Command Theory of Law - NOTES PDF

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Jurisprudence © Navinjit Singh Command Theory of Law Austin’s Analysis of Law  Before defining law, Austin identifies what kind of law  At the head of the tree comes a ‘signification of desire’  There are two kinds of signification of desires;  A request in which the person signifying the desire has no power to inflict evil on the person (requestor) to whom the desire is expressed in the event of the desire not being satisfied  A command in which power does exist to inflict evil or pain in case the desire disregarded  The 'evil which will probably be incurred in case a command be disobeyed ... is frequently called a sanction or enforcement of obedience  Commands are either general or particular  There are two kinds of law  Properly so called :Rule laid down for the guidance of an intelligent being by an intelligent being having power over him  God’s laws  Human’s laws  Laws not strictly so called: Not the commands of a sovereign and not supported. For example, rules made by a parent for his children  Laws strictly so called: Comprises the law as we know today. Command given by a sovereign  Not properly so called  Laws by analogy: Rules set and enforced by mere opinion  Laws by metaphor: Sovereignty  Exists when the bulk of a given political society obeys a common superior  Elements  The common superior must be determinate  There are two kinds of determinate: a body which is composed of a specific person; a body of a certain class  The society must be obedient  Obedient to the same determinate person  The superior determinate must not have a superior of its own  The power of the sovereign is incapable of legal limitation Positivism  For Austin, a law is a valid law if it set by a sovereign  The term 'positivist' is used to describe one who regards a law as being valid not by reference to some higher law or moral code, but by reason of no more than its existence.

Jurisprudence © Navinjit Singh The Attack on the Command Theory  In order to demolish Austin's notion of law as the command of a sovereign, Hart begins by presenting Austin's theory in the strongest form that he can (as if, in order to prove the power of his armour-piercing shells, he first constructs a tank with the heaviest plating a tank can carry).  Hart’s criticism towards the Command Theory  Laws as we know them are not like orders backed by threats  (a) The content of law is not like a series of orders backed by a threat  Some laws do resemble orders backed by threats, for example criminal laws.  But there are many types of law that do not resemble orders backed by threats, for example laws that prescribe the way in which valid contracts, wills or marriages are made do not compel people to behave in a certain way (as do laws that, for example, require the wearing of seat belts in a car).  The function of such laws is different. They 'provide individuals with facilities for realising their wishes by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties . . . '  Laws of a public nature, in the field of constitutional and administrative law, and in the field of procedure, jurisdiction and the judicial process, are not comparable with orders backed by threats.  Such laws are better regarded as power-conferring rules.  (b) The range of application of law is not the same as the range of application of an order backed by threat  In Austin's scheme the law-maker is not himself bound by the command he gives: the order is directed to others, not to himself.  Hart concedes that in some systems of government this is what may occur. But in many systems of law legislation has a force that is binding on the body that makes it.  So as a law-maker can be bound by his own law, the Austinian concept of sovereign - command - obedience - sanction cannot be of universal application and so fails.  (c) The mode of origin of law is different from the mode of origin of an order backed by threat  Hart deals with this point saying that customs do not necessarily attain legal status only by application by a court. Just as a statute has legal force before it is applied by a court, so a custom can be accepted as having legal force before it is applied by a court. Thus a custom with legal force does not necessarily originate from a datable act.  Hart acknowledges that those who support the command theory of law could argue that custom acquires legal force as a result of a tacit order by the sovereign to his judges that a certain custom should henceforth be treated as law, and to his subjects to obey a judge's decision reached on the basis of a pre-existing custom....