The imperative theory: law as the command of the sovereign

Jurisprudence · Unit I · Topic 3 of 24 · 5 min read

Austin's analytical positivism: command, sanction, duty and sovereign, what he excluded from law properly so called, the criticisms of Maine, Hart and others, and whether the theory fits India.

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On this page

1. Background
2. The definition
3. The elements
4. Austin s classification
5. Criticisms
6. Merits
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Austin defined law as a command of the sovereign, backed by a sanction. The answer explains the four elements (command, duty, sanction, sovereign), lists what Austin excluded, and then sets out the criticisms. “Law as command” is a regular short note (January 2026, June 2025), and in a short note the criticisms carry half the marks.

1. Background

John Austin (1790–1859) was a pupil of Bentham and the first professor of jurisprudence at University College, London. His lectures were published as The Province of Jurisprudence Determined (1832). With Bentham he founded the analytical or positivist school. His purpose was to separate the study of law as it is from the study of law as it ought to be, which he left to the science of legislation and to ethics.

2. The definition

Austin: “A law is a command which obliges a person or persons to a course of conduct.” Laws properly so called are general commands set by a political superior to political inferiors. Positive law is “a command of the sovereign enforced by a sanction.”

3. The elements

Command. An expression of a wish by one person that another should do or forbear from doing an act, coupled with the power and intention to inflict an evil if the wish is disregarded. A request is not a command because it carries no threat.
Duty. The person commanded is under a duty to obey. Command and duty are correlative: being liable to the evil, he is bound or obliged.
Sanction. The evil that will probably be incurred if the command is disobeyed. The sanction is what makes a command binding.
Sovereign. A determinate human superior, not in the habit of obedience to a like superior, who receives habitual obedience from the bulk of a given society. Sovereignty is indivisible and legally unlimited: a sovereign cannot be bound by law, because law is what the sovereign commands.

4. Austin’s classification

Austin divided laws into:

Laws of God (divine law);
Human laws, which are either:
- positive law, set by political superiors to political inferiors, the only proper subject of jurisprudence; or
- positive morality, rules not set by a political superior, such as the rules of a club, the law of fashion, and international law;
Laws by analogy or metaphor, such as the laws of science, which are not commands at all.

Three kinds of rule are laws although they are not commands in the ordinary sense: declaratory laws, laws repealing other laws, and laws of imperfect obligation (without a sanction). Austin treated these as exceptions.

5. Criticisms

Custom is ignored. Maine pointed out that in early societies, and in India under Ranjit Singh, the ruler issued commands but did not make law; the law was custom. Austin’s answer, that custom becomes law when the sovereign tacitly permits courts to enforce it, is artificial.
Judge-made law. Much of the common law was made by judges, not commanded by any sovereign.
Permissive and power-conferring laws. Hart, in The Concept of Law (1961), showed that laws which confer powers (to make a will, a contract, a marriage) do not command anyone to do anything, and that a sanction for failing to comply (nullity) is not punishment. Austin’s model fits criminal law but not the rest.
The gunman. Hart said Austin’s theory cannot distinguish a law from the order of a gunman: “Hand over your money or I shoot.” What makes law different is that it is accepted as a standard of conduct, an internal point of view. Hart replaced command with a union of primary rules (of obligation) and secondary rules (of recognition, change and adjudication).
Sovereignty. In a federal State with a written constitution, such as India or the United States, no determinate body is legally unlimited. Parliament is bound by the Constitution and by judicial review; sovereignty is divided between Union and States.
The legislator is also bound. A statute binds those who made it. Austin cannot explain this if law is a command addressed by a superior to inferiors.
International law is not “positive morality”; States treat it as binding, and much of it is applied by courts.
Sanction is not essential. People obey law mostly from habit, conviction or convenience, not fear. Many constitutional provisions have no sanction attached.
Law and morality. By excluding morals altogether Austin can say nothing about unjust law.

6. Merits

Austin’s theory is not without value. It gave jurisprudence a definite subject matter, distinguished law from morals and custom with precision, and supplied a method (the analysis of concepts such as right, duty and sanction) used by every later analytical jurist. It describes modern statute law reasonably well: most new law in India comes from Parliament and the State legislatures, enforced by penalties.

Do not overstate the Indian position. It is tempting to say that Austin’s theory “does not apply to India.” Put it precisely: Indian statute law fits the command model, but the idea of a legally unlimited sovereign does not, because Article 13 and the basic structure doctrine limit Parliament, and Article 13(3)(a) includes custom and usage having the force of law in “law” without any command.

How this is examined

As a 6- or 8-mark short note: “Law as command” (January 2026, Q.8(b); June 2025, Q.1(b)). As an essay: “Critically examine Austin’s imperative theory of law” or “Explain the analytical school.” In a short note give the definition, the four elements in one line each, and four criticisms (custom, judge-made law, Hart’s power-conferring rules and the gunman, divided sovereignty in a federation). In the essay add the classification and the merits.

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