JOHN Austin Command Theory PDF

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John Austin Command Theory...

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John Austin – Command Theory   

Austin was a noted English legal theorist and positivist Developed Legal Positivism opposing natural law Austin argued against necessary connection between law and morality

Legal Positivism  

Doctrine which rejects metaphysical speculation concerning law – view of law which takes into account positive laws only (law as it ‘is’ not law as it ‘ought’ to be) Positivism theories:  Laws are commands to human beings  There is no necessary connection between law & morality – Existence of law is one thing, its merits and demerits another  Contrary to Natural law theories as it treats law as a prescription, deriving its ultimate authority from purposive morality  Laws are command of sovereign backed by sanctions

Command Theory – Province of Jurisprudence Determined Austin viewed ‘command’ as an expression of the Sovereign’s will – General in its application and different from an order 

Different from other expressions of will as there is threat of sanctions for non-compliance  Sanction is intended as motivation for subject’s compliance  Sanction are harm/pain/evil attached to a command – negative outcome for non-compliance

Austin viewed ‘sovereignty’ is grounded on belief of an independent political society 

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A sovereign is the highest power in independent political society  Purpose of sovereign is to indicate source of ultimate power in which the laws of a particular society reside (indicate highest authority/source of law)  Sovereign: Someone who receives habitual obedience – obeyed by a bulk of society while not being habitually obeying others Main characteristics of Austin’s sovereign  Illimitable – Unlimited powers – habitually obeyed, while not being obeying anyone else – not bound by law  Continuous – Institution of sovereign continues & defined in a complex of constitutional rules  Indivisible – Not possible to obey more than one sovereign OR have a joint sovereign

Classification of Law – Laws ‘properly so called’ AND ‘not properly so called’ ‘Laws properly so called’  

Law of God (Natural law) Laws set by men to men  Laws strictly so-called  Positive law – depend upon political authority (sovereign)  Commands with duty which bounds to obey it  Implies sanctions  Laws not strictly so called  Not sovereign but regarded as law e.g. command from father to child  Laws by men not political superior

‘Laws not properly so called’  

Laws by Analogy – e.g. laws of fashion or right conduct in social group Laws by Metaphor – Laws of physics/science

Command theory – Law

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Law is only regarded as law if it can be backed by sanctions – so it has real meaning in practical world Sanction is important element in understanding law – Why we are under duty to obey given law of sovereign Where there is a duty, there is a sanction Through ‘Command theory of law’ we are able to know how law also accounts for power conferring rules, since commander can simply command his subjects to obey the person of his choosing  E.g. Judges whose authority can be traced back to sovereign whom allow to perform Judicial functions Command theory also helps us to understand the operation of law by putting it in a sociological dimension  For example: Subjects must know some basic principles behind the law e.g. acknowledgement of murder as a wrong because it denies another of right to life Command theory help us differentiate between what is law and what is not – Law is valid because of command of sovereign, not because of its moral reasoning Command theory helps us understand law-making process – e.g. Process of how bill becomes law.

Criticisms a) Rights and duties  Austin’s observations accounts for having no room for rights – Hart’s division of law into primary and secondary tend to undermine Austin’s theory in this manner  People may have a right to a matter – For example, a person has rights to make a will and it is never the duty of a judge to grant probate to the will  Officials may be ‘conferred’ with right to make delegated legislation – there is no sanction for non-compliance of non-exercise of power b) Sanctions  Hart on the ‘orders backed by threats theory’ equates it with enforcement of obedience  Hart is critical on this – Hart’s opinion such a view of law which centres around sanctions is bound to be predictive  ‘Orders backed by threats’ theory emphasis on fear and misses out ‘the internal point of view’  Internal POV: Individual’s attitude/belief towards a subject  E.g. People do not commit murder not because of fear of sanction, but consciousness that it is a wrong  There are many laws which is neither an order nor a threat  E.g. Rights conferred in constitution/Right to make will c) Austin views ‘nullity’ as part of sanctions  Hart disagrees ‘nullity’ is not an evil that visits one who breached a law  For example, a judge who decides on something and it was later overruled – the judge is not faced by sanctions even though his decision is nullified d) Range of application  According to Austin, sovereign is not bound by his own command – not bound by law  According to Hart, in most legislatures there is a binding force even on those who make it e) Habitual obedience  Hart criticizes word ‘habitual obedience’ – it is not always true we obey law because of sanctions or commands  Some people obey law because they want to gain benefit from it, even when there is no coercive element of law – e.g. People obey of contracts to gain benefits from the contract  If we follow ‘habitual obedience’ to Sovereign – when it is succeeded by another, there would be a transitional period before the new sovereign obtains ‘habitual obedience’ thus have the ability to make valid law f) Illimitability of sovereign  According to Austin, there can be political limits but not legal limits on Sovereign power – Sovereign cannot be limited by himself or others legally  As long as there is independent state, there must be an unlimited sovereign  According to Hart, in practice that is not the case as there is no absolute sovereign power – no sovereign with unlimited legal limits – e.g. States bound to International Law 

Factortame’s case  Dispute between Spanish fishermen and UK government

 JR taken against UK  Court held they had power to restraint Act of Parliament pending trial & disapply act when found in contrary with European Union laws. Defences in support of Austin theory a) Rights and duties  Austin was with view that the two operates side by side  For example, correlative rights and duties fit into the model of contract law – Duty for X to perform his contractual obligation gives rights to Y to sue for breach OR X’s right to enter into contract comes with a duty to fulfil contractual obligations b)   

Sanctions & nullity as part of sanctions Austin recognises disobedience do occur, but at least sanctions must be executed Role of sanctions are formal Austin places importance for an enlightenment of knowledge – citizens must understand rational principles of law and not blindly obey merely out of fear of sanction

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Range of application Austin does not deny a sovereign can be limited, but his limitations are political and not legal Sovereign has two capacities: Official capacity as Sovereign (unlimited capacity) Private capacity as Sovereign – Bound by the law This can be seen with regards to International laws where States are liable for commercial/contractual wrongs against others

d) Habitual obedience – Austin advocates requirement of enlightenment of knowledge for subject to appreciate laws e) Illimitability of Sovereign  Sovereign is still supreme – due to fact no Court in UK may declare Act of Parliament as invalid  Morrison argues EU is not ‘Sovereign’ as it lacks political structure...