What is “law”? And how can we distinguish law from morality? I identified three competing theories of legal positivism in a previous post. Here, I want to focus on the first of these theories, John Austin’s famous “command theory of law.” According to the legal theorist John Austin (the grumpy-looking Englishman pictured below), law consists of the commands of a sovereign–commands that are enforced by force or by the threat of force. Alas, the great H.L.A. Hart utterly demolished the command theory in his classic work “The Concept of Law” (2012, pp. 26-78). In brief, there are two flaws (one of them fatal!) with this particular positivist theory of law.
First off, the command theory is underspecified or incomplete because not all legal rules take the form of “commands” or are backed up by sanctions. Many legal rules generate new relations (like the law of marriage) or clarify existing rules of legal liability (e.g. the qualified immunity doctrine). The other problem with the command theory is this gaping hole: who commands the commander? Although the sovereign is the source of all law under this theory, he is not obligated to obey his own commands! This blind spot is a serious one because it undermines the idea of the rule of law–i.e. the fundamental notion that our rulers must comply with their own rules.
We will consider the other two major theories of positive law–Hans Kelsen’s “basic norm” and H.L.A. Hart’s “rule of recognition”–in the next day or two.