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PHIL 168: Philosophy of Law UCSD; Fall 2011 Professor David O. Brink Handout #1: Austin and the Command Theory In The Province of Jurisprudence Determined (1832) John Austin (1790-1859) exploits a very natural view of the law as a body of rules or commands issued by the state for the purpose of regulating conduct, violation of which is subject to punishment. Austin's command theory develops and makes more accessible some related views of Austin's mentor, friend, and fellow Philosophical Radical Jeremy Bentham (1748-1832). The Philosophical Radicals sought to design and reform legal and political institutions according to utilitarian principles. Appealing to "the greatest happiness of the greatest number" the Radicals sought to extend the franchise and challenge institutions of class and privilege. Bentham and Austin both defend a conception of law as a system of coercive social rules. On this conception, there is no necessary connection between law and morality. In this way, both challenged the sort of natural law tradition exemplified by St. Thomas Aquinas (1225-74) and the English jurist William Blackstone (1723-80). Austin embeds the command theory in an elaborate taxonomy of law and related phenomena (see chart on next page). He wants to distinguish descriptive laws of nature from prescriptive laws that are issued by persons for persons. Not all prescriptions take the form of laws; prescriptive law must contain a threat of sanction for noncompliance. But prescriptive laws include both God's commands (divine law) and human commands or positive law. Positive law contains both positive morality and positive law properly so- called. The science of jurisprudence concerns positive law properly so-called. THE COMMAND THEORY Austin identifies positive law (properly so-called) with commands of the sovereign. Command Theory: Law is the command of the sovereign. The command theory employs two central concepts -- that of a command and that of a sovereign. Command: a command is the expression of a wish by one person to another that is backed up by the credible threat of sanction for noncompliance. Sovereign: x is a sovereign within a community iff (a) the bulk of the community is in the habit of obedience or submission to x, and (b) x is not in the habit of obedience to any person or group of persons in that community. These two concepts, in Austin's view, provide a key to the science of jurisprudence.

LAWS

DESCRIPTIVE
Includes laws of nature

PRESCRIPTIVE
Expression of a wish by one intelligent being to another that the other behave in a certain way

NONCOMMANDS
Includes requests and pleas

COMMANDS
Laws properly so called: commands from one intelligent being to another (= expression of a wish where the issuer is willing and able to inflict a sanction for noncompliance)

DIVINE LAW
Laws set by God for humans (our index is utility)

POSITIVE LAW
Laws set by humans for humans

POSITIVE MORALITY
Includes (a) commands from one sovereign to another, (b) commands outside political society, (c) commands within political society but not in pursuance of legal rights, and (d) laws that are not commands (e.g. declaratory laws, repeals of previous laws, and imperfect laws)

POSITIVE LAW PROPER

Laws set by sovereigns for their subjects (x is a sovereign iff the bulk of the population is in the habit of obedience to x, and x is not in the habit of obedience to anyone else)

3 THE COMMAND THEORY AND LEGAL POSITIVISM The Natural Law tradition asserts that there is an essential connection between law and morality, whereas Legal Positivism denies this. On one interpretation of the essential connection, natural lawyers insist that genuine laws must have adequate moral content, whereas legal positivists deny this. On this interpretation, wicked law is no real law at all. Aquinas is the father of natural law theory and makes several claims about the essential connection between human law and morality in his Summa Theologica. Law is an ordinance of reason for the common good, promulgated by him who has care of the community as Augustine says, that which is not just seems to be no law at all. If at any point it [human law] departs from the law of nature, it is no longer a law but a perversion of law. Blackstone was perhaps the most famous and influential British jurist of the eighteenth century, certainly prior to the appearance of the Philosophical Radicals. In his Commentaries on the Laws of England Blackstone is also a defender of Natural Law. This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this, and such as them as are valid derive all their force, and all their authority, mediately or immediately, from this original. On this view, adequate moral content is a necessary condition of positive law. By contrast, Austin insists that the command theory supports Legal Positivism. A sovereign can issue morally acceptable or wicked commands: "The existence of the law is one thing, its merit or demerit another". CONCERNS ABOUT THE COMMAND THEORY Whereas the command theory fits absolute monarchies and criminal and tort law pretty well, Hart thinks Austin cannot do justice to the complexity of modern laws and legal systems. Hart has several worries about the command theory; even if Austin's theory can avoid incoherence, Hart thinks he achieves consistency and uniformity at the price of distortion. COMMANDS AND OPTIONS (POWER CONFERRING RULES) Whereas some laws regulate behavior, enjoining particular kinds of conduct, other kinds of law (parts of contract, probate, and family law) confer legal powers. Hart distinguishes between public and private power-conferring rules, and contrasts both with commands. One way to understand Hart's point is to think of commands as expressing categorical demands. In circumstances C do x, regardless of your own interests or desires.

4 By contrast, one might understand power-conferring rules as expressing hypothetical demands. In circumstances C do x iff that will help you achieve your aim A. We might say that whereas commands foreclose options, power-conferring rules create options. However, we might ask if this contrast holds up. Mightn't commands be understood as hypothetical demands after all? In circumstances C do x iff you want to avoid the risk of punishment. Or, we might represent them as having disjunctive form. In circumstances C do x or risk punishment. As hypothetical demands, power-conferring rules could also be represented disjunctively. In circumstances C do x or forego your aim A. This would allow us to represent both commands and power-conferring rules as hypothetical demands. Notice that with power-conferring rules the condition is a carrot, whereas with commands the condition is a stick. Does this show that, at bottom, the two are fundamentally different? I suppose the friend of the command theory might deny even this residual asymmetry and treat nullity as a sanction (stick). But with commands the sanction for noncompliance is conceptually independent of the rule enjoining conduct, whereas it is arguable (Hart claims) that nullity is not conceptually independent -- it simply is the direct consequence of noncompliance. These questions about whether commands can and should be represented as hypothetical demands are interesting and surprisingly difficult to answer. However, there is, I think, a more fundamental worry about representing commands in hypothetical form. If we represent commands of criminal or tort law as hypothetical demands, that is equivalent to a disjunctive demand. This disjunctive view of legal demands is sometimes defended for civil law, especially contracts and torts, by those who see punishment as just part of the cost of doing business. But not everyone views contracts and torts this way, and even fewer are willing to understand criminal law disjunctively. For the disjunctive view of criminal law implies that the criminal who flouts the first disjunct satisfies the law's demand provided that he risks or perhaps suffers punishment. But that can't be right. Hasn't the criminal broken the rule, even if he suffers punishment? Indeed, isn't this why he suffers punishment (when he does)? But then the rule or command cannot be represented disjunctively or hypothetically. SCOPE: LAWS THAT BIND THE SOVEREIGN Is the sovereign above the law? In democracies and constitutional monarchies the sovereign falls within the scope of the law. Austin seems forced to claim that in such cases

5 the law-makers are either (a) commanding themselves or (b) each is "really" two people: sovereign and citizen. Hart treats (a) as absurd and argues that (b) requires sovereign- independent (public) power-conferring rules. ORIGIN: LAWS NOT THE RESULT OF ENACTMENT Commands are discrete, dateable events. But some laws (e.g. customary law) are not the result of explicit enactment. Austin thinks that courts recognize custom as law and that judicial enactments are tacit or oblique commands of the sovereign insofar as the sovereign delegates authority to the judiciary. But Hart thinks courts recognize custom as law, rather than making it into law; its status, as law, Hart thinks, presupposes (public) power-conferring rules. CONTINUITY OF AUTHORITY How can we explain the orderly transition of sovereign authority (e.g. from Rex I to Rex II) on the command theory? Rex II's first commands cannot count as law, because there is as yet no habit of obedience to Rex II that has been established. Could Austin appeal to standing laws that Rex I creates to obey Rex II? CONTINUITY OF LAW Here the problem is not with the smooth transfer of authority, but with the persistence of law after the sovereign who commanded it is gone. Might Austin appeal to standing laws again? Can't he claim that x is a law if it was commanded by a sovereign and has not been subsequently contravened by a sovereign? SANCTIONLESS LAW Are sanctions part of the very concept of law, such that we couldn't imagine a legal system that did not regularly apply or threaten sanctions for noncompliance?