AUSTIN ESSAY

2021 ZA
‘Austin was right. Law is best defined as the command of the sovereign.’ Discuss with particular
focus on the work of Austin.

2021 ZB
‘The idea of the sovereign is at the heart of the legal system.’ Discuss with reference to the work
of Hobbes, Bentham and Austin

2022 ZB
Critically evaluate the usefulness of Austin’s theory of law in the twenty-first century.

2022 ZA
‘The command theory of law is best shown through an analysis of Hobbes rather than in the
theories of Bentham and Austin.’

General remarks
This could be seen as a rather provocatively worded question. It overturns the normally
accepted narrative whereby Hart has corrected Austin and swept away the narrowness of the
command theory. This demands you make a response: yes, you agree with the quote, or no,
you disagree. Surprisingly few took the quote on directly; for many it simply was the opportunity
to produce their Austin answer. Yet, as we look at the experiences of many, many people in the
world over the last 20 years a key issue has been the centrality of power and authority; where it
resides and for whom does it reside is crucial. For many people, the state has lost authority, and
yet, in diverse countries around the world, authoritarianism is on the rise and with it a seeming
acceptance by many people that they prefer a strong leader, or a strong leadership, that simply
commands. The beauty of Austin’s theory is its relative simplicity. The complexity of it is that the
simplicity was just the first step, clear away confusion as to the source of law, and then get on
with the complicated task of working out policy and creating laws that will achieve those policies.
Creating the conditions whereby one can see clearly was simply a prerequisite to getting on to
the task of devising rational government.

Answers

John Austin, a well-known British jurist who published extensively on legal and jurisprudential
theory, was born in 1790. His work "The Province of Jurisprudence Determined" had a
significant influence on British and Irish legal philosophy. He created Legal Positivism as a
result of his legal studies, and the two ideas are inextricably linked. James Mill and John
Bentham shared a street with him. Bentham wrote "Of Laws In General" fifty years later. Austin
published his first book, "The Province of Jurisprudence Determined," which was based on a
series of lectures he delivered at the University of London between 1829 and 1832. In the work,
Austin portrayed the principles of the forefathers (Conte, Hobbes, and Bentham). Austin has
often been referred to in academic circles as "Bentham's intellectual clown."
Legal positivists concentrate on the real world and its reality. They blur the line between what is
morality and what is legality. As a result, the law continues to be the essential subject of
jurisprudence. There are only those rights that are recognized by the government and the law.
Austin succeeded Bentham in establishing his theory of imperative command of the law in the
18th century since Bentham's concept was never published. His theory was informed by
Bentham's work.

Austin defined jurisprudence as positive law, or the rule of law that political superiors impose
onto political inferiors. Legislation passed by a political superior for the advantage of a political
inferior is referred to as positive law. It represents the (recognized human) power who made it
manifest. a closed self-constrained logical system distinct from morality. According to the
command theory, a law is a coercive command issued by a sovereign and supported by a
sanction. Austin describes the social traits that set the sovereign apart and help to identify him
or her. Sovereignty is founded on the habitual submission of the majority of a society or
population, yet the sovereign does not submit to anybody.

According to Austin's argument, there may be no connection between human law and particular
moral norms. He argues that there are differences between what the law is and what it ought to
be.

Austin's entire viewpoint is presented by H.L. A. Hart in his 1961 book The Concept of Law. He
continues by asserting that the concepts of order, obedience, habits, and threats that Austin's
theory was founded upon do not contain and cannot by their combination give the concept of a
rule, without which we cannot hope to explain even the most fundamental types of law. Hart
undermines the Austin theory by comparing a sovereign's command to that of a shooter. Austin
did not define how many people required to comply for how long for there to be law, but he does
highlight four characteristics of the theory: universality, standing orders, the mass must obey,
internal supremacy, and outward independence.If the gunman is successful, the bank employee
is told to hand over the money. According to Hart, "coercive orders" or "orders backed by
threats" are acceptable. He asserts that instructions are frequently just damaging threats.

An order is primarily a call to respect authority rather than to be terrified. According to Hart,
terms like compliance, duty, crime, and consequence are often used when talking about criminal
or tort law. So, coercive orders, directives supported by threats, or laws that impose
responsibilities would include criminal law and tort law. Hart contends that Austin's command
theory is a constrictive definition of laws since coercive orders ignore the rules that grant
authority, such as contracts, wills, and marriages. These laws aid people in achieving their
goals, hence they do not impose duties or obligations.

Austin was an exclusive positivist, whereas Hart was an inclusive positivist, despite the fact that
his arguments are generally disregarded. The definitions given by Hart and Austin for the words
command, sanction, and sovereign are distinct. According to Hart, there are some abilities that
have no penalties, like marriage. Hart claims that Austin combined all legal standards into a
command without looking at the laws that bestow power. Cotterell argues that everything that
grants power has a consequence in support of Austin's argument.

Austin defined a sovereign as an individual or organization that commands the majority of

people's habitual submission but does not submit to any other authority. Hart claims that Austin
did not view all laws as commands in his conception of the sovereign. The characteristics of a
sovereign may not exist in any individual or group inside a legal framework.

Austin's final suggestion was that the rule of law is a sovereign order backed by the threat of
force. Harts contends that not all laws are requirements. Hart's analysis of Austin's conceptions
of sanction and supremacy is the main source of his criticism. Austin holds that sanctions are
neither social nor political in nature. Austin's argument is disproved as a result of Hart's
deconstruction of Austin's theory before developing his own. However, in an article on Modern
Legalist by Lacey, naturalists like Fuller and Finnis criticize Hart's view as encompassing legal
positivism with a moral component that Austin lacks.It demonstrates Hart's contempt for the
separation thesis, a key idea in Austin's philosophy. When Hart criticizes Austin's imperative
command theory of law, academics like Penner and legal theorists doubt his point of view. His
critique is a sign of morality and goes against the separation of powers theory of law, as the
article outlines in great detail.