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Austin Law Theory, Imperative Theory of Law by English Jurist John Austin

Introduction:

John Austin was an English legal theorist who strongly influenced British and American law with his analytical approach to jurisprudence and his theory of legal Positivism. Austin called the father of English jurisprudence and founder of analytical school. According to him, law is made by the sovereign to control its subjects which is enforceable through sanction.

Definition of Imperative theory of Law

"Law is a command which obliges a person or persons to the course of conduct. It si laid down by political sovereign and enforceable by sanction or sanctions".

Feature of Imperative theory of Austin

  1. Command
  2. Sovereign
  3. Sanction

 Command: According to Austin; "Commands are the expressions of desires given by superior to inferior". Now we further divide command into two types

 Characteristics of Command:

  • Command which are Law: when some sanction is attached with the orders of superiors and which are enforceable through physical force, the commands or orders of superiors or political sovereign become laws.
  • Command which are not Law: Commands or orders of political superiors are not become law if those commands have no sanction with them. The rule which is on the wish of subjects to follow are not to follow, they will not become laws.
 Sovereign: According to John Austin; "Sovereign is a person or body of persons, whom the bulk of political society habitually obeys or who does not himself obeys some other person or persons".

Characteristics of Sovereign:

  • Source of Law: Sovereign is a source of law. Every law is set by sovereign person or body.
  • Source of Power: In every state; there is an ultimate authority acting as an ultimate source of power.
  • Indivisible of power: The power of a sovereign is indivisible. The totality of sovereign is vested in one person or body of persons.
  • General Obedience of people: The chief characteristic of sovereign lies in the power that the bulk of members of society follow the laws made by the political superior.
Sanction: According to Austin imperative theory the term sanction is derived from "Roman Law".
"Sanction is conditional evil". According to Salmond, "it is the instrument of coercion to enforce imperative law". According to Roman Law sanction means portion of statutes relating to penalties.
Physical force is the sanction applied by the state in the administration of justice.
When sanction is attached with the orders of superiors, their orders become law.

Criticism on Austin Imperative Theory of Law

  • Laws Before State: According to Historical school; law is prior to and independent of political authority. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it.
  • Gunman Law: Some have criticized imperative theory of law as gunman law, as it makes no distinction between a law and command of bank-Robber who points his fun at bank clerk and order him to give money.
  • Law as command: According to Austin; law is a command of sovereign but greater part of legal system consist of laws which are neither commands nor forbids things to be done e.g right to vote.
  • Sanction: Sanction behind the law is not the force of state but the willingness of people to obey the same. Sanction is not an essential of law as in civil law, no such sanction is to be found.
  • Not applicable to international law:  Austin's definition of law cannot be applied to international law because international law is not the command of sovereign.
  • Disregard of Ethical Elements: Salmond criticized on Austin's Imperative theory disregards the moral or ethical elements of law. The end of law is justice. Any definition of law without reference to justice is inadequate.
  • Purpose of law is ignored: Austin theory of law ignored the basic purpose of law. Law is the declaration of a principle of justice. As Austin’s theory of law does not take into consideration the purpose of law, it is not an adequate definition of law.

Conclusion:

It is concluded that in spite of criticism of Austin theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. It is also concluded that 
Law is obligatory
Law is a command
Law is enforced through physical force or sanction.
we can say that according to Austin 
"Law is law when it is made by sovereign and sovereign is sovereign when it makes the law"

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