The chief protagonist of this theory, John Austin propounded his command Theory of law in his celebrated but controversial book The Province of Jurisprudence Determined (1832) where he define law as ” a command set by a superior being to inferior beings and enforced by sanctions”.
The superior being is the sovereign, while the inferior being are his subjects.
The sovereign authority may be vested in one person, a group of persons or many persons.
According to Austin definition of how the law itself must have following elements;
i. The existence of a definite sovereign.
ii. The sovereign is without legal limitation in the exercise of power, i.e he is above the law, the ” Uncommanded Commander ”
iii. The subjects must be in the habit of obeying him because of his coercive power to impose sanction.
In common speech the expression ” Sovereign ” means an independent body, a body that does not acknowledge any superior. i.e Sovereign Authority has no Superior. Austin Proposed the following way of identifying the Sovereign.
He stated that if the subject is in the habit of obeying because of imposition of sanction by the superior, then there is Sovereign.
Austin believed that any sovereign body, by virtue of the fact that it is the ultimate authority. Thus, for instance, it can be said that during a period of military rule in Bendel State the inhabitants render habitual obedience to the directives of the military governor of the state; in Austin’s view, however, Bendel State would not be an independent political society and the military governor would not be a sovereign for the governor also renders habitual obedience to a higher superior, which is the president of the country.
Austin perspective on the definition of law has been criticized on many grounds;
FIRST, law are not always stated in an imperative language such as ” shall ” or ” shall not ” as propounded by Austin. While some laws, especially some aspects of Constitutional law may appear like commands, for example Section 130(1) of the Nigerian Constitution, 1999, Provides that
” There shall be for the federation a president”
It is not true to say that all laws are command. For instance, rules relating to Wills do not compel a person to make a Will. The same thing applies to marriage contract where an individual can choose to Marry either under the Marriage Act or Under Customary Law.
SECOND, the positivist school says law is what the sovereign says it is. That is, any authoritative law maker acting within the scope of its lawmaking powers has to be obeyed. It does not examine the goodness or badness of the rules laid down or the political nature of the lawmaker – monarch, Oligarch, or democrat or the moral character of the lawmaker, i.e benevolent dictator, despotic monarch or oligarch. All that the positivists are concerned about is whether the lawmaker is the legally authorised lawmaker.
Against this background, it does not require much imagination to realize that the theory can yield to or provide a ready justification for dictatorship or totalitarianism.
THIRD, the idea of an Uncommanded Commander is only possible in an absolute dictatorship where the society is governed not by law, but according to the order of the dictator. Nobody, including the Sovereign, is above the law even under a military government. This is because every exercise of government power must be in accordance with the law of the land. Such as it was been illustrated in the case of Lakanmi v. A.G (Western State) and others, it was held that the actions of the military government have been declared ultra vires, null and void because their actions where not in accordance with the provision of the law.
FOURTH, Austin missed the point when he stated that everybody usually obeys the law because of fear of sanction by the sovereign. Many obey the law not because of sanction, but because it accords with their normal way of life or because they see it as logical and agree with it in principle.
For example, not all smokers abstain from smoking in public because of the existence of a law that prohibits smoking in public places.
Conclusively, not everyone refrains from committing murder because it is punishable under the law, irrespective of the existence of law, some either by natural instinct or belief are not just smoking in public or killing their fellow human beings.
By: Akinola Michael
