Austin’s View:

Let us understand the nature of International law on the basis of Austin’s imperative or command theory.

Austin’s Imperative or Command Theory of Law:

Imperative theory of law was proposed by British jurist Austin. According to Austin, positive law has three main features:

• it is a type of command,
• It is laid down by a political sovereign, and
• It is enforceable to sanction. Thus every law is a species of command and prescribes a course of conduct.

According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior. i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience. He further emphasises that the law is law only if it is effective and it must be generally obeyed and every law should have a sanction of the physical force of the State. It means to call a particular body of rules as law, it should satisfy the three conditions given above.

According to this theory International Law is not a true Law. In support of their argument, they gave the following explanation:

• International Law is only opinion or sentiments current among nations.
• There being no agency for international legislation, hence International Law is not a command of sovereign or superior determinate authority.
• There is no adequate sanction behind it.
• There is no mechanism and agency to enforce International Law. Hence obligation to observe International Law reduces to a moral rules.
• The existence of the third party (determinate impartial arbitrator) which can interpret and enforce International Law is absent. The International Court of Justice cannot exercise jurisdiction if a State which is a party to a dispute has not given its consent.

Thus International Law is a body of rules governing the relation of sovereign states inter se. Hence Austin called International law as “positive international morality” similar to the rules binding club and society.

Criticism of Austin’s View:

• Austin has taken into consideration in his definition only that part of law which is enacted by sovereign legislative authority. He completely ignored the customary or unwritten laws. Thus the definition cannot be applied for Hindu, Mohammedan and the Canon law because these laws came into existence long before the state began to perform legislative functions.
• Austin’s theory says that laws are observed because of fear of sanctions behind them. Austin’s definition cannot be applied to a Modern democratic country whose machinery is employed for the result of the people. In a democratic country, the sanction behind the law is not the force of the state but the willingness of the people to obey the same.
• The Constitutional law of the country defines the power of various organs of the state. Nobody can be said to command himself.
• It is not applicable in International and Constitutional law. International law is not the command of any sovereign, yet it is considered to be law by all conserved and States themselves regard International Law as binding even when there is no sovereign.
• The main criticism of Salmond is that the theory disregards the moral or ethical elements of the law. The end of law is justice. Any definition of law without reference to justice is inadequate.

Thus Austin’s definition of law is inadequate and his inference that International law is not true law is in correct.

Oppenheim’s View:

Let us understand the nature of International law on the basis of Oppenheim’s definition.

According to Professor Oppenheim (Eighth Edition of the book International law), “Law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by an external power. The main features of this definition are

• There must be a community
• There must be a body of rules for human conduct
• There must be a common consent of this community for an external power to enforce the rules

This definition is not using words sovereign or legislature. Thus it means that it is not necessary that rules should be enacted through law-making authority. Similarly existence of law administering court within the community concerned is not necessary.   

We can see that there is a community of nations in the world. There is interdependence of these nations on each other, which is the basis of formation of such community. There exist rules of conduct, based on customs of hundreds of years, International agreements and treaties. There is common consent of the community of nations for the enforcement of the rules for international conduct. Hence in the light of Oppenheim’s definion of law, International Law is a true law.

International Law is a Weak Law:

The rules of international law are not as effective as municipal law, hence International Law is weak law. Following are some reasons for such conclusion.

• International Law is a contradictory and vague mass of agreements and norms that offers few clear guidelines. Sometimes they are formulated in such a way as to give wide options to the States parties. They are not comparable in efficacy to State legislative machinery. Hans Morgenthau explains what frequently happens when negotiating international agreements: “In order to find a common basis on which all those different national interests can meet in harmony, rules of international law embodied in general treaties must often be vague and ambiguous, allowing all the signatories to read the recognition of their own national interests into the legal text agreed upon.”
• Even if we could specify the contents of international law, the absence of an effective legal system severely limits its impact. Nations rarely alter their behaviour to conform to international law. It is more likely that nations will twist international law so that it conforms to their behaviour.
• Domestic legal systems usually enjoy compulsory jurisdiction, whereas international legal bodies do not.  There is the International Court of Justice, but it does not have jurisdiction to decide the disputes of all the States since the Court acts with consent of the States only.
• Enforcement measures available under the system are not effective. If there is a dispute between two states and one of the state approaches the International court of Justice and wishes to summon the other state, then for that the other state has to accept jurisdiction of the Court for the dispute. Similarly, the Court has no power to enforce its decisions.
• During war, many times, rules of International Law are frequently violated.

Conclusion:

As per Austin’s definition International Law is not a true law but with Oppenheim’s concept it is a true law. Thus answer of the question whether International Law is a true law, depends on which definition of law we consider as a base. It should be noted that at Austin’s time international community lacked legislation, a court, sanctioning power and enforcement machinery. Hence his conclusion was that International Law is not a true law. But substantial development has taken place since the definition of law given by Austin. Many International Treaties are signed. There are organizations like United Nations. The Practice of civilized nations show that they are bound by these rules. There is International Court of Justice to solve international level disputes or disputes between states. If party to the dispute fails to perform its obligation, the Security Council of the United Nations has power to enforce the decision of the Court. In the light of these changes we can say that International Law is a true law. But the rules of international law are not as effective as municipal law, hence International Law is weak law.

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• Rules of conduct approved and enforced by the government of and over a certain territory is called a law. (eg. the ‘laws’ of India).

Blackstone’s Definition:

• According to Sir William Blackstone (an English jurist and judge of the eighteenth century) ‘Law, in general consists of the rules recognized and acted upon in the court of justice.” In its commentaries, Blackstone said that law, in its most general and comprehensive sense, “is that rule of action which is prescribed by some superior and which the inferior is bound to obey.”
• Thus Blackstone’s definition has two main concepts: a) the concept of a “superior,” and b) the concept of a “command”. Thus the law is something set, or given, by a superior to an inferior, or by a sovereign to a person in a state of subjection.
• This concept of Blackstone would exclude all international laws and constitutional laws. Hence this definition was criticized.
• In a country like India which is a democratic republic, there is no concept of superior or inferior, all are equal. In a democratic republic sense, the law is a jurisdiction adopted by the sovereign people for their own control, not by some superiors for other inferiors.

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.
• Hobbes define law as the commands of him or them that have coercive power.
• According to Austin ”Law is the command of the sovereign”.
• Salmond defined law as the body of principles recognized and ap[plied by the State in the administration of Justice. Law consists of rules recognized and acted upon by the courts of justice.
• Demosthenes said that “Every law is a gift of God and decision of sages”.

‘The Law’ and ‘a Law’

• ‘The law’ means all the laws of the land. Criminal, civil, constitutional, etc. It is a generic description of a large class or body of laws that make up the entire legal framework of a country. Here the term is used in an abstract sense.
• ‘A law’ means a specific law. It is the subset of the set of all laws. For example ‘Indian Contract Act’, ‘Consumer Protection Act”, etc.

Characteristics of Law (w.r.t. Indian Legal System):

• Rule of law, equality before the law and equal protection of the law for all without any discrimination.
• Laws are general rules of human behaviour in the state. It applies to all people of the state. All are equally subject to the laws of their State.  Aliens living in the territory of the State are also bound by the laws of the state.
• Law is a definite command of the sovereign. The sovereignty of the State is the basis of law and its binding character. The state always acts through Law. Laws are made and enforced by the government of the State.
• Law creates binding and authoritative values or decisions or rules for all the people of the state.
• Violations of laws are always punished. Thus the Law is backed by the coercive power of the State.
• The Law is formulated by the representatives of the people who constitute the legislature of the State. The government and its machinery execute and implement the law and the Judiciary interprets the law when any dispute arises. The courts settle all disputes among the people on the basis of law. The courts settle all disputes among the people on the basis of law.
• The law provides protection to the rights and freedoms of the people. And provide an environment of growth.

Law and Ethics:

Imperative Theory of Law:

• Imperative theory of law was proposed by Austin. 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. Thus every law is a species of command and prescribes a course of conduct.
• According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior. i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience.
• All positive laws are commands of the sovereign either directly or indirectly. They are set by political superiors. Some laws are not set up political superiors and covers laws of voluntary association and clubs.
• Austin proposed that there are commands which are laws and there are commands which are not law. Austin distinguishes law from other commands by their generality. laws are general commands. However, there can be exceptions. There can exist laws such as acts of attainder which lack the character of generality.
• According to Austin, the law is law only if it is effective and it must be generally obeyed. General obedience is sufficient. What is sufficient for a legal theorist is that obedience exists.
• According to Austin laws are of two kinds –divine law and human law. Divine law was given by God to men and human laws are prepared by men for men.
• According to Austin, every law should have a sanction of the physical force of the State.

Merits of Imperative Theory:

• Austin gave a clear and simple definition of law.
• Austin tried to avoid a lot of confusion by separating law from morality.
• His theory has an important and universal truth – Law is created and enforced by the state.

Challenges to Imperative Theory of Law:

• Austin’s definition cannot be applied to a Morden democratic country whose machinery is employed for the result of the people. In a democratic country, the sanction behind the law is not the force of the state but the willingness of the people to obey the same.
• It is not applicable in International and Constitutional law. International law is not the command of any sovereign, yet it is considered to be law by all conserved. The Constitutional law of the country defines the power of various organs of the state. Nobody can be said to command himself.
• The definition cannot be applied for Hindu, Mohammedan and the Canon law because these laws came into existence long before the state began to perform legislative functions.
• According to Salmond Austin’s definition of law refers to “a law” and not “the law”. The term “a law” is used in a concrete sense to denote a statute while the term “the law” is used in an abstract sense to denote legal principles. A good definition of law must deal with both aspects of the law.
• The main criticism of Salmond is that the theory disregards the moral or ethical elements of the law. The end of law is justice. Any definition of law without reference to justice is inadequate.

Salmond’s Theory of Law:

• According to Salmond Austin’s definition of law refers to “a law” and not “the law”. The term “a law” is used in a concrete sense to denote a statute while the term “the law” is used in an abstract sense to denote legal principles. A good definition of law must deal with both aspects of the law.
• Salmond quoted that  “The central idea of the juridical theory is not lex but Jus, in gestez and recht”.
• The main criticism of Salmond is that the theory is one-sided and inadequate and disregards the moral or ethical elements of the law. The main purpose of the law is justice. Any definition of law without reference to justice is inadequate.
• According to Salmond, “All legal principles are not commands of the state and those which are at the same thing and in their essential nature, something more, of which the imperative theory takes no account”.

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