We use cookies to give you the best experience possible. By continuing we’ll assume you’re on board with our cookie policy

Austin’s Theory of Law is Based on Coercio Essay Sample

  • Pages: 7
  • Word count: 1,884
  • Rewriting Possibility: 99% (excellent)
  • Category: law

Get Full Essay

Get access to this section to get all help you need with your essay and educational issues.

Get Access

Introduction of TOPIC

Although it can be stated that the fundamental nature of laws are coercive in order to ensure compliance of them, it should be acknowledged that in the modern context this notion has to give way to power-conferring rules which indicate autonomy of citizens and public officials rather than having an obligation to follow commands. Cumulatively this results in a need to recognise that ultimately, not every law will have relation to the force by sovereign power as illustrated customary practices and international law.

The command theory of law proposes that law is ‘the command of a sovereign backed by a sanction’. Bentham bases his definition on expression of will. However, his conception of the nature of law essentially conforms to Austin’s direct description; both theories proposing that law is always imperative in its expression. Austin states: ‘a command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and purpose of the party commanding to inflict an evil or pain in the case the desire be disregarded’, (1832:21). Thus the power to inflict a sanction (punishment) in the case of non compliance is what makes an expression a command. This constitutes Austin’s positive law (posited by humans). The form of the sanction and whose commands will constitute law will be considered below. Austin believes that for a command to be a law, it is only necessary for it to have generality as to acts; and thus not all commands can be law.

This coercive nature of law indicates that power is made central to law. It also illustrates Austin’s emphasis on law being an ‘instrument of government’ (Cotterrell); thus it is a centralised power for the benefit of the common good as determined by utility. This is important in the modern context as law is seen as a simple and clear order legitimised by a democratic government as opposed to the incoherent nature of common law. Whereas Bentham radically opposed the idea of judge-made law and believed that legislation should be codified; Austin saw judge-made law as inevitable and practical for the development of law. However Austin saw that judge-made law failed to illustrate a systematic structure of rational principles. Thus it is suggested that although this theory may be said to be simplistic it is well defined and distinguishes the legal from the non-legal.

Conversely it may be suggested that this ignores and liberty or rights of humans against arbitrary state power. However, it is submitted that the purpose of government is to serve the common good and thus it will in theory be limited by constitutional laws and public opinion (named ‘positive morality by Austin). Following this notion it is clear that duties are more fundamental than rights. This is because command and duty are correlative terms and therefore a duty arises as the consequence of being addressed by an enforceable command. In contrast rights are derivative from duties and arise because it presupposes a duty in someone else.

In any event it is submitted that a “command” model seems to fit some aspects of law poorly (e.g., rules which grant powers to officials and to private citizens-of the latter, the rules for making wills, trusts, and contracts are examples), while excluding other matters (e.g., international law) which Austin labels as positive morality. It is argued that indeed in the modern context international law is accepted as a form of law and thus in this respect Austin’s theory is defective.

Moreover Hart argues that even in the case of criminal laws, Austin overplays the notion of a command in a way which obscures the distinction between predictive and normative statements about law. His approach cannot distinguish between a command ‘obliging’ someone to do an act between having an ‘obligation’ to carrying out the act. Therefore law is unlike the coercive command of a gunman, addressed generally rather than to a particular person.

It follows that sanctions are essential for the existence of commands and thus they are a fundamental component of law. Austin saw the idea of a sanction as a negative one, ‘inflicting an evil’, in the case of non compliance of the law. This form differed from Bentham’s, who pr

oposed that sanctions could also include rewards as well as penalties. Austin rejected this idea and

Sorry, but full essay samples are available only for registered users

Choose a Membership Plan
stated that a reward for compliance would indicate a promise or inducement but not a command, which in the technical sense specifies a non-optional conduct or an implicit threat of coercion. It can be argued that realistically in the present context it is beneficial to recognise ‘dominium powers’ to distribute rewards so as to promote and enhance compliance with laws (Terence Daintith).

Moreover Austin’s claim that sanctions are analytically essential to laws, meant that a sanction can be ‘the smallest chance of incurring the smallest evil’. Thus any disadvantage formally specified directly or indirectly by law, in the case of non-compliance can serve as that law’s sanction. A sanction could also lead to a further obligation but at the end of the chain a sanction must be present.

The major criticism of Austin’s conception of commands arose from ‘power-conferring’ rules (‘secondary rules’ in Hart’s terms). These include legal rules enabling people to make wills, or contracts or enter into other desirable and facilitative transactions that would lack security without legal guarantee (private power-conferring rules). They also include public power conferring rules (power given to officials). Hart criticises Austin’s theory by stating that these kinds of rules are not coercive but rather, they facilitate desirable activities. They are not duty imposing rules supported by penalties but enable officials or private citizens to act. Austin’s defence of this criticism was that private power-conferring rules have sanctions in the form of ‘nullity of transactions’. Therefore a will executed in violation of the formalities will not achieve legal effect as it will be held void in whole or part. Therefore the loss of an expected advantage is the sanction imposed in this case.

Similarly where public power-conferring rules addressed to legal officials are concerned, the nullity-as-sanction argument may equally apply. So if a judge exceeds his jurisdiction, his decision is liable to be turned over by an appellate court. Therefore the legal system provides a means of indirect sanctions because it enables (professional or social) sanctions to be imposed which may lessen the reputation of the official. So it can be said that nullity as a sanction can be argued to be a form of coercion as they inevitably result in a form of ‘disadvantage’ directly or indirectly if the law is not complied with.

It is important to note that not all laws can thus fit into the coercive model of law- especially power-conferring rules. Hart says to do this denies the variety of kinds of laws. Furthermore Hart has remarked that these sanctions are different from others Austin recognises (eg damages, imprisonment, fines) and to reduce all law to one type distorts the very different social functions of power-conferring and duty imposing rules. For example, rules that empower people to make wills and contracts perhaps can be re-characterized as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on those who fail to comply with the relevant provisions. However, such a re-characterization misses the basic purpose of those sorts of laws-they are arguably about granting power and autonomy, not punishing wrongdoing. However, it could be argued that Austin was an analytical jurist- explaining law in the terms of ‘science of law’ (law as it is) and not the ‘science of legislation’ (how law ought to be). Therefore the difference in the character of sanctions is not analytically important in this context.

Austin proposed that what makes a command a positive law is that it is a direct or indirect command of the sovereign of an independent political society. Austin writes of the sovereign as a person (eg an absolute monarch) or a body of persons (eg lawmakers or electorate of a democracy, or the members of an established ruling elite).Sovereignty exists when two conditions are satisfied- first the bulk of the society is in a habit of obedience or submission to a determinate and common superior (whether an

individual or body of individuals) and secondly, that individual or body is not, itself in a habit of obedience to a determinate human superior.

In response to Austin’s definition it should be noted that, in the context of international law, the authority is not coming from the force of a sovereign power but from the state agreements or customary practices. This has wholly been dubbed as positive morality, but is unrealistic as we tend to give it according legal status in the modern context. .

Many critics have claimed that Austin’s view of sovereignty portrays an image of a powerful and dictatorial monarch. However this may not be the case as we can ultimately see that in modern society that it is not only the sovereign who uses its force in the law. In modern complex societies, a dispersion of legislative, adjudicative and administrative authority could be involved in law enforcement. Therefore one can argue that not all law ultimately has some use to force by the sovereign power. However Austin’s counter-argument would be to say that ultimately all law relates to the sovereign authority. An example of this is his concept of delegation of sovereign power. Austin claims that power is delegated to private citizens, the judiciary and each delegation is a legitimate exercise of power to create legal obligations but ultimately it must be treated as a tacit command of the sovereign. Hart has claimed that this notion of tacit commands is unrealistic in the case of judicial law making as it blurs the distinction between separation of powers. However one could put this down to the fact that Austin’s critics treat his sovereign as legal, when it is a pre-legal notion.

In conclusion, I believe that a theory based purely on coercion fails to distinguish rules of terror from rules which are accepted as being created by a legitimate government for citizens. The theory fails to illustrate the difference between a law that ‘obliges’ a person to obey it and one where there is an ‘obligation’ imposed. Rather, it reduces them into a narrow concept; that they should be habitually obeyed or else a sanction will follow. Although it may be illustrated Austin’s model is an attempt to distinguish legal orders from moral orders, and that coercion is a fundamental nature of law, we must recognise that in the modern context the abundance of legislation has not only created facilitative rules to enable humans to benefit from transactions but has also meant that legislation may also be created by various institutions.

We can write a custom essay on

Austin’s Theory of Law is Based on Coercio E ...
According to Your Specific Requirements.

Order an essay

You May Also Find These Documents Helpful

A Critique of Natural Law

Natural Law is a concept that has caused ambiguity throughout the history of Western thought. There is a multitude of incompatible ideas of natural law that have caused even those who are in basic agreement on natural law theory to have opposing notions on the particulars. In spite of this confusion, there have been enough advocates among natural law thinking in Western society to make it possible to identify its major criticisms: 1. Natural law is immutable and is rooted in nature. This defines for man what is right, just, and good, and which ought to govern its actions. (Einwechter, 1999, p.1) 2. The universe is governed by reason, or rational principle which provides a basis for determining justice of man made laws. (Einwechter, p. 1) 3. Natural law is the same for all human beings and at all times. (Cragg, unit 13, part 2) In this paper, I will...

International Law Vs National Law

International law and national law are often in a conflict on some certain cases where it is hard to determine whether an international law will prevail or vice versa. On the other hand, many theorists are ultimately concerned with a conflict between the two systems and that they have labored in an effort to assign a paramount rank to one system or the other to avoid the potential clash. Therefore, this paper will highlight three crucial points in order to obtain a great understanding upon international and national law. Firstly, we will examine the definition and mechanism of international and national law in order to distinguish the function of both laws. Secondly, we will identify the relationship between international and national law. Lastly, we will focus on harmonizing both laws and creating a consensus in cases dealing. Keywords: International, National, Enforcement, Court, State INTRODUCTION In the midst of a war...

The world of feminist research

In the world of feminist research, there is a diversity of issues that can be studied, many of which are sensitive topics. An issue I chose to focus my research on is female genital mutilation (FGM). I have found that more research needs to be conducted on FGM, and it should be done in a way that respects the rights of the individuals and the culture in which it is rooted and practiced. FGM originated in Africa. The practice also occurs in the Middle East, parts of Asia, and in immigrant communities in Europe and North America. It was, and remains, a cultural, and religious practice. Female genital mutilation (FGM) is also known as female circumcision and is performed on young women before they reach puberty. There are four types of FGM practiced, but the first three are the most practiced. My main objective is to find out why the...

Popular Essays


Emma Taylor


Hi there!
Would you like to get such a paper?
How about getting a customized one?