The Command and Obedience Relationship

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.