AUSTIN’S IMPERATIVE THEORY OF LAW AND CRITICISM
Dr. Allen preferred to call Austin analytical school as a relative school. He stated that Austin define law as “a rule let for the guidance of intelligent being by an intelligent being having power over him”. He divides into two parts, namely
1) laws set by God for men and
2) Human law that is law made by men for men
He says that positive morality is not law properly so called but it is law by analogy. According to Austin that 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 inferior.” The chief characteristics of positive law command, duty and sections. That is every law is command imposing, a duty enforced by sanction.
Thus, he strongly believed that law is the sovereign command caring with it thread of evil which is called sanction, and the party commanded and threatened is under an obligation (or duty) to obey it. Duty and command are co-relative and fear of sanction (punishment) is the motive for obedience of such command that is law.
Austin, however, accept that there are 3 kind of law which though not command may be included within the purview of law by way of exceptions. They are:-
- 1)Declaratory or 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 such command because they are in fact the revocation of a command.
- 3)law of imperfect obligation- They are not treated as command because there is no sanctions attached to them. Austin holds that command to become law, must be accompanied by duty and sanction for its enforcement.
Criticisms of Austin’s Imperative Theory of Law
Austin theory of law and analytical positivism have been criticised by Jurist like Bryce, Olivecrona and others. Bryce characterize Austin’s work as full of errors which hardly has any significance in juristic thoughts. Austin theory has been criticised on the following ground;
1) Customs overlooked: Austin 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, custom still continue to be potent source of law even after the coming into existence of the state.
2) Permissive character of law ignored: Austin theory does not take notice of laws which are of permissive character and confer privileges example: the bonus act, or the law of wills etc.
3)No place for judge made law: Judge-made law is no place in Austin conception of law although the creative functions of judiciary as a law making agency has been accepted in modern time all over the world.
4)Austin’s theory treats international law as mere morality: Austin does not treat international law as law because it lacks sanctions. 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 overemphasized: The Swedish jurist Olivecrona has announced Austin theory of law because of its over emphasis is on command as an inevitable constituent of law. In modern progressive democracy 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 setup where people’s welfare is the ultimate goal of the state.
It is unrealistic to think that sovereign in modern times is something separate from the community and is capable of giving arbitrary command. The fact is that sovereign is an integral part of the community and making of law, he is guided by public opinion.
6) Inter-relationship between law and morality completely ignored- Perhaps the greatest shortcoming of Austin theory is that it completely ignored the relationship between law and morality. Law can never be completely divorced from ethics and morality which provide strength to it. The legal concepts such as ‘right’, ‘wrong’, ‘duty’, obligation etc. themselves suggests 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 main to induce obedience – Austin’s view that it is sanction along which induce 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 of the state is only the last force to secure obedience of law.
8) indivisibility of sovereignty criticized – While bringing of distinction between positive and positive morality, Austin opened that the former was said by political superior called the Sovereign. According to him the sovereign and could not be under a duty because his being under a duty would impliedly mean that there is another Sovereign above him. But Jethro Brown has contented the sovereign could well be bound by our duty towards his subjects.
The Austin view regarding indivisibility of sovereignty has also been criticised by some writer particularly, Bentham who showed hear sovereignty could be divided by conferring concurrent power of law-making between colonial legislature and British crown during the colonial rule in India and elsewhere.
Austin contribution to law has been greatly admired by the contemporary legal thinkers like Bentham and JS mill. They denounced natural law philosophy and excluded all ethical notions in his theory of positive law. Sir Henry Maine observed that, ‘no conception of law and society has ever removed such a mass of undoubted delusions. The merit of Austin’s theory of law lies in its simplicity, consistency and clarity of exposition.
Austin theory was later improved upon Holland, Salmond and Gray. Denouncing Austin view that Sovereign is the sole law-giver, Salmond hold that law consist of rule recognize and acted upon the law-courts. Grey also held at similar view and remarked that law is what has been laid down as a rule of conduct by the person acting a judicial organ of the state. Holland in his, Element of jurisprudence accepted command as an inseparable element of law but define it ‘a general rule of human action in force by superior authority of his subject’. This modification in the Austinian theory later gave rise to the emergence of Vienna school in subsequent years.
Author: vivek khandelwal,
Amity University Rajasthan, 2nd Year/BBA.LL.B(Hons.)