Austin’s Theory of Sovereignty. Theory: If a determinate human superior not in the habit of like superior obedience but receives habitual obedience from the bulk of given society, then that society is political and independent, and that sovereign is the determinate human superior.
Definition of Law and Sovereignty:-
A conception of sovereignty, which has been the subject of wide discussion and has exerted an important influence upon the legal thought of the last half-century, is enunciated by the analytical school of jurists of which John Austin was the most conspicuous representative.
Austin’s views were based largely on the teachings of Hobbes and Bentham and were first made public in his “Lectures on Jurisprudence,” published in 1832. His theory was conditioned mainly upon his view of the nature of law, which he defined in a general way as a command given by a superior to an inferior.
If a determinate human superior, he declared,
not in a habit of obedience to a like superior receive 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 social political and independent.
Furthermore, every positive law, or every law simple and 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.
The test of sovereignty, then, according to Austin, is habitual obedience to a superior Who owes no obedience to a like superior, not obedience by all the inhabitants, but by the bulk of the members of the community. This superior cannot be a general will, as Rousseau taught, nor the people in the mass, nor the electorate, nor some abstraction like public opinion, moral sentiment, the common reason, the will of God, and the like, but it must be some determinate person or authority Which is itself subject to no legal restraints.
Criticism of the Austinian Theory:-
Austin’s theory that sovereignty must reside in a determinate body has found many critics among histOrical jurists Marine, Clark, Sidgwick, and others. In the first place, the theory is criticized on the ground that it is inconsistent with the present-day idea of popular sovereignty is, in fact, that complete antithesis of Rousseau’s doctrine that sovereignty is a general will, a doctrine which lies at the basis of the modern democratic state.
Again, it ignores the power of public opinion and takes no account of what we have described as political sovereignty. Thus, says Sir Henry Maine, it is a historical fact that sovereignty has repeatedly been for a time in the hands, of several persons not determinate, and, he adds, it is asserted by some writers that this is true, of the abiding place of sovereignty in the republic of the United States.
Furthermore, Austin’s notion of law as a command emanating from a determinate superior-a conception which lies at the basis of his theory of sovereignty-has been criticized by the historical jurists on the ground that it ignores the great body of customary law which has grown in through Usage and interpretation, and which never had its source in the will of a determinate superior that it errs in treating all law as being mere command and that it exaggerates the single element of force to the neglect of obvious historical facts with which Austin could not have Dbeen unacquainted.
Another objection sometimes urged against the Austinian theory is absolutism, which it attributes to sovereignty. Like Hobbes, Austin held that any higher law could not limit the fountain and source of law, and hence sovereignty involved legal despotism. There cannot, he said, be a hierarchy of supremacies nor coordination of creators nor a series of sovereigns ascending to infinity.
He frankly admitted that there is no escape from the conclusion that sovereignty is legally unrestrained. Hence, the sovereign is, legally speaking, a despot, however benevolent he may be, in fact. But he pointed out, what is obviously true, that it does not follow that because the sovereign is unlimited in its Powers, the government through which it expresses itself is necessarily subject to no restriction.
Austin’s chief error consisted of unduly emphasizing the Purely legal aspects of sovereignty and ignoring the forces arid influences that lie back of the formal law, a very natural mistake for a lawyer to make. It may also be said that his theory is probably inapplicable to all states of society, such, for example, like those which Main described in his work on the Early History of Institutions. But as a conception of the strict legal nature of sovereignty, Aqstins theory is, on the whole, clear and logical, and much of the criticism directed against it has been founded on misapprehension and misconception.