SNDT WOMEN'S UNIVERSITY LAW SCHOOL.

Name : Varsharani. K . Surwade

Roll no: 54

Class: 1st year LL.M.

Subject: Jurisprudence and medical jurisprudence

Professor name: Rajesh Wankhede

Seminar topic: Analytical Positivism and imperative theory

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 INDEX

Sr.no Particular Page no

1. Schools of 3-10
Jurisprudence –
Analytical Positivism

2. IMPERATIVE
THEORY 11-20

3. Conclusion
21
4. Reference 22

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 Schools of Jurisprudence – Analytical Positivism
Legal positivism is the most powerful school of thought in jurisprudence.
The positivist movement began at the beginning of the 19th century. The
analytical school is positive in its approach. The jurists of the school
consider that the most important aspect of the law is its relation to the
state. Law is treated as command emanating from the state. Due to this
reason, this school is also known as the imperative school.
Learn Analytical positivism here.

Schools of Jurisprudence – Analytical Positivism

Meaning of Positivism
The term ‘positivism’ has 5 meanings:

1. Law commands.
2. The analysis of the legal concepts is distinct from the
sociological and historical inquiries and critical evaluation.
3. Pre-determined rules can deduce decisions.
4. Moral judgments cannot be accepted or defended by rational
arguments.
5. Law, as it is (actually), has to be kept separate from the law that
ought to be.
6. The fifth meaning is correctly associated with positivism.

Features of the Theory

 The purpose of the analytical school of jurisprudence is to

analyze the first principles of law.
 The main task of the analytical school is the articulate and
systematic exposition of the legal ideas.
 One motive of the analytical school is to gain an accurate and
intimate understanding of the fundamental working concepts of
all legal reasoning.
 The analytical school takes law as the command of the
sovereign.

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  It puts emphasis on legislation as the source of law. The whole
system is based on its concept of law.

Features

 The school considers law as a closed system of pure facts from

which all norms and values are excluded.
 The ideals do not bother the analytical lawyer. He/she takes
the law as a given matter created by the state.
 The significance of analytical jurisprudence lies in the fact that it
brought about precision in legal thinking.

Chief Exponents of the Theory

1. Bentham
2. Austin
3. Sir William Markby
4. Sheldon Amos
5. Holland
6. Salmond
7. Professor HLA Hart

Jeremy Bentham & Analytical Positivism

The founder of positivism is Jeremy Bentham. Austin owes much to

Bentham and on many points, his prepositions are merely the
‘paraphrasing of Bentham’s Theory’. According to Betham, there are
different aspects of the law.

1. Source
2. Subjects
3. Objects
4. Extent
5. Aspect
6. Force
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 7. Remedial appendages
8. Expression

Source: Jeremy Bentham and Analytical Positivism

Criticism of Bentham’s Theory

There are two shortcomings of Bentham’s theory.

1. Bentham’s abstract and doctrinaire rationalism

2. Bentham’s weakness to develop clearly his own conception of
the balance between individual and community interests.

John Austin and Analytical Positivism

John Austin is the originator of the analytical school. He is the father of

Engish Jurisprudence. The scientific treatment of Roman Law influenced
Austin. For that reason, he started the scientific arrangement of English
law. Like Bentham, Austin was of the opinion that ‘law’ is only an
aggregate of individual laws. In his lecture book titled ‘The Province of
Jurisprudence Determined’, Austin dealt with the nature of law, sources of
law and showcased an analysis of the English legal system. The major
thrust in Austinian positive law was on the separation of law from
morals. Salmond has criticized Austin’s theory of law which completely
deprives law from morality.

Difference between Philosophy of Austin and Bentham

Bentham is a conscious innovator of new forms of inquiry into the structure

of law.
He made explicit his method and the general logic of inquiry.
Bentham thinks that command is only 1 of 4 aspects which the will of the
legislator may bear to the act concerning which he is legislating

Austin’s Conception of law

Austin definition of law: law, in the common use, means and includes
things which cannot be properly called ‘law”. Austin defined law as law as a

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rule laid down for the guidance of an intelligent being by an intelligent being having
power over him
Law of 2 kinds: (1) Law of God, and (2) Human Laws This may be divided into two
parts: (1) Law of God-Laws set by God for men. (2) Human Laws-Laws set by men
for men.

Two kinds of Human Laws-Human Laws may be divided into two classes:

(1) Positive Law. These are the laws set by political superiors us such, or by men not
acting as political superiors but acting in pursuance of legal rights conferred by
political superiors. Only these laws are the proper subject-matter of jurisprudence.

(2) Other Laws.-Those laws which are not set by political superiors (set by persons
who are not acting in the capacity or character of political superiors) or by men in
pursuance of legal rights.

Analogous to the laws of the latter class are a number of rules to which the name of
law is improperly given. They are opinions or sentiments of an undeterminate body
of men, as laws of fashion or honour. Austin places International Law under this
class. In the same way, there are certain other rules which are called law
metaphorically. They too are laws improperly so called.' A chart presenting this
division clearly is given below:

Law
|
____________________________ |______________________________________
Law properly so called Law improperly so called
| |
_____________________ _______________________
Law of God Human Laws law by analogy Law by
| as law of fashion metaphor
_________________________

Positive laws (or laws strictly Laws not set by men

So called) set by political as political superior, or
Superior to political inferior in pursuance of a legal right.
Or by private person in |
Pursuance of a legal right. Positive morality

"Laws proper, or properly so called, are commands; laws which are

commands, are laws improper or improperly so called. Laws p called,
with laws improperly so called, may be aptly divided into t properly
following four kinds :
(1) The divine laws, or the laws of God; that is to say, the laws which the
are set by God to his human creatures.
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 (2) Positive laws, that is to say, laws which are simply and strictly called,
and which form the appropriate matter of general and particular
jurisprudence.
(3) Positive morality, rules of positive morality or positive moral rules.
(4) Laws metaphorical or figurative, or merely metaphorical figurative.

The divine laws and positive laws are laws properly so called. Of
positive moral rules, some are laws properly so called, but others are
laws improper. The positive moral rules which are laws improperly so
called, may be styled laws or rules set or imposed by opinion; for they
are merely opinions or sentiments held or felt by men in regard to human
conduct. A law set by opinion and a law imperative and proper are allied
by human conduct. A law set by opinion and a law imperative and proper
are allied by analogy merely; although the analogy by which they are
allied is strong or close.-Laws metaphorical or figurative, or merely
metaphorical or figurative, are laws improperly so called. A law
metaphorical or figurative and a law imperative and proper are allied by
analogy merely; and the analogy by which they are allied is slender or
remote.

Consequently, positive laws (the appropriate subject-matter of

jurisprudence) are related in the way of resemblance, or by close or
remote analogies, to the following object: 1. In the way of resemblance,
they are related to the laws of God. 2. In the way of resemblance, they
are related to those rules of positive morality which are laws properly so
called: And by a close or strong analogy, they are related to those rules
of positive morality which are laws set by opinion. 3. By a remote or
slender, analogy, they are related to laws metaphorical, or laws merely
metaphorical."

Law is Command

Positive Law is the subject-matter of jurisprudence.-Austin says that

only the positive law is the proper subject-matter of study of
jurisprudence. The matter of jurisprudence is positive law: law simply
and strictly so called or law set by political superiors to political inferiors."
Jurisprudence is the general science of positive law. The characteristics
of law properly so called are given by Austin as :

Law is command of the Sovereign'; Command implies duty and

sanction. 'Laws properly so called are species of commands. But being
a command, every law properly so called flows from a determinate
source, of emanates from a determinate author. In other words, the
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author from whom it proceeds is a determinate rational being, or a
determinate body, or aggregate of rational beings. For whenever a
command is expressed or intimated, one party signifies a wish that
another shall do or forbear, and the latter is obnoxious to an evil which
the former intends to inflict in case the wish be disregarded." But every
signification of a wish made by a single individual, or made by a body of
individuals as a body or e supposes that the individual or body is certain
or determinate, and every intention or purpose held by a single
individual, or held by a body of collective whole, individual as a body or
collective whole, involves the same supposition."
The power and purpose to inflict penalty for disobedience are the very
essence of a command. The person liable to the evil or penalty is under
a duty to obey it. The evil or penalty for disobedience is called sanction.
Command, duty and sanction are, therefore, inseparably connected
terms; that each embraces the same ideas as the others, though each
denotes those ideas in a peculiar order or series.
"A wish conceived by one and expressed or intimated to another, with a
evil to be inflicted and incurred in case the wish be disregarded" are
signified directly and indirectly by each of the three expressions. Each is
the name of the same complex notion." So every law is a command,
imposing a duty, enforced by a sanction.
Only General commands are law: However, all the commands are not
law, it is only the general command, which obliges to a course of
conduct, is law.

Exceptions to the above definitions.-These general commands, as

defined above, are the proper subject of study of jurisprudence. But
according to Austin, there are three kinds of laws which, though not
commands, are still within the province of jurisprudence. They are:

(1) Declaratory or Explanatory Laws.-Austin does not regard them as

commands, because they are passed only to explain laws already in
force.

(ii) Laws to repeal laws.-These too are not commands but are rather the
revocation of a command.

(iii) Laws of imperfect obligations.-These laws have no sanction attached

to them.

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Now it is clear that in Austin's conception of law such notions as justice
or morality have no place. The basis of laws is the power of superior and
not the ethics or the principles of 'natural justice'. Austin stands with
absolutists like Hobbes, etc., in regarding laws as the command of the
sovereign.

2 . Austin’s Method of Jurisprudence

Austin Method: Analysis; This method can be applied only in civilized

societies.-The name of this school-'analytical' itself indicates the method.
Austin considered analysis as the chief instrument of jurisprudence.
Austin's definition of law as the "command of the sovereign" suggests
that only the legal system of the civilized societies can become the
proper subject-matter of jurisprudence because it is possible only in such
societies that the sovereign can enforce his commands with an effective
machinery of administration. Law should be carefully studied and
analyse and the principle underlying therein should be found out. This
method proving inadequate in modern times because jurisprudence in to
solve many problems which have arisen under changed conditions and it
has to make constructive suggestions also, but, at the time, when Austin
gave his theory, it helped in removing the confusion created by the
abstract theories about the scope and method of jurisprudence.
Criticism against Austin's theory

Austin's theory has been criticised by a number of jurists and by some of

them very bitterly. Bryce went to the extent of saying that his
contributions to juristic science are so scanty and so much entangled in
e that his book ought no longer to find a place among those prescribed
for student. However, this is an extreme view. The main points of
criticism against Austin's theory are as follows:

(1) Customs ignored.-Law is the command of sovereign', as A says, is

not warranted by historical facts. In the early times, not the command of
any superior, but customs regulated the conduct of the people Even
after the coming of state into existence, customs continue to regulate the
conduct. Therefore, customs, should also be included in the study of
jurisprudence, but Austin ignored them.

The supporters of Austin's theory say that his theory takes into
consideration law as it exists in a developed society, the rules which

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existed prior to the existence of state might be the historical sources
from which law was derived, but when state comes into existence they
continue only by the sanction of the sovereign and are given imperative
force by him and in this way they are also commands.

(2) Law conferring privileges. The law which is purely of a permissive

character and confers only privileges, as the Wills Act, which lays down
the method of drawing a testamentry document so that it may have legal
effect is not covered by Austin's definition of law.

A modern advocate of Austin, Buckland has tried to defend Austin's

theory by arguing that the statute as such and not a particular provision
is a command. But, really Procedural law, in the same way, is not
covered by Austin's definition.

(3) Judge-made Law -In Austin's theory there is no place for judge-
made law. In the course of their duty judges (in applying precedents and
in interpreting the law) make law. Though an Austinian would say that
judges act under the powers delegated to them by the sovereign,
therefore, their acts are the commands of the sovereign, nobody, in
modern times, will deny that judges perform a creative function and
Austin's definition of law does not include it.

(4) Conventions- Conventions of the constitution, which operate

imperatively, though not enforceable by Court, shall not be called law,
according to Austin's definition, although they are law and are a subject-
matter of a study in jurisprudence.

(5) Rules set by private persons- Austin’s view that ‘positive law’
includes within itself rules set by private person in pursuance of legal
rights is an undue extension because their nature is very vague and
indefinite.

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 IMPERATIVE THEORY

Introduction
The Imperative Theory of Law was given by John Austin, an American
legal philosopher who has been a huge influence on modern-day
understanding of Law. His ideas about Law form the basis of defining
and understanding law. Sure, his ideas have been refuted and
challenged by a lot of contemporary philosophers, but they still remain
relevant and remain a focal point for the understanding of Law.

Imperative Theory of Law in its simplest terms can be defined as

“command of the sovereign backed by sanction”. Imperative theory says
that law is whatever the political sovereign of a certain state says law is.
This law needs to be backed by legitimate sanction, that is punishment
or penalty for violation.

Let us explore in depth what this theory entails.

Definition of Law
“If a determinate human superior, not in the habit of obedience to a like
superior, receive habitual obedience from the bulk of a given society,
that determinate superior is sovereign in that society, and that society
(including the superior) is a society political and independent.
Furthermore, every positive law simply sand strictly: so-called, is set,
directly or circuitously, by a sovereign person or body to a member or
members of the independent political society wherein that person or
body is sovereign or supreme.”

Simply put, Austin describes Law as flowing from a political superior to

its subjects, backed with a system of sanction.

Legal Positivism
The term Legal Positivism means the attempt to establish Law as a true
science. The Imperative theory of law is based on an understanding of

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Law which is free of moralistic notions and merely a collection of
empirical rules.

Austin makes a distinction between “What Law is” and “What law should
be”. For Austin, the second question is not the concern of law. Law
consists of the body of rules or “commands” which are definite and
objective.

This was characteristic of philosophers at the time, the academic world

had been so singularly inclined towards the natural and true sciences,
that everyone wanted to establish their respective fields and areas of
study as a natural science. This thread of Positivism can be found in the
initial stages of a lot of subjects and areas of study, like the Positivism of
August Comte when he started the study of Sociology.

Legal Positivism also says that all Positive laws can be traced back to
Human Lawmakers and have no divine sanction, but are rules made by
humans for humans.

Idea of the Sovereign

According to Imperative theory of law, there are three conditions a
person needs to meet to be considered as Sovereign in a state:

1. The Sovereign’s power must be unlimited and indivisible.

2. The Sovereign must be clearly located and easily identifiable.
3. The commands of the Sovereign must be considered Law.
The Sovereign must make it his duty to consciously formulate laws,
which must be backed by sanction, to serve as “motives for compliance”.
These sanctions must be coercive or alluring so as to make people obey
them.

The Sovereign therefore, is a dynamic entity consisting of a legislative

part as well as a judicial one. Physical presence of the Sovereign is not
necessary, laws can be implemented and acted upon by the Sovereign’s
agents, which may be the Police, the Judiciary or the Bureaucracy.
Therefore, while the Sovereign may physically reside in an individual, its
functions may be carried out by proper machinery with a definite
hierarchy.

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Therefore, the Sovereign is more an idea, an idea which is used as a
source of legitimacy for the entire legal system in a state.

The Nature of Imperative Law

Austin divides law into two main categories :- Divine Law and Human
Law.

Divine Law is law which has a transcendent source. They are inflexible,
absolute and superior to man-made laws.

Human law is of two kinds: the first one is as a “Command of the

Sovereign”, and the second type is formed through voluntary
associations or clubs.

Law, according to Austin, follows the Hobbesian idea of being inherently

coercive. He describes law as a combination of “commands and
prohibitions”, which dictates what to do as well as what not to do.

Since there is no moral lens through which Austin views law, law is only
meant to be obeyed. While on the surface this may seem as arbitrary
and restrictive(which are valid criticisms), the issue is deeper. First of all,
a value-neutral understanding of Law can ensure stability, peace and
security in a nation.

Austin’s opposition to morality being a factor in law arises out of his fear
that contravention and disagreement on what law is, will lead to chaos
and anarchy.

Austin recognizes that for an effective legal system, you need a

legitimate authority which is supreme in a nation and is accepted by
people as an upright and just authority over them. When Law emanates
from such an authority, people accept it and obey it, not just because
there is coercive measures against that obedience, but also because
there is a mutual recognition of the importance of laws, and acceptance
of just authority over them.

But it is impossible to completely divorce Law from Morality. After all, the
driving force of Law was to not just end anarchy and violence, but to also

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ensure justice, fairness and liberty. The moral convictions of law are
central to its nature.

Blind obedience to law can make law oppressive and clamp down on the
liberty of people. And when Austin does not allow room to criticize,
deliberate or challenge the laws that are imposed on people, the
Sovereign authority has no real opposition and can easily devolve into
tyranny.

Therefore, the imperative theory of Law is incomplete in the sense that it

does not account for a system to check the excesses of a law making
entity.

Merits of the Theory

Austin was one of the first philosophers to define law in a concrete,
objective way. He established a clear flow of law between the Sovereign
and the people. His theory contained a simple and universal truth, that
law is created and enforced by the state, an idea which still remains
relevant. His objective and clear understanding of Law ensures security,
stability and peace.

Austin’s ideas are often dismissed for being too simplistic, ignorant and
inadequate. But to his credit, his theories are widely cited, researched,
supported and criticized till date. This is because Austin laid the basic
framework for the understanding of Law. Even those who are vocal
critics of Austin, admit that without his definitions and perspective of law,
the modern conception of law would not have been possible. Knowingly
or not, every researcher, philosopher and author theorizing about Law is
in some way deriving off of Austin.

What also needs to be realized is that like every theory, the Imperative
theory is also a product of its time and place. Austin lived at a time when
monarchies and dictatorships were prevalent, and those who held state
power, held it for life and had unquestionable authority. Modern ideas
like Fundamental rights, Constitutionalism etc. had not yet been
conceived. In this scenario, his clear, concise and definite explanation of
Law held much more merit than it does now. Just because the relevance
of his ideas has declined due to the rise of democracy, it does not mean
that we need to discredit him for being a hugely influential legal
philosopher and thinker.

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Criticism

Ignores Customary Law

Law does not always arise from a political superior. It has existed in
society without the modern conception of the state and even when
people have no sovereign over them. Customs and traditions were the
tools people used for social control and cooperative, civilized living.

According to the theory of Imperative Law, customs were primitive law

which are not law in the real sense, and only resembled law. But the fact
is, that a major source of Law is Customary law, which is rules and
regulations evolved by people over time for self-governance. Without the
existence of customs in society, English common law would never have
come into existence, which uses customary law as its basis.

When the only source of law becomes a Political superior, it undermines

the validity and importance of the rituals, customs and traditions people
have evolved for themselves which form the basis for their way of living
in society.

Law as Command

The first problem with law being a “command by the sovereign”, is that
there is no identifiable commander in the modern state. Modern
democracies are based on the idea of Separation of Powers, and
authority is spread over a large number of people. Therefore, this idea
becomes irrelevant in a time where monarchies and dictatorships are
rare and fast disappearing.

The second problem is that most of the Law that we have at our
disposal, is born out of decisions made by courts as and when questions
of legal character have come up. A very small part of Law is actually
15
made from primary or delegated legislation. Therefore, law seems to
evolve out of the solution of a problem and not a “command”.

Idea of Sanction

According to Austin, the primary function of state is to use force to

impose sanctions. But modern democracies have governments that
serve the people and are elected by them to ensure their safety and
prosperity, not use force on them. The force used by the state is not the
power of the state but the willingness of the people to obey the same.

Therefore, Austin has an outdated idea of State.

The idea that sanctions can only be imposed through force is false. In
International law, sanctions take up the form of Economic and Political
sanctions and are achieved through international cooperation, not the
use of force.

In fact, some International laws do not have sanctions at all, and yet
many states abide by them because of a mutual understanding and
recognition of Opinio Juris, i.e. legal obligation. This refutes Austin’s idea
that sanction is an essential of Law.

Not Applicable to International or Constitutional law

International Law

Austin’s ideas are not applicable to International law because it has no

Sovereign. International law is based on the principles of International
recognition, cooperation, and diplomacy. There is no authority above the
state. No international organization can act as a world government and
assume Sovereignty over all states. Therefore, Austin’s Imperative
theory does not square up with the existence of International Law.

Constitutional Law

Modern democracies are found on a constitution, in which rests the

source of all the political powers of the state. Therefore, the true
Sovereign in a democracy are the people, whose rights the constitution
upholds. State power is temporary, granted by and taken away by the
16
people and periodically changes hands. Therefore, the Sovereign is not
the ruler, as Austin would concur, but actually the subjects of that ruler in
a democracy.

Also, the constitution is the source of the legal basis of a country, and all
laws that are formulated or put out in a state, are struck down if seen in
contravention with the constitution.

Therefore, Austin’s ideas are not applicable in Constitutional

democracies.

Disregard of Ethical elements

Justice is often described as the end of the law. Law always seeks to
preserve, ensure and propogate justice, but Austin completely divorces
law from any ethical concerns. This is problematic because without any
ethical objectives, law can devolve into tyranny and oppression of the
people, and lead to totalitarian governments controlling law according to
their whims and fancies.

Salmond, a contemporary of Austin, says that a definition of Law must

include both the concrete and substantive part of law along with the
abstract, ethical concerns it deals with, and without any of the two
components, the definition is incomplete.

Flawed Reasoning

Austin fails to explain the validity of the Sovereign. He uses flawed

circular reasoning to explain sovereignty and law. He says that
Sovereign is so because he commands law, and law is so because it is
commanded by the Sovereign. This does not explain the legitimacy of a
Sovereign.

The Imperative Theory of Law was proposed by John Austin who was an
American philosopher. Imperative Theory of Law can be defined as “a
command of the sovereign backed by sanction.” Thomas Hobbs was
one of the important people for the creation of such a theory. In the
17th century, he was the first person to introduce such a theory and
Austin was the one who bought recognition for the theory. Then Austin
propagated this theory in the book of Jurisprudence.

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The other names for the theory are:

1. Theory of Positive Law

2. The Legal theory
3. Austanian theory

Legal Positivism

It is the thesis which states that the existence of a law, depends on the
social factor and not on the merits of the law. The Imperative Theory of
Law is based on such definitions. Austin clearly distinguishes “What Law
is” and “What Law should be”. Austin’s major focus was on the first
question for which he felt that Law is something that comprises rules or
commands which are specific and objective. Legal positivism preaches
that all positive laws can be brought back to Human Lawmakers as they
are rules made by Humans. Positive Laws consist of three major
features which are:

 It is a type of command
 It is laid down by the sovereign
 It is imposed by sanction

Idea of Sovereign

According to Black Law Dictionary, a Sovereign can be any person,

body, or state vested with independence and supreme authority. A
Sovereign can be any person who becomes the body and make rules
which others have to obey. The sovereign may be a King, queen, or a
dictator or group of people like Legislature.

According to Imperative Theory of Law, there are three major conditions

to be considered as Sovereign. :

1. The power which the Sovereign holds must be unlimited and

should be undividable.
2. The sovereign must be located and should be identifiable.
3. The Sovereign must provide for commands which be considered
as Law.

The Sovereign must be cautious in making their laws as they must do so

and these laws should be made in such a way that the people obey
them and follow them. Sovereign as an entity or body carries both
judicial and legislature. Sovereign does not have any physical
appearance. It cannot be touched but can be felt when people obey the

18
rules and follow them. Thus, the Sovereign is one of the required
concepts for the performance of the legal system in every state and
country.

Nature of Imperative Theory of Law

John Austin divided law into two major parts which are:

 Divine Law
 Human Law

He explains that divine laws are laws given by gods to human and
human laws are laws made by humans for humans.

Devine Laws do not have any source about their inheritance and are
stated to be beyond the range for a human to reach which makes them
above man-made laws. Human law is of two types:

 Command of the Sovereign

 Formations through voluntary cooperation or society.

According to Austin law should be a combination of what to do as well as

what not to do. His idea of law should be specific such that people who
obey it will have clarity in the commands. Austin follows the Hobbesian
idea of law which is straight forward that acknowledges when you are
good and kills when you are bad. According to Austin law gives no
option and everyone is obliged to follow it. This statement may be harsh
and arbitrary but the meaning is true. Austin prefers to be strict in law
because he feels when people are given options to discuss what law is it
leads to chaos and loss of inner peace. This is one of the reasons which
makes Austin oppose morality.

Austin feels that for the formation of a successful legal system there
should be an authority that would act as the supreme force of the nation
and are accepted to be supreme by the people. When the law comes
from such a supreme force people feel connected and will come forward
to obey the law. They feel the person who acts as the supreme as their
representatives and a linking pin. Though Austin opposes morality we
cannot completely avoid it. Both society and law are not only towards
removing the bad but also to bring in good. Therefore many feel that
Imperative Theory of Law is incomplete due to its rigidity.

Merits of Imperative Theory of Law

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Austin’s idea of law is always specific and objective in manner. He
distinguishes the law clearly between Sovereign and the people. Some
of the merits are:

 Accepted in all systems: this type of theory suits in all types of

Government in making laws. It is now evident that laws with
stipulated punishments or sanctions are accepted by the people
and are also accepted in democracy and even in the communist
form of government.
 Fits in the Modern Society: This Theory works well in the modern
Society as the Modern Society going towards development also
brings some bad into society. Making laws with some punishment
removes this violative behaviour and brings peace.
 Definition of law: As this theory clearly defines what law is and
states that everybody should follow what is recommended, it does
not bring any confusion or arguments regarding what to do and
what not to.

Criticism of the theory

1. Ignores customs: Law does not always arise from modern

concepts. The society has survived without these modern thoughts
for some time. In those days customs and traditions were the ones
which used to tell which is good and which is bad. These customs
brought control and discipline within the individual. Austin’s
Imperative Theory of Law states that customs are not laws in real
sense. But it is to be accepted that many laws, rules, and
regulations have come from customs which were prevailing in the
society. Without customs there can be no evolution of law and no
rules can be put forward.

 Law as Command: When the law is stated as the ‘Command of the

sovereign’ then there should be someone who is commendable.
The Modern world is going towards the division of work, separation
of power such that a large number of people can work towards the
goal. Thus, in the current world giving commands and making the
activities rigid will not suit for society. We also have that in many
countries judgments have become law. Thus, we will have a
problem, we will find a solution and that will become a law for the
whole nation. In this period imposing commands will not make the
society go towards development.

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  Laws with Sanction: The idea of Sanction according to Austin is to
use force to impose punishments. But the Modern Democratic
Government is the ones who were elected by the people such that
they could be protected. Using force on them would only bring in
fear and no peace for society. Many international laws and
countries have reduced forced sanctions and some countries have
dropped the idea of sanction as they believe that the Government
and people should be in mutual understanding in the society.
 Purpose of Law: Austin in his theory has ignored the basic purpose
for which laws, rules, and regulations are laid. The main purpose
of the law is to render justice than giving a decision. As this theory
does not represent any purpose of the law, it cannot be adequate
for the society

Conclusion

The different schools of thought in jurisprudence indicate distinct

approaches in handling the subject. The Analytical school of
jurisprudence highlighted the positive approach that needs to be
adopted to address legal challenges. The school came with its own sets
of pros and cons that the article highlighted, nevertheless one cannot
ignore that the school had a lot to offer to society in general.

Summing up, it is clear that the Imperative theory of law lays out a
useful, valuable and valid interpretation of Law which sees law as
positive, objective and devoid of any ethical concerns.

We established that while the theory may be widely criticized, the theory
still holds immense legal and academic value.

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Reference
1. https://lawtimesjournal.in/analytical-school-of-
jurisprudence/
2. Jurisprudence author Book.

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