Essay on the Imperative Theory of Law

Law, according to Austin, is a command of the sovereign. It has its mandate in his will. According to him,

“every positive law obtaining in any community is a creature of the sovereign or state, having been established immediately by the monarch or supreme body as exercising legislative or judicial font lions, or having been established immediately by a subject individual or body, exercising rights of powers direct or judicial legislation, which the monarch or supreme body has expressly or tacitly con­ferred.”

He observes that “positive law consists of commands set as rules of conduct by a sovereign lo the member or members of the independent political society wherein the author of the law is su­preme.” This theory as propounded by Austin is known as the impera­tive theory of law.

Image Source: kklawus.com

The theory of Austin makes out the following four points:

1. That every law is a species of command;

2. Thai all positive laws are commands of the sovereign either directly or indirectly;

3. That every law prescribes a course of conduct; and

4. Thai every law has for its sanction the physical force of the State.

The definition of law as propounded by Austin emphasises two things, viz., the generality of the law and its enforcement. The law thus applies to all irrespective of any distinction and is imposed by a political superior, who has got the necessary force lo receive obedience to his commands.

Sir John Salmond observes that the theory contains an important element of truth inasmuch as it rightly recognises essential fact that civil law is the product of the State and depends for its existence on the physical force of the State exercised through the agency of judicial tribunals.

He, however, considers that this theory is one-sided and inadequate—the product of an incomplete analysis of judicial concep­tion. It is historically inaccurate, ethically defective and practically unrealistic. From very early times law has been obeyed either as a divine command or as a custom of the land.

In the words of Demos­thenes. “Law is a gift of God and the decision of sages.” Much of the Hindu law was never formally promulgated by any sovereign author­ity. It was followed as a customary law of the land.

Austin, by eliminating from the implications of the term “law” all elements save that of force, misses altogether the ethical element in law, the idea of right and justice, which inheres in any system of law found in the world today. The aim of the law is lo secure the ends of justice and it are to reach this end that courts of law have been established.

The imperative theory of law having ignored the purpose of law altogether cannot be accepted as the correct definition of law for, as Salmond observes, law is not right alone or might alone, but the Perl eel union of the two. It is justice speaking lo men by the voice of the State.

Then all laws are not commands. Much of the modern law is a purely permissive character and confers privileges. The law permits a man lo make a will but does not compel him to do so.

There are rules of judicial procedure and interpretation of statutes which are not in themselves imperative in character. There are two permissive rules of law, namely, those that declare that certain conduct is not wrongful, i.e., hearsay (an opinion contrary to established religious faith) is no crime. Again, there are declaratory laws, and laws that confer fran­chise.

The declaratory laws, permissible and enabling statute and the rules relating to civil procedure and interpretation of statutes cannot, therefore, be brought within the compass of the definition of law as propounded by Austin.

Salmond concludes that all legal principles are not commands of the Slate; and those which arc such commands arc at the same time and in their essential nature, something more, of which the imperative theory takes no account.

The imperative theory of law over-emphasises the element of fear in obedience to law. But law is primarily just and is formulated after mature deliberation and inviting public opinion. Law, therefore, in a great measure is obeyed because it is just and right. It is also obeyed largely by the force of tradition, of social consideration and of benefit lo individual himself.

In conclusion, it may in fairness be stated that Austin deserves credit for having brought to the limelight the fact that civil law is mostly the product of the State depending for its existence on its physical force, although, as discussed above, it falls short of a complete analysis of the definition of law. Salmond, therefore, concludes that all the three elements, namely the imperative, the non-imperative and the ethical, constitute the true theory of law.