Imperative Theory of John Austin

8/9/2019 Imperative Theory of John Austin

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AUSTIN 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 epression of the will of the state!"t sees it as ma#e thro"gh the me#i"m of $o"rts% &aw no #o"!t is the 'omman# of the

sovereign, !"t the sovereign to the realist is not the (arliament !"t the $o"rt%

1. IMPERATIVE OR AUSTIN'S THEORY OF LAW:

A"stin says that law is a 'omman# whi'h o!liges a person or persons to a 'o"rse of 'on#"'t% It islai# #own !y a politi'al sovereign an# enfor'ea!le !y a san'tion%

2. FEATURES OF IMPERATIVE THEORY:

A''or#ing to A"stin, positive law has three main feat"res)

A% Command.

*% Sovereign.

$% Sanction.

A. COMMAND:A''or#ing to A"stin) $omman#s are epressions of #esire given !y s"periorsto inferiors%

(i) Laws are general commands:There are 'omman#s whi'h are laws an# whi'h is not, A"stin

#isting"ishes law from other 'omman#s !y their generality% &aws are general 'omman#s, "nlike

'omman#s given on para#e gro"n#s an# o!eye# there then !y the troops%

B. SOVEREIGN:A''or#ing to A"stin, a sovereign is any person or !o#y of persons, whom the!"lk of a politi'al so'iety ha!it"ally o!eys an# who #oes not himself ha!it"ally o!eys, some

other persons or persons%

Presented by Adeel muzafar


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Charac!r"#"c# $% S$&!r!"(:

i! Source of "aws:Sovereign is the so"r'e of law% Every law is set, !y a sovereign persons or!o#y of persons%

ii! Source of #ower: (rof% &aski says that there are three impli'ations of the #efinition of

sovereignty given !y A"stin% The state is a legal or#er in whi'h there is a #eterminate a"thority

a'ting as the "ltimate so"r'e of power%

iii! $ndivisi%le #ower:The power of sovereign is in#ivisi!le% It 'annot !e #ivi#e#% A''or#ingly

to A"stin, there 'an only !e one sovereign in the state% The totality of sovereign is veste# in oneperson or a !o#y of persons%

iv! &a%itual o%edient %y #eople:The 'hief 'hara'teristi' of sovereign lies in the power toea't ha!it"al o!e#ien'e from the !"lk of the mem!er of the so'iety%

C. SANCTION: The term san'tion is #erive# from Roman &aw% A''or#ing to Salmon#+San'tion is the instr"ment of 'oer'ion !y whi'h any system of imperative law is enfor'e#%

(hysi'al for'e is the san'tion applie# !y the state in the a#ministration of "sti'e%

). CRITICISM:A"stin-s theory of law has !een 'riti'i.e# on many gro"n#s%

1. "aws %efore State:A''or#ing to Histori'al S'hool, law is prior to an# in#epen#ent of

politi'al a"thority an# enfor'ement% A state enfor'es it !e'a"se it is alrea#y law% It is not 'orre'tthat it !e'omes law !e'a"se the state enfor'es it%

'. (unman "aw:Some have 'riti'i.e# the positivist theory of law as a theory of g"nman, as itmakes no real #istin'tion !etween a law an# the 'omman# of a !ank/ro!!er who points his g"n

at the !ank 'lerk an# or#ers him to give him money%

). (enerality of "aw:A''or#ing to A"stin, law is a general r"le of 'on#"'t, !"t that is not

pra'ti'a!le in every sphere of law% A law in the sense of the A't of the legislat"re may !e

parti'"lar in the f"llest sense of the wor#% A 0ivor'e A't is law even if it #oes not apply to allpersons%

*. #romulgation:A''or#ing to A"stin, law is a 'omman# an# that has to !e 'omm"ni'ate# to

the people !y whom it is meant to !e o!eye# or followe# !"t this is not essential for the vali#ityof a r"le of law%



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+. "aw as Command:A''or#ing to A"stin, law is a 'omman# of the sovereign !"t the greater

part of a legal system 'onsists of laws whi'h neither 'omman# nor for!i# things to !e #one e%g%,

right to vote%

,. Existence of #ersonal Commander:The term 'omman# s"ggests the eisten'e of a personal

'omman#er% In mo#ern legal systems, it is impossi!le to i#entify any 'omman#er in the personalsense%

-. efusal of #recedents as "aws:The !"lk of the English law has !een 'reate# !y the#e'isions of the $o"rt% To #es'ri!e the "#ges as #elegates !y the positivists is mislea#ing%

/. Sanction:The 'on'ept of san'tion is also mislea#ing as in mo#ern #emo'rati' 'o"ntry, the

san'tion !ehin# law is not the for'e of the state !"t the willingness of the people to o!ey thesame%

0. Sanction is not essential elements:San'tion is not an essential element of law, as in 'ivil law

no s"'h san'tion is to !e fo"n#%

1. Disregard of ethical elements:A''or#ing to salmon#, A"stin-s theory of law is one/si#e#an# ina#e1"ati'% It #isregar#s the moral or ethi'al elements in law%

11. 2ot applica%le to $nternational "aw:A"stin-s #efinition of law 'annot !e applie# toInternational law that is to say that International &aw is not an imperative law% The International

law is not the 'omman# of any sovereign, yet it is 'onsi#ere# to !e law !y all 'on'erne#% 2ii3

Not Appli'a!le to 'onstit"tional law) A"stin-s #efinition of law #oes not apply to 'onstit"tional

law whi'h 'annot to 'alle# 'omman#s of any sovereign% $onstit"tional law of a 'o"ntry #efinesthe powers of vario"s organs of the state%

*. IS MORAL LAW IMPERATIVE:4oral law has also !een 'alle# the #ivine law, the law ofreason, the "niversal or 'ommon law or eternal law% It is 'alle# the 'omman# of 5o# impose#

"pon men% Nat"ral law appeals to the reason of men% It #oes not possess physi'al 'omp"lsion% It

em!o#ies the prin'iples of morality% Nat"ral or moral law eists only in an i#eal state an# #iffersfrom positive law of state% In A"stin view of law morality altogether ignores therefore moral law

is not an imperative law%

CONCLUSION:

To 'on'l"#e, I 'an say, that inspite of 'riti'ism of A"stin-s theory of law, it 'annot !e #enie# that

A"stin ren#ere# a great servi'e !y giving a 'lear an# simple #efinition of law% He makes a#istin'tion !etween what law is an# what it o"ght to !e% It seeks to #efine law not !e referen'e to

its 'ontents !"t a''or#ing to the forme# 'riteria whi'h #ifferentiate legal r"les from other r"les

s"'h as those of morals, eti1"ette et'%


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Imperative Theory of John Austin