Introduction:
In its simplest terms, Imperative Law Theory can be defined as “order of the sovereign backed by sanction.” Imperative principle argues the law is whatever a particular state’s democratic sovereign argues the law is. It is important to endorse this statute with a valid penalty, which is retribution or penalty for violations. The imperative law theory notes that law consists of the general commands given to its subjects by a nation or other political group. It requires general rules imposed with the approval of physical action by courts. The proponents of the imperative theory claim that where there are laws that predate or are independent of the government, those laws will closely imitate or even override the law in certain cases, but they are not law.
Legal Positivism
The word Legal Positivism refers to the effort to construct the true theory of law. The Imperative Law Theory is based on an interpretation of law that is free of moralistic principles and only a set of empirical laws. Austin distinguishes between “what the law is” and “what the law needs to be.” The second question, for Austin, is not about the rules. The law consists of a body of definite and reasonable laws or “commands.”
At the point, this was typical of philosophers, the intellectual community had been so uniquely oriented toward natural and true sciences that everybody decided to define as a natural science their respective fields and fields of research. In the original phases of several topics and fields of study, such as the Positivism of Auguste Comte when he began the study of Sociology, this thread of Positivism can be found.
Legal positivism also notes that all good laws can be traced back to human politicians and carry no supernatural punishment, but are self-made rules for human beings.
Nature of the Imperative law
Law is split into two major groups by Austin:-Divine and Human Law.
Divine law is a law that has a transcendent root. To man-made rules, they are inflexible, utter and superior.
Human law is of two kinds: the first is established by mutual groups or clubs as an “Order of the Sovereign” and the second kind. The rule fits the Hobbesian principle of being necessarily authoritarian, according to Austin. He defines law as a mixture of “rules and prohibitions” that governs both what to do and what not to do.
Since there is no universal prism by which Austin approaches the law, it is simply intended to follow the law. Although this may seem simplistic and limiting on the surface, the dilemma is more complex. First of all, in a country, a value-neutral interpretation of the law will guarantee unity, peace and protection. The opposition of Austin to morality as a principle in law derives from his concern that disorder and confusion will emerge from contravention and conflict over what law is.
Austin acknowledges that you need a constitutional government that is paramount in a country and is recognised by citizens as an upright and just body over them for a successful legal structure. People embrace and follow the rule as it comes from such an entity, not just because there are punitive sanctions against that compliance, but also because there is a shared understanding of the value of laws and the approval of just power over them. Yet it is difficult to separate the statute from morals absolutely. The driving force of the statute was, after all, not simply to bring an end to disorder and violence, but also to guarantee order, dignity and democracy. The basic principles of the statute are fundamental to its life.
Blind adherence to the law will oppress the law and crackdown on people’s rights. And since Austin does not allow space for people to question, deliberate or contest the rules forced on them, there is no meaningful resistance from the Legitimate Authority and it can quickly turn into a dictatorship.
Term of Sovereign in Imperative Law Theory:
According to Imperative Law Theory, in order to be considered sovereign in a state, there are three requirements an individual needs to meet:
- The sovereignty of the Sovereign must be limitless and indivisible.
- The Sovereign must be readily recognisable and precisely located.
- The directives of the Ruler must be accepted as a rule.
The Sovereign must make it his duty to deliberately devise rules which act as “motives for obedience,” which must be accompanied by penalty. In order to make citizens accept them, these sanctions must be manipulative or alluring.
The Sovereign, therefore, is a complex body containing both a legislative and a judicial aspect. The Sovereign’s actual appearance is not required, rules may be enacted and acted upon by the officials of the Sovereign, who may be the police, the courts or the bureaucracy. Therefore, although the Sovereign may reside physically in an individual, proper machinery with a definite hierarchy may perform its functions.
The Ruler is, however, something of a concept, a concept which is used in a state as a basis of authority for the entire legal system.
Merits of the Imperative Law Theory:
One of the first theorists to describe the rules in a specific, analytical manner was Austin. He formed between the Sovereign and the citizens a direct flow of rule. His philosophy represented a clear and fundamental fact, whereby the state establishes and enforces the rules, a concept that is still important. His consistent and rational interpretation of the law guarantees protection, prosperity and harmony.
The views of Austin are frequently rejected for being too simple, naive and incomplete. But his ideas, to his credit, have been extensively quoted, studied, endorsed and attacked to date. This is because the fundamental foundation for interpreting the law was developed by Austin. And those who are outspoken opponents of Austin agree that the current understanding of the law would not have been possible without his concepts and insights of law. Any scholar, philosopher and author who theorises the rule is in some way derived from Austin, consciously or not.
Liberal theories have not yet been formulated, such as fundamental rights, constitutionalism, etc. His straightforward, succinct and conclusive interpretation of the law had far more validity in this situation than it does now. It does not mean that we ought to dismiss him for being a highly prominent legal scholar and theorist, only because the importance of his theories has diminished due to the rise of populism.
Is it Applicable for Constitutional or International Law?
International Law
The theories of Austin do not extend to international law because it does not have a Sovereign. The ideals of universal recognition, collaboration, and diplomacy are the foundation of international law. Beyond the state, there is no jurisdiction. As a world government, no international body can act and claim authority over all nations. The Imperative Principle of Austin does not, however, square up with the existence of International Law.
Constitutional Law
The constitution is used in modern democracies, in which the basis of all the state’s legislative powers lies. Therefore, in a democracy, the real sovereign is the people whose interests the constitution upholds. State control is temporary, provided by and taken away by the people and changes hands regularly. Therefore, as Austin would accept, the Sovereign is not the monarch, but simply the subject of that monarch in a democracy.
The constitution is also the source of a country’s legal basis, and if found in contravention of the constitution, all laws that are formulated or imposed in a state are struck down.
Criticism
Ignores Normal Statute
It is not necessarily from a political superior the rule emerges. Without the current understanding of the constitution, it persisted in culture and also where citizens had no sovereign over them. The devices people used for social order and communal, civilised life were rituals and practises.
Customs were basic laws, according to the principle of Imperative Rules, which are not rules in the true sense, and just law that approaches it. But the truth is, customary law, which is rules and regulations established by persons over time for self-governance, is a significant source of law. English common law, which incorporates customary law as its foundation, would never have come into practice without the presence of customs in society.
If a political leader becomes the sole source of legislation, it destroys the legitimacy and meaning of the practice, customs and beliefs that people have established for themselves, providing the foundation for their way of living in society.
Law as Command
The first problem with the rule is that there is no recognisable commander in the current state, an “order by the sovereign.” The concept of the division of powers is based on democratic democracy, and jurisdiction is distributed over a wide range of entities. Therefore, in a period when monarchies and dictatorships are rare and fast fading, this notion becomes obsolete.
The second concern is that much of the legislation we have at our disposal is born from judicial rulings when and where problems of legal character have arisen. In fact, a very small portion of the law is made up of primary legislation or assigned legislation. Therefore, the rule appears to grow out of a problem’s solution and not an’ order.’
Common Idea of Sanction
The primary role of the regime, according to Austin, is to use coercion to enforce sanctions. Yet democratic democracies have institutions that represent the people and are elected by them, not imposing coercion on them, to ensure their welfare and wellbeing. The force used by the state is not the state’s control, but the people’s ability to follow it.
Austin, however, has an incorrect definition of a territory. The notion that sanctions can be enforced only by coercion is incorrect. Sanctions take the form of economic and political sanctions under international law that are accomplished through international negotiation, not by the use of force.
In fact, certain foreign treaties do not have fines at all, and yet, because of a shared consensus and acceptance of Opinio Juris, i.e. moral duty, many states abide by them. This refutes Austin’s notion that deterrence is an integral aspect of the constitution.
Conclusion:
To sum up, it is clear that an effective, meaningful and true understanding of the law is set out in the Imperative Philosophy of Law that sees law as constructive, factual and free of all ethical issues. We noticed that although the theory can be strongly criticised, there is still tremendous legal and scholarly merit to the theory.
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