Tiêu đề Introduction to philosophy of law Question No 05 Imperative theory of Law..pdf ✅

ALVI LAW ASSOCIATES 0313-4384159 Regards: Wajeeh Ahsan Alvi (M.A, LLB, DTL) Contact No: 0313-4384159 NOTE: These notes are the intellectual property of ALVI LAW ASSOCIATES by WAJEEH AHSAN ALVI not for sale not for Re-forward if anyone found in any of above activity will responsible for the consequences. If you are going to study these Notes, I’ll recommend you to take lecture of these questions for better understanding and concept building then you will be better able to understand the question and answer accordingly. All lectures and important stuff is available on my YouTube channel. Channel name Alvi Law Associates. For free notes and lectures series WhatsApp only. Here is the playlist of all lectures of PHILOSOPHY OF LAW for LLB part 01 you can watch lecture of this question from here. https://www.youtube.com/watch?v=OVMUpITpjXA&list=PLXT PClsX2hdDA6iWHDXbSEybNh7rpPOyY&pp=iAQB Question # 05: Write a detailed note on the Imperative theory of law? 1. INTRODUCTION: John Austin, a key legal thinker, shaped British and American law with his idea that rules come from rulers and are enforced by punishments. He's seen as the founder of the analytical school. In simple terms, laws are orders from the leader, obeyed due to penalties. 2. MEANING OF LAW:
“The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.” 3. DEFINITION OF LAW: According to Austin: “Law is a command of sovereign”. 4. IMPERATIVE OR AUSTIN'S THEORY OF LAW: Austin says that, "Law is a command laid down by political sovereign and enforceable by sanction or sanctions". 5. FEATURES OF IMPERATIVE THEORY: According to Austin, positive law has three main features: • Command. • Sovereign. • Sanction. ❖ COMMAND: According to Austin, "Commands are the expressions of desires given by superior to inferior". Command is further divide into two types. • Commands which are Law: When bosses or leaders give orders that come with the power to use physical force if needed, these orders turn into laws. • Commands which are not Law: Commands from higher-ups don't automatically become laws if they lack consequences. Rules that people choose not to obey won't turn into laws. ❖ SOVEREIGN: A sovereign is someone or a group that most people in a society usually follow, and they don't regularly follow others. In simpler words,
a sovereign is like a leader that people listen to, and they don't listen to someone else in the same way. • Conditions for Sovereign: For someone to be a sovereign in a country, they need to meet three conditions. Authority: They have the power to make important decisions. Command: They can give orders that people need to follow. No Higher Authority: Nobody else in that country has the same kind of power over them. ❖ SANCTION: Sanction in law is like a penalty when rules are broken, learned from Roman Law. It's a way to make people follow rules, like a teacher's time-out for misbehavior. Leaders' orders become strong rules with sanctions. Sometimes, physical force is used to ensure fairness and justice. 6. CRITICISM: Austin's theory of law has been criticized on many grounds. • Laws before State: According to Historical school law is prior to and independent of political authority. A state enforces it because it is already law. It is not correct that it becomes law because the state enforces it. • Generality of Law: According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. • Law as Command: According to Austin, law is a command of the sovereign but the greater part of a legal system consists of laws which neither command nor forbid things to be done e.g., right to vote. • Sanction:
Austin said governments use force to make rules stick. But in modern democracies, people obey laws because they agree, not just because of force. Force isn't always needed for laws to work, especially in civil laws. • Promulgation: According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law. • Not applicable to International Law: Austin's ideas don't apply to international law because there's no one ruler for all countries. International law is about countries working together, not one authority in charge. • Not Applicable to constitutional law: Austin's law idea doesn't fit constitutional law. In constitutional democracies, laws are about how the government's parts work together, not just commands. So, Austin's theory doesn't apply there. • Refusal of Precedents as Laws: The bulk of the English law has been created by the decisions of the Court. To describe the judges as delegates by the positivists is misleading. • Purpose of law is ignored: Austin theory of law ignored the basic purpose of law. Law is the declaration of a principle of justice. As Austin’s theory of law does not take into consideration the purpose of law. 7. CONCLUSION: The Imperative theory of law, advocated by John Austin, asserts that laws are commands backed by coercion from a sovereign authority. This theory simplifies law to commands and sanctions, but critics argue it overlooks the nuanced nature of legal systems. In sum, while emphasizing command-based legal systems, the theory neglects the full complexity of laws. Regards: Wajeeh Ahsan Alvi (M.A, LLB, DTL) Contact No: 0313-4384159