Jurisprudence

Explain ‘law as a command of the sovereign’ and ‘law as system of

rules’

Amogh .S
20604
II LLB
St. Joseph’s College of Law
 TABLE OF CONTENTS

1. Synopsis
2. Introduction
Part A: ‘law as a command of the sovereign’
Part B: ‘law as system of rules’
3. Criticism
4. Conclusion
5. Bibliography
Synopsis

Ever since, the early man organised in tribes or groups of early

wanderers and settlers, evolution of law or set of rules became
imperative for general governance. Law or set of rules or code of
generally agreed ethics in crude fashion was pivotal for
development of early society. With the advent of first civilisations;
emergence of large city states and adjoining pastoral population
shaped the maturation of law. Power structures which earlier was
only limited to rulers or kings or headsman necessitated to
enlarge and evolve sovereign administrations headed by kings or
dynasties. Early sovereigns included monarchs sided by clergy,
bureaucrats, nobility to steer early empires. As population of early
empires grew, it necessitated sovereigns to exercise more
command and control over the general population in the matters
of law and order, administration and provide judicial remedies.
“law” as command of the sovereign and set of rules solidified and
further evolved into today’s specialised judiciary, executive and
legislative arms that act as separate verticals that has become
part of the single sovereign.
Introduction

Part A: ‘law as a command of the sovereign’

In the Imperative theory propounded by John Austin, propounds

that the law as an element coming from the mighty “state” or in
simpler words law as command of the sovereign. This theory also
can be termed as Legal Positivism; as it tries to establish positive
link between Law and true science. The Imperative theory of law is
the chief proponent of Law which is free from all conceived
moralistic notions and collection of empirical application of rules.
Therefore, it is important to understand meaning of sovereign and
in connection with command it so possesses.
Sovereign: as per the imperative theory by Austin, the three
conditions or essentials of sovereign are:
1. The power of the sovereign must be unlimited and indivisible.
2. The Sovereign (state) must be clearly located and easily
identifiable.
3. The commands of the Sovereign must be considered as the
Law.
Austin also names three main characteristics of the sovereign:
1. Unlimited power: no limitation in terms of absolute power
2. Indivisibility: The power of the sovereign cannot be further
factorised.
3. Continuum: the power of the sovereign is continuous.
The Sovereign entrusted to formulate laws, backed by sanction
and to enforce compliance of law. The sanctions or in simpler
term enforcement are coercive make subjects (citizens) obey and
abide.
The Sovereign, is a dynamic entity having both legislative and
judicial parts. The Sovereign’s agents or state machinery, which
like the Police, the Judiciary or the Bureaucracy enforce the law
on the ground. Therefore, the Sovereign is the entity, which
provides a source of legitimacy for the Legal system in a state.
Part B: ‘law as system of rules’

In the H.L.A Hart’s Theory of Law where it contains Primary &

Secondary Rules to explain the law as system of rules. Legal
system (law) is a system of rules comprising ‘primary rules’ and
‘secondary rules’. Primary rules regulate the basic behaviour of
people (citizen) in the society. These rules either grant rights or
impose obligations on the people (citizen) in the society.
Secondary rules are rules that stipulate how and by whom the
primary rules may be formulated, recognized, modified or
repealed.
These rules are ‘social’ in two ways: they regulate the conduct of
the people (citizen) of the society and are guides to human
conduct and standards of criticism of social conduct. secondly,
they derived from social practices. Other than these rules, there
are other social rules like rules of morality. The union of these two
rules is the essence of this concept of law.
Primary rules are rules of general conduct; where people are
legally obligated to do (or not to do) and corresponding
consequences of disobedience. Criminal law rules that prohibit
theft, murder, cheating, forbid certain socially unacceptable
conduct and provide framework for punishments or penalties for
violating the same. The type of secondary rules includes
everything except primary rules. The distinction between primary
and secondary rules are different than the duty imposing and
power conferring rules. Secondary rules enable rapid legal change
and enable individuals to create tailor made primary rules.
Criticism

Imperative theory ignores the role of local customary laws which

have existed before and the where the people have been following
customary laws. This theory has limited applications when the
same is used to analyse the modern democracies, where ultimate
sovereign power lies with the citizens and not the state. Modern
democracies have highly evolved, they are sovereigns which are
driven with will of the people. The theory becomes redundant as
modern democracies have separation of powers, vigilant
structures, elaborate checks and balance mechanisms that
ultimately control the command of the sovereign. Hart’s theory
has serious limitations when applied to modern police and judicial
systems. The concept of justice to prevail and compensatory
judicial remedies have evolved. Hart’s theory is too simple to
analyse modern legal systems built on reformative, retributive,
preventive and restorative theories.

Conclusion

With the advent of modern democracies in the world and with the
emergence of international law, UN and World bank; the Austin
and Hart theories can only be used partially for analysis. As will of
the people ultimately decide the course of law and sovereign
commands in the modern democracies. With advent of journalism,
NGO, social media, the power of the sovereign and systems of
rules is in constant change in the everchanging dynamic
environment. Therefore, new and more elaborate theories have
been propounded with basic conceptions emanating from Austin
and Hart’s theories.
Bibliography

1. Bentham, J. 1945. The Limits of Jurisprudence Defined: Being Part Two of An Introduction to the Principles
of Morals and Legislation. Now First Printed from the Author’s Manuscript, with an Introduction by Charles
Warren Everett. New York: Columbia University Press.
2. Dworkin, R. 1996. Freedom’s Law: The Moral Reading of the American Constitution. Cambridge, MA:
Harvard University Press.
3. Kramer, M. H. 1999. In Defense of Legal Positivism: Law without Trimmings. Oxford: Oxford University Press.
4. Yankah, E. N. 2008. The Force of Law: The Role of Coercion in Legal Norms. Richmond Law Review 42: 1195–
255.
5. Schauer, F. 2015. The Force of Law. Cambridge, MA: Harvard University Press
6. Avtar Singh & Harpreet Kaur, Introduction to Jurisprudence, (Nagpur: Lexis Nexis Butterworths Wadhwa),
3rd Edition, p1
7. V.D.Mahajan, Jurisprudence & Legal Theory, (Nagpur: Eastern Book Company), 5th Edition,p528
8. Liam Murphy, The Boundary of Law: Law, Morality, and the Concept of Law, October 28, 2004,
9. r. B.N.Tripathi, Jurisprudence Legal theory, (Allahabad Law Agency, Haryana).