Coronavirus Legislation and the Command of the sovereign

This post has been contributed by Professor Jill Marshall, Module Convenor for Jurisprudence and legal theory.

John Austin describes law as the command of the sovereign backed by a sanction. This imperative, command, power or coercive theory of law was criticised by fellow legal positivist HLA Hart. Can Austin’s theory explain ‘what law is’ today in the current COVID19 global pandemic?

In the UK this week, the government rushed emergency legislation through both Houses of Parliament and the Coronavirus Act 2020 (‘the Act’) received Royal Assent on 25 March 2020. This new emergency law is for a two year period and subject to six monthly reviews. It has been described by a senior police officer as the most draconian law he has ever seen. The legislation gives the government wide-ranging powers to respond to the current coronavirus pandemic.

The Act has three main objectives to:

• give further powers to the government to slow the spread of the virus;
• reduce the resourcing and administrative burden on public bodies; and
• limit the impact of potential staffing shortages on the delivery of public services.

It embodies the ‘strong arm of the law’ through enforcement of the ‘coronavirus lockdown rules’ of self-isolation and social distancing. Anyone breaking these rules will be breaking the law and face arrest. New powers given to police in England mean no-one will be allowed to leave their home “without reasonable excuse”. To ensure people stay at home and avoid non-essential travel, police will be able to order people to go home, leave an area or disperse. The new powers mean officers can fine people and those not paying up can be taken to court. The Home Office, in announcing the new rules, said that

“in the first instance, the police will always apply their common sense and discretion.”

Law, properly so called, according to Austin, is based on a conception of sovereignty derived from long traditions of political thought, most famously and fully developed by Thomas Hobbes. The sovereign commands and a sanction applies for non-compliance: thus is law defined with clarity and separation from other concepts such as morality. Law is what is posited by these human and social processes. According to this positivist position, law is the object of scientific study: the identification of something as law or legally valid is determined not by prescription or moral evaluation. The Act, as the command of the sovereign, is therefore Law. The morality of its implications for our personal freedom is separate issue, according to this school of thought.

Sources

• Jurisprudence study guide chapter 3
• W Morrison Jurisprudence from the Greeks to post-modernism (London: Cavendish 1997)
• Independent, news online: Coronavirus: Emergency legislation becomes law, giving ministers unprecedented powers to tackle outbreak
• BBC, news online: Coronavirus: Police get new powers to enforce protection