Austin’s Imperative Theory of Law | Law Notes

Law is the command of the Sovereign.
One of the main exponents of this theory which is completely different from the natural law theory was John Austin who belongs to the analytical school of law and is widely considered to be the founder of positive law. His concept of law is very closely tied to his understanding of sovereignty: if a determinate human superior not the habit of obedience to a like superior receives habitual obedience from the bulk of a given society then that determinate superior is sovereign in that society, and the society including the superior is a society political and independent.
Thus, the three elements of law are:
1. A command
2. A sovereign
3. A sanction
According to Austin, law is not the same as morality. It deals with what is and not with what should be. It is imperative. It is the command of the king. The coercive force behind law is its essence.
Jurisprudence is not the same as ethics. It is an independent discipline.
The theory has often been criticised for not including moral considerations but this was apparently not what Hobbes had intended – the way he saw it, such an analysis was preliminary to critical assessment which was, through utility, to help reveal heretofore unrevealed divine laws.

Criticism against Austin’s Theory of Law
1. There are many rules which are accepted as law such as those which are considered customary laws and international laws. Common Law and Constitutional Law do not have their roots in the commands of a sovereign either. However, not being the command of a sovereign, Austin’s theory denies that these rules are laws.
International Law, Common Law and Constitutional Law all have their roots in customs and conventions. However, positivists do not consider them to be law until they have been accepted by a political superior.
2.a. To define law as a command is also to ignore a large portion of the law which does not either oblige people to do or refrain from doing something but simply empowers them.
e.g. The law of wills does not force anyone to make a will; it only enables people to make wills if they want to.
2.b. The term ‘command’ also has other problems: it assumes the existence of someone to give commands but this is rarely the case in the modern State with its complex legislative process. In addition to this, much law is in reality delegated legislation comprising rules made by ministers and others. Further, the decisions of Courts are also considered to be a source of law.
Austin accepted that a sovereign could delegate his law making powers but this does little other than confuse the issue.
2.c. However, the problem which remains is that Austin’s theory which implies unlimited sovereign power and identifies law as the command of the sovereign completely ignores the fact that sovereignty itself is legal – the existence of sovereignty necessarily entails the existence of legal rules to do such things as define the composition of sovereignty.
3. The next problem with Austin’s theory is identifying who exactly is sovereign. This question led Austin to particular difficulties. If one was to assume that sovereignty in England lies in the Crown, the House of Lords and the House of Commons, one would have to deal with the fact that succession to the Crown and membership of the House of Lords are both governed by complex rules, and the House of Commons, being elected, must obey the electorate. Therefore, they are not sovereign in the sense that they are not in the habit of obedience – even the Crown and the House of Lords, though not obedient to any other body, must follow rules. The three of them, as a composite, may be regarded as sovereign but the problem with that is that they never issue any orders, decrees or laws as a composite body.
4. Finally, is the issue of sanctions. While Austin regarded sanctions are an element of law, not all laws are backed by sanctions. One glaring example of this is in the field of international law.

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