AUSTINIAN THEORY OF SOVEREIGNITY

1.1 LEGAL METHODS

Submitted By :-

MANAS NEMA

UID :-UG-19-62

1ST Year B.A.LL.B (Hons.)

Submitted to-

Prof. Himanshu Pandey

National Law University, Nagpur

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 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………...3

MEANING OF SOVEREIGNTY…………………………………………………………………4

AUSTIN’S THEORY OF SOVEREIGNTY……………………………………………………...5

CRITISISM OF AUSTIN’S THEORY…………………………………………………………...6

CONCLUSION……………………………………………………………………………………9

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INTRODUCTION

Sovereignty is a regarded as one of the important ingredient of State which distinguishes the
state from other political associations within a society. Sovereignty is the quality of having
supreme, independent authority over a territory. It is also normally understood to be a state
which is neither dependent on nor subject to any other power nor state.
The Juristic analysis of sovereignty has a history stretching back to the Roman empire. The
Roman jurists worked out a theory of Imperium and found the source of law in the will of the
prince. In modem times the development of the theory of sovereignty coincided roughly with the
growth of the State in power, functions and prestige. From Bodin, through Hobbes and Bentham,
this juristic idea reached its climax in John Austin as contained in his lectures on Jurisprudence,
published in 1832. Austin endeavoured to build up an exact juristic terminology and to present a
clear outline of the organisation of a government’s legal power. The theory of sovereignty, as
enunciated by Austin, depends mainly upon his view of the nature of law. Law, according to
Austin, is a “command given by a superior to an inferior. From this definition of law he develops
his theory of sovereignty in the following words:—
“If a determinate human superior, not in the habit of obedience to a like superior, receives
habitual obedience, from the bulk of a given society, that determinate human superior is
sovereign in that society, and that society (including the superior) is a society political and
independent.”

Concept of sovereignty seems to be very simple, but we have to accept the fact that it is one of
the most complicated notions in Political Science and elementary perceptive has no meaning for
the reason that state power is not something which is theoretical and confined to books.
Therefore, there is a need to go into details to study the concept of sovereignty very clearly and
precisely; for after all it is with this and other basic concepts and theories (Austin’s theory) that
are explained in this project.

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MEANING OF SOVEREIGNITY

Sovereignty is a term that is used to refer to the independence and autonomy of modern
nation states. Unlike earlier eras where countries were ruled by Kings in historic times and by
colonial powers in the 18th and 19th centuries, sovereignty refers to the fact of absolute
independence and autonomy that nation states have with respect to the decisions taken by them
in matters concerning their citizenry.

Sovereignty means that nation states are free to decide for themselves about the kind of
democracy that they want, the kind of rulers that they want, and their policies internally and
externally. Often, the concept of sovereignty is invoked to delineate the distinction between
taking decisions on their own by nation states and resisting external pressures to sway the
decision-making process. In this respect, sovereign nations are expected to be autonomous and
independent when they pursue policies that are in their interest and their people’s interest and not
according to the dictates of a foreign power. 

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AUSTIN’S THEORY OF SOVEREIGNTY

Austin's concept of sovereignty has been discussed in his book ' Province of Jurisprudence
Determined. He uses the concept of sovereignty to define law and the content of jurisprudence.
In his own words: "The matter of jurisprudence is positive law, law simply and strictly so called
or laws set by political superiors to political inferiors. A law, in the most general acceptance in
which the term is employed may be said to be a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. Of the laws set by men to men, some are
set by political superiors, sovereigns; by persons exercising supreme government, in independent
nations or independent political societies.

According to Austin the superiority which is styled sovereignty and the independent political
society that sovereignty implies is distinguished from other superiority and other societies by the
following characteristics:

 The bulk of the given society are in a habit of obedience to a determinate and common
superior, that common superior could either be an individual or a certain body aggregate
of persons.
 This individual or body of individuals is not in habit of obedience to a determinate
individual, though laws set by opinion ( laws improperly so called according to Austin)
may affect the conduct of this body but there is no determinate person or aggregate of
person to whose command this individual renders habitual obedience.

To define it in words of Austin "If a determinate human superior not in a habit of obedience to a
superior receives habitual obedience from the bulk of a given society that determinate superior is
sovereign that society ,independent political society."

Limits of the sovereign-.Since every law in an independent political society is set directly or
indirectly by a sovereign person to a person in a state of subjection to its author, therefore it
follows from the nature of sovereign that the power of a monarch is incapable of legal limitation.
If a monarch was bound by the commands of another superior he cannot be the sovereign. The
power of the sovereign imposing restraints would be free from fetters of positive law. According
to Austin even though sovereign bodies have attempted to oblige themselves or to oblige their
successors to their sovereign powers the position that they are incapable of any limitation will

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hold true universally. He clearly states that the laws imposed by sovereign on themselves are
merely "rules of positive morality", they are merely principle that they adopt as guidelines,
sovereign is not constrained to observe it by a legal or political sanction, for if the sovereign was
legally bound to observe it, the sovereign would be in a sate of subjection to a higher superior or
sovereign.

Rationale behind obeying a sovereign - According to Austin the purpose for which the
sovereign exists is the greatest possible advancement of human happiness, of the people of the
community which the deity has commanded it to rule. From this proper purpose for which
sovereign exists, Austin infers the cause of habitual obedience which he says is bottomed in the
principle of utility. If the enlightened masses thought that sovereign accomplished its proper
purpose ,this would be their motive to obey. If they deemed the government to be faulty a fear
that the evil of resistance might surpass the evil of obedience would be their inducement to
summit to the sovereign, for they would not persist in obedience to a government which they
deemed imperfect if they thought a better government might probably be got by resistance. But
Austin takes into account also those who are not adequately informed or enlightened, he says that
such people render obedience as a consequence of custom, they pay obedience as they are in a
habit of obeying, here prejudice ( prejudice here refers to opinion and sentiments which have no
foundation in the principle of general utility) and not utility is the factor that is responsible for
obedience. The habitual obedience arises from a perception by the bulk of the community of the
utility of the government or a preference of any government to anarchy. Thus according to him
the general cause of permanence of government is that the general masses were desirous of
escaping to a state of government from a state of anarchy. Thus they submit freely or voluntarily
to a sovereign.

CRITISISM OF AUSTINIAN THEORY OF SOVEREIGNTY

(1) This theory is against popular sovereignty:

This theory is deadly against Rousseau’s concept of the General Will which is the very basis of
democracy. It conflicts with the basic ideas of democracy. Austin’s sovereign is superior and
everybody else is sub-ordinate to him.

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The idea of popular sovereignty which lies at the basis of democracy has been ignored by Austin.
In democracy supreme power resides in the people. On the contrary Austin’s world is
hierarchical. Thus, Austin’s theory of sovereignty does not fit in with a democratic set-up.

(2) It ignores the power of public opinion and political sovereignty:

Austin’s concept of sovereignty ignores the claim of public opinion and political sovereignty.
Austin’s determinate human sovereign is superior to all. He wields the power and exercise
sovereignty. Austin’s theory ignores the massive influence of the electorate, public opinion and
the political sovereignty. Sir Henry Maine believes that it is a historical fact that sovereignty has
repeatedly been for a time in the hands of a number of persons indeterminate.

(3) Law is not the command of the sovereign:

Austin is of the opinion that the determinate human superior is the only law-maker and his
commands are laws. But Sir Henry Maine with other historical jurists has vehemently criticized
and condemned Austin’s theory of Sovereignty. Sir Henry Maine believes that sovereignty does
not reside in the determinate human superior. According to him “vast masses of influences,
which we may call for shortness moral, that perpetually shapes, limits or forbids the actual
direction of the forces by its sovereign”.

(4) Sovereign is not indivisible according to Pluralists:

According to Pluralists, Sovereignty is not indivisible. It can be divided. Laski is of the opinion
that, “it is impossible to make the legal theory of sovereignty valid for political philosophy. It
would be a lasting benefit to Political Science if the whole concept of sovereignty were
surrendered”.

Lindsay remarks, we look at the facts it is clear enough that the theory of the sovereign states has
broken down”. Barker is also of the opinion that no other principle of Political Silence is as
useless as the theory of sovereignty. The Pluralists challenge the claims of the state to supremacy
on the ground that society consists of many associations and the state is but one among them.
Therefore, the state cannot be endowed with sovereign power of the community. Sovereignty is
divisible and it must be divided between the state and various other associations of the
individuals.

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(5) Sovereignty does not reside with a determinate person in the federation:
In a federal state sovereignty does not reside with a determinate person. It is impossible to
discover sovereign in a federal state. It is very difficult to locate the sovereign in a federal state.
For example, in the federal state of U.S.A. Sovereignty resides neither with the person of the
president nor with his office nor with the Congress. It resides with the constitution. Similar is the
situation in our country.

(6) Force is not the only sanction behind laws:

For is not the only sanction behind laws. The will of the public is also a sanction behind the law.
Hence, Austin’s concept of sovereignty is wrong. In modern times, laws are framed by the
representatives of the people and not by the will of the sovereign.

(7) This theory makes the sovereign completely absolute:

This theory makes the sovereign completely absolute, but in practice it is not possible to become
completely absolute. In the ancient and middle ages, there had been many absolute monarchs.
But the monarchs could not remain completely absolute in their action and behaviour. They were
subject to the canons of morality, code of conduct and scruples of religion. If they tried to violate
the establish moral, ethical and religious canons, they were in danger of facing the revolt.

(8) This Theory is not even applicable to Europe:

Austin has asserted that the King-in-Parliament is the sovereign in England. But legally
speaking, this assertion is not correct because neither the King nor the Parliament can go to the
extent of becoming completely absolute. Always they have to pay due attention to the will of the
public. The reality is that the public is the ultimate source of power. It is public that empowers
the Parliament. This is the reason why elections are conducted after every five years for the
House of Commons. And the House of Lords is quite ineffective in the absence of the House of
Commons.

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CONCLUSION

Austin’s theory of sovereignty did not seem to be applicable in modern day democracies. But
that in no way undermines the importance of his excellent work. Austin's theories about various
legal concepts might not seem true in modern times but we should not forget that Austin is
regarded as one of the noted jurist of all times as much for his work and theory of law as for the
methodology employed to arrive at his theory. In his case both the ends arrived at as well as the
means used to arrive at them provided a great stimulus to the study of both 'law' as well as
'jurisprudence.' Austin made numerous effort to establish law and jurisprudence as discipline .He
succeed in his attempts in the year 1839 when the first batch of law graduates passed out from
the university. Austin propagated and established that law can be studied in a scientific manner,
in his times science had a very progressive and promising scope therefore the only way law
could be established, as a discipline was to link it with the scientific methodology. Austin
postulated a general theory of law and studied law with the help of verifiable facts.

Thus we can conclude that with change in times, Austin's views might not appear very true for
the current political and legal order of the world but his greatest contribution of establishing law
as a discipline that can be studies in a scientific manner secure an esteemed position for him in
the canals of jurisprudence.

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