The Command Theory of Austin, which was created by John Austin, a legal
philosopher from the 19th century, is a fundamental aspect of legal positivism.
This theory asserts that the very nature of law is firmly based on commands that
are given by a supreme authority, along with the anticipation of obedience that
is supported by penalties.
Legal positivism is a way of looking at law that puts emphasis on keeping it
separate from morality. It focuses on the tangible and observable parts of legal
systems. According to this approach, whether a law is valid or not depends only
on where it comes from, not on its moral aspects.
To put it simply, a law is considered valid if it has been made through
recognized legal procedures like legislation, without taking into account its
ethical consequences. This separation of law and morality sets legal positivism
apart from other theories that suggest a strong link between the two.
Let's say there's a country. In this country, there's a regime that has total
control and power. This regime decides to make laws that go against basic human
rights. Now, if we look at it from a legal positivist point of view, these laws
could be seen as valid if they were made through the proper legal channels, even
though they might be morally wrong.
This shows us the idea of legal positivism, which says that the legitimacy of a
law depends on where it comes from and how it was made, rather than whether it's
morally right or wrong. Legal positivism has been criticized for potentially
giving legitimacy to unfair laws, but it has also had a big impact in shaping
how we analyse legal systems all over the world.
Explanation of Austin's Command Theory:
To elucidate its principles, let's now explore examples and the fundamental
elements of Austin's Command Theory.
According to Austin's theory, a command is a straightforward instruction
from an acknowledged governing body. It acts as a manifestation of the ruler's
desires, signifying the actions or abstentions expected from individuals.
Commands can come in different forms, such as laws, rules, and authoritative
Let's take an example of a legislative act that puts forth a directive,
stating, "The maximum speed allowed on highways should not surpass 65 miles per
hour." This is an instruction emanating from the governing body (the
legislature), guiding individuals on the appropriate conduct to be adhered to.
According to Austin, the supreme power in a legal system is held by an entity or
individual known as the sovereign authority. This authority does not originate
from any superior force, but rather arises from the intricate web of social and
political dynamics. The sovereign possesses the capacity to issue commands and
ensure their compliance.
In a nation that practices democracy, the supreme authority is usually given to
the elected legislature, which is responsible for creating laws. On the other
hand, in an absolute monarchy, it is typically the monarch who holds the
position of sovereignty and has the power to issue royal decrees.
In Austin's theory, commands hold much more weight than simple suggestions.
They carry with them the weight of sanctions, which are penalties or
consequences for failing to comply. According to Austin, the power of the law
lies in the sovereign's capability and willingness to enforce these sanctions.
The sovereign authority has the power to impose sanctions such as fines, license
points, or imprisonment if the speed limit command is violated.
To put it briefly, Austin's Command Theory suggests that law is fundamentally a
network of instructions given by someone in power, and these instructions are
backed up by penalties. The connection between instructions from those in power,
and penalties serves as the core of legal responsibilities in a specific legal
system. Although this theory has faced criticism and undergone revisions
throughout the years, it offers a fundamental comprehension of legal positivism
and how law is shaped by authoritative instructions.
Criticism of Austin's Command Theory:
Austin's theory of command, although it has exerted a significant influence on
the advancement of legal positivism, has encountered various objections from
fellow legal scholars. These objections, as given below, have garnered notable
attention, encompass a range of critical viewpoints.
Inadequate Explanation of Obligation:
Critics suggest that Austin's emphasis on commands and sanctions falls short in
adequately elucidating the notion of legal obligation. Simply because a
sovereign issues a command and imposes a penalty does not inherently offer a
persuasive explanation as to why individuals are morally or legally bound to
comply with these directives.
Limited Scope of Commands:
Austin's theory, which tends to have a narrow view on commands, defines them as
explicit directives accompanied by sanctions. However, it fails to acknowledge
the intricate and multifaceted nature of law, which often comprises rules that
do not neatly align with the command-and-sanction framework. Legal systems
frequently incorporate principles, standards, and guidelines that surpass the
simplicity of straightforward commands.
Role of Customs:
Austin's theory of command highlights the importance of a sovereign's commands,
yet it might not fully consider the significance of customary law. Legal systems
frequently acknowledge customs and traditions as valid sources of law.
Detractors argue that Austin's theory does not adequately acknowledge the impact
of unwritten customs in shaping legal norms.
Descriptive, Not Explanatory:
Certain critics contend that Austin's command theory exhibits a greater
inclination towards description rather than explanation. It expounds upon the
framework of legal systems by delineating commands and sanctions, but it does
not embark upon a profound exploration of the fundamental rationales for
compliance with the law or the essence of legal norms.
Separation of Law and Morality:
Many people associate legal positivism, which includes Austin's command theory,
with the idea of separating law from morality. However, there are those who
criticize this separation, arguing that it can result in a legal system that
doesn't have a strong moral foundation. Some legal theorists suggest that we
need to take a more complex approach in order to fully consider the moral
aspects of law.
One Dimensional View of Sovereignty:
Austin's theory is built upon a simplistic notion of sovereignty, perceiving it
as a singular entity with absolute authority. However, in contemporary legal
frameworks, the concept of sovereignty is frequently dispersed across multiple
institutions, giving rise to intricate relationships and dynamics that surpass
the limited scope of Austin's theory.
It is worth mentioning that although Austin's command theory has encountered
criticism, it has also played a role in advancing the field of legal philosophy.
Other legal theorists, like H.L.A. Hart, have put forth adjustments and
alternative viewpoints to tackle some of the shortcomings of Austin's method.
Utility of Austin's Command Theory:
Austin's Command Theory, although subject to scrutiny, proves to be valuable in
providing a well-organized and lucid framework for comprehending the essence of
law from a legal positivist standpoint. The theory presents a direct and
uncomplicated model that recognizes law as a collection of orders proclaimed by
an authoritative ruler, supported by penalties.
This straightforwardness contributes to its usefulness in legal scrutiny,
enabling a methodical examination of legal principles and their methods of
enforcement. The command theory's emphasis on discernible and tangible aspects,
such as explicit directives and penalties, aligns with the positivist emphasis
on empirical evidence within legal systems.
Moreover, it is worth mentioning that Austin's Command Theory holds great
significance in history, as it served as the groundwork for debates on legal
positivism and exerted influence on future legal thinkers. Although the theory
has undergone improvements and elaborations over time, its value lies in its
function as a stepping stone for comprehending the authoritative aspect of law
and the connection between legal commands and societal harmony.
The theory's reach goes beyond its original conception, as it has contributed to
the continuous growth and enhancement of legal philosophy, especially within the
wider framework of positivist viewpoints on law.
Austin's Command Theory, although it has had a significant impact on the
development of legal positivism, has been subject to considerable criticism for
its oversimplified understanding of the essence of law. Detractors contend that
the theory's narrow emphasis on commands issued solely by a governing body,
along with corresponding penalties, fails to encompass the depth and intricacy
of legal frameworks.
The theory's inflexible framework frequently overlooks the significance of
customary law, principles, and guidelines that contribute to the evolution and
operation of legal standards. Furthermore, the division of law and morality by
Austin has sparked considerable debate, as it tends to establish a clear
distinction between legal duties and moral concerns. The theory's shortcomings
become evident in its limited perspective on legal obligations and its failure
to fully encompass the complex intricacies of modern legal systems.
Although Austin's Command Theory is not without its flaws, it has played a vital
role in establishing a foundation for conversations about legal positivism.
Other legal philosophers, like H.L.A. Hart, have expanded upon Austin's concepts
by providing enhancements and different viewpoints. Despite facing criticism,
Austin's theory continues to be a noteworthy contribution to comprehending the
connection between legal authority, commands, and the methods used for
enforcement within a legal framework.