TABLE OF CONTENTS

INTRODUCTION………………………………………………………………01-02

BACKGROUND OF AUSTIN’S IMPERATIVE THEORY…………………..03-04

IMPLICATIONS OF IMPERATIVE THEORY……………………………….05

CRITICISM…………………………………………………………………………...06-07

CONCLUSION……………………………………………………………………….08

BIBLIOGRAPHY……………………………………………………………………...09

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 INTRODUCTION

John Austin is considered by many to be the creator of the school of analytical jurisprudence, as
well as, more specifically, the approach to law known as "legal positivism.“ Austin's particular
Imperative theory of law has been subject to criticism, but its simplicity gives it an evocative
power that continues to attract adherents.
John Austin's life (1790-1859) was filled with disappointment and unfulfilled expectations. His
influential friends (who included Jeremy Bentham, James Mill, John Stuart Mill and Thomas
Carlvle) were impressed by his intellect and his conversation, and predicted he would go long
way. However, in public dealings, Austin's nervous disposition, shaky health, tendency towards
melancholy, and perfectionism combined to end quickly career at the Bar, in academia, and in
government service (Hamburger 1985,1992). Austin was born to a Suffolk merchant family,
and served briefly in the military before beginning his legal training. He was called to the Bar in
1818, but he took on few cases, and quit the practice of law in 1825. Austin shortly thereafter
obtained a appointment to the chair of jurisprudence at the recently established University of
London.

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AIMS AND OBJECTIVES:
The focus of researcher will be on following issues:
 To know about the Austin’s imperative theory of law.
 To know about the criticism of different jurist about Austin’s theory of law.

HYPOTHESIS:
The researcher presumes that:
 Though Austin’s imperative theory of law has faced many criticism but it is also
important in understanding law of a society.

RESEARCH METHODOLOGY:
The study is doctrinal which is based on primary and secondary data gathered from different
sources such as books, statutes, journal, and online databases. It consist of descriptive method
research include overviews and actuality discovering request of diverse mixture.

RESEARCH QUESTIONS:
What are the basic problem of Austin’s theory of law in contemporary society?

LIMITATIONS:
Owing to the large number of topics that could be included in this project. The scope of this
research paper is exceedingly vast. So the researcher is tended towards the analysis of most
important aspects of fixation of minimum wage rate. So this research is confined only to a small
area of extent in its approach. Also, the researcher has place, time and money limitations while
making the project.

MODE OF CITATION:
The researcher will follow Bluebook Citation [19th Edition].

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 BACKGROUND OF AUSTIN’S IMPERATIVE THEORY OF LAW
The imperative theory of law as mentioned above is the view which holds that law is simply a
command of the sovereign backed by sanction. This view was held by Jeremy Bentham but
became more pronounced with his disciple Jean Austin. The imperative theory of law as
conceived by Jean Austin in his province of jurisprudence (1832).
He says, “in every state, there must be a sovereign and the power of sovereign is unlimited and
indivisible.
Secondly,the.sovereign.must be clearly located, and finally but most importantly, the command
of the sovereign are laws”. "if the commands of the sovereign are laws, what then is a law
according to the imperative theory?
A law in this sense is defined as “a command of the state (sovereign) obliging the subjects to
do, or refrain from doing, certain acts, failure to obey being visited by a penalty”.
For Jean Austin, the only obvious characteristic of law is that it is coercive. The idea of law
according to the imperative theory is both Hobbesian and Machiavellian, for both conceive the
end of law in terms of force or coercion. Appadorai confirms this view thus- “to Austin, law is
the general body of rules, commanding general obedience, addressed by the rulers of a political
society to its members”.
Having understood the meaning of law, what is sovereignty or who is a sovereign in line with
the imperative theory of law?
According to the imperative theory, “a sovereign is one who is obeyed by all while he owes
obedience to no one”. This sovereign, according to OMOREGBE is “himself above the law of
the land”. He is himself not bound by any law, since he is the ultimate source of all laws in the
land. The sovereign is more or less a “mortal god”. He is the source of all laws, and the written
and unwritten law made manifest. This concept of sovereignty is Hobbessian just as the concept
of law is also Hobbessian in nature.
Thus,based on the above analysis of the imperative theory of law,law
and, sovereignty whether good or bad necessarily involves a ‘mischief’ because,only “comman
d and prohibitions” is what matters to the law and the sovereign. Furthermore, what this theory
suggests is that where a legal system is in operation, there is an unconditional obligation to obey
it, however unjust or inquitous it may be. It is in this sense that Okoro stated that “Bentham,
Austin, Hart and their disciples makes much of the view that law exists, wherever a population
has developed a habit of obedience to the commands of a popular group or a person”.
Hence,emphasis,onthe“habit of obedience and not the motives that nurtured that obedience”ho
wever, to what extent and under what circumstance could the imperative theory of law conform
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to the modus operandi of a globalising world "it is to the extent that the imperative theory
becomes less value neutral. "it is also to the extent that it manages the (is, ought) controversy

and sees morality and law as both complementary to each other. This would enhance the quality

of law and make it more than a mere command whose aim is to attract sanction in case of any
violation. But the inability to make law less value neutral accounts for the weakness of the

imperative theory of law among other factors. This takes us to a critique of the imperative

theory of law.

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 IMPLICATION OF IMPERATIVE THEORY
It is the candid opinion of this paper that the imperative theory of law is an aberration in the
contemporary world. This view owes to the fact that the contemporary world thrives on the
principles of rule of law and social justice both of which have no part in the imperative theory
of law. The imperative theory of law derives from the ‘isness’ of law while the rule of law and
social justice derives from the ‘oughtness’ of law. That is to say, the former is an aspect of
positive law while the latter is an aspect of natural law. Positive law and natural law are two
different opinions about law with each discrediting the position of the other. But come to think
of it, most contemporary laws of nations find its basis from the natural law theories.
That is why the contemporary world laid emphasis on the rule of law and social justice. In the
other hand, the imperative theory of law is against the idea of the rule of law and social Justice.
The imperative theory claimst hat law is “the command of the sovereign backed by sanction”.
Now, if law is the command of the sovereign, it means that the sovereign must himself be above

the law and not equal before the law. Where a sovereign is above the law, there is the tendency

of the sovereign misusing or manipulating the law to his advantage.

This is against the idea of rule of law and social justice for which the globalising world with
emphasis on liberal democracy is known for. Under the rule of law and social Justice, there are
no ‘sacred cows’, nobody is above the law :not even the sovereign himself. Every citizen, no
matter how highly placed obeys the law and is prosecuted for violating the law, as the law is no
respecter of persons. There is the supremacy of the rule of law and complete independence is
granted to the judiciary. These features of the rule of law are characteristics of contemporary
democratic nation, states, and they are contrary to the tenets of the imperative theory of law
which sees law as “a command of the sovereign backed by sanction”.
The imperative theory of law on the contrary sees the sovereign as an“omnipotent goddess”,
who alone is a symbol of law as the law emanates from him and he is above the law. This
feature of the imperative theory of law is unacceptable in the contemporary world. This is
because it has been the source of tyranny, despotism and autocratic leadership which abound in
some parts of the world. This is why we are of the view that the imperative theory of law is an
aberration in the contemporary world.

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 CRITICISM
There is no doubt that the imperative theory of law maybe out to achieve stability, peace, unity
and security within a given polity however its basis for achieving these results seems to be
amorphous. This is partly because the imperative theory assumes that the ideal thing about law
is coercion and sanction. This further implies that might is right, and Justice is the will of the
strong.
Furthermore, Appadorai’s evaluation of the concept of the state recommends that, “The state is

a useful instrument for promoting social good. Consequently, he added that its laws must be

obeyed if it is designed to promote that end. Now the question arises, does the

imperative theory of law aim at initiating laws that are designed to promote social good? In
other words, can a legislation based on the command of the politically powerful,and also
accompanied by sanction in case of violation without any regard to morality and justice be able
to promote social good?
Nonetheless, it is obvious from its own definition of law that the imperative theory has no
regard for the power of public opinion and therefore readily condemns the freedom of speech,
since individuals or group have no contribution in the law making process. Also, it ignores the
strength and freedom of voluntary association while forgetting that the sovereign is not
everywhere a determinate person or body of persons.
Thus, the imperative theory presents an inadequate conception of law.
Furthermore, the full utilisation of the world’s resources demands cooperation among states.
however, the imperative theory of law according to OMOREGBE“so narrows the concept of
law that it excludes some categories of universally acceptable laws, such as international law,
constitutional law and customary law”. What gives law its obligatory force, according to this
theory is the threat of punishment for its violation, not moral consciousness or respect for
constituted authority. Now, if we accept that constitutional law, international law and
customary law are not laws as upheld by the imperative theory of law, how can maximum
cooperation exist between nation states?
Obviously, what this means is that cooperation among nation-states would cease to exist and the
cessation of cooperation among nation-states could easily spark off international conflict. We
are all aware of the dire consequences of the modern methods of warfare ,especially since the
discovery of the atomic and nitrogen bombs.
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Therefore, the globalizing world must rise up and reject the imperative theory of law which
abhors the recognition of international law as law.Austin’s command theory of law is seeking
to provide a means of identifying law for the purposes of the moment, but to link this with the
means of securing obedience is to confuse identification with functioning. obedience is
a relevant factor, however, fear of sanction is not the sole motive for obedience.
The function of law is to regulate future conduct indefinitely and to serve as a standard by
which to judge deviance. A command is more usually directed to a specified individual or
individuals with reference to a particular act or forbearance and does not serve as a general
standard of judgment. Apart from this, there are laws which are not commands, for example
laws defining a contract. For these and other reasons, we can now see why the imperative
theory of law is an aberration the globalizing world.

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 CONCLUSION
The imperative theorists regard law as a command of the sovereign backed by sanction”.
These theorists include Jeremy Bentham and JohnAustin.
However, this conception of law as a command of the sovereign seems to be an aberration in
the globalizing world. This is because, the whole world today abhor the totalitarian nature

of law as “a command” with its attendant consequences. More so, seeing law as a command

is the view of legal positivism which is contrary to the ideals of natural law which the
contemporary world seems to willingly accept. The principle of command theory deals with the
“isness” of law as against the “oughtness” of law.hence, this command theory has been severely
criticized for its inability to make or initiate laws that would be appealing to human beings. for
laws under this theory is likely to be without conscience and therefore difficult to accept in
human societies willingly unless it is accompanied by ‘force’
.Consequently, the command theory is seen as an aberration in the globalizing world. However,
there are recommendations for possible modification of this theory, one of which is to
complement it with the idea of the rule of law.

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 BIBLIOGRAPHY

SECONDARY SOURCES:
BOOKS:
 Austin, John, 1832, The Province of Jurisprudence Derermined, W.Rumble (ed.).
Cambridge: Cambridge University Press, 1995.
 1879, Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols.,
R.Campbell (ed.). 4th edition, rev. London: John Murray; reprint, Bristol: Thcemmes
Press, 2002.
 Bentham, Jeremy, 1789, An Introduction to the Principles of Morals and Legislation,
J.H. Burns & H.L.A. Hart (eds.). Oxford: Oxford University Press, 1996.

JOURNALS:
 Halpin, Andrew.”AUSTIN’S METHODOLOGY? HIS BEQUEST TO
JURISPRUDENCE.” The Cambridge Law Journal, vol.70, no. 1, 2011, pp. 175-202.
JSTOR, www.jstor.org/stable/41300948

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