The Imperative Theory of Law was proposed by John Austin who was an American philosopher. Imperative Theory of Law can be defined as “a command of the sovereign backed by sanction.” Thomas Hobbs was one of the important people for the creation of such a theory. In the 17th century, he was the first person to introduce such a theory and Austin was the one who bought recognition for the theory. Then Austin propagated this theory in the book of Jurisprudence.
The other names for the theory are:
- Theory of Positive Law
- The Legal theory
- Austanian theory
It is the thesis which states that the existence of a law, depends on the social factor and not on the merits of the law. The Imperative Theory of Law is based on such definitions. Austin clearly distinguishes “What Law is” and “What Law should be”. Austin’s major focus was on the first question for which he felt that Law is something that comprises rules or commands which are specific and objective. Legal positivism preaches that all positive laws can be brought back to Human Lawmakers as they are rules made by Humans. Positive Laws consist of three major features which are:
- It is a type of command
- It is laid down by the sovereign
- It is imposed by sanction
Idea of Sovereign
According to Black Law Dictionary, a Sovereign can be any person, body, or state vested with independence and supreme authority. A Sovereign can be any person who becomes the body and make rules which others have to obey. The sovereign may be a King, queen, or a dictator or group of people like Legislature.
According to Imperative Theory of Law, there are three major conditions to be considered as Sovereign. :
- The power which the Sovereign holds must be unlimited and should be undividable.
- The sovereign must be located and should be identifiable.
- The Sovereign must provide for commands which be considered as Law.
The Sovereign must be cautious in making their laws as they must do so and these laws should be made in such a way that the people obey them and follow them. Sovereign as an entity or body carries both judicial and legislature. Sovereign does not have any physical appearance. It cannot be touched but can be felt when people obey the rules and follow them. Thus, the Sovereign is one of the required concepts for the performance of the legal system in every state and country.
Nature of Imperative Theory of Law
John Austin divided law into two major parts which are:
- Divine Law
- Human Law
He explains that divine laws are laws given by gods to human and human laws are laws made by humans for humans.
Devine Laws do not have any source about their inheritance and are stated to be beyond the range for a human to reach which makes them above man-made laws. Human law is of two types:
- Command of the Sovereign
- Formations through voluntary cooperation or society.
According to Austin law should be a combination of what to do as well as what not to do. His idea of law should be specific such that people who obey it will have clarity in the commands. Austin follows the Hobbesian idea of law which is straight forward that acknowledges when you are good and kills when you are bad. According to Austin law gives no option and everyone is obliged to follow it. This statement may be harsh and arbitrary but the meaning is true. Austin prefers to be strict in law because he feels when people are given options to discuss what law is it leads to chaos and loss of inner peace. This is one of the reasons which makes Austin oppose morality.
Austin feels that for the formation of a successful legal system there should be an authority that would act as the supreme force of the nation and are accepted to be supreme by the people. When the law comes from such a supreme force people feel connected and will come forward to obey the law. They feel the person who acts as the supreme as their representatives and a linking pin. Though Austin opposes morality we cannot completely avoid it. Both society and law are not only towards removing the bad but also to bring in good. Therefore many feel that Imperative Theory of Law is incomplete due to its rigidity.
Merits of Imperative Theory of Law
Austin’s idea of law is always specific and objective in manner. He distinguishes the law clearly between Sovereign and the people. Some of the merits are:
- Accepted in all systems: this type of theory suits in all types of Government in making laws. It is now evident that laws with stipulated punishments or sanctions are accepted by the people and are also accepted in democracy and even in the communist form of government.
- Fits in the Modern Society: This Theory works well in the modern Society as the Modern Society going towards development also brings some bad into society. Making laws with some punishment removes this violative behaviour and brings peace.
- Definition of law: As this theory clearly defines what law is and states that everybody should follow what is recommended, it does not bring any confusion or arguments regarding what to do and what not to.
Criticism of the theory
- Ignores customs: Law does not always arise from modern concepts. The society has survived without these modern thoughts for some time. In those days customs and traditions were the ones which used to tell which is good and which is bad. These customs brought control and discipline within the individual. Austin’s Imperative Theory of Law states that customs are not laws in real sense. But it is to be accepted that many laws, rules, and regulations have come from customs which were prevailing in the society. Without customs there can be no evolution of law and no rules can be put forward.
- Law as Command: When the law is stated as the ‘Command of the sovereign’ then there should be someone who is commendable. The Modern world is going towards the division of work, separation of power such that a large number of people can work towards the goal. Thus, in the current world giving commands and making the activities rigid will not suit for society. We also have that in many countries judgments have become law. Thus, we will have a problem, we will find a solution and that will become a law for the whole nation. In this period imposing commands will not make the society go towards development.
- Laws with Sanction: The idea of Sanction according to Austin is to use force to impose punishments. But the Modern Democratic Government is the ones who were elected by the people such that they could be protected. Using force on them would only bring in fear and no peace for society. Many international laws and countries have reduced forced sanctions and some countries have dropped the idea of sanction as they believe that the Government and people should be in mutual understanding in the society.
- Purpose of Law: Austin in his theory has ignored the basic purpose for which laws, rules, and regulations are laid. The main purpose of the law is to render justice than giving a decision. As this theory does not represent any purpose of the law, it cannot be adequate for the society.
International Law: Austin’s theory of law is not suitable for any International Law as International Laws do not work as a command of Sovereign. The government would play its role in coordination with society. Most of them don’t believe in force and work in mutual understanding.
Austin is one of the popular philosophers who proposed new dimensions in the field of law. He might have faced many criticisms and would have acknowledged his creations. One of those is the Imperative Theory of Law. Austin has given a clear definition of law through this. He has also mentioned that law is obligatory and the law is a command. According to Austin any law with sanction will be successful. Though there are criticisms regarding the force used to bring control, there are some truths behind Austin’s theory. He feels there should be no option when it comes to law and many feel it makes the society rigid because of this straightforwardness. He completely avoids customs as he feels as they are not laws. Though society and others disagree with this what he said is still in the theory. It is concluded that there may be laws, regulations, or any custom to control us externally. Internally each one of us should think and bring change within ourselves. Only if we realize what to do and what not to, we could become a part of the society, in coordination with the government and obey the commands.
- What is meant by Imperative Theory of Law and who proposed it?
The Imperative Theory of Law was proposed by John Austin who was an American philosopher. Imperative Theory of Law can be defined as “a command of the sovereign backed by sanction.” Thomas Hobbs was one of the important people for the creation of such a theory. In the 17th century, he was the first person to introduce such a theory and Austin was the one who bought recognition for the theory.
2. What are the major features of Positive Law?
It is a type of command
It is laid down by the sovereign
It is imposed by sanction
3. What are the types of law classified by Austin?
John Austin divided law into two major parts which are:
- Divine Law
- Human Law
4. What are the criticisms that the Theory faced?
i. Ignores Customs
ii. Law as Command
iii. Laws with sanction
iv. Purposes of Law
5. Why other countries refuse to use “command”?
Austin’s theory of law is not suitable for any International Law as International Laws do not work as a command of Sovereign. The government would play its role in coordination with society. Most of them don’t believe in force and work in mutual understanding.
- Austin Law Theory, Imperative Theory of Law by English Jurist John Austin https://lawandlegislation.blogspot.com
2. Imperative Theory Of Law
3. Austin’s Imperative Theory Of Law