Failure of Austin’s Command Theory-II
John Austin’s theory does not fail simply and solely because it has been mischaracterized by Prof. HLA Hart (a British legal philosopher, and a major figure in political and legal philosophy) as ‘gunman writ large’. Rather it, additionally, fails because it does not convincingly explain legal obligation, the modern characteristics of legal systems such as continuity of law and persistence of law, sovereignty, constitutionalism and varieties of law. Besides, it does not offer a complete account of the necessary conditions of a legal system. Against such background, it is argued that Austin’s command theory of law plays a reductionist role in our society.
Austin and legal obligation
Austin was an arched legal positivist. As an analytical thinker, he was concerned with setting out the purview of jurisprudence and obviating it from impurities that common law had injected into law. To achieve this, he formulated a governmental view of law; one that was a top-down model and was about might is might; as opposed to might is right. This made law an expression of power with no business with modern-day postulates like separation of powers and the rule of law.
The main elements of the command theory are: command, sanction, habitual obedience and illimitable sovereign. The outcome of this is vertical governance.
For Austin, command is an expression of power coupled with a threat of sanction. Command and duty are correlative ideas, that is, where a command is found, a duty is presumed, and vice versa. But a command is incomplete without the power to inflict sanction. Against such a background, legal obligation is an amalgamation of two elements:
1) ability of the sovereign to impose sanction; and
2) a belief that sanction will ensue in case of disobedience.
This type of normativity of law is unconvincing as it has, prima facie, resemblance with gunman writ large. This is because citizens have many varying motivations for obeying law. Some obey law for fear of punishment; others because it makes them feel good about themselves. In fact, in modern structures, compliance is a matter of the legitimacy of laws. Citizens follow laws for three main reasons:
1) they are convinced that the laws are legitimate;
2) they have reasons for compliance with laws; and
3) they believe that non-compliance will attract criticism for the right reasons.
In fact, a better view is that citizens follow laws when they know that the lawmaker is de jure authority, and that they are better off following the laws than defying them. My own conviction for following laws of my own country comes from the fact that they are made by democratically elected people whose expertise in deciding the standards of appropriateness is far better than that of my own. I employ the example of Muslim Family Law Ordinance, 1961, to explain my point. Under section 7 of the Ordinance, a divorce is invalid if it is unregistered. As a Sunni Muslim, I feel a divorce is valid even if it is not registered. Nonetheless, I feel obliged to obey this law because it was passed by Majlis-e-Shura (parliament) keeping in mind the problems arising from non-registration such as denial of divorce and false charge of zina on the spouse.
Austin, continuity and persistence of law
Besides, his other failure is unsatisfactory explanation of the continuity and persistence of law. This is explained by Prof. Hart through his popular example of Rex. The point he makes is valid. When Rex is replaced by Rex 1, the latter cannot be said to receive obedience from the bulk for his first command since habit formation is a time-taking activity. Till such a habit is formed, there is interregnum in Rex 1’s reign. Roger Cotterrell contends that this is no problem as the obedience is to the office, and not to the office-holder. This looks convincing in the light of ‘the Crown never dies.’ However, the limitation here is that succession to the office is determined by law as is apparent from the Act of Settlement, 1700. This makes the successor sovereign subject to law which compromises the illimitability of the Austinian sovereign. To call the qualification of British sovereign to be a protestant a non-legal requirement is to deny the existence of Constitutional monarchy in the United Kingdom.
Austin and sovereignty
Additionally, the persistence of law is explained through Hobbesian idea of sovereignty ‘that the sovereign is not he who first made law but he who let it continue as law.’ On this account, the European Union Withdrawal Act, 2018, is law by virtue of the future parliament not repealing it. This is a confusing way of explaining things. The Withdrawal Act was made by the Conservative Party and if tomorrow the Labour Party takes in office and decides not to repeal it, it would be said that the Withdrawal Act has persisted. The problem here is that the British citizens had given obedience to Conservative Party, and not to the Labour Party. Saying that the Labour Party is the sovereign for the Withdrawal Act is to state that Labour Party and Conservative Party are one and the same by reason of their office. This is not the true spirit of fair and free elections. The electoral process is a party-based, and not office-based, system. Thus who sits in the office matters more than ever and commentators are wrong to assume that the obedience is to the office, and not to the person.
Moreover, Austin’s explanation of the sovereign as a person or group of persons that is in a habit of having obedience from others and not offering the same to any other body or persons is untenable. I am convinced because in the British constitution, the ministers have Henry VIII powers under which changes to the primary laws can be made. These bind the Queen in Parliament. Thus the Queen in Parliament is in a habit of accepting changes to primary legislation through delegated legislation. Some might argue that this acceptance is a result of primary legislation itself. The problem is it binds the sovereign to legal limitations even if self-imposed. For Austin, the sovereign was legally illimitable; hence, free from self-imposed legal limitations.
Austin and constitutionalism
Much more than this, Austin’s greatest mistake is his illimitable sovereign and the categorization of constitutional law as positive morality. Modren legal systems are full of examples where constitutional limitations serve to control the sovereign power. In an uncodified country, like the United Kingdom, there are systems of checks and balances to ensure that sovereign is under the law. Two examples come to mind, here. One is the Court’s refusal in Evans case to allow Attorney General to use statutory non-disclosure certificate as a wheel to override Court’s ruling. The other is Miller (No. 2) under which Prime Minister Boris Johnson’s decision to prorogue Parliament for five weeks without proper justification was held unlawful. It is great wonder how Austin would respond to these checks and balances.
Austin and varieties of law
His other failure is his reductionist view of law as positive law with close affinity with the criminal law. This makes people think that law is a coercive order in the hands of the powerful with no system of checks on abuse of power. With the growing legal accountability of the powerful, it is difficult to accept that the sovereign is legally illimitable. For the Crown to think that it can make new prerogatives, ignore court orders under Crown Immunity, dissolve parliament against Fixed Term Act 2011, claim that decisions taken under Order in Council are non-justiciable or that the legality of these Orders is non-reviewable are mistaken ideas. These limitations give people hope against the misuse of power and convince them that legal obligation is not motivated by force alone; other factors such as accountability of the powerful also motivate their compliance. Therefore, a modern legal system is not based on force and obedience model; rather it is based on validity of secondary rules and effectiveness of primary rules of obligation.
In the light of the foregoing discussion, it is argued that Prof. Hart had not been mistaken in categorizing Austin’s theory as ‘gunman writ large’. In fact, with the sovereign command-sanction model, it cannot offer a fuller account of how modern systems work under constitutionalism.
The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be contacted at: email@example.com