8 Criticism Faced by Austin’s Theory of Sovereignty

John Austin (1790-1859) had been an eminent English jurist in the nineteenth century. He stated his theory a little more than a century ago. His theory is we explained in the famous book “Lectures on Jurisprudence”. This book was published in 1832. Though he was much impressed by the views of Hobbes a Bentham, yet his theory of sovereignty is quite distinct.

He explained very clearly and precisely the legal or monistic theory of sovereignty in his famous book “province of Jurisprudence Determined” (1832). In his another famous book “Lectures on Jurisprudence” he drew a line of difference between law and morality.

His statement of the theory of sovereignty runs like this, “If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of given society that determinate human superior is the sovereign and that society (including the superior) is a society political and independent. Every positive law or every law simple or strictly so called, is set directly or circuitously by a sovereign person or body to a member or members of the independent political society wherein that person or body is sovereign or supreme”.

After having closely studied and critically examined John Austin’s theory of sovereignty, we discover the following highlights of this theory:

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(a) Sovereignty always resides in the determinate person or in a body of persons. In determinate person or a body of persons cannot be called sovereign. Nor does it reside in the General Will or electorate or God.

(b) Sovereignty is absolute, indivisible and unlimited in both the cases: internal and external.

(c) A society without sovereignty cannot be called a state.

(d) The determinate human superior is the only law-maker. His commands are laws and without him the state can have no laws.

(e) The determinate human has no rival of equal status in the state and nor does he obey the order of anyone.

(f) The power of the determinate human superior is sovereignty.

(g) The determinate human superior is subject to none or any power. The bulk of the people obey the sovereign’s command as a matter of habit.

Criticism of Austin’s Theory of Sovereignty:

(1) This theory is against popular sovereignty:

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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.

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.

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(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”.

Maine cites the example of Ranjit Singh whom he regards as an absolute despot possessing qualities of Austin’s determinate human superior “Ranjit Singh”, says Maine, “could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation”.

Yet Ranjit Singh never “once in all his life issued a command which Austin could’ call law…. The rules which regulated the life of his subjects were derived from their immemorial usages and these rules were administered by domestic tribunals, in families or village communities”.

Clark, Sid-wick, Marby, Lowell, Wilson, T.H Green, Lightwood, Marriam and Willoughby. All these political thinkers are of the opinion that John Austin has laid unnecessary emphasis on this only one element (the order of the sovereign) and ignored many other elements.

Austin’s definition of law as “a command given by a superior to an inferior” is not accepted by most of the political thinkers. Professor Laski believes that to think of law as simple a command is even for the jurist”, “to strain definition to the verge of decency”.

Many of the political thinkers believe that Austin’s concept of sovereignty completely ignores the common law of Great Britain. John Austin attempted to defend this charge by saying that “whatever the Sovereignty permits that is also law. But this defence of Austin could not satisfy the critics. The critics argued that the development of the Common Law was a great political stir which could not be averted by the sovereign. Hence, the sovereign had no other alternative than to permit the Common Law to exist.

MacIver has very aptly remarked, “The state has little power to make custom and perhaps less to destroy it, although indirectly it influences customs by changing the conditions out of which they spring”. The sociologists are of the opinion that people abide by the laws not because the laws are the dictates of the sovereign but because these laws foster social unity.

Laski is of the opinion that “the notion of commanding law is contingent and indirect, and the idea of penalty its, again, save in the most circuitous way, notably absent”. Laski further observes, “The individual conscience is the only true source of law”.

Duguit goes so far as to say that it is not the state which creates law but is law which creates the state. Laws are merely the expression of social necessity”. Krabbe discovers the spring of law in the community’s sense of justice.

(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”.

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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.

(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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