Austin Command Theory of Law Flashcards
What is Austin’s main claim?
Law is the command of the sovereign; non-optional imperatives.
What makes a rule valid in a society, according to Austin?
- The rule is commanded by a sovereign
- The rule is backed by a threat of a sanction
How does Austin define a command?
Something is only a command if it
1. Expresses the desire to do X
2. Harm if you don’t comply with the desire
How is obligation generated, according to Austin?
An individual who is commanded is duty bound and obligated to do what is commanded or will suffer the consequences of not complying.
Explain Hart’s problems with Austin’s concept of obligation.
Hart objects to this conceptualization of obligation because it implies that the law is simply about limiting individuals’ freedom backed by a threat of punishment for noncompliance. The idea of a sanction should not be the central concept of law.
Austin conflates obligation (duty-bound) with being obliged (forced).
Explain the gunman example.
If a gunman issues a command (“Your money or your life!”), the gunman has (according to Austin) i) expressed his desire and ii) shown us that we will be harmed if we don’t comply. To be thus commanded is to be obligated to give the gunman our money.
How does Austin rebut Hart?
Law is not just any kind of demand, but has a particular pedigree or origin. The legal domain is distinguished from the non-legal with regard to its origin or historical lineage. The legal originates from a person/body of persons (the sovereign). Only commands issued by the sovereign are valid commands.
How does Austin define the sovereign?
The sovereign is a person who is habitually obeyed by the bulk of the population of a society and does not habitually obey another person
What problems do Austin’s definition of the sovereign face?
- It does not account for continuity of authority/succession of leadership
- It does not account for the persistence of laws after previous leaders do not have power
How does Austin explain the problems of the definition of the sovereign?
Obligation to the sovereign is not to the person, but rather the office of the person.
What problems cannot be accounted for in Austin’s theory?
The obligation to the office of the sovereign, and not the individual, predisposes laws which exist prior to authority of the sovereign. The idea that our obligation is to the office goes against Austin’s own theory because this would require a person to issue such command. Since it has no pedigree, it remains unsolved.
Explain the problems Austin’s theory has in relation to democracy.
His theory does not fit well with democratic notions of sovereignty. If the political authority rests with the people and the coercive power rests with the government (which is made by the people), then Austin’s notion of the sovereign cannot fit. This implies that democratic societies do not have a legal system.
