Critical analysis of Austins definition of law PDF

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Critical analysis of austin’s definition of law Jurisprudence project

Contents INTRODUCTION......................................................................................................................2 INTERPRETING AUSTIN’S THOUGHT................................................................................5 CRITICISMS OF AUSTIN’S THEORY OF LAW....................................................................7 MODERN CRITICISMS AND REJOINDERS.......................................................................10 1

SALMOND ON AUSTIN’S THEORY OF LAW....................................................................13 MERITS OF THE THEORY...................................................................................................15 CONCLUSION........................................................................................................................15 BIBLIOGRAPHY....................................................................................................................16

INTRODUCTION “Law is the command of the sovereign” Austin defines law as the command of the sovereign. His theory of law is also known as the imperative theory of law. According to Austin, positive law has three main features:1. It is a type of command. 2. It is laid down by a political sovereign. 3. It is enforceable by a sanction. A typical example for law would be the Road Traffic Act, 1960 which could be described as a command laid down by the sovereign under the English legal system which is backed by sanction. This Act lays down certain rules which have to be followed (command). It has been passed by the Queen-in-Parliament (laid down by the sovereign authority of England). Its violations are met with penalties (sanction). 1. What is a command? According to Austin, requests, wishes etc. are expressions of desire, while commands are expressions of desire given by superiors to inferiors. The relationship of superior to inferior consists for Austin in the power which the former enjoys over the other, i.e., his ability to punish him for disobedience. In a sense, the idea of sanction is built into the Austinian notion of command. Logically, it might be more correct to say that law has two rather than three distinguishing features. There are commands which are laws and there are commands which are not laws. Austin distinguishes laws from other commands by their generality. Laws are not like the transitory commands given on parade grounds and obeyed there and then by the troops. Laws are like the standing orders of a military station which remain in force generally and continuously for 2

all persons on the station. However, there can be exceptions. There can exist laws such as acts of attainder which lack the characteristic of generality. Hence, generality alone is neither necessary nor sufficient to serve as the distinguishing feature of law. Some have criticised the positivist theory of’ law as a theory of “gun-man law” on the ground that it makes no real distinction between a law and the command of a bank robber who points his gun at the bank clerk and orders him to hand over the contents of the till. This criticism overlooks Austin’s second requirement of law which requires that only that command is law which is given by a political superior or sovereign. To Austin, a sovereign is any person or body of persons whom the bulk of a political society habitually obeys and who does not himself habitually obey some other person or persons. One difference between the order of a gunman and the decree of a dictator is that the latter enjoys a general measure of obedience while the former secures a much more limited compliance. 2. Who or what is the sovereign? Austin formally defines the sovereign as a determinate or determinable person or group of persons in an independent political society to whom the population as a whole has a habit of obedience, but who has no habit of obedience to a political superior. Persons who comprise the sovereign entity are not just the vague “them” of positive morality. It must be possible to identify them as if by name, address, and social security number. The reasons for this requirement are not made clear.1 The most serious problem with this definition is the combined complexity and vagueness of the sovereign when so described. The sovereign in England has three constituent parts. The first two are the monarch (whoever is upon the throne) and the members of the House of Peers, all of whom are clearly determinate. The third part is not, as one might expect, the House of Commons, but rather the lectorate who voted them into office and who are theoretically determinable. In the United States, the situation is less complex, but the notion of the sovereign is equally amorphous. The sovereign is not Congress, the President, nor any other officers of state; it is the electorate. This unwieldy and almost unimaginable concept is made manageable by the notion of delegation. The electorates in the United Kingdom and the United States exercise their function directly only periodically, at elections. Between

1 The most probable reason is that the laws which are the subject matter of jurisprudence must be clearly identifiable in order to be organized scientifically. This requirement would be like Hart’s secondary rules for identifying laws.

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elections, they delegate their powers to the officials whom they have elected and their appointees. Another problem is that Austin, by making absence of a habit of obedience to a political superior the defining characteristic of the sovereign, seems to suggest that the matter is one of power and not of right. The sovereign is the unconditioned conditioner. This is not, of course, what he wishes to say. He specifically states that might is only one condition of right, although a very necessary one, since one cannot be a sovereign without the power to make orders “stick.” But he is never very clear as to what the other conditions are. The notion of an independent political society, which is closely related to that of sovereignty, is couched in the same terms. It is a society whose sovereign person or persons do not have a habit of obedience to a political superior. Thus, the viceroy of India, when that country was under British rule, was not a sovereign even though his word was law, since he was subject to the crown. The distinction between a political and a non-political society is not very clearly explained. Austin says that there are several conditions, but the only one which he mentions is size; a community must have substantial population to be considered a political society. He therefore denies (contra Savigny) that the customs of a primitive tribe are laws. Customs only become laws when they are officially stamped and approved by the sovereign, and the chief of a tribe is not a sovereign – even though his every command is obeyed and the tribe is totally independent – since a tribe is too small to be a political society. Loose confederations of small groups, as when several tribes or small cities unite periodically for mutual defence or some other purpose, may satisfy the numerical requirement on these occasions, but such combinations are not considered to be independent political societies by Austin since they are not united under one sovereign for a sufficient period of time. Austin is, of course, unable to say how large a group must be to become such an independent political society (i.e., How many stones make a heap?). He admits that quite small city-states in ancient times were political societies, but he does not really make it clear why this is so. 3. What must be the sanction? A sanction is an evil of some sort. According to Austin the degree of the sanction is not a matter. However mild the sanction be, if there is a sanction for the disobedience of the command of the sovereign, then that command is law. This principal is to be applied to all 4

fields of law. Whether the law is civil or crime, disobedience of law must be met with sanction. According to Austin, law is law only if it is effective and it must be generally obeyed. Perfect obedience is not necessary. Many contravene the law without depriving it of all effectiveness. Without general obedience, the commands of the law-maker are as empty as a language which is no longer spoken or a monetary currency which is no longer in use. They have the appearance of law hut not the reality of law. A Sovereign may enjoy obedience through conquest, usurpation or elect ion. What is sufficient for a legal theorist is that such obedience exists. According to Austin laws are of two kinds, viz., divine law and human law. Divine law was given by God to men. Human laws are set by men for men. Human laws are of two kinds. There are certain human laws which are set by political superiors and are called positive laws and there are others which are not set by political superiors. To the second category belong the rules of a club or any other voluntary association. Austin puts great emphasis on the relation between law and sovereign. Law is law because it is made by the sovereign and sovereign is sovereign because it makes the law. The relation between the sovereign and law is the relation between the centre and the circumference.

INTERPRETING AUSTIN’S THOUGHT. Even if we assume that Austin’s purpose was to create an empirical legal science by verbal definitions, his work poses a number of interpretive problems. First, it is difficult to determine whether the law, for Austin, is to be identified with what actually happens in fact, or with what was supposed to happen according to the rules and regulations of the jurisdiction. Hobbes, and the legal realists of the twentieth century, would say that the law is what actually happens, and that anything else is just empty talk with no legal significance. The mainline legal tradition, on the other hand, views law as prescriptive, in the sense that it indicates what is supposed to happen if its rules are followed. Austin appears to have had a foot in both camps, but his Hobbesian shoe is a very large one and rather firmly planted.2 This may explain his rather odd and awkward representation of the sovereign as a set of actual identifiable persons. For Hobbes, power must lie with and be exercised by actual, not ideal or hypothetical persons, a view that is open to the criticism that 2 W.L. Morrison, John Austin 48 (1982).

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it does not distinguish between the proper and the corrupt administration of the law. 3 A realistic view of the outcome of a Chicago courtroom trial in the era of Al Capone might be that the party supported by the mob will prevail in the court of a judge who is in Capone’s pocket. But, as Roscoe Pound pointed out, this would not show the application of law but its absence, as law has been replaced by a totally illegal system.4 Most modern interpreters have taken the view that this is a serious problem for Austin and have concluded that Austin reads best when his jurisprudence is taken to be a normative, rather than a descriptive study. W.L. Morrison contends that the revisionists are mistaken and Austin is right; the normative and descriptive elements in law can exist together in the manner in which Austin portrays them. 5 This question, so far as the present article is concerned, is moot, since the problem is best taken care of in the light of modern developments in formal studies, which will be considered later in this study. The second difficulty is identifying and portraying Austin’s view of the relationship between law and moral values. The matter appears to be clear, as he states unequivocally that the existence of law is one thing, and that its goodness or badness is another, and he insists that the business of the jurist is not to criticize or improve the law but to take it as it is. This position is to be expected in one who was reorganizing law on the model of the physical sciences, but it conflicts with the traditional view that an important part of the function of lawyers is to make beneficial changes in the law. Austin is by no means saying that law should be static and unchanging or independent of morality. He is saying, rather, in line with Bentham’s views, that law reform is not the function of jural science, but is the business of ethics in general and the science of legislation in particular. Unlike Bentham, however, Austin does not confine law-making to Parliament, but allows for judicial legislation also. This means that the judge may wear two hats, one representing the interpretative functions of the bench and the other its legislative activity. This is awkward enough, but if we consider that the court may be accepting and endorsing ideas argued by counsel and that many legal minds may lie behind counsel’s opinion, we are left with the conclusion that everyone connected with law has both legal and legislative hats, which must be taken off or put on during the course of legal business. In short, his view of the relationship of law to morals is not only subtle, but awkward. 3 Hans Kelsen expresses this as failing to see the difference between a tax collector and a highwayman 4 Roscoe Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 TUL. L. REV. 475 (1933). 5 Supra n3.

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CRITICISMS OF AUSTIN’S THEORY OF LAW Austin’s theory of law has been criticised on many grounds:1. Laws before State The definition of law in terms of state has been criticised by jurists belonging to the historical school and sociological schools. Critics belonging to the historical school concede that in modern societies where there are established States, laws maybe in the nature of command, but there existed laws even prior to the existence of the State. The law which existed prior to the State was not the command of the sovereign. It had its source in custom, religion or public opinion and not in any authority vested in a political superior. According to this school, law is prior to and independent of political authority and enforcement. A State enforces it because it is already law. It is not correct that it becomes law because the State enforces it. Although Salmond is not a supporter of the imperative theory of law but he does not accept the criticism of the historical school. He points out that the rules which were in existence prior to the existence prior to the existence of a political State were not laws in the real sense of the term. They resembled law. They were primitive substitutes for law but not laws. Salmond considers it to be a virtue of the imperative theory of law that it excludes those rules which resemble law but are not laws. Salmond supports his argument with an analogy. Apes might have resembled human beings. They might be in existence prior to men, but it is not a defect of a definition of man if it excludes apes from definition. As a matter of fact, it is a merit of the definition. Malinowski maintains that even in primitive society there are rules behind which the community throws the whole weight of its organisation. The very structure of society is such that primitive man suffers if the rules are disobeyed. Although there is no intricate system of Courts or police, the community directly entrusts itself in securing the observance of those rules which it considers essential. If primitive man does not meet his customary obligations, he knows that in future no one will help him. Apart from the community, primitive man is helpless. The threat of expulsion or death is a salutary one for prospect offenders. Because in so many cases the community leaves primitive man to enforce his own rights by self-help, we

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must not leap to the conclusion that there are no rules the breach of which is regarded as fatal to community life. But according to me laws before State are in accordance which Austin’s theory as the fear of not getting the support of others is form of sanction and the head of the primitive man’s herd or group can be considered as a sovereign. Thus all the necessaries of law is met even in the time of primitive men. 2. Generality of law According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of the Act of the legislature may be particular in the fullest sense of the word. A divorce Act is law even if it does not apply to all persons. Law, in the sense of the legal system, can be particular. The requirement that law should become general is extremely difficult to maintain. There are degrees of generality. The question whether a contract can be create law for the parties has peculiar urgency for the international lawyer. In his view, treaties are a source of international law. They are so only if law need not be general as normally treaties are binding only on those States which have ratified them. The international lawyer who declares that a bilateral treaty makes law for the parties is implicitly that law need not be general. 3. Promulgation According to Austin, law is a command and that command has to be communicated to the people by whom it is meant to be obeyed or followed. This view of Austin is not tenable. Promulgation is usually resorted to but it is not essential for the validity of a rule of law. Up to 1870, laws in Japan were addressed only to the officials whose duty was to administer them and might be read by no one else. The Chinese maxim “let the people abide by, but not apprised of the law” lends further support to the argument. 4. Law as command According to Austin, law is a command of the sovereign but all laws cannot be expressed in terms of a command. The greater part of a legal system consists of laws which neither command nor forbid things to be done. They empower people by certain means to achieve certain results, e.g., laws giving citizens the right to vote, laws conferring on leaseholders the right to buy the reversion, laws concerning the sale of property and the making of wills. The 8

bulk of the law of Contract and of property consists of power-conferring rights. To regard a law conferring a power on one person as in fact an indirect order to another is to distort its nature. The term “command” suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in this personal sense. This is especially so where sovereignty is divided as in federal States. Commands conjure up the picture of an order given by one particular commander on one particular occasion to one particular person. Laws differ as they can and do continue in existence long after the extinction of the actual law-giver. It might be contented that laws laid down by a former sovereign remain law insofar as the present sovereign does not repeal them and allows them to be in force. It cannot be said that what the sovereign permits, he impliedly or tacitly commands. In certain States the law-making powers of the sovereign are limited by the Constitution which prevents the repeal by ordinary legislation of “entrenched” clauses. In such cases, no question arises of the present sovereign allowing or adopting such clauses. The notion of an implied or tacit command is suspect. An implied command is no command. 5. Sanction Austin’s definition of law may be true of a monarchial police State, but it cannot be applied to a modern democratic country whose machinery is employed for the service of the people. The sanction behind law is not the force of the State but the willingness of the people to obey the same. To define law in terms of sanction is like defining health in terms of hospital and diseases. Force can be used only against a few rebels and not against the whole society. If law is opposed by all the people, no force on earth can enforce the same Sanction is not an essential element of law. If we apply this fact to every kid of law, we are able to arrive at absurd conclusions. It is true that there is such a thing as sanction in case of criminal law but no such sanction is to be found in case of civil law. If we accept Austin’s definition, the whole of civil law will have exclude from the scope of positive law. 6. Not applicable to International Law. Austin’s definition of...