Imperative theory
The imperative theory describes in the legal philosophy or in the legal theory the thesis that the legal system consists exclusively of prescriptive, i.e. H. there is instructional sentences. According to this, every complete legal sentence contains either a command or a prohibition, which can be enforced with a threat of sanction. So right is by command, not because it is “right”.
The imperative theory was founded by J. Bentham . However, this theory became known through J. Austin .
Illustration by example
An armed robber orders his victim to give him the purse. If he refuses, he threatens to shoot the victim. In abstract terms, the robber in the example issued a behavioral instruction and threatened it with a sanction. Therefore, according to imperative theory, it is asserted that the state legal order is basically nothing else. A criminal law that prohibits certain behavior and imposes a custodial sentence or fine if it is violated is similar to the situation of the armed robber. Here, too, the criminal law contains a code of conduct that provides for a sanction in the event of a violation. The difference between the criminal law and the threat of the robber is limited to the fact that the criminal law orders a general type of behavior, is aimed at a large number of people and has a certain persistence.
objection
The objection to this theory is that the regulations in the laws often do not contain complete prescriptive norms at all. However, this objection can be dispelled by distinguishing between complete and incomplete legal clauses. Only a complete legal proposition expresses an imperative. The complete legal sentence is obtained by putting together the incomplete legal sentences that belong together.
Another objection raised by Karl Larenz , among others , is that the imperative theory ignores the real meaning of law. You focus too much on the duty side of the legal norm. Rather, so-called norms of determination exist, the main feature of which is the determination of something. Examples of this are legal norms that regulate the creation (e.g. § 145 BGB ), the acquisition (e.g. § 873 BGB and § 925 BGB ) or the loss (e.g. § 142 BGB ) of rights or else the legal status of people (e.g. § 1 BGB or § 105 ff BGB ).
Another objection is based on the distinction between prescriptive and constitutive norms. The action-guiding (prescriptive) norms regulate behavior that can be undertaken or omitted even without legal rules. They prohibit z. B. To kill or injure other people. Constitutive norms, on the other hand, create the basis for specific action. It is only possible to regulate and structure certain legal relationships through rules on the conclusion of a contract . On the other hand, constitutive norms are also sanctioned, which invalidates this objection. If a provision on the conclusion of a contract is not complied with, certain consequences for the contract (e.g. nullity ) must be expected.
supporting documents
- ↑ See Rüthers, Bernd, Rechtsstheorie, 4th edition, CH Beck, Munich 2008, p. 33.
- ↑ See Rüthers, Bernd, Rechtsstheorie, 4th edition, CH Beck, Munich 2008, p. 102.
- ↑ See Larenz, Karl, Methods of Law , 6th Edition, Berlin 1991, pp. 253ff.
- ↑ Bernd Rüthers; Christian Fischer: Legal Theory: Concept, Validity and Application of Law. - 5th, revised. Ed. - Beck, Munich 2010, Rn. 148d