Mr. Advik Rijul Jha
The role of sanctions in the enforcement of law has been discussed in this piece with the aid of Command theory put forth by Austin. Hart’s criticism of Austin’s work has been looked at and it has further been argued that laws cannot exist without sanctions. It is not necessary that sanctions ought to be only direct in nature. Indirect sanctions can also exist which result in people complying with the laws which are laid down. These indirect sanctions can be effective since they get their strength from morals and internalized behavior of individuals.
The most debated topic surrounding the subject of Jurisprudence is the need to understand the depth of what ‘Law’ encompasses and the nature and characteristics of Law. In order to understand the nature of law or need for formulation of rules for social control, two dimensions need to be kept in mind, i.e. what makes law distinctive and which common characteristics does law share with other forms of social control[i]. Jurists such as Hart and Austin have each contributed to elucidating what Law is and the nature of Law. Austin has defined law as a set of commands which are recognized by sovereign persons or body that has the power of inflicting punishment or penalties in form of sanctions. It is sought to be a powerful method to control the society. Sanctions are most commonly understood to be punishments or penalties inflicted upon transgression of the law. Sanctions do not necessarily have to be coercive in nature or negative as propounded by Austin or have positive connotations according to Bentham. There may be various factors on which the nature of sanctions depends like intent of the sovereign, who is the highest authority to give command or lay down rules which lead to a requirement of obedience to those rules by people. Non-adherence to obey these duties can lead to a sanction being inflicted on them. This essay shall attempt to understand role of sanctions in law with aid of the command-theory of law and Hart’s criticism of the same along with using the concept of internalization to further the claim. The essay argues that laws cannot exist without sanctions. It is not necessary that sanctions ought to be only direct in nature. Indirect sanctions can also exist which result in people complying with the laws which are laid down. These indirect sanctions can be effective since they get their strength from morals and internalized behavior of individuals.
Role of Austin’s command theory
Austin defined Law as a command of the sovereign; backed by sanctions. However, who is a Sovereign and what is the nature of a Sanction are topics on which no definite clarity has been reached and is a hot topic of debate in the realm of Jurisprudence. Austin’s conception of Sovereign and Sanction, was disputed by Hart, thus leading to a debate which has not been able to be resolved till date.
Austin defined Law as a species of command, thereby indicating that all forms of law have the nature of a command in it, from which the command theory of law stems from. He further elucidated that law having a nature of a command, gives the subject of the law, a duty to be obey the law, and non-adherence leads to a ‘sanction’. Austin defined a ‘Sovereign’ as “someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of obedience to anyone”[ii]. He further elucidated that ‘Command’ is “the power and purpose of inflicting eventual evil, and not the power and purpose of imparting eventual good, which gives to the expression of a wish the name of the command”[iii]. The result of complying or not complying with laws is sanctions which are essentially the reward or punishment for either adhering or not adhering to laws respectively. However, negative connotation of sanction is central to Austin’s definition of law.
Critique of Austin’s theory by H.L.A. Hart
The fallacy in the argument put forth by Austin is that it talks about sanction only in a negative light. He overlooks the fact that monetary compensations or damages are also forms of sanction. He only takes into consideration the criminal laws and fails to talk about other laws such as civil laws which do not have provisions for punishments but for compensation which can be considered as a form of sanctions. Eg. In the case of a breach of contract, the normative remedy provided by courts is damages or monetary compensation rather than any form of punishment. The work of Austin is respected in terms of the aspect of negative connotation of sanctions. However, other significant factors have been overlooked which enable criticism in hindsight.
The work of Austin was criticized by H.L.A Hart. According to Hart, Austin’s definition is inadequate because it does not include the “idea of a rule,” that is, the idea of a standard which functions as a “reason or justification”‘ for doing or not doing certain things. The existence of these standards are pre-supposed for purposes of evaluating social conduct through a “critical reflective attitude” which differentiates from the “normative structure of society”.[iv] It is pertinent to mention here the impact which indirect sanctions can have. It is not the fear of punishment which would make people adhere to laws. Internalized behavior and morals which are inherent in people can at times lead them to follow rules. External forces or laws are not required to impose sanctions when an individual’s internalized behavior itself makes them conforms to it.
Another imperative critique of Austin to which attention needs to be brought is that sanction theories of law do not describe law correctly. Not all laws are orders backed by threats or conditional permissions to impose sanctions. Secondly, they misconceive the way in which law is binding, for they do not properly explain what it means for law to be authoritative.[v] Social orders exist which provide reward rather than punishment as sanctions, and especially those that enact no sanctions at all, relying on the technique of direct motivation. In contrast to the orders that enact coercive measures as sanctions, the efficacy of the others rests not on coercion but on voluntary obedience.[vi] Eg. According to rituals and beliefs of Hinduism, eating non-vegetarian food during Navratra is not promoted. There would however not be any punishment on someone who does so. However, a non-vegetarian may conform to this rule during this period due to his beliefs and internalized behavior which is completely voluntary while eating non-vegetarain food the rest of the year..
Another significant critique put forth by Hart was categorization of laws into Primary and Secondary types, as against Austin’s categorization of the law, wherein Hart stated that Primary Laws are the Austinian Command based laws. Categories exist in the law which stem from a command based framework. However, Hart further states that law does not restrict itself only to this but also encompasses the secondary laws or the enabling laws such as Contract Laws or the ability to make Wills. These are normally entered into and made by people out of their free will and choice without any command as such or without the need to fear any evil or sanction, but merely due to one’s own discretion[vii]. In this way Hart digresses from Austin’s command theory of the law, and therefore enunciates that law may be of a command-sanction attached to it, but need not be restricted to just that. Eg. The Contract Act allows an individual to make contract according to their needs but a contract can also contain various primary rules giving rise to legal obligations. It is evident that secondary rules enshrine within them both primary and secondary rules. The secondary rule may impose a duty to legislate in a particular way or to prohibit on creating certain kind of rules. E.g. in case of a contract, the agreement is made between the parties who decide as to what can be done and what cannot be done. While making a contract, there is interplay between primary and secondary rules which cannot be overlooked.
However, it can be said that Hart fails to recognize that even if contract are made by individual’s choice, when it is not performed it may lead to sanction. For e.g. if someone enters into a contract and does not performs his duties he will be asked to pay damages thereby leading to infliction of sanction on him.
It can be concluded that no laws can exist without sanction in the modern legal system. Every law requires some kind of sanction, it need not be coercive (punishment) in all cases. Sanction can exist in direct and indirect form. Moreover, morals and internalized behavior of people can also act as a sanction even though no law may be in place which prohibits some action.
For example, a juvenile, who is a chain smoker and a drug addict. The law does not have a direct sanction relating to this but the juvenile in this case is sent to the rehabilitation center or juvenile care center. In this case where the juvenile has been sent for rehabilitation can be seen as indirect punitive measure to make that juvenile refrain from doing drugs. In this case juvenile’s stay in the rehabilitation center can be considered as indirect sanction to make him refrain from doing the acts which was done by him.[viii]
Mr. Advik Rijul Jha is a Fifth Year Law Student (B.A., LL.B.) at Jindal Global Law School, Sonipat, Haryana.
[i] Leslie Green, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Jan 2003), URL = https://plato.stanford.edu/entries/legal-positivism/
[iii] James Penner and Emmanuel Melissaris. Mccoubrey & White’s Textbook On Jurisprudence. Pg. 72, 5th ed. Oxford University Press, 2012.Print.
[v] James Penner and Emmanuel Melissaris. Mccoubrey & White’s Textbook On Jurisprudence. Pg. 75, 5th ed. Oxford University Press, 2012.Print.
[vi] Llyod, Introduction to Jurisprudence, Pg. 204, 8th ed. Print.
[vii] Hart, H.L.A. The Concept of Law, 2nd ed. P. Bulloch and J. Raz . Oxford: Clarendon Press. Print.
[viii] Child Protection and Child Rights, available at http://www.childlineindia.org.in/Juvenile-Justice-Care-and-Protection-of-Children-Act-2000.htm