John Austin –

Imperative theory
 LAW IS A COMMAND OF SOVEREIGN.

• His theory revolves around the notion of sovereign.

• It has positive aspect that peoples under an absolute duty to obey command & negative
aspect that sovereign is not under duty to obey law passed by it.
• Thus sovereign command applicable to people in civilized society & sovereign is
immune from this command.
There are four attribution of notion of sovereign

(1) It is not subordinate -It is not creature of law rather it is creator of Law. E.g.
constitution is creator & the parliament is creature of it.
(2) It is illimitable or not limited -As it is creature the sovereign ‘s Legislative power
is absolute therefore it is illimitable.
(3) It is unique-As there is only one sovereign authority.
(4) It is united-The all sovereign powers in one hand.
This uniqueness & united ness make sovereign absolutely absolute.
 AUSTIN’S CLASSIFICATION OF LAW
• Austin’s classification of law falls under two heads, namely, laws set by God, and Laws set
by men to men (human laws).
• LAWS SET BY GOD: This category of laws is of no real juristic significance in Austin’s
system, compared, for example, with the scholastic teachings which establish an organic
relation between divine and human law.
• HUMAN LAWS: Human laws may be divided into two classes
• I. Positive law (laws properly so called):- These are the laws set by political superior as
such or by men not acting as political superior but acting in pursuance of legal rights
conferred by political superiors. Only these laws are the proper subject-matter of
jurisprudence.
• II. Other laws: These laws which are not set by political superior or by men in pursuance
of a legal right. In this category are multiple types of rules such as, rules of clubs, law of
fashion, laws of natural science, and the rules of international law. Austin names all these
‘positive morality’.
• Contrary to the above, laws properly so called are a species of
commands. But being a command, every law properly so-called flows
from a determinate source.
• Whenever a command is expressed or intimated, one party signifies a
wish that another shall do or forbear; and the later is obnoxious to an
evil which the former intends to inflict in case the wish be disregarded.
• Every sanction properly so called is an eventual evil annexed to a
command. Every duty properly so called supposes a command by
which it is created….and duty properly so called is obnoxious to evils
of the kind
The laws properly so-called, with laws improperly so called, may be aptly
divided into the following four kinds-
 The divine laws, or the laws of God; that is to say, the laws which are set
by God to his human creatures.
· Positive laws, or the laws which are simply and strictly so called, and
which from the appropriate matter of general and particular
jurisprudence.
• Positive morality, rules of positive morality or positive moral rules.
•  Laws metaphorical or figurative, or merely metaphorical or figurative.
• The science of jurisprudence, according to Austin, is concerned with
positive laws or with laws as considered without regard to their goodness
or badness. All positive law is deduced from a clearly determinable law-
giver as sovereign.
• In other words, every positive law, or every law simply and strictly so-
called, is set by a sovereign or a sovereign body of persons to a member
or members of the independent political society wherein that person or
body of persons is sovereign or supreme
 LAW EMANATES FROM SOVEREIGN
• Austin’s most important contribution to legal theory according to Friedmann
was his substitution of the command of sovereign for any ideal justice in the
definition of law. The first jurist to make jurisprudence as a ‘science’ was
John Austin who is often described as Father of jurisprudence.
• Sovereign defined and analyzed:- While defining a sovereign Austin said, “if
a determinate human superior, not in a habit of obedience to alike superior,
receives habitual obedience from the bulk of a given society, that determinate
superior is sovereign in that society and the society (including the superior) is
a society political and independent.
• According to Austin, the superior may be either an individual or a body or aggregate of
individuals. Thus, English sovereign for him is merely the ‘person’ who has the last
.
word in a particular connection.
• His conception of sovereignty asserts that in every human society where there is law,
there is to be found latent beneath the variety of political forms, in a democracy as well
as in an absolute monarchy, a relationship between subjects rendering habitual
obedience and a sovereign who renders habitual obedience to none.
• Involved in this are two main points of special importance viz., the idea of obedience
and due position occupied by the sovereign above the law.
• The expression obedience often suggests deference to authority and not merely
compliance with orders backed by threats.
• The idea of obedience in-fact fails in two different though related ways, to account for
the continuity to be observed in every normal legal system when one legislator succeeds
another
 LAW AS A COMMAND
• Austin defines command as “if you express or intimate a wish that I shall do
or forbear from some act and if you will visit me with an evil, in case I
comply with your wish-it is a command”.
• A command is different from other significations of desire, not by the style in
which the desire is signified but by the power and the purpose of the partly
commanding to inflict an evil or pain in case the desire be disregarded. Thus,
a command is significance of desire.
• But a command is distinguished from other significations of desire by this
peculiarity that the party to whom it is directed is liable to evil from other, in
case he complies not with the desire.
• According to Austin law, therefore, signifies a command which obliges a
person or persons to a course of conduct. The person who receives the
command must realise that there is a possibility of incurring some evil in the
event of disobedience.
• For Austin, every command does not create a law.
• A law determines acts of a class, a particular command determines merely a
specific act. Austin, therefore suggests that a statute issued by Parliament
that corn then shipped and import should not be a law, since it relates merely
to a specific case but he hares that in popular speech it would be called a
law. Generality is a normal mark of law because of the impossibility and
undesirability of issuing particular commands for each specific act.
• Now, if we regard a law as a command, then every act done must either be
permitted or forbidden.
• Further, if we consider law as a command or an order, it must also be seen in
the first sight to be orders given to the judges to do or abstain from doing
anything and there should, of course, be no choice why the law should not by
special rules prohibit a judge under penalty from exceeding his jurisdiction or
trying a case in which he has some financial interest.
• These rules imposing such legal duties would be conducive to those conferring
judicial powers on him and defining his jurisdiction.
 SANCTION
• Austin said, “Sanction operate upon the desires and that men are obliged to do or
forbear through the desires. For, he is necessarily averse from every evil whatsoever.
That every sanction operates upon the will of the obliged is not true.
• If the duty be positive, and if he fulfills the duty out of regard to the sanction, it may
be said with propriety that the sanction operates upon his will. For his desire of
avoiding the evil which impends from the law, makes him do and therefore, will the
act which is the object of the command and duty.
• But if the duty be negative and if he fulfills the duty out of regard to the sanction, it
can scarcely be said with propriety that the sanction operates upon his will.
• His desire of avoiding the evil which impends from the law makes him forbear from
the act which the law prohibits. But though he intends the forbearance, he does not
will the act forborne, or he remains in a state of inaction which equally excludes it. In
the former case he does not will the forbearance. In the later case he wills nothing