The Command Theory by John Austin and its Legal Implications on

Philippine Jurisprudence

By: Anne Lorraine T. Diokno1

John Austin is considered by many to be the creator of the school of

analytical jurisprudence, as well as, more specifically, the approach to law

known as “legal positivism.”2 Austin’s Command Theory of Law gained much

criticisms, but its simplicity paved way to further studies in the field of law and

jurisprudence, most especially in the realm of legal positivism. He may have been

considered as the pioneer of legal positivism, though his theory may have been

subjected to various criticisms.

Austin was born on 3 March 1790 at Creeting St Mary in Mid Suffolk, the

eldest son of a well-to-do miller. After spending five years in the army during the

Napoleonic Wars, Austin turned to law, and spent seven unhappy years

practising at the Chancery bar. In 1819, Austin married Sarah Taylor and

became neighbours and close friends with Jeremy Bentham and James and

John Stuart Mill. Mainly through Bentham's influence, Austin was appointed

professor of jurisprudence at the newly founded London University in 1826.

Austin's lectures were not well-attended, and he resigned his university post in

1834. Plagued by ill health, depression and self-doubt, Austin wrote little after

1 LLM Candidate, UST Graduate School of Law

2 https://plato.stanford.edu/entries/austin-john/
the publication of his major work, The Province of Jurisprudence Determined

(1832). This work was largely ignored during Austin's lifetime. It became

influential only after his death, when his wife published a second edition in

1861.3

The Province of Jurisprudence Determined is a book written by John

Austin, first published in 1832, in which he sets out his theory of law generally

known as the 'command theory'. Austin believed that the science of general

jurisprudence consisted in the clarification and arrangement of fundamental

legal notions.4 His object in this book is to identify the distinguishing

characteristics of positive law to free it from the precepts of religion and morality.

The book consists of six lectures designed to be delivered in a law school setting.

Although his theory did not receive significant attention in the 19th Century, it

has since become central to the jurisprudential canon, and has been criticised,

adapted and enlarged upon by subsequent jurists such as H. L. A. Hart and

Ronald Dworkin. Austin was a student of Jeremy Bentham, and as such

subscribed to Utilitarianism. He adopted this perspective in his understanding

of law, and argued that all laws should work toward promoting the greatest good

for the greatest number of people.5 Austin distinguished this general,

or analytical, jurisprudence from the criticism of legal institutions, which he

3 A Plea for the Constitution (2nd ed.). London: John Murray. 1859. Retrieved 5 September
2019
4 Austin, John (1832). The Province of Jurisprudence Determined. London: John Murray.

Retrieved 2012-12-14.
5 https://en.wikipedia.org/wiki/The_Province_of_Jurisprudence_Determined
called the “science of legislation”. He thought both were important parts of legal

education.

More importantly, as the title itself suggests, the Province of Jurisprudence

was written by Austin in order to set forth the concepts properly falling under

the umbrella of jurisprudence. Austin defined law, in the comprehensive sense,

as rule laid down for the guidance of an intelligent being by an intelligent being

having power over him. The term embraces laws set by God to his human

creatures (otherwise known as Natural Law or Divine Law or the Law of God) and

laws set by men to men. The second class are further classified into laws set by

political superiors and laws set by men not political superiors. Austin made efforts

to demarcate the confusing lines between natural law from positive morality, the

latter being the term used exclusively to laws set by men to men.

However, in the particular sense, law is a command which obliges a person

or persons to a course of conduct. Most laws which are established by political

superiors, or most of the laws which are simply and strictly so called, oblige

generally the members of the political community, or oblige generally persons of

a class. Laws and other commands are said to proceed from superiors and to

bind or oblige them. Thus, it can be impliedly inferred therein that the sovereign

is the source of all laws. Austin clarified and distinguished law from other

concepts such as command, rules, duties, and sanctions. Command is an

intimation of your wish or a signification of one’s desire; it involves an expressed

wish that something be done, combined with a willingness and ability to impose

“an evil” if that wish is not complied with6. On the other hand, duty the chance

of incurring an evil. Austin said the command and duty are correlative terms -

the meaning denoted by each being implied or supposed by the other. Rules are

general commands (applying generally to a class), as contrasted with specific or

individual commands.7 Sanction is evil which will probably he incurred in case a

command be disobeyed or in case a duty be broken. Austin illustrated the co-

existence of command, duty, and sanction in this example - where there is the

smallest chance of incurring the smallest evil, the expression of a wish amounts

to a command, and, therefore, imposes a duty. The sanction, if you will, is feeble

or insufficient; but still there is a sanction, and, therefore, a duty and a command.

“When I am talking directly of the expression or intimation of the wish, I employ

the term command. When I am talking directly of the chance of incurring the evil,

or of the liability of obnoxiousness to the evil, I employ the term duty or

obligation. When I am talking immediately of the evil itself, I employ the term

sanction.”

Still, there are laws which remain outside the province of jurisprudence,

such as acts of interpretation by legislative authority/authentic interpretation,

which are acts on the part of the legislature to explain positive law. Permissive

laws are likewise recognized to remain outside the realm of jurisprudence. These

6 https://plato.stanford.edu/entries/austin-john/
7 Supra.
are laws which repeal laws, and release one from existing duties. In so far as

they release from duties imposed by existing laws, they are not commands, but

revocations of commands. Lastly, there are what we call imperfect laws or laws

of imperfect obligation which are laws declaring that certain acts are crimes, but

annexing no punishment to the commission of acts of the class. It does not have

a purpose of enforcing compliance with the desire, thus the expression of desire

is not a command.

There seems to be a little argument as to how customary laws should be

treated. On its face, customary laws may be considered to be outside the realm

of jurisprudence. Custom is a rule of conduct which the governed observe

spontaneously. Before it is adopted by the courts, it is merely a rule of positive

morality (rules set and enforced by mere opinion or by opinions held by an

indeterminate body of men in regard to human conduct), thus, void of any

expression of will or command by a sovereign. However, when the judge

transmutes the custom into a legal rule, the legal rule becomes established by

the sovereign legislature. Therefore, such custom ripens into a law when

established by the state: 1) directly, when customs are promulgated in its

statutes; 2) established by the state circuitously; and 3) adopted by the tribunals.

The Province of Jurisprudence was consistently made subject to

criticisms, until this age. There seems to be problematic areas on Austin’s

Command Theory. The Command Theory may have been tailored-fit to a

particular state setup or a small political unit with a clearly identifiable

similarities or unified expressions of will. But such theory may no longer find

application in the public international law arena, where diversity exists. Who will

be considered the sovereign of the world? What laws will govern the people in the

international relations? These are just a few questions that the Province of

Jurisprudence may have omitted to discuss. So far, the Command Theory instills

in us that laws exist in order to subject one to compliance under the fear of evil

or punishment. However, the sovereign will changes as time changes, thus the

element of permanence of a legal system may not be obtained. It can hardly be

argued that there exist a single and permanent sovereign will. A new ruler will

not come in with the kind of “habit of obedience” that Austin sets as a criterion

for a system’s rule-maker. Austin’s reference to a sovereign whom others are in

the habit of obeying but who is not in the habit of obeying anyone else, captures

what a “realist” or “cynic” would call a basic fact of political life. There is, the

claim goes, entities or factions in society that are not effectively constrained, or

could act in an unconstrained way if they so choose.8 One might note that the

constitutive rules that determine who the legal officials are and what procedures

must be followed in creating new legal rules, “are not commands habitually

obeyed, nor can they be expressed as habits of obedience to persons”.9

8 https://plato.stanford.edu/entries/austin-john/
9 Hart 1958: p. 603
 The Command Theory of John Austin may well be associated with the old

adage “dura lex sed lex”. The Philippines has long adopted the legal maxim “dura

lex sed lex” or herein translated as “the law is harsh but it is still the law”. Truly,

even if the law is harsh it must still be duly complied for ignorance of the law

excuses no one from compliance therewith. It is a legal principle holding that a

person who is unaware of a law may not escape liability for violating that law

merely because one was unaware of its content10. Such mandate has been

permanently etched in Article 3 of the New Civil Code. It is based on expediency

as well as public policy and necessity11. Every person in Philippine jurisdiction

is presumed to know that a law regarding a particular conduct exists, even

though in reality, he has not read or even heard about the law before. If a person

violates a law, even though in truth he does not know that such law exists, such

ignorance of its existence is not a valid legal defense and will not excuse him

from the legal consequences of the law’s violation.12 In statutory construction, it

is an elementary rule that when there exists no doubt, the letter of the law should

be always be followed. Resort to the spirit of the law and other extrinsic aids may

only be adopted when there exists ambiguity and vagueness as to the letter of

the law.

10 https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
11 Jurado, Civil Law Reviewer (2009), p 5
12 https://philippinelawtoday.wordpress.com/2016/07/10/what-is-the-principle-that-

ignorance-of-the-law-excuses-no-one/
 As regards imposition of penalties for certain criminal acts, the Supreme

Court held in People v Maximo Delmo13, citing People v Amigo –

While the penalty of reclusion perpetua imposed against the accused

Danilo Lapiz might be too harsh and cruel considering that he did not

participate directly in the commission of the crimes of murder and frustrated

murder, courts are not the forum to plead for sympathy. The duty of courts

is to apply the law, disregarding their feeling of sympathy or pity for an

accused. DURA LEX SED LEX. The remedy is elsewhere- clemency from

the executive or an amendment of the law by the legislative, but surely, at

this point, this court can but apply the law.

xxx

In People v Suriaga14, the Supreme Court opened its decision with the

following statement –

It is always a distressing task to impose the death penalty on an accused.

However, it is the bounden duty of this Court to apply the law imposing such

penalty when justified. Dura lex, sed lex.

xxx

13 G.R. Nos. 130078-82, October 4, 2002

14 G.R. No. 123779, April 17, 2002
 In Salem Alex Palo v Hon. Francis Militante15, the Supreme Court opened its

decision with the following statement –

It is suggested that petitioner's deprivation of the benefits of probation was

a product of misunderstanding or miscommunication and that he would not

have pleaded guilty had that amendment by Presidential Decree No. 1990

been brought to his attention. We are, however, bound by the actual

proceedings that transpired and not by what is represented to have been a

party's intent. Yet, assuming that there is some truth in said surmise, from

what has been said and while one may empathize with petitioner's

submission, still even if he had not pleaded guilty the end result would have

been the same. From the judicial record, a guilty verdict, and even a higher

penalty, would have been a distinct probability. All told, dura lex sed lex

is the trite dictum which those caught in the toils of the law have to live with,

including the changes therein and the misapprehensions thereon.

xxx

People v Acbangin16 is a case where accused was found guilty beyond

reasonable doubt of kidnapping and serious illegal detention, and was sentenced

with reclusion perpetua –

Burdensome and harsh as it may be, the trial court correctly imposed the

penalty of reclusion perpetua. True, Sweet was not maltreated. True also,

15 G.R. No. 76100, April 18, 1990

16 G.R. No. 76100, April 18, 1990
 that at the time of the crime, Jocelyn was only 21 years old. However, the

crime as defined by law was committed. Dura lex sed lex. The law may be

harsh, but it is the law.

xxx

Re: Query On The Effect Of The 10% Salary Increase Under Executive Order

No. 611 On The Special Allowance For The Judiciary (SAJ) Of Justices, Judges

And Court Officials With Equivalent Rank Of Court Of Appeals Justices Or Regional

Trial Court Judges17, the Supreme Court applied the statutory construction

principle of -

Verba Legis Non Est Recedendum

While continued, long-term implementation of Section 6, R.A. No. 9227

would, indeed, defeat the very purposes for which said law was passed,

there is no escaping the express provisions of the law. Well-established is

the rule that "from the words of the statute there should be no departure."

Hindi dapat lumihis sa mga titik ng batas. Where, by the use of clear and

equivocal language capable of only one meaning, anything is enacted by the

legislature, it must be enforced even though it is absurd or mischievous.9

Hence, there is nothing to do but to allow the 10% increase in basic salary

of justices, judges and those other officials likewise directly benefiting from

R.A. No. 9227 to be sourced from the SAJ fund, and to allow the

17 A.M. No. 07-8-3-SC, March 28, 2008

 corresponding 10% reduction in SAJ. Dura lex sed lex. The law may be

harsh but it is the law. Ang batas ay maaaring mahigpit ngunit ito ang

batas.

xxx

In the technical malversation case, the Supreme Court lamented –

But criminal intent is not an element of technical malversation. The law

punishes the act of diverting public property earmarked by law or ordinance

for a particular public purpose to another public purpose. The offense is mala

prohibita, meaning that the prohibited act is not inherently immoral but

becomes a criminal offense because positive law forbids its commission

based on considerations of public policy, order, and convenience.13 It is the

commission of an act as defined by the law, and not the character or effect

thereof, that determines whether or not the provision has been violated.

Hence, malice or criminal intent is completely irrelevant.14

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the

amount diverted, constitutes the crime of technical malversation. The law

and this Court, however, recognize that his offense is not grave, warranting

a mere fine.

xxx

At some point it may be argued that the general rule should tilt in favor of

the strict application of the law rather than its liberal interpretation. However,
this is not a hard and fast rule. Whenever there is exists a general, there would

always be an exception. The Rule of Law may not always triumph when there

exist exceptional circumstances that would dictate the liberal application and

interpretation of the law. In the case of Arnel Sagana v Richard Francisco18, the

honorable Justice Del Castillo made the following pronouncement as regards the

statutory requirements for substituted service of summons –

It is, at times, difficult to reconcile the letter of the law with its spirit.

Thus, it is not altogether surprising that two competing values are usually

discernable in every controversy - the principle of dura lex sed lex v. the

notion that technicalities should yield to broader interests of justice. In our

rules of procedure, for instance, judges often struggle to find a balance

between due process considerations and a liberal construction to secure a

just disposition of every action. In such cases, where a measure of discretion

is permitted, courts must tread carefully, with due consideration of the

factual milieu and legal principles involved. In so doing, we take steps -

sometimes tentative, sometimes bold - to apply prior experience and

precedent towards an eventual just resolution.

xxx

We do not intend this ruling to overturn jurisprudence to the effect that

statutory requirements of substituted service must be followed strictly,

faithfully, and fully, and that any substituted service other than that

18 Sagan v Francisco, G.R. No.161952, October 2, 2009

 authorized by the Rules is considered ineffective. However, an overly strict

application of the Rules is not warranted in this case, as it would clearly

frustrate the spirit of the law as well as do injustice to the parties, who have

been waiting for almost 15 years for a resolution of this case. We are not

heedless of the widespread and flagrant practice whereby defendants

actively attempt to frustrate the proper service of summons by refusing to

give their names, rebuffing requests to sign for or receive documents, or

eluding officers of the court. Of course it is to be expected that defendants

try to avoid service of summons, prompting this Court to declare that, "the

sheriff must be resourceful, persevering, canny, and diligent in serving the

process on the defendant." However, sheriffs are not expected to be sleuths,

and cannot be faulted where the defendants themselves engage in deception

to thwart the orderly administration of justice.

xxx

Moreover, the Supreme Court eventually expounded the justification in

departing from the old adage in adoption cases, and made the following

arguments –

The trial court in its decision had sought refuge in the ancient Roman legal

maxim "Dura lex sed lex" to cleanse its hands of the hard and harsh decision

it rendered. While this old adage generally finds apt application in many

other legal cases, in adoption of children, however, this should be softened

so as to apply the law with less severity and with compassion and humane

understanding, for adoption is more for the benefit of unfortunate children,

 particularly those born out of wedlock, than for those born with a silver

spoon in their mouths. All efforts or acts designed to provide homes, love,

care and education for unfortunate children, who otherwise may grow from

cynical street urchins to hardened criminal offenders and become serious

social problems, should be given the widest attitude of sympathy,

encouragement and assistance. The law is not, and should not be made, an

instrument to impede the achievement of a salutary humane policy. As often

as is legally and lawfully possible, their texts and intendments should be

construed so as to give all the chances for human life to exist — with a

modicum promise of a useful and constructive existence. 19

xxx

When the law is clear, there is no other recourse but to apply it regardless

of its perceived harshness. Dura lex sed lex. Nonetheless, the law should never

be applied or interpreted to oppress one in order to favor another. As a court of

law and of justice, this Court has the duty to adjudicate conflicting claims based

not only on the cold provision of the law but also according to the higher

principles of right and justice.20

While the Command Theory necessarily tells us that the laws should

continue to sharpen its fangs, however, it can be gleaned from the foregoing

cases that the fangs of the law may be plucked away when the interests of justice

19 Duncan v Court of first Instance, G.R. No. L-30576, February 10, 1976
20 Obiasca v Basallote, G.R. No. 176707, February 17, 2010
is at peril. Courts of Justice are not always tasked to interpret the law with a

blind eye and a stoned heart. Cases should be decided using the scales of equity

and justice. Nevertheless, the departure from the letter of the law should not

always taken when the facts and circumstances of the case will call for its strict

implementation.