Imperative Theory of Law by John Austin

The Imperative Theory of Law by John Austin 

Introduction:-

        Law is one of the oldest subjects of inquiry in philosophy, politics, and jurisprudence. Different thinkers have given different meanings to law. Among them, John Austin (1790–1859), a famous English jurist and disciple of Jeremy Bentham, is considered the pioneer of the Analytical School of Jurisprudence.

Austin attempted to separate law from morality, customs, and religion, and defined it strictly in terms of sovereign authority, command, and sanction. His theory is famously known as the Imperative Theory of Law or the Command Theory of Law. According to Austin:

          “Law is the command of the sovereign backed by sanction.”

Austin’s Background and Contribution-

Austin was influenced by Bentham’s utilitarian philosophy and shared Bentham’s dislike for confusing law with morals.

        He believed that in order to properly study law, one must analyze it as it is (positive law), and not as it ought to be (ideal or moral law).

       His major work, “The Province of Jurisprudence Determined” (1832), laid the foundation of Analytical Positivism.

He distinguished between positive law (law properly so called, made by a sovereign) and laws improperly so called (moral laws, customs, divine law).

Austin’s theory is called imperative theory because it treats law as an imperative command issued by a sovereign and backed by sanction.

Definition of Law by Austin-

Austin defined law as:

       “A law is a command set by a sovereign to a person or persons in a society habitually obeying him, and it is enforced by a sanction.”

Essential elements of Imperative Theory-

1. Sovereign power

2. Command

3. Sanction

1. Sovereign Power-

For Austin, law originates from the sovereign, i.e., a determinate human superior.

        Sovereign is a person or body of persons whose commands are habitually obeyed by the majority of society, but who does not habitually obey anyone else.

Features of Sovereign according to Austin:

i. Supremacy – Sovereign is supreme and not subject to any external authority.

ii. Habitual obedience – The people must habitually obey the sovereign’s commands.

iii. Independence – The sovereign is independent both internally and externally.

Austin divided sovereignty into two aspects:

Positive aspect – Sovereign’s commands are habitually obeyed by the people.

Negative aspect – Sovereign does not obey anyone else of equal or higher authority.

Thus, sovereignty is supreme, indivisible, and absolute in Austin’s theory.

2. Command-

A command is an expression of the sovereign’s will, directing people to do or abstain from doing something.

        It is different from advice or request; a command is backed by an obligation and sanction.

Types of Commands

i. General Command – Applies to all persons, classes, or communities, and continues until withdrawn or repealed.

Example: A prohibition on the import or export of certain goods.

ii. Particular/Occasional Command – Applies to a specific person, class, or group, or applies universally for a limited time.

        Example: Curfew orders applicable to a particular locality.

3. Sanction-

Sanction is the fear of punishment that ensures compliance with the command.

       Without sanction, a command cannot be considered law.

       Sanction distinguishes law from advice, morality, or customs.

       For Austin, the threat of physical force (punishment) gives law its binding character.

Salient Features of Imperative Theory:-

1. Law is the command of sovereign.

2. Sovereign is supreme and habitually obeyed.

3. Law is enforced through sanctions (punishments).

4. Law is different from morality.

5. Customary or religious rules are not law unless recognized by sovereign.

6. International law is not true law, but only a form of “positive morality.”

Criticism of Imperative Theory:--

Despite its importance, Austin’s theory has faced serious criticisms:-

1. Ignoring Customs and Traditions

Historical jurists like Savigny and Henry Maine criticized Austin for ignoring the role of customs.

       In ancient societies, law developed from customs and usages, not from commands of a sovereign.

2. Judge-made Law

Austin denied the independent role of judges in making law.

       In practice, judicial decisions (precedents) form a large part of modern legal systems.

3. International Law

     Austin regarded international law as “morality” since there is no sovereign above nations.

     But international law is recognized, followed, and enforced globally.

4. Law and Morality

      Austin separated law from morality.

     Critics argue that many legal concepts (rights, duties, liabilities) are based on moral values.

5. Sanction not Always Necessary

       Austin believed law must be backed by sanctions.

       But in practice, laws are often followed because of public opinion, social pressure, and legitimacy, not just fear of punishment.

6. Democratic Systems

       Austin’s sovereign is absolute and indivisible.

In modern democracies, sovereignty is divided (between legislature, executive, judiciary) and limited by constitutions.

7. Law and Justice

      Austin held that law is distinct from justice.

Critics argue that law and justice are interrelated, and law without justice loses legitimacy.

Importance of Imperative Theory:-

Despite criticism, Austin’s theory remains highly influential:

1. Scientific Study of Law – Austin’s analytical method separated law from religion, morals, and customs, and gave jurisprudence a scientific base.

2. Clarity about Sovereignty – He emphasized that the power of law-making rests only with the sovereign, not with external institutions like the Church.

3. Foundation of Legal Positivism – His approach laid the foundation for later positivist jurists such as Kelsen and H.L.A. Hart.

4. Influence on Legislation – His focus on law as sovereign command influenced modern legislative processes.

5. Practical Utility – Austin’s insistence on sanctions highlighted the practical enforceability of law, distinguishing it from mere moral rules.

Paton rightly observed that Austin’s biggest contribution was to clearly locate the law-making power in the sovereign state, thus avoiding conflict between state and church.

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Modern Relevance of Austin’s Theory-

In a modern democratic and constitutional framework, Austin’s absolute sovereign does not exist.

        Yet, his emphasis on law as a command enforceable by sanction is still relevant in understanding penal laws and state authority.

        International law, constitutional law, and human rights law have gone beyond Austin’s rigid model.

        Still, Austin’s theory remains a cornerstone of legal positivism, and every law student studies it as a foundational theory.

Conclusion-

         Austin’s Imperative Theory of Law marked a turning point in jurisprudence by giving a clear, analytical, and scientific definition of law. According to him, law is: the command of a determinate sovereign, enforced by sanctions, habitually obeyed by the people.

    Thus, while Austin’s Imperative Theory may not fully explain modern law, it remains one of the most important theories in legal philosophy, inspiring later jurists and shaping the analytical study of law.

~ Aryavart Law Hub