John Austin and the command theory of law

John Austin was professor of jurisprudence in the University of London, and is called the father of English jurisprudence. He had studied Roman law in Germany. Roman law was systematic and scientific; English law was neither. His ambition was to put English law into an ordered form, and the book in which he did it defined English law and arranged it systematically.

He is the founder of the analytical school, which is also called the positive school, because its exponents are concerned neither with the past nor with the future of law but with law as it exists — positus — and the imperative school, because imperative signifies the force behind law.

Before Austin, law was discussed together with custom and morals, and no line separated the three. Austin's question was narrower and sharper: what is it that makes a rule a rule of law, rather than a rule of morality or religion? His answer had to be one that a lawyer could apply without first settling a moral controversy.

The answer he gave is that only positive law is the subject matter of jurisprudence — laws strictly so called — and that the science of jurisprudence has nothing to do with the goodness or badness of law.

The definition. Law is the command of the sovereign backed by sanctions.

Four elements are packed into that sentence, and an answer that omits any of them is incomplete:

| Element | What it means | |---|---| | Sovereign | A politically superior person, or a determinate person or body of persons — the king or council; in a monarchy the head of State, in a democracy Parliament. | | Command | An order of the sovereign, oral or written. What distinguishes a command from a request or a wish, which are also expressions of desire, is that it issues from a political superior to a political inferior who can be punished for disobedience. | | Duty | The politically inferior persons who are under the control of the sovereign are under a duty to follow the order. | | Sanction | There must be force behind the command. Without sanction there is no law, because the sovereign must have power to punish those who disobey. |

The sovereign defined. A sovereign is a person, or a body of persons, whom the bulk of a politically organised society habitually obeys, and who does not himself habitually obey any other person or persons. Note the two halves — habitual obedience received, and habitual obedience not given. Note also what is not required: perfect obedience is not a requirement, only habitual obedience by the bulk of society.

Why laws are general commands. Not every command is a law. Commands that are laws are general in nature — Austin's own image is a standing order in a military station, to be obeyed by everybody.

The map of law. Austin's division is regularly asked as a diagram question:

• Law properly so called divides into the law of God (divine law) and the law of men (human law).
• Human law divides into positive law, which is statutory law and the true subject of jurisprudence, and positive morality.
• Law improperly so called covers law by analogy and law by metaphor.

Divine law, moral law and religious law fall outside the subject.

Austin's own exclusions. Two kinds of command are not laws even on his own theory: the explanatory law, which merely explains a law already existing, and the repealing law, which repeals one.

General and particular jurisprudence. General jurisprudence deals with subjects or ends of law common to all systems; particular jurisprudence is the science of any one actual system, or a portion of it. In essence they are the same; they differ in scope.

What the analytical school studies. Seven heads are given: the analysis of the conception of civil law; the relations between civil law and other forms of law; the scientific arrangement of law; the legal sources from which law proceeds; the theory of liability; the conception of legal rights and duties; and such legal concepts as property, contract, persons, acts and intention.

These are the marks in an Austin question. Learn them as a list of eight, each with its one-line answer.

1. Custom ignored. Custom is a very important part of society; there were customs by which society and later the State came into existence, custom played an important role in the administration of justice, and it continues to shape law in modern times. Austin's definition leaves it out.
2. Conventions ignored. Conventions observed by succeeding generations become law by their regular observance, and English law rests heavily on them.
3. Precedent ignored. Judge-made law was excluded because it is not the command of the sovereign; but the decisions of courts are plainly law.
4. International law ignored. Austin excluded it because there is no sovereign to enforce it, treating it as positive morality. But it cannot now be excluded, given its role in maintaining peace at the international level.
5. The command theory is not workable. It is not easy for ordinary persons to understand, and it is difficult to separate the commands that are laws from other commands; the theory is said to be artificial.
6. Power alone is not necessary. Law can be enforced without power if it suits society; the tyrants and forced rulers thrown off by the French Revolution show what rests on force alone.
7. Morals ignored. Laws are made for society, and the feelings of society rest on morals, so morals cannot be excluded from the field of law.
8. The objection from justice — Salmond's. Any definition of law without reference to justice is imperfect. Law is not right alone, nor might alone, but a union of the two. What Austin described was a law; the law refers to justice, social welfare and law in the abstract sense, and a perfect definition should include both.

There is one further objection which needs its own answer, because the answer is examinable:

1. Laws before the State. Societies existed before any sovereign and had rules in force; law had its origin in custom, religion and public opinion, all of which were only later enforced by a political superior. The criticism comes from the historical and sociological schools. Salmond's answer is that rules existing before the State were primitive substitutes for law and only resembled law — apes resemble human beings, but a definition of a human being need not include apes.

Add, for completeness, that the definition does not fit constitutional law, which defines the powers of the organs of the State and rests on separation and division of power, so that no single body can command itself; nor personal law, Hindu, Muslim or canon, which originates in religion, custom and tradition.

Do not write an Austin answer that is only demolition. The concession is part of the answer: he gave a clear and simple definition by excluding ethics and religion, he established the paramount truth that law is created and enforced by the State, he gave the concept of law in a scientific manner, and his views became the base for the writers, jurists and philosophers who came after him.

• The set-piece. Explain Austin's imperative theory and examine its criticisms. Four elements, the definition of the sovereign, the map of law, then the eight or nine criticisms, then the concession.
• The comparison. Austin against Kelsen is the commonest pairing: both require a sanction, but Austin locates authority in a determinate superior person while Kelsen locates it in the grundnorm and says the power of the sovereign lies in the people. Austin against Savigny is the second: command against Volksgeist, law made against law found.
• The trap. Do not say Austin ignored divine law. He classified it, as law properly so called, and then excluded it from jurisprudence. The difference between overlooking a thing and deliberately placing it outside your subject is exactly the difference between a weak answer and a strong one.