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COMMANDS, CUSTOMS AND INTERESTS

AKSHANSH SINGH BHADOURIYA

21LLM062

INTRODUCTION:

The term “Law” denotes different kinds of rules and Principles. Law is an instrument which
regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous
from the view point of the society. According to Austin “law is rule laid down for the guidance
of an intelligent being by an intelligent being having power over them”. Here law is made by
superior authority for the people and people have to obey the law. There is twofold classification
of law- law of god and human law. Law of god is law set by god for human being, and human
law means law maid by humans for humans. Law is thus, strictly divorced from justice and
instead of being based on the ideas of good and bad, is based on the power of a superior. This
inevitably associates Austin with Hobbes and other theorists of sovereignty, but it was left to
Austin to follow up this conception into the ramifications of a modern legal system.

AUSTIN’S THEORY OF COMMAND:

Austin’s most important contribution to legal theory according to Friedmann was his substitution
of the command of sovereign for any ideal justice in the definition of law. His conception of
sovereignty asserts that in every human society where there is law, there is to be found latent
beneath the variety of political forms, in a democracy as well as in an absolute monarchy, a
relationship between subjects rendering habitual obedience and a sovereign who renders habitual
obedience to none. Involved in this are two main points of special importance viz., the idea of
obedience and due position occupied by the sovereign above the law. According to Austin, the
law is the command of the sovereign imposing a duty which is enforceable by sanction 1. The
study and analysis of positive law are based upon the law which is strictly applied by political
superiors to political inferiors. If a determinate human superior, not in the habit of obedience to a
like superior, receive habitual obedience from the bulk of a given society, that determinate
superior is sovereign in that society, and that society (including the superior) is a society political
and independent2. Furthermore, every positive law simply sand strictly: so-called, is set, directly
or circuitously, by a sovereign person or body to a member or members of the independent
political society wherein that person or body is sovereign or supreme.” Or we can say that Austin
defined law as a rule laid down for the guidance of an intelligent being by an intelligent being
having power over him.

1
John Austin; The Province of Jurisprudence Determined; Wilfrid E. Rumble (Ed.); Cambridge: Cambridge University Press; (1955).
2
Suri Ratnapala; Jurisprudence; (2nd Ed.) Cambridge University Press; (2013).
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CRITICISM OF AUSTIN’S THEORY:

 CUSTOM’S OVERLOOKED: ‘Law is the command of sovereign’, as Austin says, is not

warranted by historical facts. In the early times, not the command of any superior, but
customs regulated the conduct of the people. Even after the coming of the state into
existence, customs continue to regulate the conduct. Therefore, customs should also be
included in the study of jurisprudence, but Austin ignored them.

 COMMAND OVER EMPHASIZED: The Swedish jurist Olivercrone has denounced

Austin’s theory of law because of its over-emphasis on command as an inevitable constituent
of law. In modern progressive democracies law is nothing but an expression of the general
will of the people. Therefore, a command aspect of law has lost its significance in the present
democratic setup.

CUSTOM AS A SOURCE OF LAW:

Custom is a habitual course of conduct observed uniformly and voluntarily by the people.
Custom occupies an important place in regulation of human conduct in almost all the societies.
In fact, it is one of the oldest sources of law-making. But with progress of the society custom
gradually diminish and legislation and judicial precedents become the main source. Custom is
some kind of special rule which is followed from time immemorial. Law based on custom is
known as customary law. Custom is created by the people, by their unconscious adoption of a
certain rule of conduct whenever the same problem arises for solution and its authority is based
on nothing but its long continued use and recognition by the people 3. According to Austin,
“custom is a rule of conduct which the governed observe spontaneously and not in a pursuance
of law set by a political superior”. According to Salmond; Custom is an embodiment of
those principles which have commanded themselves to the national conscience, as a
principle of justice and public utility. In order for a custom to become a valid law it needs
to fulfill certain requisites:

 REASONABILITY.

 CONFORMITY WITH STATUTE LAW.

 CERTAINITY.

 CONSISTENCY.

 MUST BE GENERAL.

 MUST NOT BE OPPOSED TO GENERAL POLICY.

3
Sripati Roy; Customs and Customary Law in British India; Hare Press; (1986).
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AUSTIN’S VIEW ON CUSTOM:

According to him, custom is not law in itself, but it is a source of law. If a custom is not
recognized by the legislation and approved by the judiciary, it will not become a law. The
legislation, precedents, customs and morality are all sources of law. Austin's view depends on
two recommendations the primary relational word is that it isn't each custom that is restricting
however just those which are substantial the legitimacy being controlled by legal
acknowledgment. A custom when so perceived are just social traditions or simply rules of
positive profound quality4. The subsequent recommendation is that a sovereign or a governing
body frequently annuls customs and is, hence, better than them. A custom is law simply because
a sovereign permits it to be so.

INTEREST THEORY OF RIGHTS:

The interest theory of rights was first proposed by Bentham (1987) who argued that a person has
a distinctive human right when others have duties which protect one of that person’s interests.
The interest theory of rights seeks to safeguard these features or aspects of our humanity by
protecting a citizen’s rights against wrongdoing from another citizen within the same social,
political and judicial framework. That it is to say that if, for instance, it is in one’s interests to not
to be physically assaulted then, as far as the interest theory is concerned, it is the responsibility of
both the individual and the state to ensure that this does not happen lest the basic interests of
another individual be impinged upon.

As a utilitarian, Bentham was critical of the idea of moral rights but conceded that the rights
could be useful in legal systems5. Someone would have a right to something (x), against a second
person, if that person had a legal duty to provide the first person with x. For example, on
Bentham’s interest theory, you have a right to vote if someone is legally required to provide you
with the opportunity to vote, and count your ballot, and so on. 

This theory was propounded by the German jurist, Rudolf von Ihering (1818-1892) and further
developed by John Salmond. Rudolf Von Ihering stated that Legal right is the legally protected
interest. He gave importance to the interest of the people rather than the will of the people. For
him the basis of legal right is interest and not the element of will in a legal right. The main
objective is to protect the interests of the people and to avoid the conflict between the individual
interests. Their interest exists in the life of the community itself. They are not created by any
statute. The purpose of the law is to protect the interest and not the ‘wills’ of the citizens.
Salmond supported this theory but he stated that its enforceability is an essential condition. He
says that rights are concerned with interest, and indeed have been defined as interests protected
by rules of right, that is by moral or legal rights. According to Salmond, a right is an interest

4
Gerald J. Postema; Custom, Normative Practice, And the Law; (2012).
5
Suri Ratnapala; Jurisprudence; (2nd Ed.) Cambridge University Press; (2013).
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recognized and protected by a rule of law, respect for which is a duty, disregard of which is
wrong.

He criticized the interest theory on the ground that the interest is not protected by the state. In
order to confer a legal right, it is essential that interest should be protected and recognized by the
state.

CONCLUSION:

Though popular these theories had their own criticisms in various ways:

CUSTOM AS A SOURCE OF LAW:

 It is criticized because most of the customs originate from local social conditions existing
at particular times in society rather than the widespread Volksgeist. Allen, says that
‘Many customs which have taken deep root in society do not appear to be based on any
general conviction of their rightness or necessity, or upon any real or voluntary consensus
lutetium.’ 

INTEREST THEORY OF RIGHTS:

 It justified any crime and even made it morally compulsory in order to achieve the
satisfaction of pleasure for the greatest number.
 The theory failed to recognize other motivations that guide human action.