Austin's Command Theory of Law

John Austin (1790–1859) gave legal positivism its first systematic form in The Province of Jurisprudence Determined (1832), based on lectures at the new University of London. Austin defined law as a command issued by a sovereign, backed by the threat of a sanction. The sovereign is a person or body that the bulk of society habitually obeys and that does not habitually obey anyone else. On this view, a rule counts as law because of its source and the power behind it, not its content.

Austin's theory was simple and appealing to reformers, but critics found serious problems. It struggles to explain laws that grant powers rather than impose duties, such as the rules for making a will. It also cannot easily explain why law continues when a monarch dies, or how constitutions limit lawmakers. Most famously, H. L. A. Hart argued that Austin's model made law look like 'the gunman situation writ large', missing the difference between being obliged and having an obligation.