The Command and Obedience Relationship
Chapter Twenty-Five
Syllabus topic 2.1.1, "Command and Obedience Relationship"
Pages 117 to 121 of 506
In one line
The oldest account of law says that a law is a command issued by a sovereign to a subject, backed by a threat, and that obedience is what a subject owes; the most influential criticism of that account is that it describes a gunman and not a legal system.
In the wording a student can write in an exam: the command and obedience relationship is the model of political authority in which the state, as sovereign, issues general commands to its subjects and the subjects are under a duty of habitual obedience enforced by sanctions; it was stated systematically by John Austin, and H. L. A. Hart's criticism of it is the standard starting point of modern jurisprudence.
The relationship, stated plainly
At its simplest the political relationship has two ends. At one end somebody issues a direction. At the other somebody complies. Everything in this module is about what joins the two.
Three elements make it a command relationship rather than a request or a suggestion.
A superior and an inferior. The relationship is asymmetrical: one party is in a position to require, the other to comply.
An expression of a wish, addressed to the other, that they do or not do something.
A sanction, that is, the power and the intention to inflict some evil if the wish is not complied with.
Austin's own formulation binds the three together: wherever a wish is expressed by a party who will visit an evil on you if you do not comply, the expression is a command, and you lie under a duty to obey it. Duty, command and sanction are, on this view, three names for one relationship looked at from three sides.
John Austin's command theory
Austin's account, from the early nineteenth century, is the classical statement and every later theory is a reaction to it.
Law is the command of the sovereign. A law properly so called is a general command issued by a sovereign to those subject to that sovereign.
Who is the sovereign? The person or body that receives habitual obedience from the bulk of a society and is not itself in the habit of obeying anybody else. Both halves matter: habitual obedience from below, and independence from above.
Sanction. Every law carries the threat of an evil for disobedience. Without a sanction, on this account, there is no duty and therefore no law.
Sovereignty is illimitable and indivisible. The sovereign cannot be legally limited, because a limit would require a superior to impose it, and then that superior would be the sovereign.
Consequences Austin accepted. Constitutional law, on his account, is not law properly so called but positive morality, because it purports to bind the sovereign. International law is not law either, for the same reason. And a bad law is still a law, which is Austin's famous separation of law from morals: the existence of a law is one thing, its merit or demerit another.
The Command and Obedience Relationship
What is right in it
An answer that only attacks Austin is a weak answer, so state the strengths first.
It captures the criminal law very well. "Do not commit theft, or you will be imprisoned" is exactly a general command backed by a sanction.
It insists that law is a social fact. What the law is can be found out by looking at what a determinate human superior actually laid down, rather than by asking what is just. That is the beginning of legal positivism, and it is what allows a lawyer to advise on the law as it is.
It is clear. Every term is defined and the whole system follows from three ideas.
Hart's criticism
H. L. A. Hart's answer is the most important argument in modern jurisprudence and every point of it can be made in a political science answer.
The gunman writ large. The command model cannot distinguish a legal system from a gunman who says "your money or your life". The gunman issues a wish backed by a threat, and on Austin's account the victim is under a duty. But we all say the victim was obliged to hand over the money and was not under an obligation to do so. Austin's theory captures being obliged and leaves out obligation altogether, which is the very thing a theory of law had to explain.
Not all laws are commands backed by threats. Many laws confer powers rather than impose duties: the rules for making a will, a contract, a marriage or a company. If you fail to comply with the formalities for a will, nothing is inflicted on you; your will is simply void. Nullity is not a sanction, and treating it as one confuses two different things.
Laws apply to those who make them. A legislature that enacts a tax binds its own members. On the command model the sovereign is the one who commands and cannot be commanded, so this ordinary fact is inexplicable.
Custom and continuity. Habitual obedience to a person cannot explain why the successor of a sovereign has authority the moment they take office, before any habit of obeying them can exist. Only a rule about succession explains it.
The internal point of view. Austin's account describes obedience from outside, as a pattern of behaviour. But those inside a legal system treat rules as standards for criticising their own and others' conduct. When somebody says "you ought not to have done that", they are not predicting a punishment; they are appealing to a rule they accept.
The Command and Obedience Relationship
Hart's own answer. A legal system is a union of primary rules, which impose duties, and secondary rules, which confer powers: rules of change, for making and repealing law; rules of adjudication, for deciding when a primary rule has been broken; and the rule of recognition, which settles what counts as law in that system, and which exists because officials actually practise it.
Why this matters for political obligation
The whole module turns on the answer.
If Austin were right, the command and obedience relationship would exhaust politics. There would be no space for the question "ought I to obey?", because duty would simply mean liability to a sanction, and the answer to "ought I?" would always be "you will be punished if you do not".
Hart's reply reopens the question. If obligation is a matter of rules that people accept as standards, then one can ask whether a particular rule ought to be accepted, and whether accepting the system as a whole is justified. Hart himself insisted that a valid law may be too iniquitous to obey, and that saying so plainly is better than pretending such a rule is not law at all.
A worked example
A municipal officer serves a notice requiring a hoarding to be removed within seven days, failing which it will be removed and the cost recovered.
On Austin's model. The sovereign, through a delegate, has expressed a wish, backed by an evil. The owner is under a duty. Nothing more needs to be said.
Where the model runs out. The officer's power to serve the notice comes from a section that confers a power rather than imposing a duty; the section itself is not a command backed by a threat to anybody. The officer is bound by the same Act, and if the notice goes beyond it a court will quash it, so the sovereign is being limited. And if the owner complies while thinking the notice wrong, they are treating the rule as a standard rather than merely calculating the cost of the alternative.
What Hart adds. The notice binds because it was made under a rule that officials of this system accept as determining what counts as law, and because that rule was applied within its terms. That explains why the owner's compliance is obedience to a rule rather than submission to a threat, and it leaves open the further question this module is about, whether the owner ought to comply.
Distinctions that carry marks
| Being obliged | Being under an obligation | |
|---|---|---|
| What it describes | A fact about pressure on you | A normative position |
| Depends on | A credible threat | An accepted rule |
| True of the gunman's victim? | Yes | No |
| Survives the threat being removed? | No | Yes |
| Austin's theory captures | This one | Not this one |
The Command and Obedience Relationship
| Primary rules | Secondary rules | |
|---|---|---|
| What they do | Impose duties | Confer powers |
| Example | Do not commit theft | The formalities for a valid will |
| Failure produces | A sanction | Nullity |
| Hart's three kinds of secondary rule | Change, adjudication, and recognition |
What this topic is NOT
Austin's theory is not simply wrong. It describes the criminal law well and it established that law can be identified as a social fact, which is the foundation of legal positivism.
Hart is not a natural lawyer. He is a positivist too. His quarrel with Austin is about what kind of social fact law is, not about whether law must be moral.
"Command" here is not an order shouted at an individual. Austin's laws are general commands addressed to classes of persons and acts.
Habitual obedience is not consent. A population may habitually obey a regime it detests, which is exactly why habit cannot ground an obligation.
Quick revision
- Austin: law is the command of a sovereign, backed by a sanction; duty, command and sanction are one relationship from three sides.
- Sovereign = receives habitual obedience from the bulk of society and obeys no one else; sovereignty is illimitable and indivisible.
- Consequences Austin accepted: constitutional law and international law are not law properly so called; a bad law is still law.
- Hart's criticisms: the gunman writ large; power conferring rules exist and nullity is not a sanction; laws bind their makers; habit cannot explain succession; and the internal point of view is left out.
- Being obliged is not being under an obligation. This is the single most quotable point.
- Hart's answer: primary rules of duty plus secondary rules of change, adjudication and recognition.
- Hart accepted that a valid law may be too iniquitous to obey, which is what keeps topic 2.3 open.
Test yourself
1. State Austin's command theory of law. A law properly so called is a general command issued by a sovereign to those subject to it and backed by a sanction, the sovereign being the person or body that receives habitual obedience from the bulk of a society and habitually obeys no one else. Command, duty and sanction are three aspects of one relationship. Sovereignty is illimitable and indivisible, from which Austin accepted that constitutional and international law are not law properly so called, and that a bad law remains a law.
2. Explain Hart's gunman objection. Austin's model cannot separate a legal system from a gunman demanding money at gunpoint, since both involve a wish expressed with a threat of evil for non-compliance. Yet we say the victim was obliged to hand over the money, not that they were under an obligation to do so. Austin's account therefore captures only being obliged, a fact about the pressure applied, and omits obligation, which is a normative position resting on an accepted rule. The omitted element is precisely what a theory of law had to explain.
The Command and Obedience Relationship
3. Why are power conferring rules a problem for the command theory? Because a great deal of law does not tell anyone to do anything on pain of punishment. The rules for making a will, a contract, a marriage or a company confer a facility, and failing to satisfy them produces nullity rather than a sanction: the will simply is not a will, and nothing is inflicted on anybody. Treating nullity as a sanction confuses a consequence built into the definition of a legal act with an evil threatened for disobedience.
4. What is the internal point of view, and why does Austin's theory lack it? It is the attitude of those inside a legal system who treat its rules as standards for guiding and criticising conduct, their own and other people's. When a person says another ought not to have acted as they did, they are appealing to a rule they accept, not predicting that punishment will follow. Austin describes obedience only from outside, as a regular pattern of behaviour, so he can record that people conform and cannot account for the fact that they use the rules as reasons.
5. Why does the answer to this topic decide whether the rest of Module II is possible? Because if Austin were right, duty would mean nothing more than liability to a sanction, and the question "ought I to obey?" would collapse into the prediction that one will be punished otherwise. Hart's reply makes obligation a matter of rules that people accept as standards, which allows one to ask whether a particular rule deserves acceptance and whether the system as a whole is justified. Hart also accepted that a valid law may be too iniquitous to obey, which is exactly the space that the topic on unjust laws occupies.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.