John Austin's Classification of International Law: Not True Law
worldreview1989 - The influential 19th-century British jurist, John Austin, is renowned for his command theory of law, a central tenet of Legal Positivism. According to this theory, a rule can only be considered "law" in the proper sense if it meets specific structural criteria. Based on these stringent requirements, Austin controversially concluded that International Law (IL) is not "law properly so called", but rather a form of "positive morality."
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| John Austin's Classification of International Law: Not True Law |
The Core of Austin's Command Theory
Austin's definition of positive law is rigid and rests on three essential components:
Command: A rule or general order issued by a superior.
Sovereign: A determinate human superior who receives habitual obedience from the bulk of a society but does not habitually obey any other human superior.
Sanction: An evil or punishment inflicted for disobedience to the command, serving as the motive for compliance.
In essence, Austin states that "Law is a command of the Sovereign, backed by a Sanction."
The Exclusion of International Law
When Austin applied this analytical framework to the international system, he found that International Law failed to satisfy his key criteria, leading to its dismissal as true law:
1. Absence of a Determinate Sovereign
Austin argued that for a rule to be legal, it must emanate from a single, identifiable, and supreme law-making authority—the Sovereign.
In the domestic sphere, the Sovereign (e.g., Parliament, King-in-Parliament) is clearly identifiable and its authority is supreme.
In the international sphere, no such determinate superior exists. The international system is fundamentally anarchic in the sense of lacking a central government; it is characterized by the sovereign equality of states. International law-making is decentralized, relying on the consent of states, primarily through treaties and customary practices. Since there is no single entity to issue a command to the global community of states, the requirement of a sovereign source is unmet.
2. Lack of Obligatory Sanctions
The second fatal flaw, according to Austin, was the absence of an effective, compulsory, and institutionalized mechanism for enforcement (sanction) by a superior authority.
In domestic law, sanctions (fines, imprisonment, etc.) are applied by formal institutions like the police and courts.
In International Law, while mechanisms like the UN Security Council exist, their operation can be blocked (e.g., by the veto power), and enforcement is often reliant on self-help, political pressure, or collective action by states—not the consistent, centralized infliction of evil by a superior. Since the rules of IL are not consistently enforceable by a superior, they lack the "coercive force" necessary to constitute true law.
3. Classification as "Positive Morality"
Given these deficiencies, Austin classified International Law alongside rules like the laws of honour or the rules of a club. He termed them rules of "positive morality": rules set by mere opinion or sentiments shared among states, as opposed to binding legal commands. States observe these rules out of moral obligation, comity, convenience, or mutual self-interest, rather than legal subjection to a superior.
Modern Rebuttal and Criticism of Austin's View
Austin’s command theory and its rejection of International Law have been heavily criticized and are largely abandoned by modern international law scholars. Critics argue that Austin's model is too narrow and fails to reflect the reality of law beyond the centralized State:
Focus on Function, Not Form: Critics argue that Austin confused validity with enforcement. Law is law not because it is perfectly enforced, but because it is accepted as binding by the community it governs. States generally comply with international law because it is in their long-term interest, and non-compliance carries the severe consequences of damaging diplomatic reputation and reciprocity.
The Existence of Sanctions: Modern IL does possess sanctions, though they differ from domestic penalties. These include countermeasures, economic sanctions, severance of diplomatic relations, collective action (like UN measures), and even the moral stigma of being labeled a law-breaker.
The Concept of Sovereign Consent: The modern consensus, best articulated by figures like H.L.A. Hart, suggests that International Law is a valid system based on the "Rule of Recognition" where states accept certain sources (treaties, custom) as authoritative. Law does not require a sovereign to command; it requires rules about law-making that are accepted by the system’s participants. The fact that states consider themselves legally bound, rather than just morally bound, is the defining factor.
In conclusion, while John Austin provided a rigorous, though limited, framework for defining municipal (domestic) law, his positivist criteria were simply too restrictive for the decentralized, consensual system that governs relations between states. His assertion that International Law is not "true law" remains a historically significant critique, but one that is generally rejected by contemporary jurisprudence.
This video on Austin's jurisprudence and the debate around the concept of law provides essential context for his views on International Law: Austin's Definition of Law | Jurisprudence