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Command theory, coercion
Command theory
Command theory is the theory that laws are essentially commands backed by threats of
sanctions
Key writers who support command theory:
● Austin
● Schauer (contemporary)
Key writers who criticise command theory:
● Hart
● Raz
- Austin: the law is just demands backed by threats/sanctions
- Every law is a command - an expression of a person’s wish, coupled with the
power to inflict a sanction if the command is not obeyed
- Without a threat of sanction, there’s no obligation and no duty
- NB Austin says that sanctions don't need to be violent
- NB Austin notes that some legislation doesn’t count as laws, because it’s not
coercive:
- Acts to explain law (simply interpretative)
- Acts to repeal laws (simply revocation of commands)
- Imperfect laws (laws without sanctions)
- Me: the law is more complex than demands backed by threats; command theory
oversimplifies the law. BUT, command theory is useful in that it demonstrates that
coercion and obedience (and sanctions if we disobey) are key, distinctive features of
the law. Coercion is inherent to the law (including private law)
- The best understanding of law is one that loosely incorporates command theory
while expanding on it. Austin’s command theory is necessary, but not sufficient,
to understanding/explaining law
- Schauer: sanctions are central to the law; they aren’t ‘peripheral’ to it. Law is in reality
coercive
- The actual lived experience of modern legal systems is more coercive than Hart
thinks. Yes, wills, contracts etc aren’t extremely coercive, but they are backed up
by increased state regulation, a form of ‘coercive intrusion’ (e.g. tax laws getting
more intrusive)
- Coercion is central/distinctive/essential to the law because other normative
systems don’t have it; other normative systems do not have legitimate sanctions
they can use
, 2
Variations on command theory, that still centre law around sanctions/coercion
- Holmes: a proposition of law is a prediction of the likelihood of sanctions (i.e. the
likelihood of how the courts will behave). This is based on the ‘bad man’ - the bad man
doesn’t care about ethics, he only cares about staying out of jail and avoiding paying
damages
- This is the ‘prediction theory’ of law
- A legal duty is simply a prediction that if you do (or don’t do) X, the court will
make you suffer. E.g. contractual duties mean a prediction that you will pay
damages if you breach a contract
- Kelsen: legal norms (e.g. laws and rulings) are directions to officials to apply sanctions
- The unifying feature of all law is that it’s coercive, from the law of the USA,
Switzerland, to tribal law
Critiques
- HLA Hart: criticises command theory and Austin in particular. The law is more than a
gunman in a bank, demanding the bank clerk to hand over the money in the till. Austin’s
theory sees law as little more than a gunman in a bank, but the law is different to this in
3 main ways:
- Content: not all laws are coercive/imperative. Some are facilitative,
allowing us to make contracts etc
- Me: but these are backed up by sanctions too, e.g. damages
for breach of contract!
- Similarly, if we don’t comply with ‘facilitative laws’ e.g.
formalities requirements for wills (signed and attested), we
are sanctioned by the fact that our will is ineffective! This
fits with Nozick’s definition of coercion
- Origin: Austin thinks that all laws are commands from the sovereign
(origin) that don’t apply to the sovereign (range). But laws have several
sources!
- Range: laws are often applicable to lawmakers
- Me: I agree with Hart’s criticism of Austin, but it doesn’t really disprove that law
is fundamentally commands backed by threats. Hart shows that law is more
than this, but not that it’s less than this
- HLA Hart: the law shouldn’t be defined in terms of sanctions or coercion. Instead,
we should define law in terms of rules: primary rules regulating conduct, and secondary
rules regulating the creation and application of those primary rules
- However, law is more than the union of primary and secondary rules; it also
needs acceptance of these rules
- Primary rules need to be accepted by the public, while secondary rules
need to be accepted by officials
- Me: Austin’s command theory centres around criminal law, it does not properly address
other areas of law
Command theory, coercion
Command theory
Command theory is the theory that laws are essentially commands backed by threats of
sanctions
Key writers who support command theory:
● Austin
● Schauer (contemporary)
Key writers who criticise command theory:
● Hart
● Raz
- Austin: the law is just demands backed by threats/sanctions
- Every law is a command - an expression of a person’s wish, coupled with the
power to inflict a sanction if the command is not obeyed
- Without a threat of sanction, there’s no obligation and no duty
- NB Austin says that sanctions don't need to be violent
- NB Austin notes that some legislation doesn’t count as laws, because it’s not
coercive:
- Acts to explain law (simply interpretative)
- Acts to repeal laws (simply revocation of commands)
- Imperfect laws (laws without sanctions)
- Me: the law is more complex than demands backed by threats; command theory
oversimplifies the law. BUT, command theory is useful in that it demonstrates that
coercion and obedience (and sanctions if we disobey) are key, distinctive features of
the law. Coercion is inherent to the law (including private law)
- The best understanding of law is one that loosely incorporates command theory
while expanding on it. Austin’s command theory is necessary, but not sufficient,
to understanding/explaining law
- Schauer: sanctions are central to the law; they aren’t ‘peripheral’ to it. Law is in reality
coercive
- The actual lived experience of modern legal systems is more coercive than Hart
thinks. Yes, wills, contracts etc aren’t extremely coercive, but they are backed up
by increased state regulation, a form of ‘coercive intrusion’ (e.g. tax laws getting
more intrusive)
- Coercion is central/distinctive/essential to the law because other normative
systems don’t have it; other normative systems do not have legitimate sanctions
they can use
, 2
Variations on command theory, that still centre law around sanctions/coercion
- Holmes: a proposition of law is a prediction of the likelihood of sanctions (i.e. the
likelihood of how the courts will behave). This is based on the ‘bad man’ - the bad man
doesn’t care about ethics, he only cares about staying out of jail and avoiding paying
damages
- This is the ‘prediction theory’ of law
- A legal duty is simply a prediction that if you do (or don’t do) X, the court will
make you suffer. E.g. contractual duties mean a prediction that you will pay
damages if you breach a contract
- Kelsen: legal norms (e.g. laws and rulings) are directions to officials to apply sanctions
- The unifying feature of all law is that it’s coercive, from the law of the USA,
Switzerland, to tribal law
Critiques
- HLA Hart: criticises command theory and Austin in particular. The law is more than a
gunman in a bank, demanding the bank clerk to hand over the money in the till. Austin’s
theory sees law as little more than a gunman in a bank, but the law is different to this in
3 main ways:
- Content: not all laws are coercive/imperative. Some are facilitative,
allowing us to make contracts etc
- Me: but these are backed up by sanctions too, e.g. damages
for breach of contract!
- Similarly, if we don’t comply with ‘facilitative laws’ e.g.
formalities requirements for wills (signed and attested), we
are sanctioned by the fact that our will is ineffective! This
fits with Nozick’s definition of coercion
- Origin: Austin thinks that all laws are commands from the sovereign
(origin) that don’t apply to the sovereign (range). But laws have several
sources!
- Range: laws are often applicable to lawmakers
- Me: I agree with Hart’s criticism of Austin, but it doesn’t really disprove that law
is fundamentally commands backed by threats. Hart shows that law is more
than this, but not that it’s less than this
- HLA Hart: the law shouldn’t be defined in terms of sanctions or coercion. Instead,
we should define law in terms of rules: primary rules regulating conduct, and secondary
rules regulating the creation and application of those primary rules
- However, law is more than the union of primary and secondary rules; it also
needs acceptance of these rules
- Primary rules need to be accepted by the public, while secondary rules
need to be accepted by officials
- Me: Austin’s command theory centres around criminal law, it does not properly address
other areas of law
