Legal Sanctions

A red traffic light is a rule. The fine for jumping it is the sanction. Most drivers stop at red not because they calculate the fine but because they accept the rule, and because stopping is what everyone expects. Yet without the fine a few drivers would ignore the light, and soon the careful ones would be at risk. This small picture contains the whole debate of this note. Austin looks at the fine and says: that is what makes the rule a law. Hart looks at the careful drivers and says: the rule is law because it is accepted, and the fine exists only to protect them from those who would not obey.

1. Meaning of Sanction

The word comes from the Latin sanctio, the clause of a Roman statute that fixed the penalty for breaking it. In jurisprudence a sanction is the consequence the law attaches to the breach of a legal duty, and in the narrow sense the evil or penalty threatened for disobedience. It is the 'teeth' of the law: the means by which the State secures obedience and redresses breach.

2. Bentham's Four Sanctions

Bentham, the founder of utilitarian positivism, held that pleasure and pain are the only motives of human action, and he called the sources of pleasure and pain that bind men to rules sanctions. He identified four. The physical sanction is the pain or pleasure that comes in the ordinary course of nature, as when a drunkard suffers ill health. The political sanction is inflicted by a judge or magistrate acting for the State; it is the legal sanction proper. The moral or popular sanction comes from the community, through its approval or disapproval. The religious sanction comes from a superior invisible being, in this life or the next. Bentham thought the political sanction the proper concern of the legislator, but that the others reinforce or undermine it.

This is a core MCQ: the four sanctions are Bentham's, not Austin's. Note also that Bentham counted pleasures as well as pains among sanctions; Austin did not.

3. Austin: Command, Duty and Sanction

In Austin's command theory (see Note 11), a law is a command of the sovereign, and what distinguishes a command from a request is the power and purpose of the commander to inflict an evil if it is disobeyed. That evil is the sanction. Being liable to it is being under a duty. The three are therefore 'inseparably connected': where there is a command there is a duty and a sanction. Austin held that even the smallest chance of the smallest evil is enough to make an expression of wish a command. He expressly rejected rewards as sanctions: a promise of reward for obedience does not impose a duty, because no one is obliged to earn a reward. On his view, rules without a sovereign's sanction, including international law, are not law properly so called but positive morality.

4. Kinds of Legal Sanction

Older books list civil, criminal, punitive, remedial and coercive sanctions as if they were five separate kinds, but they overlap. A cleaner classification begins with the main division between criminal and civil sanctions, subdivides civil sanctions, and then treats nullity and administrative sanctions separately.

Behind all of these stands the coercive power of the State, which is not a separate kind of sanction but the force that ultimately makes every sanction effective. The clearest example of coercion supporting the other sanctions is contempt of court: under the Contempt of Courts Act, 1971 a party who wilfully disobeys an order may be fined or imprisoned, and civil contempt proceedings are largely coercive, aimed at securing compliance rather than punishment for its own sake.

5. Sanction and Legal Duty

On the classical view the sanction is built into the very idea of a legal duty. For Austin, to be under a duty is to be liable to a sanction if one disobeys; duty and sanction are two sides of one relation. This gives a clear test for identifying a legal duty: look for the sanction. Holmes gave the idea a practical form in The Path of the Law (1897): if you want to know the law and nothing else, look at it as a bad man would, who cares only for the material consequences that the courts will visit on him. On this predictive account, a duty is simply a prediction that, if a person does or omits certain things, he will be made to suffer by the courts.

Hart answered that this puts the cart before the horse. When a judge punishes a thief, he does not treat the theft as a sign that punishment will probably follow; he treats the rule against theft as the reason for punishing. A duty exists even when the offender is certain to escape detection, and even for the law-abiding citizen who never thinks about the penalty. The sanction presupposes the duty; it does not define it. The Indian directive principles and fundamental duties, discussed in Section 9, make the same point: they impose real constitutional duties on the State and on citizens, though no court sanction attaches to their breach.

6. Kelsen and Olivecrona

Kelsen keeps the sanction at the heart of law but changes its place. Law is a coercive order, and every genuine legal norm, fully stated, is addressed to officials: if a person commits theft, the official ought to impose a sanction. That sanction-stipulating norm is the primary norm; the norm directed to the citizen ('do not steal') is only secondary, derived from it. This is the reverse of Hart's usage. For Kelsen the sanction is essential to law, but it is not the ground of validity, which rests on the basic norm (see Note 12).

The Scandinavian realist Olivecrona, in Law as Fact (1939), agreed that force lies at the core of law but gave the point a psychological twist. Law consists largely of rules about the use of force, applied by officials; its 'binding force' is not a real quality but a feeling produced in people's minds by the regular application of organised force. Rules operate as independent imperatives, commands that come from no identifiable commander.

7. Hart's Criticism

In The Concept of Law (1961) Hart argued that Austin's model of law, orders backed by threats, is the gunman situation writ large: it cannot distinguish being obliged (as by a gunman) from having an obligation (as under a rule). His criticisms of the sanction theory are four. First, many laws do not impose duties at all but confer powers: to make contracts, wills and marriages, to legislate, to adjudicate. Second, it is a mistake to treat nullity as a sanction. A criminal prohibition makes sense without the penalty (we could remove the penalty and the rule would still say what is forbidden), but the rule that a will needs two witnesses has no content apart from the nullity: take away the nullity and the rule itself disappears, just as the rule of football that a goal must pass between the posts cannot be separated from the 'nullity' of a shot that goes wide. Third, the theory ignores the internal point of view of those who accept rules as standards. Fourth, it cannot explain the continuity and persistence of law across changes of sovereign.

Hart did not say sanctions are useless. In his discussion of the minimum content of natural law he wrote that 'sanctions are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not'. The sanction is thus dethroned from the definition of law but kept as a practical necessity in any society of limited altruism.

8. Law without Sanction

Several writers show law operating without a sovereign's sanction. Maine, in Early History of Institutions (1875), pointed to Ranjit Singh, the Sikh ruler of Punjab, who could command anything and punish any disobedience with death, yet never made a law in Austin's sense: the rules that governed his subjects' lives came from immemorial usage and were administered by local councils. Obedience flowed from custom, not command. Ehrlich found the living law in the inner order of associations, family, business and church, observed because of social pressure rather than State coercion (see Note 14). Duguit based law on social solidarity, binding even on rulers, and denied that the State's power to coerce makes law. Jhering (also spelt Ihering), by contrast, insisted on coercion: he compared a legal rule without coercion to a fire that does not burn.

International law is the great test case. Austin called it positive morality, since there is no sovereign above States. Hart treated it as a system of primary rules lacking the secondary rules of recognition, change and adjudication, rather than as non-law. Today it has sanctions of its own, though decentralised: countermeasures by injured States; the Security Council's powers under Chapter VII of the UN Charter to impose measures not involving force (Art. 41) or to authorise force (Art. 42); and the power under Art. 94 to act where a party fails to comply with a judgment of the International Court of Justice. Most States comply most of the time, which supports Hart's view that acceptance, not coercion, is the foundation.

9. The Indian Perspective

The Indian Constitution itself contains rules that no court will enforce. Art. 37 declares that the Directive Principles of State Policy shall not be enforceable by any court, yet are fundamental in the governance of the country and it is the duty of the State to apply them in making laws. The fundamental duties of Art. 51A, added in 1976, carry no direct sanction. Constitutional conventions, such as the President acting on ministerial advice before it was written into Art. 74, bind by practice. All are law in the Indian sense, and all are difficult for a strict sanction theory to explain.

10. Is Sanction Essential to Law?

The balanced answer is that organised coercion is a characteristic feature of every developed legal system taken as a whole, but not an element of every rule within it. Power-conferring rules, directive principles and conventions are law without a sanction of their own; they operate within a system that is, in the last resort, backed by force.

11. Frequently Asked Questions

Q. What are Bentham's four sanctions?
A. Physical (from the course of nature), political or legal (from the State through judges and officials), moral or popular (from the opinion of the community) and religious (from a superior invisible being). The political sanction is the legal sanction proper.

Q. Why did Hart say nullity is not a sanction?
A. Because a sanction is attached to a rule that makes sense without it: remove the penalty for theft and theft is still forbidden. But nullity is part of a power-conferring rule itself: remove the nullity for an unwitnessed will and the rule requiring witnesses disappears.

Q. Are the directive principles law if they have no sanction?
A. Yes. Art. 37 makes them non-enforceable by courts but fundamental in governance, and the courts use them to interpret fundamental rights and statutes (Minerva Mills, 1980). They show that a rule can be part of the legal system without a judicial sanction of its own.

See also: Note 7 (meaning and nature of law), Note 11 (Austin and the analytical school), Note 12 (Kelsen), Note 27 (punishment), Note 61 (Austin versus Hart).