John Austin was filled with disappointment and unfulfilled expectations due to his nervousness, and health issues, and perfectionism which ended his career soon. Ironically, his studies were given importance after his death and till now attracts the jurist, philosophers, and legal issues. The theory of John Austin was different and new, contradicting all the concepts or traditions of Natural Law, which was prevailing at that time. In this article, we will be discussing the Imperative Theory of Austin. Further, the criticism of this theory will also be discussed. Through this discussion, we will analyze the role of Austin’s theory in today’s time.
From when there was the society emerging, there was a presence of rules, certain rules which allowed people to do something and certain rules which prohibit to do something. Over time these rules were crystallized, making them law. The word ‘Law’, came from Middle English ‘lawe’, which means things laid down or fixed, therefore, the rules, norms, and some concept of culture was laid down or were made fixed to have uniformity & certainty in the society. With time law developed, it was studied by scholars, sociologists, and professors. With the detailed studies, the legal philosophers came with their perspectives. The definition, meaning, scope, and many theories of the law were different, and this difference divided them into groups or different schools of thought of law: Natural school, analytical school, Historical school, sociological school, and more. In this article, we will be discussing a major Philosopher of Legal Positivism, John Austin. His theories were considered as the most significant for the school of legal positivism as well as the most criticized one.
The Core Principle
The first school of thought, i.e. the Natural School of Law had an approach of defining law as it ‘ought to be’. The source of law for them was nature or divine. Philosophers of Natural School like Thomas Hobbes, John Locke were more concerned about the Natural Rights of the individuals, which is achieved through their social contract theories, a hypothetical contract between the individuals and the State. Legal Positivism was a wave of change as the philosophers were limited to Natural school thinking. According to the Analytical School, the rights of individuals can be achieved through state and its command. Law is a law when it is recognized and established by the authority of the state. Therefore, anything commanded by the authority of the State becomes the law. It distincts the law from all the other social, historical, political factors. It is separated from ideologies and moral values of the society. And therefore, Analytical thought considers ‘law as it is’. Austin’s Imperative theory is based on the idea of the role and power of the state to make laws in society, separate from all the other factors.
The Imperative Theory
Austin defined law as the General Command of the State or the Sovereign. The emphasis on the command makes the theory Imperative.
Command is an order given by a superior authority to do some thing or forbid it to do something. It becomes a command due to intimidation attached with it. Any rule cannot be said as a command because it does not have consequences in case of any default. Therefore, with Command the State or the authority has the power to push the citizens to comply the order or law, if such push is not there, if the ‘consequences’ is not attached, the citizens will not necessarily obey the law and ultimately the Sovereign. Therefore, the key elements of command become, the duty of the citizens to obey, the right of the citizens in case of infringement and sanctions which are the ‘consequences’ faced by the infringer.
Sanctions can be defined as fixed consequences, ‘expectation of certain events’, authorised by the sovereign, which the person going against the law will face. It may involve any punishment, penalty, prohibition or ban. Through Sanctions, an element of coerciveness comes into play which is authorised by the state. Therefore, Sanctions is a way to implement, enforce and protect the command of the Sovereign. Austin narrowed down the concept of Sanctions in his theory and did not consider rewards i.e. Positive Sanctions as Sanctions. This can be understood by the example of paying taxes. The citizens have to pay taxes and if they do not pay the taxes, they know that they can face the consequences of losing their property and is bound to pay certain penalties. The fear of losing the property and paying the huge penalties make the citizens pay the taxes.
The Command and Sanctions are made through Sovereign, but what all components makes a Sovereign. Austin define Sovereign as,
“determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of the society, that determinate superior is the sovereign in that society.”
From this definition, three basic elements can be concluded. First Habitual Obedience, which means that the commands i.e. the orders, laws etc. should be obeyed. The definition includes further two conditions on obedience i.e. it should be followed by the bulk of the society and not minority the second condition is that it should be permanent or habitual. The period of obedience cannot be changed by the people and if the people obey according to them, that will not constitute appropriate Sovereign.
The second element is the Superiority of the authority. It is common fact that which is above in status has more power. Therefore, according to Austin the Sovereign should be the superior authority in the society or legal system, so that authority is in a position to make the people obey the commands with the use of power vested in them. These commands were termed as Positive Law and was distinguished from the General Commands of God which was termed as Natural Law, positive morality, international law, customary law etc.
The third element is the independence of the Sovereign from the external factors like, the political societies. It should be free from all the control present in the society. If there is any authority or any other external factors to which the Sovereign has to comply, that will not be regarded as Sovereign.
Austin also included certain exceptions to extend his definition of law which were repealing laws, declarative laws, and imperfect laws, and laws of procedure.
This theory was highly criticised by all the school of all thoughts. According to various philosophers of different school of law, thus theory had certain gaps with respect to their approach if law, but the major criticism was done by Herbert Lionel Adolphus Hart. He was a major critique of Austanian’s command theory.
The first criticism which was also considered as a major drawback was the generality of the Command theory. Austin discussed the concept of command enforced by sanctions in a general way, which was applicable to only some laws like Criminal Law. But this generality did not support the other laws. For instance, in Contract Law which is a right in personam, therefore the remedies in this category of law cannot be threat of sanctions Therefore, there are some laws which cannot be treated as order backed up by sanctions but needs specific procedure, rights and duties to enforce them.
Further Hart rejects that the concept if ‘habit of obedience’ as in a legal system, this continuity is not seen. The leaders, or the people in Sovereign will have to change at certain point of time and there will be an ambiguity as to will the people will follow this Sovereign or not? He rejects the ‘tacit command theory’.
He further rejected the theory of Sovereignty, on the basis that it has no controlling power. Sovereign being the superior will have an absolute power which is harmful for the society. The Sovereign cannot be given unlimited and illimitable powers to make laws. That will not be the real character of a Legal System. The powers of legislature have to be restricted to balance the powers.
Further, assertion made by Austin that judicial decisions are not laws but tacit commands of Sovereign, this is a huge gap in his theory. Judicial precedents play an important role in the legal system. It corrects any arbitrariness, checks on the excessive use of power by any authority and protects the citizens, therefore, main objectives of the judicial decisions are to establish justice and fairness in the society and check on the other authorities.
Hence, there are huge gaps in the Austin’s Imperative Theory, the theory does not address the realities of the legal system. It will never be enough to have a superior authority giving commands and that are enforced by sanction. The legal system needs a procedure to make and execute the laws, and not just throwing ordering.
John Austin introduced a new approach at a point where the people were known to natural law only. This resulted in major gaps and huge criticism as well. But at that time, this theory was also considered useful. There was a need of uniformity and an authority with superior status. The role of state to make laws and sanctions was also recognised. Austin’s work shows a silence on questions of methodology, though this may be forgivable, given the early stage of jurisprudence. There was a need to differentiate between the law as it is and law ought to be.
In today’s time, the authorities are established, the powers are definite from the legal framework like Constitution. The legal system now has an established authority as judiciary, which keeps a check, rectifies the infringement and provides legal remedies, the legislature, which makes law and is limited by certain provisions like no law which infringes any fundamental right cannot be valid and the third authority, the executive which implements the law through administrative authorities which are again limited by the constitution as well as the parent acts.
There has been an immense legal development from 1850’s, therefore the Imperative Theory of John Austin is not feasible in today’s time. There are establishes doctrines like, Rule of Law, Separation of Powers, doctrine of ultra vires etc. Now, the citizens also know their rights and duties and they know that there are authorities which can protect their interests. Therefore, the theory bought a wave of change, negative and positive at that time, but cannot be considered now.
Q.1 What is ‘law as it is’ and ‘law as it ought to be’?
A.1 ‘Law as it is’ has a stringent approach followed by legal positivist. It means that law is a law when it is declared by the authority or the state. It does not include any external factors of the society. Law ought to be is followed by Natural School which means that what law should be. It consists of moral values, sociological effects.
Q.2 According to Austin’s Imperative Theory what are Declaratory Laws and Repealing Laws.?
A.2 Declaratory Laws are laws who declare, interpret the provisions of other laws. Repealing Laws are the laws which repeal an existing law.
Q.3 What were the criticism by Natural School?
A.3 Natural school was well established when Austin came up with his theory which was contrasting from the Natural School. According to Natural School, Austin’s theory neglected the natural customary laws present in the society. It was based on power and authority with no aim to provide justice and fairness in the society.
Q.4 Why Austin did not consider Constitutional Law as Law?
A.4 Austin had an absolute approach. He was clear that Sovereign should be superior and independent from every authority in the law. Constitutional Law limits the power of the of the Sovereign, it imposes certain responsibilities on the Sovereign, which was not aligned with the approach of Austin.
- Jayakumar, N.K.,2006. Lectures in Jurisprudence. 2nd edition.
- John Austin (Stanford Encyclopaedia of Philosophy) (https://plato.stanford.edu/entries/austin-john/)