Imperative Theory of Law And What Are The Strengths

Introduction

The genesis of Jurisprudence and legal theory traces the contributions made by John Austin through the historical “province of jurisprudence”. The scope still appears in the modern law schools while developing the insights of the command theory of law. The contributions made by Austin concerns include theorization of the law in different levels with the key concepts of legal formalism, legal validity and the legal duty. The integration of these concepts and the views of the legal theory led to the construction of the imperative theory of law. The definition of the imperative theory of law asserts that the law is comprised of the general commands which are issued by either a political community or the country to the subjects. The general commands include the ones that are commonly enforced by the courts accompanied by sanctions behind physical forces. It is of note that subjects of the imperative theory essentially believe in riles that predate the autonomy of the country. The rules are likely to resemble laws in some cases. Based on the preamble, the discussion will explore details behind the theory of law, criticism of the theory as well as strengths and weaknesses of the theory.

Imperative Theory of Law

The theory is largely described as the “command of the sovereign supported by sanctions”, which is the same view that was adopted by Jeremy Bentham. This conforms to the approvals from Hobbes and Austin who alluded to the fact that law was the creation of government and formed a significant element of the government in achieving the rule. The efforts of John Austin attributed the methodology as well as objectives that drew discourses on commands and the purview of rules in the society.

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Based on the Austin’s analysis, commands can only exist in relation to both political inferiority and superiority. The use of positive law expressed substantial differences between commands and rules. While commands involve expressed wishes that things be done, and if the wish is complied with, an evil ought to be imposed. The constituencies of positive laws included the commands relied upon by the sovereign, which were to be contrasted to other sources of law such as employer’s general law. The development of the imperial law and its meaningful application depends on the notion of political societies as being sovereign. The integration of the province of jurisprudence, however, aimed at filtering some of the laws while focusing on the meaning of sanctions. Some of the laws included the imperfect laws, declarative laws and repealing laws.

The constitution of the imperative theory resembles the principles that define the rule of law and legal actions witnessed in the contemporary society. Perhaps, Austin foresaw the interaction between the government and its people through a political system. The demands of the theory cite the necessity of adhering to the demands of the rule of law as a potential guide to legal and social interaction, thereby breathing order in the society. However, the postulated origin of the imperial laws attracts the Europe and American hegemony believed to define the dynamic as well as universal understanding. The tenets of the imperial theory also points at the fact that people under the law are supposed to respect it, and therefore face disciplinary actions in case of any violation. This is captured in different court cases including the one of Lindsay v. Lindsay which captured actions of the trial court perceived to have no authority in modifying the property, as well as support settlement agreement argued upon by couples. While marriage is a social constitution, the law still applies, as seen in the case of Lindsay v. Lindsay, in determining the possible side that is supposed to face disciplinary actions as stipulated in the law. It is of note that the imperial ideal developed by the society will

never be challenge by any of the historical accounts associated with political failures of any from. The same reason can be argued from the structure and operation of the United States legal system, which has made endless attempts of relying on the democratic system but still apply the rule of law in most instances. The interplay between the hegemony and counter-hegemony has raised the question of “The Society of the Spectacle” where the western and the non-western societies remain glued to the imperial law with trivial amendments done to crude laws while others are lauded for sovereignty reasons. The imperial law, as later captured by Karl Marx, has even introduced a mode of governance and legitimacy in the global market. The adoption of the apolitical approach in the scope of market performance has raised questions as whether the theory is inclined towards the legal system or not. This implies that imperialism has a wide coverage than what was intended by Austin and Thomas Hobbes.

Criticism

The imperial theory is thought to have targeted various social and political aspects such as security, peace, unity and stability. However, the enthuses theory has been castigated by Hart who claimed that Austin’s theory failed to account for ley functions constituted around the law said to be beyond the dominion of criminality. Hart still appreciates that the imperial law drew analogy between the general orders and criminal that survived on threats, as well as extension of the law of torts. Hart believed that imperialism was a platform of consequences of fear and never stands out as a strong motivator of conformity or compliance to the social norms and values. He seemingly applied the laws that revolved around marriages and wills as witnessed in the case of Lindsay v. Lindsay and Durett v. Durett, 204 VA 59, 63 and 129.

In other scenarios, Hart alluded to the fact that most criminal and administrative laws never imposed obligations as witnessed in the gunman case of Order v. generality of law. Instead, laws are perceived as tools used by few people in the society to control others within the same

Strengths and weaknesses

As much as the imperial theory came in existence during the times of John Austin, it is said to have survived for over 2000 years. One of the advantageous areas of the imperial theory of law is that it holds the truth of the historical order and justice. It bears evidence of imperialism and has been the constant definition of the rule of law as well as the constitution of social justice. Secondly, the imperial law showcases the distinction between morals and laws as noted in the science of jurisprudence. Austin supported this through analysis of positive morality and positive law as the convenient jurisprudence. In addition, the imperial theory of law showcases the genesis of the European and American hegemonies. This understanding can also be extended to the economic and social frameworks witnessed in the world. While the hegemonies seem to rely on the democratic forces, the sense of imperialism still stands as the definition of their powerful systems. Lastly, the development of imperial theory of law led to understanding of the systems on the basis of rule of law. It reaffirmed the idea that laws should be accompanied by sanction and the sense of duty. Apart

from the strengths, the imperial still has its own weaknesses. First, many societies cannot identify the meaningful idea of the use of the word “sovereign” in the Austin’s context. The worst part when Austin failed to describe or expound on the meaning of British Sovereign. This means that a focus on “sovereign”, as noted by Austin, makes it hard to explore or describe the continuity of the prevailing legal systems. In most circumstances, an incoming ruler may not be described as a “habit of obedience”. Secondly, the command model adopted by Austin rarely suits significant aspects of law. This includes the powers that grant powers to private citizens as well as officials. Besides, Hart emphasized on the idea that Austin never made significant efforts in synchronizing the legal rules and make them lesser. Instead, the imperial theory seemingly supported different functions and types of the legal rules noted in the society. Seemingly, the theory targets at setting more restrictions than extending freedom to all people in a sovereign state. The case of Lindsay v. Lindsay is one of the examples that indicate the contradictions of the imperial theory, which tries to separate rules and commands from morals. Take a deeper dive into Civil Law with our additional resources.

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Conclusion

The study of imperial theory of law attracts the genesis of legal theory, which integrates ideas and opinions from such theorists like Hobbes and Austin. The origin of the imperial theory attracts the contribution made by John Austin through the Province of Jurisprudence towards the legal theory and the structure of the legal systems. The discussion has noted the purview of the theory and its growth while observing the way it entered the contemporary society. The rule of law as applied in the modern systems still adopts the meaning of imperial theory. However, the theory has been faced with criticism from Hart who noted the impracticality of the assertions made by John Austin. The discussion further pointed at the areas of strength including the strong historical basis, as well as weaknesses of the theory including the contradiction of social justice and the rule of law.

References:

  • Lindsay v. Lindsay [1977] 238 SE2d 817 Harris v. Harris [1977] 217 Va. SE2d 680, 232 739
  • Durrett v. Durrett [1963] 204 VA 59, 63, 129 Thomas v. Thomas [1976] 216 Va. SE2d 741, 222 557 Wickham v. Wickham [1975] 215 Va. SE2d 694, 212 750 McLoughlin v. McLoughlin [1970] 211 Va. SE2d 365, 177, 781
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