The Failure of John Austin’s
Command Theory of Law
Austin’s command theory, being a reductionist view of law, fails on multifarious grounds. In addition to illimitability of the sovereign, it fails to explain the essentials of a legal system such as effectiveness of primary rules and validity of secondary rules. For this reason, Prof. Hart is justified to suggest that ‘a fresh start’ is required to fix this theory.
Command theory of law confines to positive law alone and categorizes other laws, such as international, constitutional and fashion, as positive morality. Positive law being the wish of the illimitable sovereign backed up by sanction obliges the political inferiors to obedience. This way of going about law narrows it down to gunman situation writ large. It compels people into obedience and makes law a coercive order. There is no denying that criminal laws – and in some cases tort laws – are coercive but this does not happen without a system of checks and balances. In our own country, for example, there is a whole body of law – Pakistan Penal Code, 1860 – based on criminal law model but there are constitutional protections in the Constitution of Pakistan, 1973, to guard against abuse of power. For instance, Article 4 is dedicated to protection of rule of law and Article 10 to fair trial. With the help of these, the accused such as Asia Bibi and Wajih-ul-Hassan were found innocent. Since Austin does not account for constitutional limitations, he is pushed to call Articles 4 and 10 positive moralities.
However, Austin fails to explain the normativity of law besides force. That is, he fails to tell what motivates people to follow law other than coercion. You might wonder why it is important to explain other motivations. Why does it matter? It matters because in the absence of other motivations, it makes law like the order of the gunman. It blurs the distinction between the legitimate demand of the law and the illegitimate demand of a robber. Imagine a stranger stopping you at gunpoint and searching your car. Now imagine a police officer, along with his men, with arrest warrants, searching your house. How do you feel? Do you feel the same or different in the two situations? The common response in the former is to feel you have been hard done by. In the latter situation, you feel different. This difference comes from your knowing of the legitimate police power of house searching. You feel they are justified to enter your house. You are assured that the search was done under legal authorization and you had an obligation to let them in. It is exactly this sense of legality and authority or lawfulness that is missing from Austin’s model. Contrary to his assertion, citizens obey laws because they are motivated that there is a legal duty to comply arising from lawfulness of the legal system.
Austin’s second failure is assimilating criminal and civil laws. To say that sanction is characteristic of both is to mix up the independent functions of these two laws. Criminal laws are sanction-oriented. Civil laws as facilities are nullity-oriented. Since, on this logic, nullity cannot amount to a sanction, the Austinian sovereign is without a power to inflict evil in case of disobedience.
The third failure is inadequate explanation of the continuity and persistence of legal systems. In modern legal systems, interregnum is filled up with laws like Act of Settlement, 1700, and persistence is maintained through self-embracing sovereignty.
Austin’s fourth failure is defining force and obedience as the prerequisites of legal systems. When, in fact, modern legal systems are based on citizens’ acceptance of laws and officials’ critical reflective attitude of these laws.
Austin’s flawed sovereignty
Austin defines sovereign as a person – or a group of persons – in a habit of receiving obedience from the bulk of the society and himself not offering the same to anybody or person. Taking his inspiration from Thomas Hobbes, Austin further argues, sovereign is not he who first made the law but he who lets it continue as law. This pushes him to argue that sovereignty, limited by its own terms, is a flat contradiction. In sum, we are left with an illimitable sovereign enjoying continuing sovereignty. We see protection of this type of sovereignty when it is said that constitutional statutes can only be expressly repealed and when procedural and substantive entrenchment provisions are overlooked by successive parliaments. Also when inclusion of referendums in Acts like Scottish Independence Referendum Act, 2013, and European Union Referendum Act, 2015, are said not to legally bind future parliaments but restrain them politically. This type of sovereignty, however, fails to tell us the status of constitutional restrictions such as those found in the US Constitution. By virtue of Article V, the US Congress is bound to make constitutional amendments through super-majority. This requirement cannot legally be ignored by the Congress. This ensures that a different type of sovereignty is found in US. Perhaps it is characterized by self-embracing sovereignty which Austin’s model cannot account for. For this reason, it is suggested that Austin’s idea of sovereignty is not all-encompassing. In fact, in today’s world and age, self-embracing sovereignty is desirable to make those vested with huge amounts of power account to law. The experience of Magna Carta of 1215, Bill of Rights of 1688 and Constitutional Reform and Governance Act of 2010 shows that legal checks work better to control abuse of power.
Austin’s limited conditions for a legal system
On his model, a legal system is an enforcement of the wishes of the sovereign through sanctions. So long as the sovereign has the ability to impose sanctions and citizens are obeying his laws, there is a system. Perhaps this type of system is required when legal systems are at their early stages to teach citizens the importance of laws and habituate them to lawful behaviour. However, as the system develops, it needs to adopt methods and mechanisms to curtail the powers of the ruler so that citizens can take law as more than coercion and feel part of the system rather than being victims of it. A recent example will help explain this. We all know that PM Narendra Modi unilaterally revoked Art. 370 of the Indian Constitution. On Austin’s model, this revocation should be followed by people of Jammu and Kashmir and met with sanction for disobedience. However, this type of forced obedience and absence of legal check on the prime ministerial power has led Kashmiris feel victims of abuse of power. To curb such events from recurring, the world systems have to put legal checks on those with power. In fact, modern legal systems are characterized by a system of checks and balances on the powerful as is evident from the execution of Chinese mayor for corruption. This is not to suggest that miscarriages of justice will not happen but that their occurrence would be seldom. Therefore, a legal system is one that tells citizens about their rights and duties and informs the officials about their powers and puts checks on them. In this way, a legal system becomes a Janus-faced order.
Austin’s command theory is an archaic concept in the light of Hart’s criticism and modern developments. Not only is it incomplete, it’s also in need of fresh thought. In sum, it is argued that Austin’s theory fails on many grounds alongside the undesirable illimitable sovereignty. Pursuant to its defects, it needs an overhaul revision and should be substituted with vision of law as a union of primary and secondary rules.
The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be
contacted at: firstname.lastname@example.org