This article is written by Anirudh Vats, second year student at Rajiv Gandhi National University of Law, Patiala. This article explains the basic tenets of the Imperative theory of law, explores the relevance of Austin’s ideas in contemporary times, discusses the merits of the theory and provides a critical analysis.
The Imperative Theory of Law was given by John Austin, an American legal philosopher who has been a huge influence on modern-day understanding of Law. His ideas about Law form the basis of defining and understanding law. Sure, his ideas have been refuted and challenged by a lot of contemporary philosophers, but they still remain relevant and remain a focal point for the understanding of Law.
Imperative Theory of Law in its simplest terms can be defined as “command of the sovereign backed by sanction”. Imperative theory says that law is whatever the political sovereign of a certain state says law is. This law needs to be backed by legitimate sanction, that is punishment or penalty for violation.
Let us explore in depth what this theory entails.
Definition of Law
“If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society (including the superior) is a society political and independent. Furthermore, every positive law simply sand strictly: so-called, is set, directly or circuitously, by a sovereign person or body to a member or members of the independent political society wherein that person or body is sovereign or supreme.”
Simply put, Austin describes Law as flowing from a political superior to its subjects, backed with a system of sanction.
The term Legal Positivism means the attempt to establish Law as a true science. The Imperative theory of law is based on an understanding of Law which is free of moralistic notions and merely a collection of empirical rules.
Austin makes a distinction between “What Law is” and “What law should be”. For Austin, the second question is not the concern of law. Law consists of the body of rules or “commands” which are definite and objective.
This was characteristic of philosophers at the time, the academic world had been so singularly inclined towards the natural and true sciences, that everyone wanted to establish their respective fields and areas of study as a natural science. This thread of Positivism can be found in the initial stages of a lot of subjects and areas of study, like the Positivism of August Comte when he started the study of Sociology.
Legal Positivism also says that all Positive laws can be traced back to Human Lawmakers and have no divine sanction, but are rules made by humans for humans.
Idea of the Sovereign
According to Imperative theory of law, there are three conditions a person needs to meet to be considered as Sovereign in a state:
- The Sovereign’s power must be unlimited and indivisible.
- The Sovereign must be clearly located and easily identifiable.
- The commands of the Sovereign must be considered Law.
The Sovereign must make it his duty to consciously formulate laws, which must be backed by sanction, to serve as “motives for compliance”. These sanctions must be coercive or alluring so as to make people obey them.
The Sovereign therefore, is a dynamic entity consisting of a legislative part as well as a judicial one. Physical presence of the Sovereign is not necessary, laws can be implemented and acted upon by the Sovereign’s agents, which may be the Police, the Judiciary or the Bureaucracy. Therefore, while the Sovereign may physically reside in an individual, its functions may be carried out by proper machinery with a definite hierarchy.
Therefore, the Sovereign is more an idea, an idea which is used as a source of legitimacy for the entire legal system in a state.
The Nature of Imperative Law
Austin divides law into two main categories :- Divine Law and Human Law.
Divine Law is law which has a transcendent source. They are inflexible, absolute and superior to man-made laws.
Human law is of two kinds: the first one is as a “Command of the Sovereign”, and the second type is formed through voluntary associations or clubs.
Law, according to Austin, follows the Hobbesian idea of being inherently coercive. He describes law as a combination of “commands and prohibitions”, which dictates what to do as well as what not to do.
Since there is no moral lens through which Austin views law, law is only meant to be obeyed. While on the surface this may seem as arbitrary and restrictive(which are valid criticisms), the issue is deeper. First of all, a value-neutral understanding of Law can ensure stability, peace and security in a nation.
Austin’s opposition to morality being a factor in law arises out of his fear that contravention and disagreement on what law is, will lead to chaos and anarchy.
Austin recognizes that for an effective legal system, you need a legitimate authority which is supreme in a nation and is accepted by people as an upright and just authority over them. When Law emanates from such an authority, people accept it and obey it, not just because there is coercive measures against that obedience, but also because there is a mutual recognition of the importance of laws, and acceptance of just authority over them.
But it is impossible to completely divorce Law from Morality. After all, the driving force of Law was to not just end anarchy and violence, but to also ensure justice, fairness and liberty. The moral convictions of law are central to its nature.
Blind obedience to law can make law oppressive and clamp down on the liberty of people. And when Austin does not allow room to criticize, deliberate or challenge the laws that are imposed on people, the Sovereign authority has no real opposition and can easily devolve into tyranny.
Therefore, the imperative theory of Law is incomplete in the sense that it does not account for a system to check the excesses of a law making entity.
Merits of the Theory
Austin was one of the first philosophers to define law in a concrete, objective way. He established a clear flow of law between the Sovereign and the people. His theory contained a simple and universal truth, that law is created and enforced by the state, an idea which still remains relevant. His objective and clear understanding of Law ensures security, stability and peace.
Austin’s ideas are often dismissed for being too simplistic, ignorant and inadequate. But to his credit, his theories are widely cited, researched, supported and criticized till date. This is because Austin laid the basic framework for the understanding of Law. Even those who are vocal critics of Austin, admit that without his definitions and perspective of law, the modern conception of law would not have been possible. Knowingly or not, every researcher, philosopher and author theorizing about Law is in some way deriving off of Austin.
What also needs to be realized is that like every theory, the Imperative theory is also a product of its time and place. Austin lived at a time when monarchies and dictatorships were prevalent, and those who held state power, held it for life and had unquestionable authority. Modern ideas like Fundamental rights, Constitutionalism etc. had not yet been conceived. In this scenario, his clear, concise and definite explanation of Law held much more merit than it does now. Just because the relevance of his ideas has declined due to the rise of democracy, it does not mean that we need to discredit him for being a hugely influential legal philosopher and thinker.
Ignores Customary Law
Law does not always arise from a political superior. It has existed in society without the modern conception of the state and even when people have no sovereign over them. Customs and traditions were the tools people used for social control and cooperative, civilized living.
According to the theory of Imperative Law, customs were primitive law which are not law in the real sense, and only resembled law. But the fact is, that a major source of Law is Customary law, which is rules and regulations evolved by people over time for self-governance. Without the existence of customs in society, English common law would never have come into existence, which uses customary law as its basis.
When the only source of law becomes a Political superior, it undermines the validity and importance of the rituals, customs and traditions people have evolved for themselves which form the basis for their way of living in society.
Law as Command
The first problem with law being a “command by the sovereign”, is that there is no identifiable commander in the modern state. Modern democracies are based on the idea of Separation of Powers, and authority is spread over a large number of people. Therefore, this idea becomes irrelevant in a time where monarchies and dictatorships are rare and fast disappearing.
The second problem is that most of the Law that we have at our disposal, is born out of decisions made by courts as and when questions of legal character have come up. A very small part of Law is actually made from primary or delegated legislation. Therefore, law seems to evolve out of the solution of a problem and not a “command”.
Idea of Sanction
According to Austin, the primary function of state is to use force to impose sanctions. But modern democracies have governments that serve the people and are elected by them to ensure their safety and prosperity, not use force on them. The force used by the state is not the power of the state but the willingness of the people to obey the same.
Therefore, Austin has an outdated idea of State.
The idea that sanctions can only be imposed through force is false. In International law, sanctions take up the form of Economic and Political sanctions and are achieved through international cooperation, not the use of force.
In fact, some International laws do not have sanctions at all, and yet many states abide by them because of a mutual understanding and recognition of Opinio Juris, i.e. legal obligation. This refutes Austin’s idea that sanction is an essential of Law.
Not Applicable to International or Constitutional law
Austin’s ideas are not applicable to International law because it has no Sovereign. International law is based on the principles of International recognition, cooperation, and diplomacy. There is no authority above the state. No international organization can act as a world government and assume Sovereignty over all states. Therefore, Austin’s Imperative theory does not square up with the existence of International Law.
Modern democracies are found on a constitution, in which rests the source of all the political powers of the state. Therefore, the true Sovereign in a democracy are the people, whose rights the constitution upholds. State power is temporary, granted by and taken away by the people and periodically changes hands. Therefore, the Sovereign is not the ruler, as Austin would concur, but actually the subjects of that ruler in a democracy.
Also, the constitution is the source of the legal basis of a country, and all laws that are formulated or put out in a state, are struck down if seen in contravention with the constitution.
Therefore, Austin’s ideas are not applicable in Constitutional democracies.
Disregard of Ethical elements
Justice is often described as the end of the law. Law always seeks to preserve, ensure and propogate justice, but Austin completely divorces law from any ethical concerns. This is problematic because without any ethical objectives, law can devolve into tyranny and oppression of the people, and lead to totalitarian governments controlling law according to their whims and fancies.
Salmond, a contemporary of Austin, says that a definition of Law must include both the concrete and substantive part of law along with the abstract, ethical concerns it deals with, and without any of the two components, the definition is incomplete.
Austin fails to explain the validity of the Sovereign. He uses flawed circular reasoning to explain sovereignty and law. He says that Sovereign is so because he commands law, and law is so because it is commanded by the Sovereign. This does not explain the legitimacy of a Sovereign.
Summing up, it is clear that the Imperative theory of law lays out a useful, valuable and valid interpretation of Law which sees law as positive, objective and devoid of any ethical concerns.
We established that while the theory may be widely criticized, the theory still holds immense legal and academic value.