Real: Law and Sovereign Commands Essay

Austin

This is very much a “law as fact” approach, intent on not confusing law with justice or morality. The pure description approach (just say what is out there) has a straightforward appeal: it seems logical to say what law is before asking whether it is good. Austin’s focus is on political relationships, because law rests on politics. It is true and often overlooked that law is a political arrangement and achievement. So, the way to understand law is to understand the politics. One might object that politics differs everywhere so the law will do likewise. And this is true of the content of law. However, our interest is general, and what we want to pick out are the common features of politics that show they have law. What is universal, says Austin, is the division between superiors and inferiors. At its core, laws are just the orders that superiors give to inferiors. The key features that define this theory of law are as follows: Who is politically superior? The sovereign How do inferiors behave? The habit of obedience What characterises these orders? Commands (wishes backed by sanction)

Commands
We can start with the last point, which is the laws themselves, rather than who issues them. The basic unit of law, for Austin, is the command. This is essentially someone’s instruction or expressed wish that we do or not do some thing. So, like other theories of law, Austin rightly thinks that law is about what we do, our action. Not all laws are commands to ordinary people – citizens – some are to officials, who are superior to us, but inferior to the one giving the orders. Austin says that commands are general, not particular, because to rule by particular directives is impractical. We might ask whether Austin is right to say that law is general? If law is just a matter of what the sovereign commands then this would seem to be just contingent, rather than a general truth.

A command says what to do and is backed up by a sanction (Austin’s term). A sanction is an unpleasantness that attaches to disobedience: fine, prison. It is a punishment, but it can be minor, it doesn’t have to be serious or sufficient to induce fear. However, it is a mark of seriousness and distinguishes law from requests or advice. (Note that some legal theorists think that the right perspective from which to explain law is that of the bad man, who fears punishment, while others focus on the good man, who wants to do what he should, and understands law as a guide to that end.) We can ask whether the idea of law entail coercion. Or to put it another way, would angels need law? The answer seems to be that given how we are, coercion is needed, but there is certainly an important sense in which law is valuable for reasonable people, because it helps them live together. Do all laws have sanctions? Possible counterexamples include laws that regulate wills, contract formation and the like. Austin is aware of this and argues that nullity is the sanction. That is, the failure to get the result you wanted (married, contracted) is the sanction.

The sovereign
All laws are commands, but not all commands are laws (recall that a command is a wish backed up by a sanction; no sanction, no command and so no law). That is, the commands need to occur within the right political framework. Parents command children, teachers command students; but neither is law. The political arrangement is complex but includes a defined territory and population, with superiors. Law is not just about superiors, it is about the ultimate superior. The person at the top is the sovereign, because they are obeyed by everyone and obey no one else. More precisely, the sovereign is not in a habit of obeying anyone else (occasional deference to a neighbour or rebellious populace is irrelevant). The point is that in this society everyone does what the person at the top says. And so that person is the sovereign. The sovereign could be more than

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