of Austin. This would involve both the command and the
sovereign aspect, although it would have been fine for students to focus on one or
the other, with clear indications of their approach in their introductions. A clear focus
on law and power’s relationship was required.
Law cases, reports and other references the examiners would expect you to use
Chapter 3 of the module guide, especially Austin’s own work and Hart’s criticisms in
The concept of law referred to in Chapter 5 of the guide.
Common errors
A common error was to demonstrate insufficient focus on the specific question,
which led to a general description and analysis of Austin’s theory, over-generalising
and sounding somewhat mechanical.
A good answer to this question would…
discuss the nature of command, and the imperative theory of law; exploring the
generation of legal obligation, ‘fear’ of the consequences for disobedience and the
issue of sanctions. Some answers linked Austin to Hobbes and drew on Cotterrell’s
sympathetic reading of Austin in light of Hart’s critique. An awareness of the debate
about legal limitations on power and whether Austin’s theory allows it was
welcomed. A more general discussion of law and power – especially in terms of
how Hart’s theory arguably does not take it seriously enough would also be well
received, although a clear and critical exposition of Austin and Hart’s critique of him
needed to be evident.
Poor answers to this question…
outlined Austin’s theory as described by Hart and did not engage with the aspect of
the question requiring an analysis of power and law.

2016 R4
4. ‘Recent work defending the central place of coercion in law (by Schauer)
vindicates Austin’s theory of law. We cannot build a theory of law as if it wasn’t
coercive.’
Discuss.

2016 AB QUESTION 4
‘More often than not, law is indeed like the gunman situation writ large. Legal
theory ought to take more seriously the idea that persons are mostly
subjected to laws they do not know, understand or like.’
Discuss.
General remarks
The question makes an allusion mainly (but not exclusively) to Austin’s
jurisprudence and his argument that law necessarily entails coercion expressed as
the threat of sanctions. The question can be broken down as follows: can coercion
confer normative force to a command? Did Austin really argue that law’s normativity
boils down to the threat of sanctions? Is the threat of sanctions necessary in a
different way?
Law cases, reports and other references the examiners would expect you to
use
Good knowledge of Austin was essential. Hart’s critique of Austin in The concept of
law (mainly Chapter 3) was also central. Defences of Austin such as the ones
advanced by Schauer and Cotterrell would have been more than welcome.
Common errors
Many candidates misread the question as an invitation to write everything they
knew about Austin’s jurisprudence. For example, discussing the features and
function of the sovereign would have been redundant in this context unless it was
linked to the question of sanctions (one might, for example argue that Austin never
said that sanctions alone account for law’s existence and normative force but in
combination with the habit of obedience to the sovereign issuing commands backed
by sanctions).
A good answer to this question would…
discuss the imperative theory of law; explore whether the threat of a harm can
generate an obligation; ask whether Austin really reduced law’s normativity to the
threat of sanctions according to the best interpretation of his theory; ask whether
sanctions are necessary in legal systems anyway (for example, in order to provide a
prudential reason to motivate people to abide by law). Excellent scripts would
compare Kelsen’s account of sanctions in law to Austin’s. Linking Austin to Hobbes
would have been rewarded.
Poor answers to this question…
would simply outline the basics of Austin’s jurisprudence without addressing the
question and without making an attempt at discussing it critically.
Student extract
The gunman situation is often used to illustrate Hart’s criticism of Austin, who
represents a more classical branch of positivism. Austin’s view is that
following the law can be described as citizens habitually obey commands
issued by the sovereign. Laws are a form of command issues by the
sovereign which citizens habitually obey. This is analogous to the gunman
situation in which the gunman gives command to a person backed up by the
threat of violence (i.e. pointing a gun towards that person) the person then
obeys the command of the gunman in fear of violence (i.e. being shot). The
gunman situation is in turn used as an analogy for the enforcement of law. If according to the law,
in fear of such sanctions, the citizen hence obey the
law. The analogy of law enforcement to the gunman situation may seem apt
on the face of matters, however, it is a rather narrow description of how the
law is being followed by citizens and mistakes a rule for a command.

Comments on extract
The extract identifies the crux of the issue: that, according to Austin, there is a link
between law’s existence and the imposition of sanctions. However, the extract
remains on the surface. First of all, it is very repetitive. Notice how many times the
same point is reiterated almost verbatim. Secondly, it lacks sophistication. Although
it mentions the habit of obedience to the sovereign, it fails to discuss whether this
means that Austin never saw sanctions alone as constitutive of law (and therefore
whether Hart’s critique is unfair). Thirdly, it does not spell out that it is law’s validity
and normativity that ostensibly depend on the prescription of sanctions. Fourthly, it
does not discuss why one might think that law’s validity depends on sanctions (for
example, as providing prudential reasons to law’s addressees to follow the law).

2015 A QUESTION 4
‘Law does not just tell us what to do. It also helps us to plan out our lives. Ultimately,
Austin’s theory is blind to this function of law.’
Discuss.

General remarks
There is some overlap between this question and Question 2 but it is not such as to justify
reiterating an identical answer. The best interpretation of the question here is as referring to
Austin’s failure to consider the facilitative function of the law.
Law cases, reports and other references the examiners would expect you to use
The most obvious way of tackling the question is by employing Hart’s criticism of Austin.
However, one could be more imaginative and approach the question from the perspective of the
rule of law and use Fuller, for example, to that effect.
Common errors
Some candidates took the question to be an invitation to discuss Austin’s over-reliance on
sanctions in his conceptualisation of law. This is part of the point but not the whole picture.
A good answer to this question would…
This question focuses on whether Austin’s account can accommodate power-conferring, enabling
rules – especially those of the private variety (as in contract and wills) but also public secondary
rules. Candidates are expected to recall Hart’s criticisms of Austin. Good answers would clearly
outline the idea of nullity as sanction, and show how it might apply to certain examples, such as
contract, marriage and wills. More broadly, answers could also discuss the difference in practical
reason between a command backed up by a sanction and a rule.
Poor answers to this question…
regurgitated model answers on Hart on Austin and coercion without focusing on the question
specifically.

2015 A QUESTION 4
‘Austin’s biggest mistake was that he failed to consider that there must be something
other than the threat of sanctions that explains why people are under an obligation to
follow the law.’
Discuss.
General remarks
Famously, John Austin explained the law in terms of commands backed by the threat of
sanctions and the provenance of these commands from the sovereign coupled with the habit
of obedience on the part of law’s subjects. The question calls for a critical assessment of
this definition of law with special focus on the requirements of sanctions and the habit of
obedience.

Law cases, reports and other references the examiners would expect you to use
Apart from Austin, Hart’s critique in The concept of law is directly relevant. Cotterrell could be
employed in Austin’s defence. A more sophisticated critique would go further than Hart to discuss
accounts of law, which hold that the law can only generate true obligations, if what it requires of
its subjects is morally justifiable.
Common errors
Missing the point of the question and focusing too much on the errors of Austin’s theory of
sovereignty as the source of law rather than concentrating on the sense of obligation that every
legal theory must be able to account for.
A good answer to this question would…
first, give an outline of the place of coercion in Austin’s jurisprudence as well as discuss whether
the idea of the habit of obedience tempers Austin’s seeming conceptual over-reliance on
sanctions. A discussion of Hart’s critique of law-as-coercion would indicate some preparation but
it would not be sufficient for a good mark. Deeper references to Hart’s ‘ordinary language’ method
would be rewarded. Excellent answers would try to defend Austin (perhaps using Cotterrell) either
on the grounds that he was describing law as it appeared at the time or that sanctions may be a
conceptual corollary of heteronomous normative orders but not a necessary condition of law.
Some candidates plausibly linked Austin to Hobbes, which was rewarded.
Poor answers to this question…
gave a rough outline of the basics of Austin’s jurisprudence without highlighting the specific
problems raised by his reliance on coercion and the attitude of law’s subjects in terms of a
habit.

2014 B QUESTION 8
‘If one does not believe that there is such a thing as objective morality, then
the only legal theory one can accept is the command theory of law.’
Discuss.
General remarks
This is a slightly more challenging question. It requires candidates to consider what
the ramifications of the rejection of objectivism about morality are for one’s theory of
law. If we accept that there can be no objective moral order, which binds everyone
in the same way, and that morality is subjective, how may it be possible to have a
system of norms binding for everyone? Is coercion the only answer?
Law cases, reports and other references the Examiners would expect you to
use
The question tacitly refers to Bentham’s and Austin’s accounts of law. If a candidate
decided to disagree with the statement in the question, then one could employ
Finnis (or perhaps Dworkin) to argue for an objective account of morality. Or one
could both agree with the rejection of objectivism and disagree that the only
alternative is coercion by referring to a social contractarian conception of the state
and law.
Common errors
Many candidates misunderstood the question as an invitation simply to give an
exposition of Austin’s jurisprudence and Hart’s criticisms.
A good answer to this question would…
go beneath the surface to ask whether the command theory goes hand in hand with
moral scepticism as well as whether the latter necessitates something like the
command theory. Excellent answers would make the connection to Hobbes. They might also ask
whether the command theory is complete or whether it must offer
some other ground for law’s authority. In making this argument they might discuss
coercion (as opposed to moral obligation) as the ground of legal normativity.
Poor answers to this question…
would only provide outlines of Bentham/Austin.
Student extract
The rule of law as set out by A.V.Dicey has clearly laid out in its second rule
that no one person, which would in turn imply the sovereign him/herself too,
is above the law. All living beings within the dominion of the United
Kingdom shall be subordinate to the word of law. Thus in this regard
Austin’s theory ignores perhaps a fundamental rule in terms of a
democracy. Therefore unlike perhaps the theory of Kelsen (Pure Theory of
Law) there is no universal application of the command theory.
Comment on extract
The basic error in this extract, as well as the rest of the answer, is that it is pitched
only as an exposition of Austin and the illimitability of the sovereign. The answer
misses a great opportunity to discuss alternatives to objective morality as the
foundation of legal obligation, such as democratic self-rule or some other form of
social contract. It is precisely this that the question called for. The answer received
a third class mark.

2014 A QUESTION 4
‘John Austin’s command theory of law fails mainly because it relies on a
misunderstanding of the nature of sovereignty.’
Discuss.
General remarks
A great deal can be said about Austinian jurisprudence but the question is very
specific. It calls for a discussion of Austin’s account of sovereignty, its relation to the
concept of law and the ramifications that a misunderstanding of the former will have
for the latter.
Law cases, reports and other references the Examiners would expect you to
use
Knowledge and understanding of Austin’s theory of law would be the minimum
requirement. Hart’s critique of Austin is also essential. Reference to Cotterrell’s
defence of Austin would make for a very good answer.
Common errors
As in most questions, a very large number of candidates simply listed the building
blocks of Austin’s jurisprudence and made some reference to Hart’s criticism
without addressing the question specifically. Many answers also displayed some
confusion over how Austin’s conditions of existence of law relate to each other.
A good answer to this question would…
provide an outline of how Austin thought of sovereignty and its characteristics
(illimitability, etc.). Excellent answers would also explain why he was eager to
reduce the law to something empirically identifiable with those characteristics. Good
answers would then single out the empirical (e.g. continuity of law) and conceptual
(e.g. the legal character of the sovereign) problems with Austin’s account of the
sovereign (with some help from Hart). Good answers would recognise that the
question points to an often-neglected aspect of Austin’s theory of sovereignty: that
there are two ways of considering it (collectively and severally). The key point is that
Austin specifically allows for the legal limitation of the sovereign considered
severally (e.g. the king as a limb of parliament is punishable by an act of parliament,
in the event of his transgressing the limits which the constitution has set to his
authority). Good answers would explain the basic features of Austin’s theory of
sovereignty, including the different (non-legal) ways in which Austin thought it could
be limited. Very good answers would note that Austin’s view of constitutional law –
whether it is positive morality only, or a mix of positive morality and positive law –
depends precisely on the type of government in place. Where the supreme
government is a monarchy or government of one, constitutional law (as against that
government) is inevitably nothing more than positive morality. Where the supreme
government is an aristocracy or government of a number, constitutional law (as
against the members of that government) may either consist of positive morality, or