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Sovereignty in the view of John Austin
John Austin is the most well known name connected with the theory of sovereignty. His concept of sovereignty is very classic one though it is clear.
He defines sovereignty as, “if a determinate human superior, not in a habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.
The above definition implies that in every society, there is a determinate human superior, i.e., who can be identified as a person who enjoys supreme authority in the state.
- Secondly, whatever the supreme authority commands is a law.
- Thirdly, this conception of sovereignty makes it indivisible.
- Fourthly, this supreme sovereign power is absolute and incapable of limitation.
AUSTIN’S THEORY OF SOVEREIGNTY (MONISTIC VIEW):
In the 19th century Austin, an English Jurist, perfected the theory of sovereignty as a legal concept. He is regarded as a greatest exponent of Monistic Theory.
In his book ‘Province of Jurisprudence Determined (1832) Austin observed’ “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 superior is sovereign in that society and that society (including superior) is a society political and independent.”
To Austin in every state there exists an Theory of Sovereignty, authority to whom a large mass of citizen show compliance. This authority is absolute, unlimited and indivisible. Austin’s theory of sovereignty depends mainly upon his view on nature of law.
According to Austin “Law is a command given by a superior to inferior” the main tenets of Austin’s theory of sovereignty are as follows-
• Sovereign power is essential in every political society.
• Sovereignty is a person or body of persons. It is not necessary that sovereign should be a single person. Sovereignty may reside in many persons also. Austin explains that a “Sovereign is not necessarily a single person, in the modern western world he is rarely so; but he must have so much of the attributes of a single person as to be a determinate.”
• To Austin state is a legal order, in which there is a supreme authority, which is source of all powers. Sovereignty is concerned with man, and every state must have human superior who can issue commands and create laws. Human laws are the proper subjects of state activity.
• Sovereign power is indivisible. Division of sovereignty leads to its destruction. It cannot be divided.
• The command of sovereignty is superior to over all individuals and associations. Sovereign is not bound to obey anyone’s order. His will is supreme. There is no question of right or wrong, just or unjust, all his commands are to be obeyed.
• Austin’s theory says that the obedience to sovereign must be habitual. It means that obedience should be continuous. He also includes that is not necessary that obedience should come from the whole society. It is sufficient, if it comes from the lay majority of people. Obedience should come from bulk of the society otherwise there is no sovereign. In brief we can say that sovereignty according to Austin is supreme, indivisible and unquestionable. Like all other theories of sovereignty Austin’s theory is also not free from criticism. The first criticism is regarding sovereignty residing in a determinate superior. Even sovereign’s acts are shaped by so many other influences, such as morals, values and customs of the society.
Sir Henry Maine gives the example of Maharajas/Monarchs. He pointed out that the Maharaja “could have commanded anything. The smallest disobedience to his command would have been followed by death or mutilation.” In spite of this, the Maharaja never “once in all his life issued a command which Austin could call a law. The rules which regulated the life of his subjects were derived from their immemorial usage.”
Secondly Austin says that the sovereign is possessed of unlimited powers, which is again not acceptable. It is possible only in theory not in practice. Laski points out that “no sovereign has anywhere possessed unlimited power and attempt to exert it has always resulted in the establishment of safeguards.”
Thirdly Austin says that sovereign is indivisible. All powers Must be centered in the hands of one person or a body of persons called sovereign. But this has been also disproved by Federal system of governments. It is characteristic of federal state that power must be divided between the federal government and its units. Austin’s theory is criticized further on the grounds of his definition of law.
Austin defines law as “command given by a superior to inferior”. This is also not true. No sovereign can ignore the existence of customary law, which has grown through usage in every country. It seems to be that Austin’s theory may not be accepted as valid for political philosophy. His legal theory of sovereign narrows down “the meaning of vital terms.” It should, however be admitted that as an analysis of strictly legal nature of sovereignty. Austin’s theory is clear and logical.