Command

Theory of Law
2016-17

John Austin's
Jurisprudence

Anam Hossain
Barrister-at-law

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. His theory
is often called the ‘Orders Backed by Threat (OBT) theory of law’ or the ‘command theory’ of law.
His work was largely inspired by jurists like Jeremy Bentham (developed social contract theory) and
Thomas Hobbes (product of 18th century Enlightenment or ‘age of reason’). Austin’s most famous
piece of work is called ‘The Province of Jurisprudence Determined’.

According to natural law legal theory, the authority of legal standards necessarily derives, at least in
part, from considerations having to do with the moral merit of those standards. There are a number of
different kinds of natural law legal theories, differing from each other with respect to the role that
morality plays in determining the authority of legal norms.

The conceptual jurisprudence of John Austin provides a set of necessary and sufficient conditions for
the existence of law that distinguishes law from non-law in every possible world.

Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap between
natural law moral and legal theories. Similarly, the neo-naturalism of John Finnis is a development of
classical natural law theory. In contrast, the procedural naturalism of Lon L. Fuller is a rejection of the
conceptual naturalist idea that there are necessary substantive moral constraints on the content of law.
Lastly, Ronald Dworkin’s theory is a response and critique of legal positivism. All of these theories
subscribe to one or more basic tenets of natural law legal theory and are important to its development
and influence.
 Command Theory of Law 2016-17

On the other hand, Bentham and Mill were utilitarians, advancing the view that there should be a 2
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.

DIVINE & MAN-MADE LAW

Austin began his theory by dividing law into two categories: divine laws and man-made laws. Divine
laws are those set by God, and man-made laws are those set by men for other men.

Austin further divided the man-made laws. He rejected the notion of common law, instead holding a
vision of human law that could be divided into the following categories: positive law, where rules are
created and set down by political superiors for their delegates; positive morality, where rules are laid
down by persons who have the power to influence and control others what he called laws ‘improperly
so called’. The rules of chess are an example of positive morality. They are laid down (posited), but a
person does not suffer legal consequences if he moves the horse in the wrong way.

Bentham and Austin both defend the legal positivist claim that there is no necessary connection
between law and morality, against the sort of natural law tradition exemplified by St. Thomas Aquinas
(1225-74) and the English jurist William Blackstone (1723-80).]

“The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political
superiors to political inferiors.” - John Austin (Lectures on Jurisprudence)

As per Austin, the study of jurisprudence should comprise of positive law thereby excluding natural
or divine law. His theory states that laws are commands of the sovereign addressed to its subjects
backed by threats 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 (i.e. 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 non-compliance.
Austin further stated that these commands are ‘law properly so-called’ set by the political superior,
the sovereign, to the political inferiors, the subjects of the sovereign.

We see here the following elements:

 Command- desire or wishes of the sovereign;

 Sovereign- must be common and determinate. This means that there can be only one
sovereign existing in any particular political society and its identity must be clear. It must be
habitually obeyed by the bulk of the population but the sovereign itself must not habitually
obey any determinate human superior.
 Sanction- it is some harm, pain or evil attached to a command and so even the ‘smallest evil’
will suffice.

‘The greater the eventual evil, and the greater the chance of incurring it, the greater is the efficacy of
the command, and the greater is the strength of the obligation.’

Anam Hossain | Barrister-at-law

 Command Theory of Law 2016-17

THE COMMAND THEORY AND LEGAL POSITIVISM

3
Natural law theory asserts that there is an essential connection between law and morality, whereas
legal positivism denies this. On one interpretation of the essential connection, natural lawyers insist
that genuine laws must have adequate moral content, whereas legal positivists deny this.

In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law
of that system, depends on it sources, not its merits. The idea of classical legal positivism is that the
law is man-made, either by judges or legislatures or collectively by custom. If it is not man-made, it is
not law.

On the other hand, natural lawyers would assert that a proposition is 'law' not merely because it
satisfies some formal requirement, but by virtue of an additional minimum moral content. According
to them an immoral rule would not be ‘law’ however much it may satisfy formal requirements [Sajjad
Ahmad J in Jilani v. Government of Punjab Pak LD (1972) SC 139, 261].

Austin insists that the command theory supports legal positivism. A sovereign can issue morally
acceptable or wicked commands: "The existence of the law is one thing, its merit or demerit another".
This quality follows from such incorporation irrespective of morality, so that even if an unjust
proposition were embodied in precedent or statute, it would be 'law' nonetheless because it would
exhibit the formal stamp of validity. Therefore, they maintain, every proposition which passes through
one or other of the accepted media is 'law' irrespective of all considerations which go towards saying
that it should be, or should not be, law.

Anam Hossain | Barrister-at-law