Before proceeding to the discussion of more complex and nuanced concepts of legal theory, the first question we must ask ourselves is, “What is law?”. Even though this seems like a simple question, there is no one answer to this question and no one theory that holds universal appeal and application. We believe that the starting point for this discussion should be John Austin, an extremely influential legal positivist from the 19th century. Though his theory is today oft regarded as overly simplistic for the purpose of explaining the phenomena of law as present in modern societies of the 21st century, it is one of the first theories which distills the idea of law as that being inherently linked with the idea of power.
From his book “The Province of Jurisprudence Determined”, Austin’s conception of law can be understood as a command of a sovereign backed by a sanction. It is important to note that Austin was a hard positivist and sought to completely separate law and morality. This was done in an attempt to turn jurisprudence into a true science and therefore ensure it is devoid of subjective notions.
Laws, according to Austin, must emerge from a clear source understood as the sovereign. In Austinian terms, a sovereign is someone fulfils the below criteria:
(i) Determinate human superior: This means that a sovereign is a person who is clearly identifiable. It can be one person or a group of people. However, this excludes from its ambit the sovereign as being God or the people.
(ii) Receives habitual obedience from the bulk of the society: This is also known as the positive mark of a sovereign. Even though it is not possible for all of the people to obey the sovereign all of the time, as long as he is receiving habitual obedience from the bulk of the society, this criterion is satisfied. Therefore, Austin allows for a little dissent in his theory.
(iii) Not in the habit of obedience to a like superior: This is commonly known as the negative mark of a sovereign. This means that the sovereign is the foremost law-making authority in a nation.
(iv) Unlimited: The law-making powers of a sovereign are unlimited.
(v) Indivisible: This means that there cannot be two sovereigns. There cannot be two different entities extracting habitual obedience from the bulk of the people.
An entity that fulfils the above-mentioned criteria is a sovereign and when this sovereign commands, that is what becomes law. A command can be understood as a signification of desire. It is an expression of wish or an imperative demand and the party to whom it is directed is obliged to do or to forbear from doing a thing. According to Austin, sanctions are the evil consequences that follow if there is non-conformity to the command. A command’s correlative is duty and the person lies under a duty to obey the command. In case he/she does not do so, the person is liable to face sanctions/evil consequences for non-conformity. Within his theory, sanctions or the avoidance of the same operate as the motive to obey law.
This is a rudimentary explanation of John Austin’s Command Theory of Law. In the next post, we shall be doing an analysis of the same in context of the Indian legal system.
[This blog is authored by Saumya Jaju, V year student at National Law University, Jodhpur under the guidance of Professor S.K. Kaushik]