Podcast: the Ugly
'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 Ugly
The 'command theory' was invented by Bentham and Austin.(1) Wrong statement. The 'command theory' was not 'invented' by Bentham and Austin. The 'command theory' of law can be traced back to Thomas Hobbes in the seventeenth century with his great work on political philosophy, Leviathan (1651). The 'command theory' is a theory concerning legislation (statute law) and does not allow for common law.(2) Wrong statement. Although Bentham was rigorously hostile to the common law, Austin allowed for judge-made law on the basis that if the judge-made law was not repealed by the sovereign it became the 'tacit' commands of the sovereign. The 'command theory' identifies law as issuing from a sovereign but Austin and Bentham gave no clue or guide as to how the sovereign was to be identified and so their theory is unworkable.(3) Wrong statement. The 'command theory' of Bentham and Austin gave a clear method for identifying the sovereign in a society – look at 'habits of obedience' in that society and ask who is 'habitually obeyed' by the population and whether that person or body is not in the habit of obeying anyone else. The 'command theory' identifies coercion (force) as the key to jurisprudence – the understanding of law, and the vast majority of modern legal theorists would agree that coercion is the key to understanding law and how it binds people.(4) Wrong statement. Legal theorists today would generally give sanctions a relatively minor part in the explanation of the nature of law.
Austin and Bentham did not have a clear view of what the law should be but merely described the law in simplistic terms.(5) Wrong statement. Both Austin and Bentham had clear views on what the law should be and how a legal system should operate. Austin's theory of law is considered today to be more complex than Bentham’s.(6) Wrong statement. The current jurisprudential trend is to acknowledge that Bentham's theory of law was more profound than Austin's derivative version. Bentham stole a lot of his ideas on legal theory from Austin. The 'command theory' does not take into account the fact that not all laws are like commands, not all laws are like the criminal law. Some laws are permissive, allowing people to make contracts, marriages and wills. Austin and Bentham did not allow for the fact that not all laws are 'commands'.(7) Wrong statement. Bentham certainly described in his legal theory the different types of laws in a legal system.
Austin and Bentham only meant their 'command theory' to apply to England.(8) Wrong statement. The 'command theory' was meant to be applied to the examining of any mature legal system.
One of the strongest points of the command theory is that it introduced the idea that law is identified by factual tests only – what Professor Hart calls the ‘sources thesis'. This is the view that all law is source based; that is, that law can be identified as emanating from various sources, for example, Parliament or the Supreme Court. How do Austin and Bentham make law dependent on social facts alone when law is the command of the sovereign and only the command of the sovereign?(9) Good point. The essay clearly identifies the fact that the command theory makes the identification of law dependent on factual tests: 'what has the sovereign commanded?'
The coercive aspect of law is stressed by the command theory and indeed for most citizens images of the law conjures up 'prisons, police and courts'. Perhaps coercion (force) is the defining mark of law and, therefore, there is no real difference between the demands of gangsters and the demands of the legal system whether it be the legal systems of Zimbabwe, North Korea or the United Kingdom.(10) Wrong statement. Although the essay is right to say that coercion (sanctions) is important to modern law, it is absurd to compare the rule of law governed legal system of the United Kingdom with the dictatorships of Zimbabwe and North Korea.
The command theory because it was written a long time ago is now out of date and is of no relevance to today's legal systems. The command theory might fit a medieval monarchy, where the King is absolute ruler, but cannot fit a modern democracy.
Because the 'command theory' was torn apart by Professor Hart in The Concept of Law, we need not bother studying it closely.
In conclusion, the command theory is old-fashioned, with nothing to say of relevance to today's legal system. The command theory should be considered as belonging to the dustbin of legal theory. We should only be studying legal theory by legal authors who are alive and aware of what is going on today.