Was Austin Right After All

'Austin may have misinterpreted the reality of
law as it is experienced by ignoring the non-
coercive dimensions of law, but his
misinterpretation may have been no greater
than, and was arguably less than, the
misinterpretations, or at least the distortions,
in the tendency of much of contemporary
legal theory, seemingly under Hart's
inspiration, to treat sanctions as peripheral to
law as it is experienced and irrelevant to the
concept of law.'
Federick Schauer,
"Was Austin Right After All?
On the Role of Sanctions in a Theory of Law"

Command Theory
Law is the command given by a sovereign
which is backed by sanction or threats

Command Theory
 Command
an expression of desire by the political superior
to the inferior backed by threat in the event of
non-compliance

Command Theory
 Sovereign
-a determinate person or a body of persons
-receives habitual obedience from its subjects
-but obeys no one
-unlimited legal power

Command Theory
 Sanction
-punishment
-creates duty
-nullity is a form of sanction

Leslie Green
• Subjects carry out their legal duties not
only to avoid sanctions
• They use the law as a guidance
'...to obey is not merely to comply with the law;
it is to be guided by it'
• The main function of sanctions is to
reinforce duties, not to constitute them

Command Theory
 Obligations exist in so far as the failure to obey
the sovereign's order is regularly followed by the
application of sanctions
 Thus, Austin’s theory is based on power wielding
where clubs are trumps.

Pure Theory of Law
Hans Kelsen

Pure Theory of Law
 The only function of law is the monopolisation
of force within a territory, not justice but peace.
 If x (definition of delict), then Y (sanction)
 Criticises Austin for deriving a “legal ought”
from the “is”.
 It is not necessary that every law is backed by
sanction but direct a sanction.
 Nonetheless, his theory suggests that sanction
is a essential feature of law.

Herbert Hart
Assault on Command Theory

 For Hart, to command is to exercise authority
over men and not power to inflict harm.
 Austin has failed to recognize the existence of law
that cannot be construed as orders.
Hart's Assault on Command Theory

Examples of law that cannot be construed as orders:
 Laws on marriage and civil partnership
 Contract law
 Will Act 1837
 House of Lords Act 1999
 Parliamentary Act 1911, 1941

 Who is the sovereign?
-For Austin, sovereign is legally illimitable
-However, in reality, no man is above the law
-Example: Representation of People Act 1983
-If in the democratic society, the sovereign is
located in the electorate, then it is absurd that
the bulk of society obeys themselves

 Fails to distinguish between habit and rule
-Continuity of authority to make laws by
succession of sovereign
-Persistence of laws

 Gunman situation
-Gunman only has temporary superiority over his
victim

 Difference between obliged and obligation
-To obey is a psychological one referring to beliefs and
motives with which the action was done
-Having an obligation does not necessarily mean a person
does something which he is required to
-Example: Swindler had an obligation to pay rent, but felt
no pressure to pay when he made off without doing so

 Rule has internal aspect and it is not merely
ground for a prediction that sanction will follow
but a jusification for applying sanction
 Thus, Austin failed to account for the
normativity of law

 To highlight the different social function of law,
it must be presented in different types
 Thus, Law=Primary Rule (duty imposing rule) +
Secondary Rule (power conferring rule)
Law as the Union of Primary &
Secondary Rule

 Primary rules are social rules which are often
coercive in nature
-Hart regarded society with social rule as pre-legal
society
 Such society suffers from three defects:
-uncertain
-static
-ineffective
Primary Rules

 Rule of change
 Rule of adjudication
 Rule of recognition
Introduction of secondary rules is the step
into the legal world
Secondary Rules

 Primary rules concept is similar to Austin's
command theory
'when physical sanctions are prominent or usual among
the forms of pressure, even though these are neither
closely defined nor administered by officials but are left
to the community at large, we shall be inclined to
classify the rules as a primitive or rudimentary form of
law'
 This seems to affirm that sanction is an essential
part of the law?
Evaluation of Hart's Theory

North Korea
 Command:
do not criticise government
(words/personal directives from the supreme leader)
 Sovereign:
Kim Jung-Un
 Sanction:
Three generations of imprisonment
(second and third generations-born and live in prison)

Brunei
• Command:
banning Christmas celebration
• Sovereign:
Brunei's Sultan Hassanal Bolkiah
• Sanction:
Five years jail

Was Austin Right
After All?
Federick Schauer

 Sanction
-punishment
-device that the law uses to threaten
 Coercion
-the effect of law on people's decisions
-the force that drives or motivates people to
follow the law
Sanction vs Coercion

Bad Man vs Puzzled Man
 Bad person
-A person who takes into account factors other
than law in their decision making
 Puzzled person
-A person who has internalised obedience to the
law and wants to ascertain what it is

Schauer's Analysis
 Does the idea of many puzzled men 'fit the
facts' ?
 Are there many people who obey the law simply
because it is law?

 Hart provides no empirical evidence to the idea
that the puzzled man exists in large quantities
 If Hart's criticisms do not 'fit the facts', the
importance of coercion in legal systems is under-
represented in Hart's description of the law
Schauer's Analysis

Joseph Raz
A student of Hart and an
exclusivist positivist

Reasons why Raz treats
sanctions as irrelevant to the
concept of law
 Essential features of law and the
'puzzled man'
 Authority before sanctions

Essential Features of the Law
"Legal philosophy has to be content with
those few features which all legal systems
necessarily possess"
 What is imporant must be distinguished from
what is essential

Essential Features of the Law
 Society of Angels and the Puzzled Man
'imagine a society made up of beings that lack any
desire to disobey the law; beings that look upon law
with reverence and thus guide their behaviour by its
dictates'
Society of angels ≈ Puzzled man
 Can the law exist in a society without sanctions?

Authority before sanctions
• The law is obeyed because it is the law
• Sanctions are an auxiliary reason for action
• Command theory makes law the tool of a
'gangster writ large'
Raz, The Authority of Law (1979)

Evaluation of Raz's Theory
The hypothetical system in the society of angels is
not recognisable as a legal system by all
'Humanly impossible but logically possible'
Are sanctions an important, defining factor of
legal systems?

 Schauer agrees that it is
not logically necessary
that a legal system
requires sanction to
enforce the law
 However, this does not
mean that sanction is not
important to the concept
of law
Schauer vs Raz

 Not all birds fly. There are essential aspects to
birds, but flying is not one of them
 However, flying is an important concept to birds
 If we want to get the full picture, it is not
helpful to consider a concept based on what is
logically necessary
Flying birds

 To say that only
essential aspects of the
law have value to
jurisprudence is to cut
off many avenues of
inquiry without good
reason

 Hart makes the point that
coercion is a 'natural
necessity' except in very
small groups
 Raz tells us that a legal
system which exists
without coercive
enforcement is probably
'humanly impossible'

Was Austin Right After All

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