Podcast: the Good
'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 Good
It has become orthodoxy in legal theory to assert that Professor Hart in The Concept of Law (1961) effectively demolished John Austin's 'command theory of law' and that the 'command theory' is friendless in modern jurisprudential circles. William Twining in Globalisation and Legal Theory (2000) comments that, ‘in 1961 Herbert Hart secured his own reputation by destroying Austin's’.
It has become equally orthodox in legal theory to assert that Bentham must be clearly distinguished as a legal theorist from Austin and that Bentham's legal theory is much less vulnerable to attack than Austin's pale copy of Bentham's work. (1)(1) Answer clearly distinguishes Austin from Bentham as legal theorists as is the current jurisprudential trend, which gives nearly all of the credit in legal theory to Bentham not Austin. An example of the modern jurisprudential trend to denigrate Austin whilst building up Bentham is provided by Professor Raz, who in 'Utilitas' (1993) comments, ‘Hart rightly saw in Austin a second-rate mind regurgitating Bentham's insights into the nature of law, giving them a simple and tidy shape’.
The current jurisprudential orthodoxy points out that whereas Austin confined jurisprudence to the analysis and description of actual law, Bentham, although providing a theory of law as it is, also had radical ideas of what the law should be. Bentham, then, is considered by orthodox modern jurisprudence to be a much more radical and penetrating thinker than Austin because Bentham had a normative theory of law (Bentham had a very clear view of 'what law should be') as well as being descriptive of actual law.(2) Answer asserts that Bentham had very clear views on what the law should be. Bentham was a radical would-be reformer of law as well as a describer of law. Bentham had a clear view of what law should be in that (1) he believed that law should be a mighty instrument of State power to achieve the greatest happiness of the greatest number of persons, and (2) he strongly favoured the comprehensive codification of the law and the abolition of judicial power to make law.
Even in his description of actual law Bentham is considered, by modern legal thought, to be far superior to Austin in his analysis of actual legal systems. Professor Hart, in The Concept of Law, famously criticized Austin's 'command theory' for not recognising that not all laws are 'commands' and that some laws are actually 'permissions' allowing the citizen to shape his own life through making contracts, marriages and wills, for example. However, Bentham's version of the 'command theory' is much more subtle than Austin's version. Bentham clearly recognised that different laws had different forms and performed different functions. Bentham made a careful classification of the different laws that may issue from the sovereign. Laws can include permissions thought Bentham, as well as commands. In Of Laws in General (1782) Bentham argued that there were four kinds of 'mandates' that the law could promulgate: (1) command; (2) non-command; (3) prohibition; and (4) permission. Bentham gave the following illustration to differentiate the varying kinds of laws in his analysis:
Therefore, as a matter of pure 'description' of a legal system, Bentham's account is less vulnerable to attack than Austin's account, since Bentham was more analytically accurate in his description of actual legal practice, accounting for the 'variety of laws' in a standard legal system.(3) Answer clearly states that Bentham's description of a legal system was much subtler than Austin's, as Bentham accounted for the variety of laws in a legal system.
However, the orthodox view of modern jurisprudence, which sees Bentham, and not Austin, as the 'father' of English jurisprudence, although substantially correct, is in need of some adjustment. Although Austin lacked the radical legal reform programme of his mentor Bentham, it is unfair to label Austin as a mere bland repeater of Bentham's insights into law. Austin, as well as Bentham, had a vision of what law ought to be.(4) Answer clearly states that Austin had a vision of what a legal system could be in terms of his belief in universal education of the population so that the population could accept law on reason rather than fear. Roger Cotterrell, in The Politics of Jurisprudence (2003), points out that Austin wanted a more rational relationship between the sovereign and the commanded population than one based on fear of coercion. Austin argued that in a soundly educated population, reason would play a more important role than fear in the relationship between the sovereign and its commands and the population. John Austin, as Cotterrell points out, ‘believed fervently in the need for universal education, which would make it possible for the broad population to distinguish sound policy . . . from the lies and fallacies of those who would use them to sinister purposes’.
Austin's image of the centralised state relying on coercion to secure obedience ran alongside a more utopian vision of Austin's, where the state is based on reason: Government guided by the principle of utility and a population willingly co-operating through reason not fear. Therefore, the modern jurisprudential orthodoxy, which sees Bentham as a great analytical jurist and Austin as a mere repeater of what Bentham wrote (without Bentham's law reform radicalism), is not altogether an accurate picture.
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?'(5) 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.(6) 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 be 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. (7) 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.(8) 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, in an 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.(9) 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.(10) Answer clearly states that the 'command theory' is in tune with 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 better 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.
The command theory captures the intimate connection between law and centralized political control: law on the 'command theory' emanates from the sovereign power to ensure civil order (see Thomas Hobbes' Leviathan (1651). Hobbes' work was the historical origin for the view that laws are the commands of the sovereign. The development of law allows the development of a strong centralized polity, and this is captured well in the idea of law as the product of strong sovereign power: law as the 'commands of the sovereign'. Presidents and leaders have always made claims to represent the common good through law but, as Foucault pointed out, law is often a mask for power, and the 'command theory', by offering a non-idealised analysis of law, captures the fact that law can often be used by ruling elites for self-interested purposes other than the realization of the common good. The 'command theory' captures the realistic idea that law is often nothing more than the 'commands of the sovereign', and to suggest law is anything more noble than that, such as proposing, as the natural lawyers do, an inevitable and inescapable connection between law and the common good, is to distort the true face of law as it has appeared through the centuries. (11) Answer clearly points out that the exercise of power and not the realization of the common good is often the motive behind the emergence of law and the 'command theory' can explain the emergence of state law wherever it is found in its non-idealistic 'factual' analysis of law and legal systems. The 'command theory' can point to certain facts about human nature that support the view that human law should never be idealised and that there is a tendency in all human affairs for things to go badly, and that includes the use of law for morally bad purposes. Therefore, law should be viewed as merely the 'commands of the sovereign' in order to take account of unpleasant facts about human nature including the self-interested natures of many rulers of human societies. Anthony Quinton comments in The Politics of Imperfection (1978),
Secular thinkers, in the strongest sense of the word, thinkers who are overtly hostile to religion, can consistently affirm man's moral imperfection as an empirically discovered fact about his nature . . . examples are Hobbes , with his melancholy account of the natural motivation of mankind, and Hume, with his belief in the confined character of natural generosity.
Perhaps the greatest legacy of the 'command theory' of Austin and Bentham to legal theory is in an 'attitude' or 'approach' to law as a social phenomena, which has been followed by later theorists, such as Professor Hart, even if Hart 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.(12) 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, the judge and writer 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, the modern reviver of natural law theory, had idealised the analysis of law in legal theory. Professor Finnis, in Natural Law and Natural Rights (1980), had idealised law by identifying the 'central case' of law with an ordering of reason for the common good, in the spirit of Thomas Aquinas in the thirteenth century.
Austin and Bentham founded a tradition of legal thought with regard to law that 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'.