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Name:- Aishwarya Vishwas Dorwekar

Sub :- Jurispudence
Div:- B
Roll No :- 110
Sem :- IV
Email ID: shivkanyadorwekar867@gmail.com

Jurispudence

1. Austin’s Imperative Theory of Law

Introduction
The Imperative Theory of Law was given by John Austin, an
American legal philosopher who has been a huge influence on
modern-day understanding of Law. His ideas about Law form the
basis of defining and understanding law. Sure, his ideas have been
refuted and challenged by a lot of contemporary philosophers, but
they still remain relevant and remain a focal point for the
understanding of Law.
Definition of Law
“If a determinate human superior, not in the habit of obedience to a
like superior, receive habitual obedience from the bulk of a given society,
that determinate superior is sovereign in that society, and that society
(including the superior) is a society political and independent. Furthermore,
every positive law simply sand strictly: so-called, is set, directly or
circuitously, by a sovereign person or body to a member or members of the
independent political society wherein that person or body is sovereign or
supreme.”
Simply put, Austin describes Law as flowing from a political superior to its
subjects, backed with a system of sanction.

Legal Positivism
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The term Legal Positivism means the attempt to establish Law as a true
science. The Imperative theory of law is based on an understanding of Law
which is free of moralistic notions and merely a collection of empirical rules.
Austin makes a distinction between “What Law is” and “What law should be”.
For Austin, the second question is not the concern of law. Law consists of the
body of rules or “commands” which are definite and objective.
This was characteristic of philosophers at the time, the academic world had
been so singularly inclined towards the natural and true sciences, that
everyone wanted to establish their respective fields and areas of study as a
natural science. This thread of Positivism can be found in the initial stages of
a lot of subjects and areas of study, like the Positivism of August Comte
when he started the study of Sociology.
Legal Positivism also says that all Positive laws can be traced back to Human
Lawmakers and have no divine sanction, but are rules made by humans for
humans.

Idea of the Sovereign

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

1. The Sovereign’s power must be unlimited and indivisible.

2. The Sovereign must be clearly located and easily identifiable.
3. The commands of the Sovereign must be considered Law.
The Sovereign must make it his duty to consciously formulate laws, which
must be backed by sanction, to serve as “motives for compliance”. These
sanctions must be coercive or alluring so as to make people obey them.
The Sovereign therefore, is a dynamic entity consisting of a legislative part
as well as a judicial one. Physical presence of the Sovereign is not
necessary, laws can be implemented and acted upon by the Sovereign’s
agents, which may be the Police, the Judiciary or the Bureaucracy.
Therefore, while the Sovereign may physically reside in an individual, its
functions may be carried out by proper machinery with a definite
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hierarchy.Therefore, the Sovereign is more an idea, an idea which is used as

a source of legitimacy for the entire legal system in a state.

The Nature of Imperative Law

Austin divides law into two main categories :- Divine Law and 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 formed through voluntary associations
or clubs.

Law, according to Austin, follows the Hobbesian idea of being inherently

coercive. He describes law as a combination of “commands and
prohibitions”, which dictates what to do as well as what not to do.

Since there is no moral lens through which Austin views law, law is only
meant to be obeyed. While on the surface this may seem as arbitrary and
restrictive(which are valid criticisms), the issue is deeper. First of all, a
value-neutral understanding of Law can ensure stability, peace and
security in a nation.

Austin’s opposition to morality being a factor in law arises out of his fear
that contravention and disagreement on what law is, will lead to chaos
and anarchy.
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Austin recognizes that for an effective legal system, you need a

legitimate authority which is supreme in a nation and is accepted by
people as an upright and just authority over them. When Law emanates
from such an authority, people accept it and obey it, not just because
there is coercive measures against that obedience, but also because
there is a mutual recognition of the importance of laws, and acceptance
of just authority over them.

But it is impossible to completely divorce Law from Morality. After all, the
driving force of Law was to not just end anarchy and violence, but to also
ensure justice, fairness and liberty. The moral convictions of law are
central to its nature.

Blind obedience to law can make law oppressive and clamp down on the
liberty of people. And when Austin does not allow room to criticize,
deliberate or challenge the laws that are imposed on people, the
Sovereign authority has no real opposition and can easily devolve into
tyranny.

Therefore, the imperative theory of Law is incomplete in the sense that it

does not account for a system to check the excesses of a law making
entity.

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
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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.

Criticism

Ignores Customary Law

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Law does not always arise from a political superior. It has existed in
society without the modern conception of the state and even when people
have no sovereign over them. Customs and traditions were the tools
people used for social control and cooperative, civilized living.

According to the theory of Imperative Law, customs were primitive law

which are not law in the real sense, and only resembled law. But the fact
is, that a major source of Law is Customary law, which is rules and
regulations evolved by people over time for self-governance. Without the
existence of customs in society, English common law would never have
come into existence, which uses customary law as its basis.

When the only source of law becomes a Political superior, it undermines

the validity and importance of the rituals, customs and traditions people
have evolved for themselves which form the basis for their way of living
in society.