John Austin’s Theory of Command Law: Its Practicality in Today’s World

By: Monarch Mittal

Electronic copy available at: https://ssrn.com/abstract=4157659

 In the 18th and 19th centuries, jurisprudence of legal standards saw its evolution towards philosophy of

legal positivism. One of the major contributors on the road to this approach was Mr. John Langshaw Austin,

who introduced the theory of Command Law as the ideal legal structure in order to achieve most efficient

working society. The basic understanding of this theory was that the whole country will be governed by the

commands given by a sovereign, that may be an individual or group of people, and that there will be sanctions

put up against the people not following the commands given by the sovereign. Sanctions are anything and

everything that the sovereign may deem fit for violation of their commands, such as punishments of any nature

or may even be civil in nature where compensation is imposed. The purpose of jurisprudence is that every

person is happy. John Austin understood that if every person does as they are commanded by the sovereign,

every person will attain happiness. The aim of this paper is to critically analyse the philosophy of Command

Law laid down by John Austin and understand the practicality of it if applied in today’s world, as against the

existing legal system, in an attempt to achieve the purpose of jurisprudence.

In the year 1832, when John Austin introduced the Law of Command through his writing in "The

province of jurisprudence Determined"1, British as well as American jurisprudence widely appreciated his

theories. This is because it seemed like the best approach for a smooth functioning society at that time,

especially when a country like Britain was undergoing a huge phase of changes in the government and its

constituencies through ‘The Reform Act of 1832’2 and where rule of monarchy was not so long ago. Wherein

56 boroughs were disenfranchised, the law of command appeared to be a fruitful method to govern society as

a whole through one entity known as sovereign. However, it was until later when other philosophers laid down

a better structure for the functioning of society, that the flaws in the John Austin’s theory had begun to be

realised. To take into consideration if the philosophy of sanctions for every command disobeyed will be an

ideal structure for the current Indian legal structure, its existence in the light of constitution and the

fundamental rights provided under it needs to be considered. Each and every person of society following the

order of one supreme, in the form of sovereign is a direct contradiction to constitutional framework of India

which lays down separate powers granted to separate individuals and entities and the accountability of each

of them to one another, in order to conserve the idea of ‘democracy’. John Austin’s positive law theory would

1
John Austin & Wilfrid E. Rumble, The Province of Jurisprudence Determined (1995)
2
The Reform Act 1832

Electronic copy available at: https://ssrn.com/abstract=4157659

appear to be deemed fit for a society that is run by a Monarch for the reason that here, the order of one supreme

sovereign over all is possible. But in the presence of fundamental rights where each and every citizen of the

country is provided with the rights on violation of which, they have the remedies available, even against the

law makers, that is, the government who has made the rules or the judiciary who is upholding the laws made

and have the powers to make necessary amendments, every citizen has the right to seek redressal against them.

Otherwise, the protests by people like Anna Hazare and Arvind Kejriwal against the Indian government would

not have been possible. However, under the John Austin’s model sanctions can only be given by the sovereign

to every citizen but the sovereign cannot be held accountable for any of their actions, or in the words of Justice

Satish Chandra in Deputy Commissioner of Income Tax vs Pahar Ganj Grih Nirman Sahkari (2004)3 –

“validity of commands need not be questioned”. Meaning that citizens are not provided with any rights or

remedies and since the sovereign is not democratically elected either, the notion of democracy is completely

defeated here. A situation of emergency, such as the emergency declared under the reign of Indira Gandhi in

1975 can be seen as a situation which most closely resembles the society that John Austin has portrayed.

Presidential rule, where the president is giving orders without being held accountable for their actions and

most of the fundamental rights are suspended for the time being. But at the same time, 1975 emergency has

also been referred to as the ‘Darkest phase in the Indian history’, because of the misuse of powers that was

observed when concentrated in the hands of one person. Hence this is the reason the Indian constitution created

the three bodies namely - legislature, executive and judiciary; with the purpose of maintaining separation of

powers by having a system of checks and balances on one another while each body perform their individual

duties.

John Austin created the concept of sanction to make sure that commands are being always followed

by the citizens. However, a closer look would make us realize that this idea of sanctions is quite coercive in

nature. Here punishments have been laid down for every command not followed but no system of incentive

has been provided for if the commands are correctly followed by the citizens. Meaning, it appears to be an

evil system that will punish you but not reward you. This is not how you keep everyone in society happy and

motivated. For example, an employee if punished for every bad decision that he /she makes for the company

3
Deputy Commissioner of Income Tax vs Pahar Ganj Grih Nirman Sahkari [2006] 99 TTJ JP 549

Electronic copy available at: https://ssrn.com/abstract=4157659

will not be motivated enough to strive for decisions that would result in better performance of the company

unless there is an incentive in the form of promotion or increment available to him/her. A similar ideology

was also brought to light by the famous jurist – Jeremy Bentham, where he highlighted that the need for

‘rewards’ is as much important as is the need for ‘sanctions.’ In a society where the aim is to make everyone

live freely, the single judge bench in Kailash Alias Kala vs State of Haryana (2003)4 also stated that Austin is

asking them (people) to be rather living in constant fear of punishments (sanctions). A similar criticism of the

theory of command was also delivered in the case of Indira Nehru Gandhi vs Shri Raj Narain & Anr (1975)5,

wherein the bench quoted R.M Mclver’s book – “The Modern State”6 to highlight the fact that the state’s job

is to protect the rule of law and be bound by its laws itself, rather than being just mere law makers, which is

the role of the sovereign as per John Austin.

Moreover, imposition of laws, that is commands by a single entity known as sovereign brings with

itself even more challenges that needs to be addressed to understand the practicality of command theory in the

current era. One of the major challenges would be the notion of ‘morality’ that may seemed to be overlooked

while commands are given.

“Of laws set by subjects as private persons, some are not established by sovereign or supreme authority. And

these are rules of positive morality: they are not clothed with legal sanctions, nor do they oblige legally the

parties to whom they are set.”7 – John Austin

He outrightly portrayed his opinion that if man-made morals are put forward in society, they will not hold

people of the society legally bound because of the reason that it has been declared by the men of the society

and not the sovereign. Since, commands of the sovereign are not power conferring laws, rather just orders to

each and every individual with a provision of sanctions if not followed, this then creates a wide gap between

the laws of sovereign and laws of morality deemed necessary by the society. An understanding of difference

between morality and legality can be - morally a person may be expected to help a person who just had an

accident in front of him, but legally it is not identified. In India where, celebration of Diwali has been

4
Kailash Alias Kala vs State of Haryana [2004] CriLJ 310
5
Indira Nehru Gandhi vs Shri Raj Narain & Anr [1975] AIR 2299
6
Robert Morrison MacIver, The Modern State (1926, Oxford University Press)
7
John Austin & Wilfrid E. Rumble, The Province of Jurisprudence Determined (1995)

Electronic copy available at: https://ssrn.com/abstract=4157659

considered as one of the most important festival rituals for the Hindu community, sovereign’s decision to

declare it illegal, let us say on the grounds such as to maintain uniformity since it is only celebrated by one

community, will most likely create huge disturbance in society also because Hindu community has the

majority population in the country. At the end of the day, theory of command is a positive law, meaning man-

made laws. Therefore, it is not possible for sovereign to take into consideration all the morals, ethics and

values of people of the society, however without the provision of sanctions or remedy available to the citizens,

this gap will not be filled.

What is interesting to note here is the fact that those who believe in Austin’s theories will obey with

no problem, but for those who do not, will be obeying it in the fear of an evil entity that will put sanctions on

it. Just like minority communities feel in India. For example, the case of Kashmiris being thrashed by the

students in Punjab for cheering for Pakistan in a cricket match between India and Pakistan8. Even though

Kashmiris were legally entitled to support the country of their choice under the freedom of speech and

expression and right to personal life and dignity under the articles 199 and 2110 of the Indian Constitution,

1950, they were thrashed by the people in majority. The only difference is that in the current system there is

a mechanism of redressal available to them but in the mechanism portrayed by John Austin, there will be no

accountability available for any actions of sovereign. Another case of minority’s right being overlooked can

be the fact that Sikh community have not been granted their personal laws, instead are governed under the

Hindu laws only. With the unaccountable sovereign and uncountable sanctions in place, the condition of

minority communities will only get worse. Furthermore, to keep up with the very changing dynamic society

that we live in, it is necessary for the laws to be constantly evolving. With the inflexible commands set out by

the sovereign and no decision-making powers conferred to authorities such as courts of the country, it will be

difficult to achieve the same. A perfect example to explain this flaw would be the decriminalization of Section

377 of the Indian Penal Code, 186011 in 2018 in the case of Navtej Singh Johar v. Union of India12. It was

with the evolution of society only that it was realised that there is a need to protect the rights of people

8
OpIndia Staff, ‘Punjab: Students from UP and Bihar thrash Kashmiris who cheered for Pakistan against India during T20 Match’
(OpIndia, 25 October 2021) <https://www.opindia.com/2021/10/punjab-kashmiri-students-thrashed-for-cheering-for-pakistan-
uttar-pradesh-bihar/> accessed 10 May 2022
9
Constitution of India 1950, art 19
10
Constitution of India 1950, art 21
11
Indian Penal Code 1860, s 377
12
Navtej Singh Johar v. Union of India AIR [2018] SC 4321

Electronic copy available at: https://ssrn.com/abstract=4157659

belonging to LGBTQI community and has only been able to achieve through the power to amend the laws

granted to the judiciary by the Constitution of India.

Sanctions play an important role in controlling the behaviour of an individual of the society. A positive

or negative impact of it is subjective, however the idea of Austin behind implementing them can surely be

understood as an attempt to make everyone follow the commands, in order for each individual to be happy in

the society. With the intention of squeezing powers in one hand to eliminate the hassle of overlapping duties

and procedural delays, the idea philosophy provided by John Austin can be seen to make sense. However, in

accordance with the flaws as discussed above in this model of legal structure, it can be understood that Theory

of Command could be an ideal system in a monarchical type of rule in a country. For a country like India and

many others, where constitution is drawn, and democratic rule is in existence; John Austin’s model appears

to be doing more harm than good. It appears that comparatively the ratio of people unhappy will be quite

higher than the ones happy with his legal structure. Meaning the very purpose of jurisprudence will be

defeated. Keeping in mind the above-mentioned challenges that the Law of Command brings with itself, the

practicality of John Austin’s model in today’s world seems not a viable solution to attain happiness.

Electronic copy available at: https://ssrn.com/abstract=4157659

 BIBLIOGRAPHY

ACTS/STATUTES

• The Reform Act 1832

• Constitution of India 1950

• Indian Penal Code 1860

TEXTBOOK

• John Austin & Wilfrid E. Rumble, The Province of Jurisprudence Determined (1995)

• Robert Morrison MacIver, The Modern State (1926, Oxford University Press)

CASE LAWS

• Deputy Commissioner of Income Tax vs Pahar Ganj Grih Nirman Sahkari [2006] 99 TTJ JP 549

• Kailash Alias Kala vs State of Haryana [2004] CriLJ 310

• Indira Nehru Gandhi vs Shri Raj Narain & Anr [1975] AIR 2299

• Navtej Singh Johar v. Union of India AIR [2018] SC 4321

WEBSITES AND BLOGS

• OpIndia Staff, ‘Punjab: Students from UP and Bihar thrash Kashmiris who cheered for Pakistan

against India during T20 Match’ (OpIndia, 25 October 2021)

<https://www.opindia.com/2021/10/punjab-kashmiri-students-thrashed-for-cheering-for-pakistan-

uttar-pradesh-bihar/> accessed 10 May 2022

Electronic copy available at: https://ssrn.com/abstract=4157659