On The Logical Elements And Theoretical Background Of Austin's Imperative Theory Of Law

John Austin was viewed as "the father of English jurisprudence" and the pioneer of legal positivism, whose ideas had a profound impact on the legal theory of later generations.In particular,the imperative theory of law had already become a classic in the history of legal philosophy. However, H.L.A.Hart claimed that the imperative theory was a failure of theory.Hart's discontent of the imperative theory can be summarized as follows:Austin emphasized the uniformity of legal phenomenon so excessively that he ignored the diversity and truth of law. This paper attempts to find the true meaning of Austin's imperative theory of law through discussing the criticism by Hart.We research the problems mainly distributed in two levels. One is the logical level.What are the elements of the imperative theory as a concept tool of analyzing the legal phenomena? Is it able to explain the complicated legal phenomena logically and completely as possible? Are there significant and internal logic deficienciesits?The elements of the imperative theory are sovereign person, universality and command. First, the paper questioned the Hart's practice of treating the imperative theory through the situation of gunmen,because Hart emphasized excessively the factors of sanctions.And if we exclude this bias, the imperative theory can still produce the concept of duty. Secondly, this paper dealt with Hart's point of view that the imperative theory can not explain the enabling rules. By analyzing, we believe that if the enabling rule is viewed as the fragments of law,the imperative theory can still explain the enabling rules.If we can find the rights created by a enabling rule,a command-style rule can also be constructed. Thirdly, by analyzing the reason of Hart's criticism of the implied command theory, we believe that the interpretation of customary law through the implied command may not be "inevitable", but it's at least "possible".And there is no logical conflict between the imperative theory and the implied command theory which has complementary value to the former.Then,by analyzing Austin's theory of sovereignty and Hart's criticism,we consider that the element sovereign person can provide the factor authority,so it's enough to form a persistent rules which point to the future,without the impact of the change of the sovereign persons.By the support of the theory of sovereignty, the explanatory power of the imperative theory is strengthened,but the idea that sovereign persons are not subject to legal restrictions can not explain democracy,because the legislative authority in Austin's theory must be personalized. The second level of research is to investigate the moral and political background of the imperative theory.we can find that Austin's theory intention is creating a suitable legal imagery of making law a powerful and rational modern tool. It reveals a new structure made up with some elements etc. knowledge, power, command and obedience,--a social and political structure-which is assembled together an instructed by utilitarianism.