Podcast: the Fair
'The 'command theory' of law produced by Bentham and Austin has been widely criticized. Is there anything to be said in favour of the 'command theory'?'
Podcast: the Fair
The 'command theory' of Bentham and Austin holds that the law of a community is identified by identifying the 'commands of the sovereign'. Positive law consists of those commands laid down by a sovereign to be contrasted with the dictates of morality or religion. The 'sovereign' is defined as a person or collection of persons who receives habitual obedience from the bulk of the population, but who does not habitually obey any other person or institution. The 'command theory' makes the identification of the law of a community depend on social facts: the 'sovereign' is identified by looking at patterns of obedience in the bulk of the population and then then we should ask: 'what has the sovereign commanded?'(1) Answer identifies what the command theory is and how the 'sovereign' is to be identified. The 'command theory' method of sharply distinguishing legal standards from morality by asking 'what has the sovereign commanded?' has been influential. Professor Hart in The Concept of Law (1961) distinguished law from morality in the form of a master 'rule of recognition'. Professor Raz in The Authority of Law (1979) has said that the heart of legal positivism is the 'sources thesis', the idea that the existence and content of all law can be determined by reference to social sources and that a moral argument is not needed to work out the content of the law. The 'command theory', by identifying law by reference to what the 'sovereign has commanded', is an example of the 'sources thesis' and, to that extent, the 'command theory' has been influential.(2) Answer identifies that the 'command theory' view that law is identified by factual not moral tests has been influential in modern legal positivism, for example, see Raz's 'sources thesis'.
The 'command theory' builds the idea of a sanction into the very idea of law. A 'command' involves an expressed wish from a 'superior' that something be done or not done by an 'inferior', and a sanction to imposed if that wish is not complied with. Both Bentham and Austin make the law's 'normativity', that is, how the law binds citizens depends on the existence of sanctions. For Austin and Bentham the law secured compliance through the threat of a sanction for non-compliance. Modern jurisprudential orthodoxy is that Austin and Bentham were wrong to locate law's normativity in the existence of sanctions for non-compliance. Modern jurists, such as Professor Raz, locate the law's ability to bind citizens in the law's claim to legitimate moral authority: the law claims to provide citizens with morally justified reasons for action. The existence of sanctions in a legal system are an important but subsidiary source of reasons for citizens to comply with the law. (3) Answer clearly notes the importance of sanctions in the command theory of Austin and Bentham.
However, the stress on coercion (sanctions) by Bentham and Austin should not be dismissed out of hand. The 'command theory' captures well the extensive coerciveness of many systems of law and the importance of power to the maintenance of the state.(4) Answer clearly states that modern jurisprudence plays down the role of sanctions in legal theory, although sanctions are considered by Raz and others to be important but subsidiary reasons for compliance to the law. It is the law's claim to moral authority, not sanctions, that explains why law binds persons according to Raz. Frederick Schauer inan article in Ratio Juris (March 2010) entitled 'Was Austin right after all? On the role of sanctions in a theory of law', comments that it may be Austin rather than his critic Hart that is nearer to the truth of modern legal systems,
the experience of modern complex legal systems may indeed be more coercive than the tone of Hart's criticism suggests. It is true that there exists the largely non-coercive and non-sanction based realm of contract, wills, trust and much of private ordering . . . . But just as the possibilities of private ordering have increased, so have the forms of state regulation, and arguably even more so. Tax laws are more complex and more intrusive, and the modern regulatory state controls numerous aspects of what would earlier have been thought of as unregulated, whether in the area of labour and employment, workplace safety, consumer transactions . . . the complexity of the modern world has made Austin's focus on a vertical relationship between authority and subject, and on a legal regime that seems most of all to be coercive, to be more rather than less empirically accurate.
Indeed, it is Austin's focus on the coerciveness of law, rather than Hart's emphasis on the non-coercive aspects of law, that seems to fit modern legal systems better. If jurisprudence aims to be descriptive of the actual social reality of law, then law's coercive dimension, so well captured in the 'command theory', needs to be emphasised. The law's coercive dimension is not only how vast numbers of persons across the world see and experience the law but also, in the real explanation, why people, including many legal officials, actually obey the law.(5) Answer clearly states that coercion (sanctions) may have a more important role in modern legal systems than Hart allowed for in The Concept of Law. Law's coerciveness is how many people view the law. In stressing the coercive aspect of law, the 'command theory' seems more in tune with the modern world of 2010 than Hart's stress on the non-coercive aspects of law in the relatively crime-free and relatively unregulated social world of 1961 England when he wrote The Concept of Law.
The 'command theory' of law is also in tune with modern legal reality in the command theory's stress on legislation as the primary legal source.(6) Answer clearly states that the 'command theory' is in tune with the great tendency of modern law to be statute based with the common law very much taking a second place. Bentham famously argued for the removal of the judicial power to make law through the common law and the extensive codification of English law. Austin with a cooler realism than Bentham, recognised the need for judge-made law but argued for more extensive codification of law. The law of England has become much more statute based since the deaths of Bentham and Austin in the nineteenth century and, to that extent, the law of England at present fits more with the 'command' model of law issuing from a sovereign power than when Bentham started writing in the late eighteenth century, when common law was a much more dominant source of law in England than it is now.
Perhaps the greatest legacy of the 'command theory' of Austin and Bentham is in an 'attitude' or 'approach' to law as a social phenomenon, which has been followed by later theorists, such as Professor Hart, even if he has rejected the 'command theory' in favour of his own model of law as 'a system of institutionalised rules.' While Austin and Bentham refused to romanticise law and legal systems, but rather analysed them in 'scientific', morally neutral terms, Professor Hart, in The Concept of Law, followed the methodology of the command theorists, even if he discarded the actual 'command theory.' Professor Hart commented in Essays on Bentham (1982) on Bentham's approach to the study of law as a social institution, 'this calculatedly neutral approach to definition of legal and social phenomena: his insistence on a precise and so far as possible a morally neutral vocabulary for use in the discussion of law and politics'.
Hart terms this approach of Bentham to the analysis of law the 'sane and healthy' heart of the legal positivistic tradition, a refusal to romanticise and idealise the institution of law.(7) Answer clearly states that Bentham influenced later theorists, such as Hart in The Concept of Law (1961), by examining law with a cool detachment and refusing to romanticise or idealise law as a social institution. Before Bentham, Sir William Blackstone had idealised and romanticised English common law in his Commentaries on the Laws of England (1765), which had linked the common law of England with divine law. After Hart, Professor Finnis, in Natural Law and Natural Rights (1980), had idealised law by defining the 'central case' of law with an ordering of reason for the common good. Austin and Bentham founded a tradition of legal thought with regard to law, which was realistic and unromantic in outlook: examining law in social-scientific terms. It is to this tradition of Benthamite thought towards law: realistic and unromantic in outlook, that Professor Hart followed in The Concept of Law, even if he rejected the actual 'command theory' of law as an adequate explanation of the social institution called 'law'.