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Imperative Theory : Austin

Imperative Theory : Austin


Imperative theory of law defines "law as the command of the sovereign"This theory states what a legal rule is, and, distinguishes it from a 'just rule' or 'a moral rule'. It takes into consideration the formal criteria ofa legal rule, and distinguishes it from morals, etiquette etc. Trieste is founder of this theory is. Austin. According to him positive law has three characteristic features : .


  • It is a type of command;

  • It is laid down by the political sovereign &

  • It is enforced by a sanction


Commands:

According to Austin, every positive law is a direct or circuitous command of the monarch or the sovereign, to his subjects. Austin explains the nature of these commands. In a State, where there is an absolute Ruler, by name R, are all the orders made by him commands? His order to his servants to close the door, or to arrange for a banquet; (if not followed the servant may be punished). There are not commands but only desires according to Austin. To be law, the command must be a general command. Of course, generality alone is not sufficient to be a law.


Political Sovereign:

Law emanates from the political Sovereign or Superior. A sovereign may be a person or a group of persons, but not obedient to any other person. He enjoys the obedience of his subjects; Of course, perfect obedience may not be available. Laws may be obeyed out of respect, fear, habit or wisdom. The reason is not important for Austin, but, obedience to the sovereign exists as a fact, in general.


Sanction:

Human nature being what it is, a sovereign without a means to enforce his commands would have no scope. Law stands in need of sanctions. To Austin law is something for the citizen to obey, not as he pleases but whether he likes it or not. This can be achieved by using some coercion (force), that is, by inflicting punishment, by the sovereign. Thus, sanction is part of law.



Criticism:


Austin's theory has been attacked by many.

i) The Naturalists, opposed the positive law, stating that Codes, Statutes, Constitutions etc. are enforced by force and, hence, are not true law, but a violation of law. Moral and ethical base is essential for a good law and there cannot be good positive law, without this base.


Austin's definition of law as a command of the sovereign, is silent about customary law. Viewed from this angle, international law is no, law all according to Austin. In reality this is not so.

There are some laws which are not commands, but are rules which confer only powers. Right to vote, right to contest for election etc. examples.

Laws continue even after the extinction of the actual law giver. Some provisions of the Constitutions provide for restrictions on the law giver and some provisions cannot be changed, in some States, e.g. basic structure in India.


English law is full of judge-made law. Austinians argue that judges are the delegates of the Parliament. But, this is not so in reality. Under judicial review in many States judges declare law as null and void. Hence Austin's Theory is inadequate to explain this.


Rules defining sovereignty are varied. Modern States have written Constitutions. These provisions are hardly the commands of the sovereign.


Conclusions:

Though critics have an edge against the imperative theory, the fact remains, that this theory contains a lot of truth. The law emanates from and is visited with penalty by an authority. This is best explained by imperative theory than by any other theory.




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