The
Command Theory of Law:
Philosophy of law A theory that can be
traced to Jeremy Bentham, but which became widely known through the work of his
disciple John Austin, who elaborated the theory in The Province of
Jurisprudence Determined (1832). Austin rejected the claim of natural law
theory that positive law is derived from natural law. Instead, he defined law
as a species of command issued by a sovereign person or body that has purpose
or power to inflict punishment. Law is a coercive method of social control, and
we do not have an option to avoid following legal requirements. In his
understanding, a command has two aspects: (1) it signifies a desire or wish
conceived by a rational being; (2) it can inflict evil or harm on those who
fail to satisfy this desire. Accordingly, his definition of law excludes
customary law, constitutional law, and international law, because they are not
commands in his sense. If the sovereign has stipulated a sanction, one is under
a legal duty. Austin's command theory of law is generally criticized as being
too narrow, for law does more than merely command. In recent times, his
definition of law is examined by H. L. A. Hart in The Concept of Law. “Austin's
particular theory is often called ‘the command theory of law’ because he makes
the concept of command central in his account of law and maintains that all
laws are commands.[1]
Austin's
Views:
Austin's basic approach was to ascertain
what can be said generally, but still with interest, about all laws. Austin's
analysis can be seen as either a paradigm of, or a caricature of, analytical
philosophy, in that his discussions are dryly full of distinctions, but are
thin in argument. The modern reader is forced to fill in much of the
meta-theoretical, justificatory work, as it cannot be found in the text. Where
Austin does articulate his methodology and objective, it is a fairly
traditional one: he “endeavored to resolve a law (taken with the largest
signification which can be given to that term properly) into the necessary and
essential elements of which it is composed” (Austin 1832: Lecture V)
As to what is the core nature of law,
Austin's answer is that laws (“properly so called”) are commands of a
sovereign. He clarifies the concept of positive law (that is, man-made law) by
analyzing the constituent concepts of his definition, and by distinguishing law
from other concepts that are similar:
- “Commands”
involve an expressed wish that something be done, combined with a
willingness and ability to impose “an evil” if that wish is not complied
with.
- Rules are
general commands (applying generally to a class), as contrasted with
specific or individual commands (“drink wine today” or “John Major must
drink wine”).
- Positive
law consists of those commands laid down by a sovereign (or its agents),
to be contrasted to other law-givers, like God's general commands, and the
general commands of an employer to an employee.
- The
“sovereign” is defined as a person (or determinate body of persons) who
receives habitual obedience from the bulk of the population, but who does
not habitually obey any other (earthly) person or institution. Austin
thought that all independent political societies, by their nature, have a
sovereign.
Positive law should also be contrasted
with “laws by a close analogy” (which includes positive morality, laws of
honor, international law, customary law, and constitutional law) and “laws by
remote analogy” (e.g., the laws of physics). (Austin 1832: Lecture I)
Criticism
of Austin’s theory by Hart
HLA Hart (1907 – 1992) critiqued Austin
in what he called the “gunman situation writ large”. If a gunman comes to you,
giving the option between your money or life, he achieves what he wants by
threatening to take away your life, which is not juxtaposed to what Austin
alleged through his command theory. The disparity is that the gunman’s threat
is temporary, whereas the sovereigns is eternal, the gunman targets the
individual, the sovereign generally society, the gunman’s control is physical
and whence this comes from fear of the gun the sovereigns power comes from a
cerebral control. Hart rejects Austin’s theory on a number of justifications;
legal obligation, there is no psychological reasoning; the threat of punishment
is imminent under Austin even if it cannot be sufficiently carried out, and
that command and duty are indeed one term: all of which Hart rightfully
negates. Threats that are backed by intimidation do not necessarily equate to
obligations under law; rather, they only give reason why people comply. Austin
only looks at the mere substance of peoples fear, he negates to look at a
person’s attitude, beliefs and drives. Furthermore, Austin has no interest in
self-actualization in terms of assessing personal conduct.[2]
Hart’s
idea in modern legal systems
In high influential book the concept of law (1994, first
published in 1961), professor Hart attempted to link types of legal systems. He
divided legal rules into primary rules and secondary rules, and argued that the
existence of secondary rules was a mark of a developed legal system.
Primary rules were described as those
which any society needs in order to survive. These rules forbid the most
socially destructive forms of behavior- typically murder theft and fraud-and
also cover area of civil law, such as tort. According to hart, simple
societies, which generally have a high degree of social cohesion, can survive
with only these basic rules but, as a society becomes more complex, it will
require what he described as secondary rules. Secondary rules confer rather
than impose duties, and can be divided into three types; rules of adjudication,
rules of change and rules of recognition.[3]
Functions
of law:
In
general law serves five main functions: it cultivates and ensures the existence
of adequate order, provides resolutions to conflicts, provides a safe haven for
individuals and their assets, maintains the structured operation of the
civilization, and protects civil liberties as set forth in each nation's
constitution. In reference to its maintenance of order, law must decide
exactly what is lawful and what is not. In this same way, the purpose of law
remains to provide a basis for which one may lead a lawful life, with the well
being of others as a consequence of such a function[4]
Social Cohesion
The
nineteenth-century French sociologist Emile Durkheim looked at the issue of
social cohesion, searching for what keeps a society together, and concluded
that law played an important role in this area.
Survival
Professor
Hart argues that the main function of law is simply to allow human beings to
survive in a community.
The maintenance of
order
The
German sociologist Max Weber argued that the primary role of law is to maintain
order in the society.
Balancing different
interests
The
US jurist Roscoe Pound saw law as a social institution, created and designed to
satisfy human wants, both individual and social.
Law jobs
Karl
Llewellyn’s theory is that every social group has certain jobs which need to be
done for it to survive, and law is one of the main ways in which these jobs are
done.
Exploitation
Karl
Marx argued that society was composed of classes whose interests were fundamentally
opposed to each other. Law, Marx maintained, was not made in the interests of
society as a whole, but in the interests of the small group, which dominates
society; through law, this group is able to exploit the working class.
Laws are always obeyed:
Plato's dialogue “The Crito” tells how Socrates,
awaiting execution in jail after his trial, refuses to escape when presented
with the opportunity. He refuses because to escape would be a violation of his
duty to the state and its laws. Socrates argues that he has been tried
according to the law, found guilty and therefore must accept his punishment. He
drinks hemlock and dies.[5]
There are three sorts of answer to this question
which will be examined.
The social contract
The great English philosopher Thomas Hobbes
(1588–1679) introduced the idea of the social contract in order to solve the
problem posed by what he called the “state of nature”. The state of nature for
Hobbes was the condition in which humans would live without the protection of a
state and its laws. In the state of nature life would be “solitary, poor,
nasty, brutish and short”. In other words, it would be a state of war of all
against all – no co-operation, peace or security and constant fear. How can
humans avoid the state of nature? According to Hobbes the only way was for all
people to obey laws. The social contract consists in the understanding that
people will obey the law on the.
Utilitarianism
Utilitarianism is a general ethical theory which
states that the rightness or wrongness of an action is determined by the amount
of happiness or well being it produces. This theory can then be used as a basis
for the state in the following way. According to utilitarianism we have an
obligation to the state and its laws because they contribute more to human well
being than any alternative. Without a state life would be much as Hobbes said.
Thus, the utilitarian argues, people's being will be greater within the state
and its laws than without them. Problem: Utilitarianism is a theory which is based
on maximizing overall happiness or well being. However an overall increase in
well being may be at the expense of individuals. For example suppose that,
after a terrorist bombing, punishing scapegoats (assuming the terrorists had
escaped) could satisfy a community's demand for justice. If this could be done efficiently
and in secret, then it may well increase the overall level of happiness and
thus be justified in utilitarian terms. In other words, utilitarianism seems to
justify punishing innocent people if this leads to an overall increase in the
level of happiness or well being.
The principle of fairness
According to this principle, political obligation
is based on the idea that since citizens derive benefits (security, orderly
government, public services, for example) from living in a state then they owe
allegiance to the state and its laws. This is simply a matter of fairness. You
owe it to your fellow citizens (and they owe it to you) to play your part in an
arrangement from which you derive a benefit. It is a matter of fairness rather
than consent, tacit or otherwise. In other words, you get something out of
living in a state and being protected and serviced by its laws, so you have an
obligation to obey those laws. The obligation is like a payment for a service.
Finally it can be said that What laws
are in force in that system depends on what social standards its officials
recognize as authoritative; for example, legislative enactments, judicial
decisions, or social customs. The fact that a policy would be just, wise,
efficient, or prudent is never sufficient reason for thinking that it is
actually the law, and the fact that it is unjust, unwise, inefficient or
imprudent is never sufficient reason for doubting it, According to positivism,
law is a matter of what has been posited (ordered, decided, practiced,
tolerated, etc.); as we might say in a more modern idiom, positivism is the
view that law is a social construction. Austin thought the thesis “simple and
glaring.” While it is probably the dominant view among analytically inclined
philosophers of law, it is also the subject of competing interpretations
together with persistent criticisms and misunderstandings.
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