Early Positivism: The Command Theory of Law

I. Introduction: The Criteria of Legality. Every theory of the concept of law must ultimately tell a story about what distinguishes norms that count as law from norms that don’t count as law. This requires, then, an account of the necessary and sufficient conditions that determine what counts as law in a particular legal system; otherwise put, this requires an account of the criteria of legality. The criteria of legality, then, are those criteria that determine what counts as law in a legal system: any norm that satisfies those criteria count as law because they satisfy those criteria.

It is, of course, reasonable to surmise that to a certain extent the criteria of legality will vary from society to society. For example, whereas the criteria of legality in the US include something like:

A congressional enactment signed by the President of the US that satisfies the Bill of Rights is law in the US,

the criteria of legality of Canada does not.

II. The Classical Natural Law Account of the Criteria of Legality.

According to the traditional interpretation of Aquinas and Blackstone, they hold that:

Classical NL Thesis: In every conceptually possible legal system, the criteria of legality include consistency with the natural law as a constraint on the content of human law.

III. Positivism’s Separability Thesis. As we have seen, Austin rejects classical naturalism’s claim that there are some necessary moral constraints on legal validity such that an unjust rule or principle cannot be a law. On Austin’s view, classical naturalism conflates two issues that are fundamentally distinct; as he puts the matter: “the existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to a different standard, is a different enquiry.” Accordingly, Austin subscribes to:

Separability Thesis: There are conceptually possible legal systems in which the criteria of legality do not include any moral constraints on the content of law.

IV. Austin’s Positive Account: The Command Theory of Law. Austin begins by defining the notion of law in its broadest sense: “A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

While Austin is concerned to give an account of law as it is practiced by political legal systems, he first attempts to identify all of the basic properties that laws of every kind must satisfy. He identifies a number of properties that he believes all laws, human and divine, moral and legal, satisfy.

A. Every law is a command. It is a conceptual truth, on Austin’s view, that laws are commands. But what is a command? According to Austin, “If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to harm in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request.”

B. Every law is thus backed by a sanction. Since a command is a signification of a desire backed up by a threat of bad consequences in the event of noncompliance and laws are commands, it follows that every law – including the divine law – is backed by the threat of what Austin calls a “sanction.”

1. “Sanction” is not synonymous with “punishment.”

2. Probability and authorization. The probability of incurring an evil is not relevant with respect to the question of whether an expression of desire is a command.

3. Sanctions do not include rewards. Sanctions include only threatened evils for noncompliance—and not promised rewards for compliance: “if you expressed a desire that I should render a service, and if you proffered a reward as the motive or inducement to render it, you would scarcely be said to command the service, nor should I, in ordinary language, be obliged to render it.… If a law holds out a reward as an inducement to do some act, an eventual right it conferred, and not an obligation imposed…: the imperative part of the law being addressed or directed to the party whom it requires to render the reward.”

C. The Relationship between Obligation and Sanction. For Austin, command and duty are correlative terms; as Austin puts it, “being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I law under a duty to obey it. If in spite of that evil in prospect, I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes.” Thus, the terms command, duty and sanction, on Austin’s view, are all inseparably related: the command is the expression of the wish; the duty the liability to the threatened evil; and the sanction is the evil threatened.

D. The General Character of Laws. Laws are general in nature with respect to the acts that are forbidden or required.

As Austin puts the matter: “Where [a command] obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specific act or forbearance, or to acts or forbearances which it determines specifically or individually, a command is occasional or particular. In other words, a class or description of acts is determined by a law or rule, and acts of that class or description are enjoined or forbidden generally.” So laws and rules are concerned with regulating certain kinds of acts generally.

E. Laws Issue from Superiors and Bind Inferiors. Austin explains the notions of superiority and inferiority as follows: “taken with the meaning wherein I here understand it, the term superiority signifies might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes.… In short, whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being, to that same extent, the inferior.”

V. Distinguishing Human Law from Other Forms: The Political Sovereign: Austin believes that in every independent political society, there is a person or determinate group of persons that constitutes a sovereign. The sovereign in the society is distinguished by two marks: 1) the bulk of the given society are in a habit of obeying this person or group of persons; and 2) that person or group of persons is not in the habit of obeying any other person or body in the society. No society can form an independent political society unless these conditions are satisfied.

There are several conditions that have to be satisfied for some person or entity to count as a political sovereign:

A. The habit of obedience must be established over a reasonably extended period of time.

B. The habitual obedience must be rendered by the generality or bulk of its members toward one and the same superior.

C. The superior must not only be common, but also determinate in identity.

VI. Austin’s Theory of Law Summarized. On Austin’s view, then, law is a signification of desire that people commit or refrain from committing certain acts that is supported by a threat of a sanction (command) by a person who is habitually obeyed by the bulk of the population, but who habitually obeys no other determinate person or persons in that society.

VII. Potential Worries.