Explain the imperative theory of law? Discuss and comments on this theory.

Question 1:  Explain the imperative theory of law? Discuss and comments on this theory.

INTRODUCTION:

The theory of legal realism, like positivism, looks on law as the expression of the will of the state but sees it as made through the medium of Courts. Law no doubt is the command of the sovereign, but the sovereign to the realist is not the Parliament but the Court.

1. IMPERATIVE OR AUSTIN'S THEORY OF LAW:

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

2. FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:

1. Command.
2. Sovereign.
3. Sanction.

A. COMMAND: According to Austin: Commands are expressions of desire given by superiors to inferiors.

(i) Laws are general commands: There are commands  which are laws and which is not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.

B. 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.

  

Characteristics of Sovereign:

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

(ii) 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.

(iii) 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.

(iv) 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.

C. SANCTION: The term sanction is derived from Roman Law. According to Salmond "Sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the state in the administration of justice.

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

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

2. Gunman Law: Some have criticized the positivist theory of law as a theory of gunman, as it makes no real distinction between a law and the command of a bank-robber who points his gun at the bank clerk and orders him to give him money.

3. 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.

4. 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.

5. 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.

6. Existence of Personal Commander: The term command suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in the personal sense.

7. 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.

8. Sanction: 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.

9. Sanction is not essential elements: Sanction is not an essential element of law, as in civil law no such sanction is to be found.

10. Disregard of ethical elements: According to salmond, Austin's theory of law is one-sided and inadequatic. It disregards the moral or ethical elements in law.

11. Not applicable to International Law: Austin's definition of law cannot be applied to International law that is to say that International Law is not an imperative law. The International law is not the command of any sovereign, yet it is considered to be law by all concerned. (xii) Not Applicable to constitutional law: Austin's definition of law does not apply to constitutional law which cannot to called commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state.

4. IS MORAL LAW IMPERATIVE: Moral law has also been called the divine law, the law of reason, the universal or common law or eternal law. It is called the command of God imposed upon men. Natural law appeals to the reason of men. It does not possess physical compulsion. It embodies the principles of morality. Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin view of law morality altogether ignores therefore moral law is not an imperative law.

CONCLUSION:

To conclude, I can say, that inspite of criticism of Austin's theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. He makes a distinction between what law is and what it ought to be. It seeks to define law not be reference to its contents but according to the formed criteria which differentiate legal rules from other rules such as those of morals, etiquette etc.