Imperative law means any rule of action imposed upon men by some authority which enforces obedience to it. In other words an imperative law is a command which prescribes some general course of action, and which is imposed and enforced by superior power. The instrument of such enforcement—the sanction of the law—is not necessarily physical force, but may consist in any other form of constraint or compulsion by which the actions of men may be determined. Lex, says Pufendorf,[[54]] est decretum quo superior sibi subjectum obligat, ut ad istius praescriptum actiones suas componat. “A law,” says Austin,[[55]] “is a command which obliges a person or persons to a course of conduct.”
Laws of this kind are to be classified by reference to the authority from which they proceed. They are in the first place either divine or human. Divine laws consist of the commands imposed by God upon man and enforced by threats of punishment in this world or in the next: for example, the Ten Commandments.[[56]] Human laws consist of imperative rules imposed by men upon men, and they are of three chief kinds, namely, civil law, the law of positive morality, and the law of nations. Civil law consists (in part at least, and in one of its aspects) of commands issued by the state to its subjects, and enforced by its physical power. Positive morality—the law of opinion or of reputation, as Locke[[57]] calls it—consists of the rules imposed by society upon its members and enforced by public censure or disapprobation. The law of nations or international law consists (in part at least, and in one aspect) of rules imposed upon states by the society of states, and enforced partly by international opinion and partly by the threat of war.
Many writers are content to classify the civil law as being, essentially and throughout its whole compass, nothing more than a particular form of imperative law. They consider that it is a sufficient analysis and definition of civil law, to say that it consists of the commands issued by the state to its subjects, and enforced, if necessary, by the physical power of the state. This may be termed the imperative or more accurately the purely imperative theory of the civil law. “The civil laws,” says Hobbes,[[58]] “are the command of him, who is endued with supreme power in the city” (that is, the state, civitas) “concerning the future actions of his subjects.” Similar opinions are expressed by Bentham[[59]] and Austin,[[60]] and have in consequence been widely, though by no means universally, accepted by English writers.
This imperative theory, though it falls short of an adequate analysis, does undoubtedly express a very important aspect of the truth. It rightly emphasises the central fact that law is based on physical force. For law exists only as an incident of the administration of justice by the state, and this consists essentially in the imperative and coercive action of the state in imposing its will, by force if need be, upon the members of the body politic. “It is men and arms,” says Hobbes,[[61]] “that make the force and power of the laws.” Law has its sole source, not in custom, not in consent, not in the spirit of the people, as some would have us believe, but in the will and the power of him, who in a commonwealth beareth not the sword in vain.
This, then, may be accepted as the central truth contained in the imperative theory of law, and if this is so there is no weight to be attributed to that which may be termed the historical argument against this theory. It is objected by some, that though the definition of law as the command of the state is plausible, and at first sight sufficient, as applied to the developed political societies of modern times, it is quite inapplicable to more primitive communities. Early law, it is said, is not the command of the state; it has its source in custom, religion, opinion, not in any authority vested in a political superior; it is not till a comparatively late stage of social evolution that law assumes its modern form, and is recognised as a product of supreme power; law, therefore, is prior to, and independent of political authority and enforcement; it is enforced by the state, because it is already law, not vice versa.[[62]]
To this argument the advocates of the imperative theory can give a valid reply. If there are any rules prior to, and independent of the state, they may greatly resemble law; they may be the primeval substitutes for law; they may be the historical source from which law is developed and proceeds; but they are not themselves law. There may have been a time in the far past, when a man was not distinguishable from an anthropoid ape, but that is no reason for now defining a man in such wise as to include an ape. To trace two different things to a common origin in the beginnings of their historical evolution is not to disprove the existence or the importance of an essential difference between them as they now stand. This is to confuse all boundary lines, to substitute the history of the past for the logic of the present, and to render all distinction and definition vain. The historical point of view is valuable as a supplement to the logical and analytical, but not as a substitute for it. It must be borne in mind that in the beginning the whole earth was without form and void, and that science is concerned not with chaos but with cosmos.
The plausibility of the historical argument proceeds from the failure adequately to comprehend the distinction, hereafter to be noticed by us, between the formal and the material sources of law. Its formal source is that from which it obtains the nature and force of law. This is essentially and exclusively the power and will of the state. Its material sources, on the other hand, are those from which it derives its material contents. Custom and religion may be the material sources of a legal system no less than that express declaration of new legal principles by the state, which we term legislation. In early times, indeed, legislation may be unknown. No rule of law may as yet have been formulated in any declaration of the state. It may not yet have occurred to any man, that such a process as legislation is possible, and no ruler may ever yet have made a law. Custom and religion may be all-powerful and exclusive. Nevertheless if any rule of conduct has already put on the true nature, form, and essence of the civil law, it is because it has already at its back the power of the organised commonwealth for the maintenance and enforcement of it.
Yet although the imperative theory contains this element of the truth, it is not the whole truth. It is one-sided and inadequate—the product of an incomplete analysis of juridical conceptions. In the first place it is defective inasmuch as it disregards that ethical element which is an essential constituent of the complete conception. As to any special relation between law and justice, this theory is silent and ignorant. It eliminates from the implication of the term law all elements save that of force. This is an illegitimate simplification, for the complete idea contains at least one other element which is equally essential and permanent. This is right or justice. If rules of law are from one point of view commands issued by the state to its subjects, from another standpoint they appear as the principles of right and wrong so far as recognised and enforced by the state in the exercise of its essential function of administering justice. Law is not right alone, or might alone, but the perfect union of the two. It is justice speaking to men by the voice of the state. The established law, indeed, may be far from corresponding accurately with the true rule of right, nor is its legal validity in any way affected by any such imperfection. Nevertheless in idea law and justice are coincident. It is for the expression and realisation of justice that the law has been created, and like every other work of men’s hands, it must be defined by reference to its end and purpose. A purely imperative theory, therefore, is as one-sided as a purely ethical or non-imperative theory would be. It mistakes a part of the connotation of the term defined for the whole of it.
We should be sufficiently reminded of this ethical element by the usages of popular speech. The terms law and justice are familiar associates. Courts of law are also courts of justice, and the administration of justice is also the enforcement of law. Right, wrong, and duty are leading terms of law, as well as of morals. If we turn from our own to foreign languages, we find that law and right are usually called by the very same name. Jus, droit, recht, diritto, have all a double meaning; they are all ethical, as well as juridical; they all include the rules of justice, as well as those of law. Are these facts, then, of no significance? Are we to look on them as nothing more than accidental and meaningless coincidences of speech? It is this that the advocates of the theory in question would have us believe. We may, on the contrary, assume with confidence that these relations between the names of things are but the outward manifestation of very real and intimate relations between the things named. A theory which regards the law as the command of the state and nothing more, and which entirely ignores the aspect of law as a public declaration of the principles of justice, would lose all its plausibility, if expressed in a language in which the term for law signifies justice also.
Even if we incorporate the missing ethical element in the definition—even if we define the law as the sum of the principles of justice recognised and enforced by the state—even if we say with Blackstone[[63]] that law is “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong”—we shall not reach the whole truth. For although the idea of command or enforcement is an essential implication of the law, in the sense that there can be no law where there is no coercive administration of justice by the state, it is not true that every legal principle assumes, or can be made to assume, the form of a command. Although the imperative rules of right and wrong, as recognised by the state, constitute a part, and indeed the most important part of the law, they do not constitute the whole of it. The law includes the whole of the principles accepted and applied in the administration of justice, whether they are imperative principles or not. The only legal rules which conform to the imperative definition are those which create legal obligations, and no legal system consists exclusively of rules of this description. All well-developed bodies of law contain innumerable principles which have some other purpose and content than this, and so fall outside the scope of the imperative definition. These non-imperative legal principles are of various kinds. There are, for example, permissive rules of law, namely those which declare certain acts not to be obligatory, or not to be wrongful; a rule, for instance, declaring that witchcraft or heresy is no crime, or that damage done by competition in trade is no cause of action. It cannot be denied that these are rules of law, as that term is ordinarily used, and it is plain that they fall within the definition of the law as the principles acted on by courts of justice. But in what sense are they enforced by the state? They are not commands, but permissions; they create liberties, not obligations. So also the innumerable rules of judicial procedure are largely non-imperative. They are in no proper sense rules of conduct enforced by the state. Let us take for example the principles that hearsay is no evidence, that written evidence is superior to verbal, that a contract for the sale of land cannot be proved except by writing, that judicial notice will be taken of such and such facts, that matters once decided are decided once for all as between the same parties, that the interpretation of written documents is the office of the judge and not of the jury, that witnesses must be examined on oath or affirmation, that the verdict of a jury must be unanimous. Is it not plain that all these are in their true nature rules in accordance with which judges administer justice to the exclusion of their personal judgment, and not rules of action appointed by the state for observance by its subjects, and enforced by legal sanctions?