We went over Austin’s theory that laws are commands. We noted several problems with the theory.
Not all laws fit the model of commands; some appear to be more like what we called instructions.
Having an obligation is not generally thought to be the same thing as being threatened with a sanction.
Judges often decide cases based on what is called “customary law.” This does not seem to come from the commands of a sovereign.
I think it is possible for Austin to give answers to these problems. However, Hart is going to maintain that his theory has superior ways of addressing all three points.
Austin thought in trees. He liked to begin with a root concept and then subdivide it into branches until he had identified the concept he wished to analyze. So, for example, there are two branches off of the root concept of “expressions of desire:” requests and commands. While they are grammatically similar, they are different because commands come with sanctions. Laws will be one of the sub-branches of commands.
Commands, according to Austin, always involve three things (Austin  1955, 17):
a desire concerning someone’s behavior
an expression of that desire
a sanction, threatened harm for non-compliance
The first two elements are common between requests and commands while the last one distinguishes commands from requests.
I asked about an expression that looks like a command: “plug in the toaster.” Of course, that could be a command, but it could also be what we called an instruction; if you look at the manual for my toaster, for instance, you will see this listed as the second step for making toast (after “take the toaster out of the box”; I am not making this up).
Instructions look like commands, but they do not meet two of Austin’s criteria. As Caroline pointed out, they do not necessarily express the speaker’s desires about what the person receiving the instruction is going to do and, as Sienna noted, there is no sanction attached.
The author of the instruction manual need not care whether you ever make toast. He or she is just telling you what to do if you want to do so. By contrast, when I command my son “turn the lights back on!” I really want him to turn on the lights; there is no implied “if you want me to be able to see what I am doing” clause.
The other thing missing is a threatened sanction. When a speaker issues a threat, what the speaker means is usually that he or she will do something bad to you if you do X. Here, the author of the instruction manual is just telling you that you won’t get toast if you don’t follow the instructions. The author isn’t going to come to your house and take the bread away.
Why does this matter? Well, if parts of the law are more like instructions than they are like commands, the command theory will look like at best an incomplete theory of what laws are.
For Austin, the terms “command,” “sanction,” and “duty” (or “obligation”) are all defined in terms of one another. To receive a command is equivalent to being threatened with a sanction and being threatened with a sanction is equivalent to having a duty (Austin  1955, 14–18). This, according to Austin, is why people are obliged to obey the law.
We talked quickly about how this diverges from our ordinary use of the term “duty.”
For instance, if I owe a debt to someone, the fact that she can’t threaten me with a sanction does not make it the case that my debts are cancelled. I still have a duty to pay even if she can’t threaten me with harm. This suggests that being threatened with a sanction is a not a necessary condition of having a duty; you can have a duty even if you are not threatened. Meghna’s case of a duty to do your homework even though you won’t be sanctioned if you don’t is similar: it suggests that threatened sanctions aren’t necessary conditions of duties.
Conversely, being threatened with a sanction is not a sufficient condition of having a duty. In the “your money or your life” situation, you are certainly being threatened. But you would not do anything wrong if you gave the gunman the slip and refused to pay.
These points seem true about moral duties. Are they also true about legal duties? We will have to talk about that. If the two cases are quite different, then Austin may be on solid ground. If not, he’s not.
A sovereign, according to Austin, is someone that the “bulk” of the population is in the habit of obeying while not being in the habit of obeying anyone else (Austin  1955, 193–94).
We were content to spell this out more than criticize it. We’ll see some criticisms later.
When judges say things like “like cases should be decided alike” or “no one should profit from their own wrongdoing,” they are sometimes not drawing on anything that could be traced to a sovereign’s command. Instead, they are referring to what is sometimes called “customary law.”
Is customary law part of the law or not?
Austin could say “my theory says it has to come from the sovereign’s commands, this doesn’t, so it’s not law.”
But he doesn’t say that. He says that the customary law is “judge-made law” (Austin  1955, 32). How do judges make law? They get the authority to do so from the sovereign.
We’re going to talk about whether that makes sense, especially when we read Dworkin.
Here is a list of key terms in Austin’s theory that you should be able to explain after today’s class.
Duty (or obligation)
Also, it wouldn’t hurt to know how he accommodates customary law; remember the phrase “judge made law.”
Austin, John. (1832) 1955. The Province of Jurisprudence Determined. London: Weidenfeld and Nicolson.