Imperative Theory and Natural Law
Theory (Full Detailed Explanation)
2. Imperative Theory of Law
A. About the Thinker:
John Austin (1790–1859) was a British legal philosopher. He is most famous for his theory
known as the Imperative or Command Theory of Law. He was a strong supporter of legal
positivism. In his book 'The Province of Jurisprudence Determined' (1832), Austin tried to
define law in a clear and scientific way, based only on what it is, not what it ought to be.
B. Introduction and Basis of the Theory:
The Imperative Theory defines law as a command issued by a sovereign and enforced by a
sanction. According to Austin, law is the expression of the will of a political superior (the
sovereign) to political inferiors (the people). Law is valid not because it is just or moral, but
because it comes from the authority who is obeyed by the society. Austin’s theory strictly
separates law from morality.
C. Key Features:
1. Law is a Command: Law is a rule or command given by a sovereign to his subjects.
2. Sovereign: The source of law is a sovereign – a person or group habitually obeyed by the
majority.
3. Sanction: Law is enforced through punishment or threat of penalty in case of
disobedience.
4. Duty: A legal duty arises when a person is obliged to follow a command. Failure results in
sanction.
5. No Relation with Morality: Law and morality are separate. A law does not need to be
moral to be valid.
6. Legal Positivism: Austin believed that law is based on facts, not moral or ideal standards.
D. Criticism of the Theory:
1. Outdated in Modern Democracies: Modern legal systems are not based on a single
sovereign authority.
2. Not All Laws Are Commands: Laws like granting rights, contracts, or procedural rules are
not commands.
3. No Place for Morality: The complete removal of ethics and justice makes law look harsh
and unjust.
4. Ignores Judicial Role: The theory does not explain the role of judges and interpretation in
law.
5. Fails in International Law: It cannot explain international law where no sovereign exists.
6. One-Sided: It focuses only on the power of the state, ignoring rights and duties of
individuals.
E. Conclusion:
The Imperative Theory is important for understanding the development of legal positivism.
It gave a clear, command-based definition of law and helped separate law from religion and
ethics. But it has many limitations in today’s world where democratic and constitutional
principles play a major role.
3. Natural Law Theory
A. About the Thinkers:
Natural Law Theory has many contributors throughout history. Some famous names
include:
- Socrates, Plato, and Aristotle (Ancient Greek philosophers)
- Cicero (Roman thinker)
- St. Thomas Aquinas (Medieval Christian philosopher)
- Hugo Grotius (Dutch jurist)
- John Locke (Enlightenment thinker)
They all believed that law is based on nature, reason, and morality, and it should reflect
justice.
B. Introduction and Basis of the Theory:
Natural Law Theory says that there is a higher moral law given by nature or God, and
human laws should follow this higher law. If a human law goes against natural law, it is not
valid. This theory combines law with morality, ethics, and justice. It focuses on what law
'ought to be', not just what it 'is'. Natural law is believed to be eternal, unchangeable, and
universal.
C. Key Features:
1. Based on Morality: Law is connected to ethics and justice.
2. Universal Nature: Natural law applies to all people across time and cultures.
3. Higher Law: There is a moral law above man-made laws.
4. Discovered by Reason: Humans can understand natural law using their reason and logic.
5. Standard for Validity: A law must be just and moral to be valid.
6. Foundation of Human Rights: Natural law inspired the development of human rights and
constitutional values.
7. Eternal and Unchangeable: Natural law exists regardless of man-made laws.
D. Criticism of the Theory:
1. Subjective Morality: Different people and cultures have different moral views.
2. Religious Dependence: Some versions of natural law rely too much on religion.
3. Difficult to Apply: It is not always clear what natural law demands in real situations.
4. Ignores Legal Structure: The theory does not clearly define legal procedures or
institutions.
5. Idealistic: It assumes that all people and governments aim for justice, which is not always
true.
E. Conclusion:
Natural Law Theory has played a major role in the history of legal thought. It connects law
with justice and human dignity. It influenced many legal systems, especially in protecting
fundamental rights. Despite criticism for being vague and moralistic, it remains a powerful
idea in legal and constitutional thinking.
Kelsen’s Pure Theory of Law (Detailed
Explanation)
1. Kelsen’s Pure Theory of Law
A. About the Thinker:
Hans Kelsen (1881–1973) was an Austrian legal philosopher and jurist. He is known for
developing the 'Pure Theory of Law', which aimed to separate law from politics, sociology,
and morality. Kelsen believed that law should be studied as a science, based only on its own
principles and logic. His most famous book is 'The Pure Theory of Law' published in 1934.
B. Introduction and Basis of the Theory:
Kelsen introduced the 'Pure Theory of Law' to study law in a purely legal way. He wanted to
keep legal science free from political, social, and moral influences. He believed law is a
system of norms (rules) that derive their validity from a higher norm, ultimately based on
the 'Grundnorm' (basic norm). The theory explains how each law gets its authority from
another law above it in a hierarchy.
C. Key Features:
1. Law is a Normative Science: Law consists of norms that prescribe behavior, not describe
facts.
2. Separation from Morality: The theory keeps law separate from ethical or moral
judgments.
3. Hierarchy of Norms: Every legal norm gets its authority from a higher norm, forming a
legal pyramid.
4. Grundnorm (Basic Norm): The foundation of the legal system. All other norms derive
their validity from it.
5. Focus on Legal Positivism: The theory is based on legal positivism—studying what the
law 'is' not what it 'ought to be'.
6. No Role of Force or Morality: Law is valid even if it is unjust, as long as it is created
through proper legal procedures.
D. Criticism of the Theory:
1. Abstract and Complex: The concept of ‘Grundnorm’ is difficult to understand and not
clearly defined.
2. Ignores Social Reality: Law is a social institution, and this theory ignores how society and
politics influence law.
3. Morality Cannot Be Ignored: Critics argue that justice and morality are important in
understanding and applying law.
4. Incomplete Legal View: The theory only focuses on the structure of law, not its
functioning or impact.
5. Limited Practical Use: In real-world legal systems, law is not always as pure or logically
structured as Kelsen describes.
E. Conclusion:
Kelsen’s Pure Theory of Law is a major contribution to legal positivism. It provides a
scientific and systematic way to understand law, focusing on its logical structure. Although
criticized for being too abstract and disconnected from social realities, it remains an
important part of jurisprudence.
