This entire narrative regarding sanctions and law has been researched by the learned jurisprudential scholar, John Austin. This entire theory has been popularly referred to as Austin’s Command Theory as well. He defines law as the command of the sovereign. We are introduced to two more terms with this definition – command, and sovereign. According to him, a command is –
A wish or a desire conceived by a rational being, that another rational being shall do or forbear.
An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish.
An expression or intimation of the wish by words or other signs.
He also correlates the terms command, sanction, and duty, and says that these three terms are “inseparably connected.” He believes that “each of the three terms signifies the same notion, but each denotes a different part of the notion and connotes the residue.” This means that if there is a command, a duty would follow, and not abiding by that duty would mean the imposition of sanctions.
A sanction would be “the evil which will probably be incurred in case a command be disobeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience.” Simply put, sanctions refer to the penalty or punishment imposed for failure to obey the commands issued by the sovereign. He also defines sovereign as “if a determinate human superior not in the habit of like superior obedience but receives habitual obedience from the bulk of the given society, then that society is political and independent and that sovereign is the determinate human superior.”
H.L.A. Hart’s Perspective
This theory has been criticized by HLA Hart. He differed on two points – one, the definition ascribed to a sovereign, and two, the coerciveness of law. On the point of the sovereign, Hart brings forth a hypothetical idea of a monarchy, whose king has died and is succeeded by the son of the king. He believes that in such a context, the people of the kingdom would not blindly take the son to be the monarch. Rather, they would test his policies, and only upon him proving that he makes sense would they treat him as the sovereign. On to the second point, Hart is of the firm belief that people follow the law not because of the sanctions imposed or the rewards given, but because they believe that it is the right thing to do.
This entire procedure Hart refers to internalization of rules and this particular internalization was called the primary set of rules. He also says that in the event of any problems that arise out of the primary set of rules, it would be corrected by the secondary set of rules of obligation. The secondary rules can be considered to be rules about the rules, for without them there would be problems for the society or country to face – one, knowing what the rules are would be a problem; two, changing the rules to suit the times we live in would be hard and moreover, if the rules themselves cannot be identified, how could one find out whether or not there was a change to the rule?; and three, lack of a process of adjudication.
The concept of obligation is another area where Hart differs from Austin. Obligation, according to Hart, provides a distinction here by using two terms – obliged and obligated. The former term does involve coerciveness, which Hart has in his book “The Concept of Law” explained beautifully, whereas the latter stems from doing one’s moral duty. It could be seen clearly as a difference in legal and moral duties and obligations.
Can Law exist without Sanctions?
We are human beings. We human beings have established this entire system of law. This seemingly complex creation of humans has come about by virtue of the sixth sense that humans possess. This sixth sense, however, does not treat everyone equally, which makes it amply clear that there are various perspectives. In this context, however, there is some sense in what both perspectives offer. Humans react differently to different scenarios, and different humans react differently too. So, while Austin’s views might appeal to one, another could be swayed to agree with Hart, or a third person could be like me and come up with their own take on the matter.
I agree with certain perspectives of Austin, such as law flowing from the sovereign, and how command, duty, and sanctions are all interrelated. Having said that, however, I do not agree with the idea of the sovereign being a determinate human superior. This ideology proves complicated because that would make the truest sense in monarchies or autocracies, which is not the current global scenario. With quite a substantial number of countries being democracies, the people are in power. Austin’s definition of the sovereign has made it seem as if there can only be one sovereign, which affects the way democracies work. The argument to this could be that the people of the country ultimately elect one person to occupy the head post in the country – be it the post of the President, or that of the Prime Minister, as the case may be.
While I agree that there is ultimately one head, the rest of the representatives must be considered, for they form the Parliament as it is known in India, or the Senate, as it is known in the USA. These representatives possess powers of their own, which cannot be ignored or associated with the Prime Minister of India or the President of the USA. So, it is a collective body that can be called the sovereign. Even following this logic, the idea of the doctrine of separation of powers has ensured that there will not be one most authority in a democracy.
Hart on the other hand makes interesting points, but completely eliminating the notion given by Austin that people would not follow the law, had there been no sanctions, might not really be the practical thing to do. Kautilya’s Arthashastra clearly describes four ideas – Sama, Dana, Bheda, and Danda. Sama refers to talking the matter out, in the event of any dispute. Dana would be providing a reward for reaching a compromise. Bheda means using words to prove the other side wrong and hence resolve the dispute. Danda refers to going to war to battle the matter out. All these, while used as ways to resolve disputes, can also be considered to help in governance.
This is because Sama would be a way of dealing with civil laws. This is because civil laws tend to provide a set of standards that have to be adhered to, which can be stated clearly. One of the best examples of the same is that of a will being signed by two witnesses – nothing is going to change in the will of the circumstances if the will does not have two witness signatures, but still, it will not be considered.
Dana is the way that courts adjudicate the disputes – by involving damages and compensation. Bheda is how the government comes to know of the loopholes in the laws that they drafted, for someone would have found it out and exploited the same. Danda need not be taken literally in this context, but the fear of a possible Danda is what fuels adherence to criminal laws, to quite a good extent. So, Hart’s complete denial of the claims of Austin cannot be considered in its entirety.
I, therefore, agree with both perspectives, but not completely. Both views offer different takes on how the law is and can be. But one cannot be negated to choose the other.