CAN THERE BE LAW WITHOUT SANCTION

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This article was written by Wafa Jallu, a student of OP Jindal Global University.

Austin defined law as a command given by a sovereign backed by sanction. This is what is known as the Command Theory of Law. In order to understand this, it is first relevant to answer 3 questions.Who is a sovereign? What is a command? What is sanction? A sovereign as per Austin is a determinate superior, superseded by none and followed by the masses. A sovereign is someone who is habitually obeyed by the bulk and who themselves is not in the habit of obeying any entity. And every law from such a sovereign is a command.[1] A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain (sanction) in case the desire be disregarded.[2]Sanction therefore, simply put would be the penalty associated with not abiding by the sovereigns command. The meaning of sanction may vary in different cases. Under criminal law, sanction may mean imprisonment while in civil law, it would be payment of monetary compensation. For the purpose of simplicity, I refer to sanction in its most general sense, as a penalty. To Austin, a command was inseparable from duty and sanction. Where there is a duty, there is a command and where there is a command there is sanction. This paper is an analysis of the relation between command and sanction, in a pursuit to answer the question whether the existence of sanction is necessary for the law to be obeyed.

For Austin, sanction was an inextricable part of law. To him, a law would not be obeyed if there was no sanction associated to it. A critic to this by the name of Hart emerged, opposing and attempting to correct the deficiencies of Austin’s theory. Hart was a soft positivist who believed that modern legal systems cannot be explained simply as comprising of coercive commands. To him, a legal systems are a union of primary and secondary rules, embodying a “minimum content of natural law.”[3]  For Hart, there is was no real sense in considering the law governing marriage for example to be a coercive command. These provided more of a framework with which individuals could define the scope and limit of their rights, obligations and liabilities.[4]

In his book The Concept of Law, Hart differed on two grounds from Austin. Firstly, he rejected the idea that it is habitual obedience by the masses that defines and gives power to a sovereign supreme. To explain this point Hart in his book gave a hypothetical monarchial situation in which Rex I is the sovereign upon the death of whom his son Rex II takes over. For Hart, the masses that were obedient to Rex I will not automatically obey the commands of Rex II. It is only if they find him a legitimate leader would they do so.Secondly, Hart did not believe in the coerciveness of law. According to Hart, human beings are reasonable individuals who follow the law not merely out of fear of punishment or sanction, rather because they find good reason to follow it, seeing it to be the right thing for themselves as well as for others.These are what Hart called primary rules of obligation, something that guides a person’s behavior. The defects in these primary rules would be corrected by secondary rules of obligation.Hart’s ‘rules’ differed from ‘habits’ in the sense that breaking a rule would invite criticism from the society. This to Hart was the reason people obey the law. This is what he called the internal aspect of law. People internalize the rules and chose to follow it to prevent societal criticism.

 Obligation meant a very different thing to Hart than what it did to Austin. Austin connected obligation to an evil, a prediction of punishment. Hart on the other hand differentiated between being obliged and being obligated.In a hypothetical situation where a gunman demands a bank clerk to hand over the money, Hart says that he is obliged to do so, regardless of whether or not he wants to do so. Hart argues this state of being obliged to do as the gunman says, is subject to the chances of incurring punishment or evil at the hands of the gunman. If the threat is perceived as trivial or an individual does not think the superior individual, in this case the gunman, is capable of giving action to his words, he will not feel an obligation to do what the sovereign says. Hence, this obligation is subject to the nature of punishment expected,[5] and is therefore somewhat ineffective. This is different from when an individual duly deposits a cheque in the bank. In this case, the banker has an obligation to give you the money. This is the reason that we follow the law. This obligation, as it was on the banker clerk, is backed by social pressure which in turn depends on two things: the seriousness of social pressure and the desire to maintain social status. Therefore, for Hart, it is the internalization of law that makes us follow the law and not sanction per Austin.

I agree with Hart in the sense that it is not just the fear of punishment that motivates an individual to obey the law. Austin’s view imposes a somewhat negative character, implying that human beings are incapable of self-control and self-direction and the only way one would obey the law is if there is a sanction backing it up. A more appropriate understanding of the connection between law and sanctions is therefore given by Hart, and if we look at the current scenario, Hart’s model is the one that is actually applicable to modern legal systems. It is not just sanction that forces people to follow the law. It is the need for social acceptance and social harmony. In the words of Aristotle, man is ultimately a social animal and society is something that precedes the individual.

[1] James Penner and Emmanuel Melissaris. Mccoubrey& White’s Textbook On Jurisprudence. 5^th ed. Oxford University Press, 2012.Print.

[2] Ibid

[3]Kronman,Anthony.”Hart, Austin and the Concept of Legal Sanctions”.(1975). Available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2086&context=fss_papers

[4]Bogdanov, Ekaterina. “ John Austin’s and H.L.A Hart’s Legal Positivist Theories of Law: An Assessment of Empirical Consistency”. (2012). Available at  https://katyabogdanov.files.wordpress.com/2013/05/john-austin_s-and-h-l-a-hart_s-legal-positivist-theories-of-law-an-assessment-of-empirical-consistency.pdf

[5]Bogdanov, Ekaterina. “ John Austin’s and H.L.A Hart’s Legal Positivist Theories of Law: An Assessment of Empirical Consistency”. (2012). Available at  https://katyabogdanov.files.wordpress.com/2013/05/john-austin_s-and-h-l-a-hart_s-legal-positivist-theories-of-law-an-assessment-of-empirical-consistency.pdf