Introduction
John Austin is a renowned name in the field of jurisprudence. Etymologically, the word jurisprudence is formed from two words, ‘juris’ meaning law and ‘prudentia’ meaning prudence or knowledge (Anupom, 2011). Jurisprudence can, thus, be defined as the knowledge and science of law that is essential to ensure due justice to the people. Austin’s work was a remarkable start in the direction of the systematic legal system of modern age. Austin’s work emphasised that sanctions are important to ensure conformation to laws and the sovereign is the supreme authority that issues these laws. Austin’s description of sovereign, however, appears to be flawed in the context of modern legal system.
The objective of the paper is to understand Austin’s theory of law and discuss its limitations in the modern legal system. The paper is divided into four parts. The first part of the paper is aimed to understand the basic features of Austin’s theory of law and its description of sovereign. The second part of the paper discusses the influence of Bentham’s philosophy of utilitarianism on Austin and his works. The third of the paper illustrates the problems and limitations of Austin’s theory, and its irrelevance in a variety of legal contracts. The fourth part concludes the paper.
According to Guest, Gearey, Penner and Morrison (2004), as derived from his lecture notes, Austin’s generalised definition of law states that law is the “rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. The two components of this definition are the rules or the command and the sovereign that possess the power to lay down rules. However, there is a third element in Austin’s theory of law that is commonly known as command theory of law. Under the command theory, law can be defined as commands issued by the sovereign that is backed by a threat of penalty. The credit goes to Austin to change the way the legal system is looked at, which made legislation central to the society rather than peripheral (Nehaluddin, 2009). The three essential features of the theory are: command, sovereign and sanction or a threat of penalty for disobedience.
Command
Austin states that laws are a form of command and essential for bringing about order in the society. He defines commands as an overtly stated wish that something needs to be done or forborn, backed by a sanction or penalty for disobedience. The commands are to be based on the concept of right and wrong, as applicable to the bulk population. As contrast to the general laws of nature or man-made rules of conduct, Austin defines his laws as positive laws because it is conceptualised and instituted by an independent political body (sovereign).
Sovereign
Austin’s sovereign or the independent political society is the focal point of ultimate power that creates law and order in the society (Nehaluddin, 2009). Sovereign is a person or an entity that is responsible for issuing commands for its subject and it is the duty of the subject to obey these commands. It is the superior governing body or the politically superior and does not habitually obey commands of any other person or an institution (Guest, Gearey, Penner and Morrison, 2004). The bulk population is inferior to the sovereign and it is the duty to everyone to comply with the commands issued by the sovereign. Hence, the sovereign receives habitual obedience of its subject (Guest, Gearey, Penner and Morrison, 2004).
The sovereign and its commands are common and applicable to the entire society. They are the same across people and regions in a given society. The concept of legal or illegal and the right or wrong is defined and instituted by the sovereign. The subject does not have any power to debate on the merit, content relevance of the command. Hence, it is the sovereign who has the ultimate independence, not the society.
Sanction
Sanction is a threat of penalty and is used by the sovereign as an instrument to ensure compliance to its commands. By threatening to penalise or cause harm, the sovereign prevents incidences of deviant behaviour in the society. The commandment structure works because of the difference in power equation between sovereign superiors and bulk inferiors. It is essential to maintain this structure to ensure law and order in the society, and provide justice to the bulk population.
Influence of Bentham’s work on Austin
Austin was influenced by the utilitarian principles of Bentham which is evident from his command theory of law and the concept of positive law. In one of Austin’s lecture notes, he mentions that natural laws are Divine will and are founded on utilitarian principles. These are aimed at bringing about general happiness in the society. However, these laws are not perfectly stated or completely and unambiguously revealed by God. He states that the commands that are not revealed by God should be instituted by the sovereign and based on the principles of utility (Stanford, 2010). Under the influence of utilitarianism, he devised the positive law that emanates from the sovereign.
He believed that rules formulated by the sovereign should be guided by logical, moral and ethical considerations. It should ensure happiness and justice to the bulk population. Principles of utility are in conjuncture with God’s will and punishment is imperative for any action against the principles of utility.
Limitations of Austin’s Theory of Law
Austin’s theory of law and his description of sovereign was a revolution, in the sense that it made legislation the focal point of a society. However, Austin’s work has been largely criticised for some inherent problems and limitations, and for being self-contradictory. The key limitations of his work are the description of sovereign and its ultimate power, habitual obedience, use of coercion as a means of compliance, flaw in the process of formulation of legal rules and non-applicability to a variety of laws.
Description of Sovereign
The description of sovereign as the supreme power is flawed in itself. Firstly, the definition of sovereign as a person or a body is in itself flawed. If a sovereign is a body or an institution and constitutes of members, each of its members will have different point of view. A body will require an institutional framework to function smoothly. The existence of a set of rules or framework would mean that the body is not all-powerful as it obeys commands. Thus, Austin’s definition of a sovereign body is self-contradictory. If the sovereign is an individual, it is beyond the scope of a single person to have an in depth understanding of the entire legal system and ensure proper execution of the same.
Secondly, if a sovereign is a person, he or she is independent and guided by his or her own free will. As rightly mentioned by Eleftheriadis (n.d.), a free mind is the source of unpredictability and contingencies. With ultimate power and independence, the sovereign can enforce inhuman actions against its subject. Such actions can lead to hostility in the bulk population. Hence, if a person represents a sovereign, his or her ultimate power can be manifested in a situation of absolute monarchy and cause a panic situation.
Thirdly, if the sovereign has the ultimate power, how is the sovereign formed or identified? How is its area of power demarcated by geography or population? Who defines that a sovereign has the supreme power? Who defines the requirements and responsibilities of a sovereign? Austin’s theory does not account for the existence of these pre-established criteria.
Fourthly, Austin defines sovereign as the commander who commands its subject and imposes sanctions on disobedience. It ensures law and order situation in a society. Dias (1994, cited in Radhikaraman, 2008) asserts that sovereign cannot be technically under a duty to maintain order as that would imply the existence of another supreme body above a sovereign. If that is not the case, how is it motivated or incentivised to perform its task diligently.
Last but not the least, laws are general in nature. They are not addressed to a particular group of people. They apply to all. In this context, how can sovereign by exempt from the rules of law? This contradicts with the theory of sovereign as the supreme power.
Habitual obedience and Persistence of Laws
Austin mentions that the sovereign receives habitual obedience from its subjects. Both, habitual obedience and supremacy of authority fail to explain continuity or persistence of laws. Hart (1994 cited in Eleftheriadis, n.d., p. 9) noted that if a sovereign is dead, it will create an unabridged gap in the legal system. Once dead, the commands of a sovereign would become void, so succession cannot be implemented. Even habitual obedience is inadequate to ensure persistence of laws as the entire legal system and its commands will all be gone with the dead of the sovereign. Obedience to the sovereign successor cannot be guaranteed through habits alone, but requires behaviour standards and rules. It is, thus, important to ensure compliance through rules and standards, rather than habits. This is a big limitation of the theory, as a legal system without a succession plan is meaningless.
Coercion as a Means of Compliance
Coercion is an inadequate and ineffective measure to ensure compliance, and the use of sanction or coercion to enforce compliance to commands has been strongly criticised. Enforcing laws with the help of force and threat is not entirely different from the rules of terror, the only difference being that the latter is legitimised by the citizens (Stanford, 2010). It is important to note that absence of resistance does not necessarily mean consent. It may lead to mass unrest and explosions. Austin has not discussed the procedure of using coercion and sanction, so that it does not lead to mass outbreaks.
Coercion can never by the primary motivation in complying with commands. The threat of penalty should be consequent to the laws, not a part of it. Hence, certain things should be done or not done because they are morally, ethically or logically incorrect, and not because it has a sanction backed by it. The other aspect of this is trust in the authority that institutes these laws. Instead of habitual obedience, if people have trust in the sovereign and the sovereign sincerely strives to bring happiness to the people, there will be no need for coercion.
Process of Formulation of Legal Rules
In Austin’s structure, commands are issued by the sovereign. The subject has no power to debate the concept of the right or wrong in the definition and institution of commands. Thus, laws are not instituted by the virtue of their merit or content, but by the wish of the sovereign. As the laws cannot be questioned by anyone, there is no scope for feedback or improvement on the existing laws. Hence, the laws instituted by the sovereign can more aptly be called ‘the rule of a powerful men’, rather than ‘rule of law’.
It can be visualised as a powerful man issuing commands to his subject, with his limited understanding of law and apparently no incentive (except for morality) to ensure fairness. On top of this, he is also aware that there is no one to question his commands. It is sure to create a disastrous situation.
Non-applicability in the Modern Legal System
Austin’s theory fails to explain the modern legal system on several counts. It does not explain present day private, public law and international laws. Firstly, the modern day private laws governing marriages, negotiable instruments, wills and a variety of contracts are not primarily commands back by sanctions. These laws have been created to enable or empower people to smoothly carry out various operations. These laws are facilitating, rather than obstructing. Also, certain contractual laws give power to the people to define the scope, content and responsibilities in the legal contract.
Secondly, public laws like the once that guide the judiciary and legislative system of a country are not backed by threats alone. Threat is definitely a penalty for non-conformance or deviance, but these laws primarily lay down the guidelines for effective functioning of the judiciary system. The objective, definition of structure, delegation and responsibilities are components of the judiciary laws.
Thirdly, Austin defines laws and commands instituted by a sovereign in a demarcated territory. He fails to explain the prevalence of international laws. He also fails to explain the relationship and interactions between sovereigns of different territories, and the impact of their interactions on the laws of their territory.
Concept of Equality and Limited Altruism
Hart (1954 cited in Guest, Gearey, Penner and Morrison, 2004, p. 35) mentions the concept of approximate equality and limited altruism in defining a legal system. The concept of approximate equality claims equality among people and states that no single person can have enormous power and everyone is bound by commands of dos and don’ts.
The concept of limited altruism concludes that people are a balanced proportion of good and bad. They have their own set of needs and desires. Hence, ultimate altruism cannot be expected from them and there is a need to imposition restrictions. These two concepts throw significant light on the superficiality of Austin’s description of sovereign as supreme power.
Conclusion
Austin’s work on description of sovereign and the command theory of law has been a remarkable contribution. It has brought legislation to the central point of the society. However, various aspects of his work seem flawed and self-contradictory. Austin’s work has been influenced by the theory of utilitarianism. The key elements of Austin’s theory of law are command, sovereign and sanction. Austin describes sovereign as a person or body with supreme power and the bulk population as political inferiors. This definition is flawed on many counts. A sovereign cannot be a body or institution as the latter is guided by set of rules. If it is a person, ultimate powers to a person may be disastrous. Moreover, the sovereign does not have a duty towards anyone, except for its own moral responsibility. Austin’s definition of sovereign has not been able to explain the pre-existing laws like demarcation of a society.
The persistence of law with change of sovereign is also not explained. The concept of equality is also not applicable to Austin’s sovereign. The use of coercion by sovereign to ensure compliance is inadequate as coercion is temporary and cannot be the primary motivation. Methodology of applying coercion is also not provided by Austin. Too much of coercion may lead to mass outbreaks. He fails to incorporate the concept of limited altruism in defining the sovereign as ultimate power. The formulation of laws is through top down approach and cannot be effective in long run. These rules of law are not applicable to the private and public laws existent today. To sum up, Austin’s sovereign is a flawed and requires various changes to make them applicable to the present scenario.
References
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Radhikaraman, 2008. Austin’s Theory of Sovereignty in Modern India and Pakistan. India: Legal Service India. Available at: < http://www.legalserviceindia.com/article/l213-Austin's-theory-of-Sovereignty-in-modern-India-and-Pakistan.html> [Accessed 10 May 2012].
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