Command Theories and Constitutional & International Law

Hobbes, Bentham and Austin

The command Theories of Law

 Draws its origin from Thomas Hobbes idea of sovereignty

 Later expanded by Bentham and Austin
 Foundation of legal positivism

Hobbes’s Contribution and social contract theory

 Short introduction to T. Hobbes

 Divinity - Secular Foundation of Government
 Social Contract- (human Nature) self-interested-mankind’s basic problem in human life-
calculated individuals- need for Strong government1

Theory of Legitimacy of Government - Sovereign

• In order to free people from social chaos (people had come to obey too many factors and
were swayed by various customs, traditions, religious beliefs, visible powers of their
immediate secular rulers, feudal ties and numerous fears – since these pulled in different
directions chaos resulted)2
• Our need can be best served in a political sovereignty
• Rational reason for Government - Sovereign

Sovereign Authority3
 What is the sovereign of an independent political society? Hobbes had defined such a
society as one which could defend itself, unaided, against any attack from without
 Lays down the conditions for human flourishing or individual pursuit of desire by a set of
rules or commands which were laws
 Hobbes’ narrative of the human condition and the need for man to set up a common
authority leads to the social attention
 Sovereign – a ‘mortal of God’ our of our commonly agreeing to a social contract
 Supreme Authority- Protector of the people from social chaos (Leviathan- a Theory of Law)

For Hobbes “sovereign” is primarily the word for an institution. In a monarchy, the sovereign
is an individual human being; but in an aristocracy it is a group of people; and in a democracy
it is the entire population. So “sovereign” refers to an individual human being only in special
circumstances. Also, for Hobbes a sovereign must be what would ordinarily be considered an
absolute sovereign; that is, his power must be unrestricted and monopolistic. It is
unrestricted in the sense that he has, in principle, control over all areas of life and conduct. In
Behemoth, Hobbes even argues that a child has the obligation to kill her own parent if

1
This concept was backed up by rational thinking, making Hobbes a proponent of the Enlightenment. He contributed a
very unique point of view to history that greatly contrasted with the more popular ideals of John Locke.

2
Hobbes believed that man could not be trusted. He insisted that people only participated in a government because of
necessary not because of a will for common benefit. In fact, Hobbes argued that the government limited liberties and
freedoms in exchange of security and functionality.

3
For more see my note – ‘Austin an extension’.

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Command Theories and Constitutional & International Law
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commanded by the sovereign to do so. Hobbes recognized no limitation at all upon the
absolute law making power of the sovereign. Austin expanded the idea and inaugurated an
era of legal positivism and self-sufficiency which enabled the rising national State to assert its
authority undisturbed by juristic doubts.

Legal Positivism
 Law is artificial – not natural any more (Law is something posited by men, it does not flow
from God’s creation)
 Therefore the legal relationship between a legal enactment and morality is not
straightforward.
 Does an enactment need to be moral – Hobbes says it is a matter of sanctions, of the power
to enforce the positively laud down legal statement.

Bentham’s Contribution and Command Theory of Law

Bentham was a reformer and to this end he differentiated the question of what the law was from
the question of what law ought to be. The ought part was answered by the key criterion of judging –
or as he put it, the sacred truth – that ‘the greatest happiness of the greatest number is the
foundation or morals and legislation.

Bentham and Blackstone’s common law4

A law, in Bentham’s thought, is “the expression of a will in the form of a command”.

• Law of today must be shaped by the legislator of today in accordance with the needs of
today – the sole criterion of those needs must be the greatest goods of the greatest number
of men – Principle of Utilitarianism

Sovereignty for Bentham is ‘When a number of persons’, he wrote, ‘(whom we may style subjects)
are supposed to be in the habit of paying obedience to a person or an assemblage of persons, of a
known and certain description (whom we may call governor and governors) such persons together
(subjects and governors) are said to be in a state of political society.’

Austin and Command Theory of Law

The creator of school of analytical jurisprudence, as well as, more specifically, the approach to law
known as ‘legal positivism’.

Austin, 1873, Lectures VI, p. 307: Utility is the index to the law of God…To make a promise which
general utility condemns, is an offense against the law of God”. However, Austin later moved on to
the analytical jurisprudence of law,

Command Theory of Positive Law

 Analytical Jurisprudence
 Famous categorization of law in Province of Jurisprudence determined
 Positive law is differentiated from positive morality

4
Refer to the main slide of Utilitarianism

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 Positive law is defined by Command theory of law

 “The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by
political superiors to political inferiors.”
 Law is a command of a sovereign addressed to the subjects backed by threats (sanctions)

Concept of Sovereign
If a determinate human superior, not in the habit of obedience to a like superior, receives
habitual obedience from the bulk of a given society , that determinate superior is sovereign
in that society, and the society (including the superior) is a society political and independent

Austin and Bentham Compared

Subject Bentham Austin
5 6
Nature of Censorial Jurisprudence – Expository Jurisprudence –
Jurisprudence Austin was more conservative
politically
Utilitarian Yes Yes
Limitation of
When the people decide not to obey a Legally illimitable
Sovereign particular command this constitutes a
limitation of sovereignty (eg Judicial
Review) – this is a political realities
Please refer R. Wacks 3.4.4 for more

Constitution/constitutional law

Hobbes and Social Contract

Drawing Thomas Hobbes’ influence of social contract theory, it can be said that a constitution is a
social contract between the people and government. The second nature of a constitution is that it is
a contract7.

A constitution is a Legal Contract between the people and government containing legal rights which
have force of law and are enforceable. A Constitution is the pre-agreed contract and supreme
document defining and regulating the relationship between the people and the government and its
terms are binding on all persons and authorities in the country. A constitution guarantees rights and
also attracts obligation or duties to the: individual and the government or public officers and
authorities on the other hand.

In Marcos versus Manglapus ( G.R. No. 88211, September 15, 1989, the Supreme Court speaking through
Justice Cortes categorically opined that “the Constitution, aside from being an allocation of power is also a
social contract whereby the people have surrendered their sovereign powers to the State for the common

5
Movement dedicated to streamlining, modernising or otherwise improving law
6
Exposition of the contents of an actual legal system as it now exists or once existed
7
Perhaps the best way to understand the role of the Constitution is in the context of a contractual relationship between the government
and the governed. This is validated by the Preamble to the Constitution which states, “We the People of the United States, in Order to
form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of
America.”

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good.”

Austin and Positive Morality

According to Austin, positive law should also be contrasted with "laws by a close analogy" (which
includes positive morality, laws of honor, international law, customary law, and constitutional law)
and "laws by remote analogy" (e.g., the laws of physics). Accordingly, his definition of law excludes
customary law, constitutional law, and international law, because they are not commands in his
sense and lacks anything by way of a sovereign or of sanctions.

On Austin’s view, a sovereign cannot be legally constrained because no person (or body of persons)
can coerce herself (or itself). Since constitutional provisions limit the authority of the legislative body
o make laws, Austin is forced to argue that what we refer to as constitutional law is really not law at
all; rather, it is principally a matter of “positive morality”8.

Bentham and Constitutional Code

For Bentham, we have no natural rights and the rights that we do have, such as property rights,
are created by government, whose chief task is to protect them. Bentham also worked out how
people could be protected from government itself, designing an elaborate system of constitutional
law in which representative democracy was a central element.

Bentham's most detailed account of his ideas on political democracy appeared in his book
Constitutional Code (1830). In the book Bentham argued that political reform should be dictated by
the principal that the new system will promote the happiness of the majority of the people affected
by it. Bentham argued in favor of universal suffrage, annual parliaments and vote by ballot.
According to Bentham there should be no king, no House of Lords, no established church. The book
also included Bentham's view that women, as well as men, should be given the vote.

In Constitutional Code Bentham also addressed the problem of how government should be
organised. For example, he suggested the introduction of rules that would ensure the regular
attendance of members of the House of Commons. Government officials should be selected by
competitive examination. The book also suggested the continual inspection of the work of politicians
and government officials. Bentham pointed out they should be continually reminded that they are
the "servants, not the masters, of the public"

International Law and Command Theories of Law

Thomas Hobbes essentially believes that since a state of peace is the ultimate goal for all men, a
world of peace is the ultimate goal for all nations or states. Hobbes' notion of a social contract
requires that the nations of the world would find themselves in the same situation as individuals of a
single nation do before the creation of a government to rule them. However, he insisted that since
international law is not enforced by any legal body above the nations themselves, it is not legitimate.

According to Austin, international law does not have the quality of true law because states have no
superior authority above them to enforce its norms. In Austin’s conception, international law, whose

8
Austin 1977, p. 107

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value and usefulness he otherwise did not deny, is at best ‘positive morality’, generated by the
opinion of the societies of the nation. Only those rules of international law that has been adopted as
part of the country’s internal, i.e., national or municipal law become law properly so called.

International lawyers have argued though there is both legislation and law enforcement in
international law, legislation being provided by multilateral treaties and sanctions by the
right of self-help and war. Treaties and self-help, however, cannot qualify as a legislation and
law enforcement in positivist sense. Multilateral treaties bind only consenting states parties;
no international body enjoys authority like that of a municipal legislator to make rules
binding on non-consenting subjects. War and self-help are quite different from the positivist
notion of institutionalized and centrally organized sanctions, being nothing more than
private remedies, whereby states take the law into their own hands; but these, no more
than the vendetta and the revenge, constitute sanctions in the Austinian sense. Accordingly,
the positivist would regard international law as nothing more than rules of international
morality or good behavior9.

Bentham invented the word 'international', and when he died he had an international legal and
political influence. In 1798 Bentham wrote Principles of International Law where he argued that
universal peace could only be obtained by first achieving European Unity. He hoped that some form
of European Parliament would be able to enforce the liberty of the press, free trade, the
abandonment of all colonies and a reduction in the money being spent on armaments.

9
For contrary view: UK parliament passed EC 1972 incorporation EU Treaties and its fundamentals and thereafter, sacrificed some of its
sovereign power thereby accepting supremacy of EU. Any law passed by parliament in contrary to EU law would be deemed to void.

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