Success of Austin’s ‘Command Theory’ Amidst Coronavirus Pandemic

Success of Austin’s ‘Command Theory’ Amidst Coronavirus Pandemic

COVID19 has shown the world two shades of human nature. On one hand the world has seen law-abiding citizens who have taken social distancing very seriously by staying at home, helping their neighbours, helping the elderly, singing, playing music from their balconies for the enjoyment of others – simple acts of magnanimity which serve as beacons of hope at such an ‘apocalyptic’ time.

On the other hand, however, the world has seen video footage of people panic-buying (especially toilet paper) which has led to physical skirmishes inside supermarkets, people swearing and spitting on medical workers, making racist attacks towards people from Chinese origins and, last but not the least, defying government orders (to stay at home, pause socializing and close restaurants).

When the Chief Minister of Sindh, Murad Ali Shah, declared a partial lockdown in Karachi last week, those citizens who felt a sense of duty and who genuinely thought that by going out they would not only jeopardize their own health but that of their loved ones as well, complied with the Sindh government’s orders. However, there were others who showed blatant disregard for laws and acted in defiance of those orders. So weddings secretly continued, gatherings still took place (as if we were celebrating Eid holidays) and people still continued to go out on bikes and in cars for leisure. All of this has been completely unacceptable and shameful, really, but the fact that Pakistan is a developing country with many uneducated people could be a reason behind this rebellion – though it is not a valid justification, I should add.

Looking at Great Britain, one of the richest, most educated and ‘civilized’ countries in the world, what we have seen in recent days has also been absolutely appalling. In clear defiance of Boris Johnson’s and Sadiq Khan’s constant pleas to stay at home, people took to the beaches and went to the parks on Mother’s Day. On Friday last week, which was the last day when pubs, restaurants and bars would remain open, video footage on various news channels showed how crowded they all had been. The owner of Wetherspoons (a leading pub chain in the UK) insisted that he would continue to keep his pubs open despite the risk of Coronavirus spreading. A ‘gang of criminals’ (their actions make them criminals) spat and threw eggs at NHS staff in Yorkshire and then at law enforcement personnel who intervened. What is all this showing? While there is a minority of humans which takes the law seriously and has an innate sense of empathy and respect for others, a vast majority of people is clearly selfish and rather relishes in rebellion.

The cases of Coronavirus have been increasing quite dramatically, not just in the UK, but at a very fast pace in Pakistan as well, hence necessitating a lockdown in Sindh with the aid of the army.

As I look at 2 Talwar from my rooftop, I barely see any cars and bikes. It is eerily quiet outside. I feel like I’m in one of those Hollywood movies set in the Second World War. Everyone is now forced to self-isolate by staying at home and anyone who does go out needs a good reason as well as carry an identity card. Yet, despite the lockdown, there have been some who have defied orders and have consequently been arrested. Overall, though, the lockdown shows that calling in the army works! It is because this is how human nature is – we need a set of commands which we fear, backed by a threat of sanctions, only then will we truly obey the law.

This is John Austin’s ‘command theory’ according to which law is the command of a sovereign, backed by a threat of sanction. In light of the lockdown and the element of force and fear that we’ve recently seen, this theory seems to win! The internal sense of ‘obligation’ and ‘compliance’, for which H.L.A. Hart argued so strongly in criticism of Austin’s theory, has not been seen in the majority of people across the globe, hence necessitating worldwide curfews and lockdowns. Hart’s famous linguistic battle, which he identifies to be between being ‘obliged’ to act out of fear and having an ‘obligation’ to act, shows that the famous ‘gunman model’ is workable in the present circumstances.

Without going into the other elements of the ‘command theory’ and Hart’s counter-arguments, we can still see how obstinate and selfish people can be during a global crisis by recklessly endangering their own lives as well as the lives of others. So many humans appear to have no respect for the law and no sense of civic duty towards their community (which I reiterate is not true for everyone but has been observed generally). So far the only way to compel people to practice social distancing, self-isolating and self-quarantining has been through the fear of the army and of the sanctions imposed for defying orders. A similar lockdown should be imposed in the rest of the country.

For now, Austin’s ‘command theory’ wins. We used to bang our heads against the wall during university days wondering what sense all these jurisprudential debates made. Well, they make a lot of sense now.

From one law-abiding citizen to another, wherever you are in the world, here is my message: you have a moral obligation towards others, so please practice social distancing and stay at home. If you aren’t worried about your own life, at least do not expose others around you to this lethal disease. Stay safe and stay at home!

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Sana Pirzada

The writer is a qualified Barrister from the UK. She has studied Law from King's College, London and specialised in Criminology for her LLM from the London School of Economics. She offers legal consultancy services in Karachi and alongside pursues her passion of fiction writing. Her debut novel 'The Rose Within - A Gothic Romance' has been published in the UK.



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