Q.3. Critically explain the imperative theory of Law. How far do you agree that it is unethical and-inadequate ?
Austin resolved every law into a command of law giver, an obligation imposed thereby on the citizens and a sanction threatened in the event of disobedience. Do you agree with this view ? Comment.
Ans. John Austin was born in 1790. He joined the army and served as an army officer for five years until 1812. He was called to the Bar ‘ in 1818 after his graduation. He devoted his attention to equity, draftsmanship and legal practise. He jointed as Professor of law in the newly founded Benthahmite University College in London. He as elevated to the chair of jurisprudence in the university of London in 1826. Thereafter, he went to Germany to study Roman law in Heidelberg and Bonn Universities. He was much impregsed by the scientific treatment of Roman law and drew inspiration to introduce the same method to the legal exposition of law in England. He, however, avoided metaphysical approach to law which was a peculiar characteristic of law in Germany.
The lectures delivered by Austin in London University were edited and published under the title Province of jurisprudence determined. In this classic work he dealt with the source and nature of law and an analysis of English legal system. He also wrote ‘A plea for the Constitution’ which was in response to professor, Gray’s work On Parliamentary Government.
Austin’s Analytical Positivism –
Austin is considered to be the ‘father of English jurisprudence’. He confined his study only to the positive law and applied analytical method for this purpose. By positive law, Austin meant ‘laws properly so called’ as distinguished from morals and other laws which he described as ‘law improperly so called’ which lack in force or sanction of the State. Austin described positive law as ‘the aggregate of rules set by man as politically superior to men as politically inferior subjects.
He attributes :
(3) Duty and
(4) sovereignty as the four essential attributes of positive law.
Austin distinguishes ‘positive law’ from ‘positive morality’ which is devoid of any legal sanction. He identifies law with command, duty and sanction. According to Justice Holmes, Austin’s distinction between positive law and positive morality seeks to exclude the considerations of goodness or badness in the realm of law. In Austin’s positive law there is no place for ideal or justness in law.
In his own words, “the existence of law is one thing its merit and demerit another. A law which actually exists, is a law, though we happen to dislike it or though it may vary from the text by which we regulate our approbation or disapprobation.”
Thus, major thrust in Austinian positive law was on separation of law from morals. As a corollary of it, he distinguished science of jurisprudence firom ethics. The form is concerned with positive laws irrespective of their goodness or badness. Commenting on this point Amos observed that a positive law, “as Austin has shown, must be legally binding though it maybe unjust.” Austin, thus, made his system of law logical, coercive and enforceable as distinct from law as it ought to be. For him, command was ‘the key to the science of jurisprudence.’
The triology of command, duty and sanction which are implicit in conception of law has invoked criticism from many quarters. Professor H. L. A. Hart holds that it creates a situation where law only obligates subjects and threatens them with physical coercion unmindful of the legitimate moral-cum-social obligations of the sovereign towards his subjects, thus, compelling the subjects to obey it meekly even if it is most unjust or unfair. Salmond also criticised Austin’s theory of law which completely divests law from morality and held that law to be effective must have in it elements of ethics, reasonableness and justice.
Austin’s positive law received criticism by Lon Fuller in United States who propagated a view that the law passed in derogation of popular will and needs of society would be short-lived and cannot muster public support. According to him, the purpose of law is to subject human conduct to the governance of rules. The law, therefore, cannot be devoid of morality which includes values, ideals, natural law and notice of justice.
Austin’s Conception of Law
Austin defined law as “a rule laid for the guidance of an intelligent being by an intelligent being having power over him.” He divides law into two parts, namely,
(1) Laws set by God for men; and
(2) Human Law, that is laws made by men for men.
He says that positive morality is not law properly so called but it is “law by analogy. According to him, the study and analysis of positive law alone is the appropriate subject-matter of jurisprudence. To quote him, “the subject-matter of jurisprudence is positive law—law simply and strictly so called; or law set by political superior to political inferiors.” the chief characteristics of positive law are command, duty and sanctions, that is, every law is command, imposing a duty, enforced by a sanction.
Austin, however, accepts that there are three kinds of laws which, though not commands, maybe included within the purview of law by way of exception.
They are :
1. Declaratory of Explanatory laws : These are not commands because they are already in existence and are passed only to explain the law which is already in force.
2. Laws of repeal : Austin does not treat such laws as commands because they are intact the revocation of a command.
3. Laws of Imperfect obligation : They are not treated as command because there is no sanction attached to them. Austin holds that command to become law, must be accompanied by duty and sanction for its enforcement.
Criticism of Austin’s Theory
1. Customs overlooked : Austin’s view that ‘law is the command of sovereign’ is not supported by historical evolution of law when customs played a significant role in regulating human conduct. Further, customs still continue to be apotent source of law even after the coming into existence of the State.
2. Permissive character of law ignore : Austin’s theory does not take notice of laws which are of a permissive character and confer privileges e.g., the Bonus Act, or the Law of Wills etc.
3. No place for Judge-made law : Judge-made law has j as no place in Austinian conception of law, although the creative function of judiciary as a law-making agency has been accepted in modern times all over the world.
4. Treats International law as mere morality : Austin does not treat international law as ‘law’ because it lacks sanction. Instead, he regards international law as mere positive morality. This view of Austin is hardly tenable in the present time in view of the increasing role of international law in achieving world peace.
5. Command over-emphasised : The Swedish Jurist Olivecrona has denounced Austin’s theory because of its over-emphasis on ‘command’ as an inevitable constituent of law. In modern progressive democracies law is nothing but an expression of the general will of the people. Therefore, command aspect of’law has lost its significance in the present democratic set-up.
6. Inter-relationship between Law and Morality completely ignored : Perhaps, the greatest shortcoming of the Austin’s theory is that it completely ignored the relationship between law and morality. Law can never be completely divorced from ethics or morality which provide strength to it. The legal concepts such as ‘right’, ‘wrong’, ‘duty’, ‘obligation’ etc. themselves suggest that there is some ethical or moral element present in them. Commenting on inter-relationship between law and morality, Dr. Jethro Brown observed, “Even the most despotic legislator cannot think of or act without availing himself of the spirit of his race and time.”
7. Sanction alone is not the means to induce obedience : Austin’s view that it is sanction alone which induces a person to obey law, is not correct. There are many other considerations such as fear, deterrence, sympathy, reason etc. which may induce a person to obey law. The power if the state is only the last force to secure obedience of law.