Imperative Theory of Law : What is Imperative Law

John Austin was an English legal theorist who strongly influenced British and American law with his analytical approach to jurisprudence and his theory of legal Positivism. Austin called the father of English jurisprudence and founder of analytical school. According to him, law is made by the sovereign to control its subjects which are enforceable through sanction.

Imperative Theory of Law : What is Imperative Law


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Imperative Theory of Law in its simplest terms can be defined as “command of the sovereign backed by sanction”. Imperative theory says that law is whatever the political sovereign of a certain state says law is. This law needs to be backed by legitimate sanction, which is punishment or penalty for violation.


Meaning of Law:

The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.


Definitions of Law:

According to Austin; “law is a command of sovereign”.


IMPERATIVE OR AUSTIN'S THEORY OF LAW:

Austin says that; "Law is a command which obliges a person or persons to the course of conduct. It is laid down by political sovereign and enforceable by sanction or sanctions".


FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:

  • Command.
  • Sovereign.
  • Sanction.


COMMAND: 

According to Austin; "Commands are the expressions of desires given by superior to inferior". Command is further divide into two types;

Commands which are Law: when some sanction is attached with the orders of superiors and which are enforceable through physical force, the commands or orders of superiors or political sovereign become laws.

Commands which are not Law: Commands or orders of political superiors are not become law if those commands have no sanction with them. The rule which is on the wish of subjects to follow are not to follow, they will not become laws.


SOVEREIGN: 

According to Austin, a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys and who does not himself habitually obeys some other persons or persons.

According to Imperative theory of law, there are three conditions a person needs to meet to be considered as Sovereign in a state:

Source of Laws: Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

Source of Power: Prof. Laski says that there are three implications of the definition of sovereignty given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power.

Indivisible Power: The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one person or a body of persons.

Habitual obedient by People: The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the member of the society.


SANCTION: 

According to Austin imperative theory the term sanction is derived from "Roman Law".

"Sanction is conditional evil". According to Salmond, "it is the instrument of coercion to enforce imperative law". According to Roman Law sanction means portion of statutes relating to penalties.

Physical force is the sanction applied by the state in the administration of justice.

When sanction is attached with the orders of superiors, their orders become law.


CRITICISM: 

Austin's theory of law has been criticized on many grounds.

Laws before State: According to Historical school; law is prior to and independent of political authority. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it.

Generality of Law: According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of the Act of the legislature may be particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all persons. 

Law as Command: According to Austin, law is a command of the sovereign but the greater part of a legal system consists of laws which neither command nor forbid things to be done e.g., right to vote.

Sanction: According to Austin, the primary function of state is to use force to impose sanctions. The concept of sanction is also misleading as in modern democratic country; the sanction behind law is not the force of the state but the willingness of the people to obey the same. Sanction is not an essential element of law, as in civil law no such sanction is to be found.

Promulgation: According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law.

Not applicable to International Law: Austin’s ideas are not applicable to International law because it has no Sovereign. International law is based on the principles of International recognition, cooperation, and diplomacy. There is no authority above the state. No international organization can act as a world government and assume Sovereignty over all states. Therefore, Austin’s Imperative theory does not square up with the existence of International Law.

Not Applicable to constitutional law: Austin's definition of law does not apply to constitutional law so; it cannot be called as command of any sovereign. Constitutional law of a country defines the powers of various organs of the state. Therefore, Austin’s ideas are not applicable in Constitutional democracies.

Refusal of Precedents as Laws: The bulk of the English law has been created by the decisions of the Court. To describe the judges as delegates by the positivists is misleading.

Disregard of ethical elements: According to salmond, Austin's theory of law is one-sided and inadequate. It disregards the moral or ethical elements in law. This is problematic because without any ethical objectives, law can devolve into tyranny and oppression of the people, and lead to totalitarian governments controlling law according to their whims and fancies.

Purpose of law is ignored: Austin theory of law ignored the basic purpose of law. Law is the declaration of a principle of justice. As Austin’s theory of law does not take into consideration the purpose of law, it is not an adequate definition of law


Merits of the Theory

Austin was one of the first philosophers to define law in a concrete, objective way. He established a clear flow of law between the Sovereign and the people. His theory contained a simple and universal truth, that law is created and enforced by the state, an idea which still remains relevant. His objective and clear understanding of Law ensures security, stability and peace.

Austin’s ideas are often dismissed for being too simplistic, ignorant and inadequate. But to his credit, his theories are widely cited, researched, supported and criticized till date. This is because Austin laid the basic framework for the understanding of Law. Even those who are vocal critics of Austin, admit that without his definitions and perspective of law, the modern conception of law would not have been possible. Knowingly or not, every researcher, philosopher and author theorizing about Law is in some way deriving off of Austin.

What also needs to be realized is that like every theory, the Imperative theory is also a product of its time and place. Austin lived at a time when monarchies and dictatorships were prevalent, and those who held state power, held it for life and had unquestionable authority. Modern ideas like Fundamental rights, Constitutionalism etc. had not yet been conceived. In this scenario, his clear, concise and definite explanation of Law held much more merit than it does now. Just because the relevance of his ideas has declined due to the rise of democracy, it does not mean that we need to discredit him for being a hugely influential legal philosopher and thinker


The Nature of Imperative Law

Austin divides law into two main categories:

  • Divine Law 
  • Human Law.

Divine Law is law which has a transcendent source. They are inflexible, absolute and superior to man-made laws.

Human law is of two kinds: the first one is as a “Command of the Sovereign”, and the second type is “which are not set by the sovereign”, this type is formed through voluntary associations or clubs.


Conclusion:

Summing up, it is clear that the Imperative theory of law lays out a useful, valuable and valid interpretation of Law which sees law as positive, objective and devoid of any ethical concerns. In spite of criticism of Austin theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. It is also concluded that; "Law is law when it is made by sovereign and sovereign is sovereign when it makes the law"

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