INTRODUCTION
The imperative theory is a perspective in ethics that suggests moral principles are derived from authoritative commands or imperatives. It argues that ethical obligations are based on the authority of a ruler or a divine power rather than on intrinsic moral properties or consequences.
MEANING OF JURISPRUDENCE
Jurisprudence is the name given to those studies, research, and speculations that aim primarily at answering the plain man’s question.
DEFINITION OF JURISPRUDENCE
According to Dicey:
“Jurisprudence as a particular method of study not of the law of one country, but general nations of law itself.”
NATURE OF JURISPRUDENCE
Jurisprudence is dynamic. It consists of different views, later called the school of jurisprudence.
CHARACTERISTICS OF JURISPRUDENCE
The characteristics of jurisprudence are the following;
- It deals with the law as it ought to be in an ideal state.
- It aims at bringing the principles of the law to such a form in which attainment of justice may best be achieved.
- The study brings together moral and legal philosophy.
AUSTIN’S THEORY OF LAW
According to Austin:
“Law is a came and which obliges a person or persons to course of conduct”۔
FEATURES OF IMPERATIVE THEORY OF LAW
According to Austin, positive law has three characteristic features:
- It is a type of command۔
- A political sovereign lays it down.
- It is enforceable by a sanction.
(A) LAW IS A COMMAND:
According to Austin, every law is a command the political superior or sovereign issued to observe subjects. It is enforced by sanction of the physical force of the State. An order is an expression of desire given by superiors to inferiors.
NOTE: It must be kept in mind that all commands are not laws.
(B) LAW GIVEN BY A SOVEREIGN:
Command is a law exclusively given by a political superior or sovereign. According to Austin, a sovereign is any person or body of persons whom the bulk of a political society habitually obeys.
NOTE: The gunman is not sovereign.
(C) SANCTION BEHIND LAW:
In non-compliance with command, one must be visited with inevitable evil consequences. The power to inflict evil must be there and allowed to be exercised in case of non-compliance. The sanction behind the law is wrong, which is to be imposed in case of disobedience)
MERITS OF IMPERATIVE THEORY OF LAW
- This theory is related to the machinery and the mechanism through which it is enforced.
- This theory recognizes law as the product of the State and depends on the physical force of the State.
- This theory is simple and consistent with totalitarian states, democratic systems, communism, and marital law.
- This theory applies to modern society and systems.
CRITICISM ON IMPERATIVE THEORY OF LAW
Austin’s theory of law has been criticized on many grounds, which are as follows;
1. It is based on the will of the sovereign only
According to Salmond, this theory is one-sided; Austin recognized only the formal source of law but did not consider its ethical and material Sources.
2. It is an incomplete theory
According to Salmond, this theory is incomplete. All laws are not always imperative or commands. Many rules raise obligations and nearly give rise to liberties and powers.
3. Laws always exist before the State
The law is before and independent of political authority and enforcement. The State enforces it because it is already law. It is not correct that it becomes law because the State enforces it.
4. Law gives actual power to everyone
Some rules are not commands but simply power-conferring regulations, e.g., the Rent Act, the law of property, election statutes, etc.
5. Law is not general
According to Austin, Law is a general rule of conduct, but that is not practicable in every sphere of law. The requirement that direction should be public is challenging to maintain.
6. Commad must be communicated
According to Austin, law is a command that must be communicated to the people by whom it is meant to be obeyed or followed. This view of Austin is not tenable. Promulgation is usually resorted to, but it is not essential for the validity of a rule of law.
7. Precedents can also give laws
The bulk of English laws are the result of judicial decisions. These judges made rules occupy vast areas in every country.
8. Sovereignty is the only authority
Sovereignty consists not in having power but in having authority. Legal sovereigns and political sovereigns may be different.
CONCLUSION
Despite criticism of Austin’s theory of law, it cannot be denied that Austin rendered an excellent service by giving a clear and straightforward definition of law. It is admitted today this is one legal theory that is very close to reality.
FAQs
Define Jurisprudence. Explain its relationship with other social sciences.
(2019-A, 2019-A five years, 2017-A)
Define Jurisprudence. Discuss its various kinds. Explain the scope of Analytical Jurisprudence.
(2017-S)
Define Jurisprudence. Explain various kinds of jurisprudence.
(2016-A)
Discuss the ‘Imperative Theory’ of law concerning its criticism.
(2018-A)
Discuss the ‘Imperative Theory of Law. Also, discuss the criticism raised against the theory.
(2017-A)
Give an elaborate note on the imperative theory of law.
(2015-S)
