Imperative theory of law
Imperative theory of law
Law consists of rules recognized and acted upon by the courts of justice. Some laws are not set up political superiors and covers laws of voluntary association and clubs. Other Definitions: Holland says that law in the proper sense of the term is a general rule of the action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among the human authorities, is that which is paramount in society. 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. 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, the globalizing world must rise up and reject the imperative theory of law which abhors the recognition of international law as law. 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. Email:chekwasokorie yahoo. It is also concluded that Law is obligatory Law is enforced through physical force or sanction. It is to the extent that the imperative theory becomes less value-neutral. Characteristics of Law w. It is quite unthinkable and absurd to believe that the action of a gun man could amount to law. Sanction is not an essential of law as in civil law, no such sanction is to be found. 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.
Now the question arises, does the imperative theory of law aim at initiating laws that are designed to promote social good? A state enforces it because it is already law. 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.
Without justice, there can hardly be a good law, that is, there can hardly be a law that does not enslave the human person. 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.
Having understood the meaning of law, what is sovereignty or who is a sovereign in line with the imperative theory of law?
Imperative theory of law propounded by austin
This law does not need the physical presence of the sovereign himself. State power is temporary, granted by and taken away by the people and periodically changes hands. Imperative theory says that law is whatever the political sovereign of a certain state says law is. According to Austin, positive law has three main features: i it is a type of command, ii It is laid down by a political sovereign, and iii It is enforceable to sanction. Nobody can be said to command himself. To substantiate this argument, this paper begins by locating the sources and evaluating the principles of the imperative theory of law. The existence of law is one thing, its merit or demerit is another. According to Austin , law is law only if it is effective and it must be generally obeyed. A state enforces it because it is already law. 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. Your negative answer to this question may be as good as mine. Also known as the imperative theory of law.
Obedience is a relevant factor, however, fear of sanction is not the sole motive for obedience. Critics point out that law is not an arbitrary command as conceived by Austin but growth of organic nature.
By separating law from morality, Austin tried to avoid a lot of confusion. The Constitutional law of the country defines the power of various organs of the state. According to Austin, positive law has three main features: i it is a type of command, ii It is laid down by a political sovereign, and iii It is enforceable to sanction.
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