Austin's Book: The Province of Jurisprudence
Determined and the Command Theory
In John Austin's seminal work, The Province of Jurisprudence Determined, he establishes legal
positivism by distinguishing "law as it is" from "law as it ought to be". His framework, often called
the Command Theory or Imperative Theory of Law, centers on defining the exact boundaries of
jurisprudence.
The following are the important concepts found within the text:
1. The Core Definition of Law
● Law as Command: Austin defines law as a type of command which obliges a person or
persons to a general "course of conduct" (acts or forbearances of a class).
● Essential Elements: For a rule to be a law, it must consist of three inseparable elements:
command, sovereign, and sanction.
● Laws Proper vs. Improper: Austin distinguishes between "laws properly so called"
(commands from an intelligent superior to an intelligent inferior) and "laws improperly so
called" (rules based on analogy or metaphor, such as etiquette or laws of physics).
2. The Concept of Command
● Expression of Wish: A command is an expression or intimation of a wish by a superior
intended to influence the conduct of an inferior.
● Generality: To be a law rather than a specific order, a command must possess generality,
meaning it obliges a class of people to a particular conduct into the future.
● Power Dynamics: Superiority signifies might—the power of affecting others with "evil" or
pain to force compliance with one's wishes.
3. The Sovereign
● Determinate Superior: The sovereign is a determinate human superior (an individual or
a "sovereign number") who receives habitual obedience from the bulk of a society.
● Independence: The sovereign must not be in a habit of obedience to any other human
superior.
● Attributes of Sovereignty: Austin characterizes sovereign power as absolute, indivisible,
permanent, inalienable, and universal within its territory.
● Independent Political Society: This is defined as the largest group of persons (subjects)
governed by a specific sovereign.
4. Sanction and Duty
● Sanction: This is the instrument of coercion or the "evil" threatened by the sovereign in
the event of non-compliance.
● Legal Duty: An individual has a legal duty or obligation only because they are liable to a
sanction if the command is disregarded.
● Fear as Motivation: The theory assumes that people obey the law primarily out of the
, fear of evil consequences.
5. Classification of Laws Properly So Called
● Divine Law (Law of Nature): Commands set by God for humans, which can be revealed
through scripture or unrevealed.
● Positive Law: Laws set by human sovereigns for their subjects in an independent
political society; this is the only appropriate matter for jurisprudence.
● Principle of Utility: Austin argues this is the "only index" or guide to unrevealed divine
law. It involves calculating whether the general effect of a class of actions would improve
or depress general happiness.
6. Classification of Laws Improperly So Called
● Positive Morality: Rules set by men that do not have the character of commands from a
sovereign, such as social norms, laws of honor, and international law.
● Metaphorical Laws: Rules that are laws only by figure of speech, such as the "laws of
nature" (science) or animal behavior.
7. Secondary Concepts and Technical Exceptions
● Tacit Commands: Austin addresses judge-made law by defining it as delegated
sovereign authority. When judges codify customs into legal rules, they are considered tacit
commands of the sovereign legislature.
● Permissive Laws: These are "laws to repeal laws," which Austin notes as an exception
to the command definition because they do not impose duties.
● Imperfect Laws: Laws that lack a coupled sanction to compel compliance.
● Rejection of Rights without Duties: Austin argues that the law cannot bestow a right
without imposing a corresponding duty on others to respect that right, enforced by state
sanctions.
The Imperative Theory: John Austin’s Sovereign
Command of Law
John Austin's command theory, also known as the Imperative Theory of Law, is a foundational
pillar of analytical jurisprudence and legal positivism. It is defined by several interconnected
concepts that describe what the law is, who creates it, and how it is enforced. The most critical
concepts of Austin's theory are outlined below:
1. The Core Definition of Law
Austin defines law in its most basic form as a command of a sovereign backed by the threat of a
sanction. For a rule to be legally valid, it must be issued by a determinate political superior and
include an "evil" or punishment for those who do not comply.
2. The Concept of "Command"
Determined and the Command Theory
In John Austin's seminal work, The Province of Jurisprudence Determined, he establishes legal
positivism by distinguishing "law as it is" from "law as it ought to be". His framework, often called
the Command Theory or Imperative Theory of Law, centers on defining the exact boundaries of
jurisprudence.
The following are the important concepts found within the text:
1. The Core Definition of Law
● Law as Command: Austin defines law as a type of command which obliges a person or
persons to a general "course of conduct" (acts or forbearances of a class).
● Essential Elements: For a rule to be a law, it must consist of three inseparable elements:
command, sovereign, and sanction.
● Laws Proper vs. Improper: Austin distinguishes between "laws properly so called"
(commands from an intelligent superior to an intelligent inferior) and "laws improperly so
called" (rules based on analogy or metaphor, such as etiquette or laws of physics).
2. The Concept of Command
● Expression of Wish: A command is an expression or intimation of a wish by a superior
intended to influence the conduct of an inferior.
● Generality: To be a law rather than a specific order, a command must possess generality,
meaning it obliges a class of people to a particular conduct into the future.
● Power Dynamics: Superiority signifies might—the power of affecting others with "evil" or
pain to force compliance with one's wishes.
3. The Sovereign
● Determinate Superior: The sovereign is a determinate human superior (an individual or
a "sovereign number") who receives habitual obedience from the bulk of a society.
● Independence: The sovereign must not be in a habit of obedience to any other human
superior.
● Attributes of Sovereignty: Austin characterizes sovereign power as absolute, indivisible,
permanent, inalienable, and universal within its territory.
● Independent Political Society: This is defined as the largest group of persons (subjects)
governed by a specific sovereign.
4. Sanction and Duty
● Sanction: This is the instrument of coercion or the "evil" threatened by the sovereign in
the event of non-compliance.
● Legal Duty: An individual has a legal duty or obligation only because they are liable to a
sanction if the command is disregarded.
● Fear as Motivation: The theory assumes that people obey the law primarily out of the
, fear of evil consequences.
5. Classification of Laws Properly So Called
● Divine Law (Law of Nature): Commands set by God for humans, which can be revealed
through scripture or unrevealed.
● Positive Law: Laws set by human sovereigns for their subjects in an independent
political society; this is the only appropriate matter for jurisprudence.
● Principle of Utility: Austin argues this is the "only index" or guide to unrevealed divine
law. It involves calculating whether the general effect of a class of actions would improve
or depress general happiness.
6. Classification of Laws Improperly So Called
● Positive Morality: Rules set by men that do not have the character of commands from a
sovereign, such as social norms, laws of honor, and international law.
● Metaphorical Laws: Rules that are laws only by figure of speech, such as the "laws of
nature" (science) or animal behavior.
7. Secondary Concepts and Technical Exceptions
● Tacit Commands: Austin addresses judge-made law by defining it as delegated
sovereign authority. When judges codify customs into legal rules, they are considered tacit
commands of the sovereign legislature.
● Permissive Laws: These are "laws to repeal laws," which Austin notes as an exception
to the command definition because they do not impose duties.
● Imperfect Laws: Laws that lack a coupled sanction to compel compliance.
● Rejection of Rights without Duties: Austin argues that the law cannot bestow a right
without imposing a corresponding duty on others to respect that right, enforced by state
sanctions.
The Imperative Theory: John Austin’s Sovereign
Command of Law
John Austin's command theory, also known as the Imperative Theory of Law, is a foundational
pillar of analytical jurisprudence and legal positivism. It is defined by several interconnected
concepts that describe what the law is, who creates it, and how it is enforced. The most critical
concepts of Austin's theory are outlined below:
1. The Core Definition of Law
Austin defines law in its most basic form as a command of a sovereign backed by the threat of a
sanction. For a rule to be legally valid, it must be issued by a determinate political superior and
include an "evil" or punishment for those who do not comply.
2. The Concept of "Command"
