Austin’s Sovereign: A True Legal Theory?
John Austin’s sovereign command theory is not without its merit. His work “left an indelible impression” on the study of jurisprudence, introducing a legal theory that viewed law as independent from morality. Austin’s influence in the field is evident, with many considering him the “parent of analytical jurisprudence”. He produced a theory which continues to maintain a position of scholastic heritage as a pioneer of positivistic thought. However, his theory’s prominence does not negate the multitude of controversies that can be found within its contents. This paper will serve as a critique of the substance of Austin’s theory. It will be presented, from section 3 onwards, that Austin’s work does not properly perform the functions of a legal theory. Firstly, however, the essence of a legal theory shall be examined. This will provide a framework against which Austin’s theory will be analysed and critiqued.
1. INTRODUCTION
John Austin’s sovereign command theory is not without its merit. His work “left an indelible impression”[1]on the study of jurisprudence, introducing a legal theory that viewed law as independent from morality. Austin’s influence in the field is evident, with many considering him the “parent of analytical jurisprudence”[2]. He produced a theory which continues to maintain a position of scholastic heritage as a pioneer of positivistic thought[3]. However, his theory’s prominence does not negate the multitude of controversies that can be found within its contents. This paper will serve as a critique of the substance of Austin’s theory. It will be presented, from section 3 onwards, that Austin’s work does not properly perform the functions of a legal theory. Firstly, however, the essence of a legal theory shall be examined. This will provide a framework against which Austin’s theory will be analysed and critiqued.
2. THE FUNCTION OF A LEGAL THEORY
The primary duty of a theory of law is to provide an answer to the Daedalean question: “what is law?”[4]H.L.A Hart begins his seminal work, The Concept of Law[5], with this “persistent question”[6], going on to provide a response to Jeremy Bentham’s narrower inquiry as to “what is alaw?”[7]Both Bentham and Hart, in addition to others such as Ronald Dworkin, Lon Fuller, and Joseph Raz, attempted in their works to “describe the nature of law at its most general level”[8]and “to identify what is important and significant rather than what is mundane or inessential.”[9]Thus, in the discourses of legal philosophers both preceding and succeeding Austin, the function of a legal theory is affirmed as being the defining of law. This function, as argued by Raz, “is successful if it meets two criteria: first, it consists of propositions about the law which are necessarily true, and, second, they explain what the law is.“[10]Hence, legal theories must aim to provide clarity as to what is law and what is not. They must “ identify the essential elements of the legal systems set down”, generally by positing a series of technical and procedural criteria against which to measure a system that claims to be law. Austin himself cites the aim of his work as “distinguishing the matter of jurisprudence from those various related objects.”[11]
Austin is, however, unsuccessful in his attempt to describe law. His theory is mired with so much uncertainty that it fails to deliver a “comprehensive definition of law”[12], he himself admitting that his “definition is imperfect.”[13] The elements that comprise law within his theory are also either impractical or archaic, as they cannot be precisely met by many modern recognised legal states[14]. This narrowing of the scope of law does not satisfy the requirement for legal theories to be an “exposition of the principles, notions, and distinctions which are commonto systems of law.”[15]Lastly, particular elements of Austin’s theory, when analysed, reveal themselves to have an anti-democratic stance. This, as will be presented, is against “the nature of law.”[16]These are the three primary criticisms of Austin’s theory deployed within this paper. The subsequent section (3) details the narrow scope, simplicity, and unworkability of Austin’s theory. The overarching consequences of these are outlined in the penultimate section (4). This essay will adopt Hart’s structure[17]of analysing the different components of Austin’s theory individually, all the while interweaving the criticisms identified above.
3. THE SOVEREIGN COMMAND THEORY
Austin insists that there is a distinction between that which is truly law and that which is not, but merely resembles it. He terms the former “law properly so called”[18], and includes within its scope man-made positive law, or “law established…in an independent political community, by the express or tacit authority of its sovereign or supreme government.”[19]His sovereign command theory underpins this separation of law properly so called from law improperly so called and he uses it to determine the validity of a law: a law which is a command by a sovereign is law properly so called, that which is not is law improperly so called. There are two key components of this theory to be analysed: the sovereign and the command. They will be discussed in turn below.
a. THE SOVEREIGN
The first requirement of positive law in Austin’s theory is the existence of a sovereign: “every positive law or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.”[20]This notion of sovereignty can be sub-divided into three sections: monism, obedience from society, and supremacy/despotism.
i. Monism
In developing his theory of legal positivism, Austin sought to escape one of the greatest difficulties of natural law theory: identifying the transcendental truth that the law is presumably sourced from[21]. However, Austin himself has fallen victim to the same obstacle. The first strand of sovereignty in his theory is monism: that the sovereign or supreme body must be, as noted by Cotterrell, “determinate.”[22]For Austin, a law is only properly so called if it “flow[s] from a determinate source…a determinate rational being, or a determinate body or aggregate of rational beings.”[23]Although Hart concedes that “in any society where there is law, there actually is a sovereign”[24], Austin’s construction of this sovereign is arguably vague and his “meaning is doubtful”[25]. He offers no concrete method of identifying the one true sovereign, save for the sovereign’s supremacy and society’s obedience to it (two conditions which will be analysed below as inadequate). This problem of identifying a single sovereign is one of the most “prominent and frequent target for his critics.”[26]It uncovers one of his many oversights, as his thesis of monism does not account for two possible circumstances.
The first is a situation, such as in Spain, where there are competing sovereignties (Spanish and Catalan). Where does either sovereign fall in Austin’s classification? The only possible solution would be to define the laws of Spain as improperly so called, as they do not “flow from a determinate source”[27]but rather two conflicting sources. This is arguably inadmissible, as it would delineate Spain as a country with no ‘proper’ law, despite its modern recognition as a legal state. Hence, Austin’s definition of sovereignty is so narrow as to only encompass the simplest of systems; ones in which it is easy to identify a single sovereign. Complex systems, such as Spain’s, are thus relegated to non-law spheres outside of Austin’s theory. This is an oversimplification of the law.
The second situation which Austin’s monistic sovereign does not account for is the existence of separate legal powers. Such is the case in the United States of America, where law-making power is dispersed between the states each as a small sovereign. Austin’s theory thus falls short when applied to both real-world examples of established politico-legal states and “undeveloped non-Western societies”[28]. Thus, in seeking to create a theory of law that was simpler than that of natural law, Austin does little more than create a simplisticlegal theory that can only operate within the era that it was created in. His “ahistorical”[29]thesis is unsuccessful at being a theory that, in Austin’s own words, is “universally applicable.”[30]He fails, even in his first steps, to consider the possible variations to sovereignty that may arise, and in doing so creates a “culture-bound”[31]theory. The theory’s limitations do not, however, end there.
i. Obedience from Society
Austin’s sovereign requires its subjects to be in a “state of subjection”[32]to it: “the bulk of the given society are in a habit of obedience or submission to a determinate and common superior.”[33]Two factors of this definition require elucidation: bulk and habit. Austin’s theory would be saved from this criticism were he to have defined the term ‘bulk’ by administering a proportion of society[34]which needed to be obedient to the sovereign, but there is no such clarification. Similarly, he gives no detailed explanation of ‘habit’ beyond expressing that the “obedience [cannot] be rare or transient.”[35]This description is ambiguous: is one month of obedience a habit? Is a lapse of obedience for two weeks enough to render the obedience transient? Viewed comprehensively, more questions arise: what if 55% of the population is in a habit of obedience for twenty years and then, by some change of circumstances, that percentage drops to say 40%? Is there a habit of obedience for a sovereign that took to office today?
When given the condition of obedience, one cannot say with precise certainty that any society which exists or has existed was or is in a state of subjection to its sovereign or not. Austin’s theory fails to prescribe the positivistic elements necessary for law with sufficient clarity. As Hart observed, “the whole idea of a ‘general habit of obedience’…remain[s] somewhat obscure”[36], the consequence being that Austin’s theory cannot be used to measure the validity of a legal system as the terms within it are too vaguely constructed. Thus, the imprecision and uncertainty that shroud this aspect of Austin’s theory make it unfit for purpose. Austin’s response to this is equally betraying of his vagueness. When propositioned with questions, such as the ones above, Austin replies that “these questions cannot be answered precisely, the positive mark of sovereignty and independent political society is a fallible test of specific or particular cases. It would not enable us to determine of every independent society, whether it were political or natural.”[37]Yet the self-professed aim of his theory, and that of any legal theory[38], is to posit rules of requirement that allow one to determine whether a law is valid or not. By his own admission, Austin has failed to do this, and thus, his theory is revealed to be inadequate.
Furthermore, Hart is sceptical[39]of a theory defining law through habits of obedience, whether that habit be well-defined or not. His criticism is well-founded. In constructing a theory based on patterns of behaviour, Austin transforms law into a sociological phenomenon; the relationship between sovereign and ruled becomes the theoretical focus. This comes at the cost of real gravity and consideration being given to thecontentof the law. The obvious ramification is that law ceases to be an exercise in justice and becomes one in human behaviour. Thus, law does not exist of its own accord, but does so in relation to the nature of humans and their behaviour. This integrates law with sociology and contravenes one of the pillars of legal positivism; the mutual exclusivity of law from other schools.
ii. Supremacy/Despotism
A further weakness in Austin’s theory is highlighted in the final requirement of sovereignty: supremacy/despotism. Austin states that “every supreme government is legally despotic.”[40]He claims that a sovereign rightly so called has no legal limitation and is not bound by the laws it creates, merely by a moral obligation to follow these laws. This notion is supported by both Blackstone, who argues that “in every legal system there is a supreme, absolute and unlimited legislative power”[41], and Thomas Hobbes, who similarly believes that “to the lawes which the sovereign maketh, the sovereign is not subject…”[42]Blackstone, Hobbes, and Austin all err, either in practice, in which case they are archaic, or in theory, in which case they are anti-democratic.
In practice, sovereigns are limited both on a national and an international level. On a national level, sovereigns are often subject to lateral checks and balances by other institutions. The prime example is the United States government, where “the powers of [its] legislature…are subject to legally binding limitations.”[43]This prevents it from being truly despotic in the Austinian sense. Such is the case in many other modern legal systems. On a global scale, sovereigns may also be punished under international law[44]. Thus, as noted by Dicey[45], Austin’s theory is inapplicable outside the context of the English Parliament, and “his theory of sovereignty may have been a generalization from English law.”[46]
If Austin’s theory is not applied, but merely analysed theoretically, it is still problematic. Despite Cotterrell’s defence that “Austin’s discussions relate primarily to the conditions of representative democracies”[47], Austin’s insistence that for a sovereign to be rightly so called they must be illimitable by law arguably encourages tyranny, exposing his theory to be anti-democratic. The consequences of this are evident. Checks on sovereign authority through the separation of powers and legal limitation not only allow democracy to flourish but also uphold the rule of law that all mean are equal before the law. Austin’s theory would elevate the sovereign above the usual ambit of the law. It is hard to argue that this is what any legal theory sets out to do. Rather, it can be seen as an unfortunate repercussion of an ill-formed theory, and one that is inconsistent with modern ideologies on politics. The contemporary world holds “the democratic ideal”[48], in its various forms, to be the most desirable system of governance. Austin’s theory is hard to reconcile with this opinion, and thus its application is impractical in the modern age.
A closing criticism of Austin’s sovereign is raised by Hart in relation to the “scope and persistence of laws”[49]. Austin elucidates very little on the concept of succession. As a result, many questions are left unanswered. Questions such as “how do we know when and where a new sovereign emerges when an existing one dies or is destroyed? Why do laws enacted hundreds of years ago survive today, given successive changes in the identity of the sovereign?”[50]Austin’s theory is unable to address these questions adequately. It “contains unresolved tensions”[51]and by virtue of these does not satisfy the criteria of clarity outlined in section 2 of this paper. Hence, the first requirement of sovereignty is prey to all three criticisms previously presented: uncertainty, archaism, and being anti-democratic. Its failure to properly perform the functions of a legal theory is all the more evident as its subsequent components are analysed.
b. THE COMMAND
The second requirement of Austin’s sovereign command theory is that there be a command. This command, when issued by a monistic, despotic sovereign to whom obedience is given, becomes a law. Austin sees law as a type of command[52]. He defines a command as being “a wish conceived by one, and expressed or intimated to another, with an evil to be inflicted in case the wish be disregarded.”[53]There are two elements to this definition: the evil (or sanction) and the expression (or addressment).
i. Sanctions & Obligations
Firstly, Austin argues that an essential requirement of a command, and thus a law, is that it be backed by a sanction: “unless the motive to compliance be violent or intense, the expression or intimation of a wish is not a command.”[54]This line of reasoning leads to the simple deduction that if there is not a sanction or “an evil to be incurred”[55]there is not a law. With this argument, Austin performs a defect and a linguistic fallacy.
His defect is in overlooking that not all laws which are recognised as laws impose sanctions (Hart)[56]. These laws are permissive laws or power-conferring laws, such as contract laws. Austin fails to identify these as laws ‘properly so called’. This is a narrowing of the variety of laws and constructs “a simple model of law as coercive orders”[57]. It over-simplifies law by creating a slender framework into which laws must fit in order to be ‘properly so called’. It has the consequence of disregarding what are legitimate laws. This critique of narrowness can be extended to Austin’s linguistic construction of sanctions. Hart argues that Austin fails to make a crucial distinction, leading to a misconception of sanctions and the obligations they impose. Austin, in Hart’s view, does not distinguish between the state of “having an obligation — there being a standard which one recognises ought to be followed” and that of “being obliged — in the sense of having to do something ‘or else’”[58]. This failure to distinguish, as Hart notes, means that under Austin’s theory one would have no difference of obligation between a tax collector and a gunman. This misconstrues the notion of legalobligation. If one is said to have an equal obligation to a gunman andtax collector, the power of the law would become immaterial. As the gravest consequence, legislation would lose its capacity for coercion. Thus, in an attempt to construe the commanding power of law, Austin inadvertently de-authorises the law and empowers the bandit. This is a far cry from the aims of any legal theory and displays the inconsistency of Austin’s thesis.
ii. The Addressed
A further requirement of Austin’s sovereign command theory is that commands must be “set by political superiors to political inferiors.”[59]This yet again presents an oversight as there is a crucial case in which laws are not set by political superiors to political inferiors and are arguably still valid; international law. Austin holds that international law is not law properly so called as it is “not set by its author in the character of political superior.”[60]As he believes that “no supreme government is in a state of subjection to another”[61]and thus the laws set out between them are not positive laws, he is able to “deny the ontological reality of international law.”[62]This denial is inaccurate. Austin may be correct in saying that international laws are set by custom. Their adoption by states is, as seen by the likes of Oppenheim and Anghie[63], consent-based. That being said, Austin is inaccurate in representing the obligations these laws impose. He states that international laws are merely positive moral rules and thus sovereigns have a moral not a legal obligation to follow these rules and the sanctions imposed on them are moral not legal sanctions[64]. However,jus cogens, or peremptory norms, are international laws that sovereigns are under an obligation to accept[65]. The consequence of refusal is not, as Austin would argue, moral sanctioning such as international condemnation. It is legal sanctioning in the form of the conflicting law being held null and void and the guilty state being punished. Austin’s non-recognition of international law leaves a wide gap in his theory, with Westlake contending that Austin “had narrowed his enquiry too far…”[66]
Many critics have also presented a different theory on the source of international law’s authority. Law professor, Antony Anghie, argues that “society, rather than sovereignty, is the central concept used to construct the system of international law.”[67]This may be a preferable approach to that of Austin’s, as his conception of a sovereign has already been deconstructed and shown to be inadequate. Another critic of Austin’s views on international law is Hart, who states that “to argue that international law is not binding because of its lack of organized sanctions is tacitly to accept…that law is essentially a matter of orders backed by threats.”[68]Sanctions are arguably not necessary for the validity of law, as highlighted in the preceding section. Thus, Austin’s theory is shown to come to a rudimentary conclusion on the nature of law; a conclusion that cannot be substantiated by evidence of acute thinking.
A last critique of Austin’s notion of command is its association with sovereignty. What if sovereignty, as defined by Austin, is present, but a command is not? This is a line of argument raised by Sir Henry Maine[69]. Maine employed the example of Maharaja Ranjit Singh, a leader who was despotic in the Austinian sense, yet “never once in all his life issued a command which Austin could call law…The rules which regulated the life of his subjects were derived from their immemorial usages and these rules were administered by domestic tribunals, in families or village communities.”[70]Maine’s argument highlights the complex nature of law; it is more than mere commands issued by sovereigns and extends to encompass customs, traditions and general opinion; things Austin would term to be laws improperly so called. The consequences of this simplification of law and Austin’s other defects are examined in the subsequent section.
4. THE CONSEQUENCES OF AUSTIN’S THEORY
There are two possible consequences of Austin’s sovereign command theory. The first presents itself if Austin’s theory is accepted, the second if it is rejected. If Austin’s definition of law is accepted as correct it will mean that there are few, if any, laws properly so called in the modern world. His overly-simplistic theory fails to recognise the complex legal systems existing today as being governed by positive law, leaving many contemporary legal systems outside the ambit of law where they would be recognised as valid by other positivist theories. This narrowing of the scope of law is opposed by members of Austin’s own camp. Defender of legal positivism, Matthew H Kramer, called “for the term ‘law’ to be used broadly”[71], highlighting legal positivism’s aversion to Austin’s constriction. Whilst students of the Austinian school of thought may view his simple theory as a call for reform of modern states, its simplicity is not a benefit. A complex legal system should be favoured over a simple Austinian one, as the latter cannot take into account the intricacies of dealings between men themselves and men and the state. Austin’s theory views the world through a predominantly social lens, failing to take account for many political and legal factors that weigh into the construction of a legal system. Law is arguably more than a series of commands by sovereigns. It is a fluid exchange between the governed and the governing with each influencing the other in equal measure.
The second possible consequence is that Austin’s theory has failed, itself, as a theory of legal positivism. It does not “examine the [evident] nature of stable rule systems”[72]nor does it “develop concepts useful for analysing and understanding actual systems of law”[73]; its purpose as prescribed by Julius Stone, Robert N. Moles, and Michael Lobban. This consequence is more existent, as many view his theory to have no “particular intrinsic value”[74]. It is no longer used as more than a mere legal reference, and subsequent theories have challenged his ideas, repealing his work.
5. CONCLUSION
In conclusion, Austin has constructed a thesis which is limited in terms of applicability; the features are either too imprecise to be used in practice, or their antiquity renders them irrelevant to modern day legal systems. He does little to elucidate the elements of actuallegal frameworks. This, along with the theoretical controversies strung within its contents, cast doubts on its legitimacy as a reputable legal theory. As a result, his theory is “of no lasting worth”[75], save for its legacy.
His lack of success in creating a valuable legal theory highlights the difficulties legal philosophers face in their quest to produce a definition of law. The study of jurisprudence is by no means a single path with clear questions and answers, as it encompasses varied schools of thought that philosophers may find difficult to align into one cohesive theory. Yet, a probing into the nature of law is imperative. Austin’s work should not serve as a deterrence to future attempts, but rather a challenge to do better.
[1]Wilfrid E Rumble, The Province of Jurisprudence Determined(Cambridge University Press, 1995) vii
[2]David Campbell, ‘The Province of Jurisprudence Demolished’ (2011) 20:2 Soc & Legal Stud 253 <http://heinonline.org/HOL/Permalink?a=NOTHING&u=http%3A%2F%2Fheinonline.org.ezproxy.nottingham.ac.uk%2FHOL%2FPage%3Fpublic%3Dfalse%26handle%3Dhein.journals%2Fsolestu20%26collection%3Djournals%26id%3D251> accessed 14 January 2018
[3]Richard Nobles and David Schiff, ‘Debating with Natural Law: The Emergence of Legal Positivism’ in James Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford University Press 2005) 142
[4]H L A Hart, The Concept of Law(Oxford University Press 1961) 1
[5]Hart (n 4).
[6]Hart (n 4) 1.
[7]Nobles and Schiff (n 3) 99.
[8]Nobles and Schiff (n 3) 94.
[9]James Penner and Richard Nobles and David Schiff, ‘Approaches to Jurisprudence, Legal Theory, and the Philosophy of Law’ in James Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford University Press 2005) 3
[10]Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason(OUP, 2009) ch 2
[11]John Austin, ‘The Province of Jurisprudence’ in Wilfrid E Rumble (ed), The Province of Jurisprudence Determined (Cambridge University Press, 1995) 18
[12]Nobles and Schiff (n 3) 103.
[13]Rumble (n 1) xix.
[14]James Bryce, Studies in History and Jurisprudence(Oxford: Clarendon Press, 1901) 538
[15]Nobles and Schiff (n 3) 95.
[16]Joseph Raz, ‘Teoría y conceptos: replica a Alexy y Bulgin’ trad R Sánchez Brigido in H Bouvier and P Gaido and R Sánchez Brigido (eds), Una Discusión sobre teoría del derecho: Joseph Raz, Robert Alexy, Eugenio Bulygin(Madrid: Marcial Pons, 2007) 112
[17]Hart (n 4).
[18]Austin (n 11) 18.
[19]Austin (n 11) 19.
[20]Nobles and Schiff (n 3) 118.
[21]Nobles and Schiff (n 3) 104.
[22]Nobles and Schiff (n 3) 135.
[23]ibid [112].
[24]Hart (n 4) 49.
[25]Hart (n 4) 18.
[26]Rumble (n 1) xxi.
[27]Nobles and Schiff (n 3) 112.
[28]Rumble (n 1) xxi.
[29]Rumble (n 1) xxi.
[30]Nobles and Schiff (n 3) 98.
[31]Rumble (n 1) xxi.
[32]Nobles and Schiff (n 3) 118.
[33]ibid [118].
[34]ibid [121].
[35]ibid [119].
[36]Hart (n 4) 50.
[37]Nobles and Schiff (n 3) 121.
[38]See section 2.
[39]Hart (n 4) 50.
[40]Nobles and Schiff (n 3) 129.
[41]Nobles and Schiff (n 3) 132.
[42]ibid.
[43]Rumble (n 1) xxii.
[44]See section 3(b)(ii).
[45]Rumble (n 1) xxii; Albert Venn Dicey,Law of the Constitution(Liberty Fund Inc, 1982) 26–7
[46]ibid.
[47]Nobles and Schiff (n 3) 136.
[48]Allan C Hutchinson, The Province of Jurisprudence Democratized(OUP USA, 2008) ch 8
[49]Nicola Lacey, ‘Modern Positivism: HLA Hart and Analytical Jurisprudence’ in in James Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford: Oxford University Press 2005)161
[50]ibid.
[51]Rumble (n 1) xxiv.
[52]Nobles and Schiff (n 3) 108.
[53]Nobles and Schiff (n 3) 111.
[54]Nobles and Schiff (n 3) 110.
[55]Nobles and Schiff (n 3) 109.
[56]Hart (n 4) 18.
[57]Hart (n 4) 49.
[58]Lacey (n 49) 162.
[59]Nobles and Schiff (n 3) 107.
[60]Nobles and Schiff (n 3) 114.
[61]ibid.
[62]Richard Collins, ‘Classical Legal Positivism in International Law Revisited’ in Jörg Kammerhofer and Jean D’Aspremont (eds), International Legal Positivism in a Post-Modern World (Cambridge University Press, 2014) 39
[63]Collins (n 61) 41.
[64]Nobles and Schiff (n 3) 120.
[65]Ulf Linderfalk, ‘Understanding the Jus Cogens Debate: The Pervasive Influence of Legal Positivism and Legal Idealism’ in Maarten den Heijer and Harmen van der Wilt (eds), 46 Netherlands Yearbook of International Law(TMC Press, 2015) 51–84
[66]Collins (n 61) 42.
[67]Collins (n 61) 41; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 20015) 124, 127–131
[68]Hart (n 4) 212.
[69]Rumble (n 1) xxi.
[70]Mahmood Mamdani, Define and Rule: Native as Political Identity(Harvard University Press, 2012) 22
[71]Matthew H Kramer, In Defence of Legal Positivism(Oxford University Press, 1999) 5
[72]Nobles and Schiff (n 3) 92.
[73]Rumble (n 1) xxi.
[74]Campbell (n 2) 253.
[75]ibid.