Sei sulla pagina 1di 18

JOHN AUSTINS THEORY OF SOVEREIGNITY

MATS LAW SCHOOL,


MATS UNIVERSITY,RAIPUR

POLITICAL SCIENCE PROJECT


ON

JOHN AUSTINS THEORY OF SOVEREIGNITY

SUBMITTED TO=
Mr. Yogesh Bais Sir

SUBMITTED BY=

AMAN GYAN DAS


B.A.L.L.B (hons.)
SEMESTER- I

Page | 1

JOHN AUSTINS THEORY OF SOVEREIGNITY

CONTENTS

Acknowledgement
Objective
Research Methodology
Brief introduction of John Austin
Concept of sovereignty
Austins Imperative Law
Characteristic features of positive law
Present scenario
Command: An Element Of Law
Relevance of theory in Indian judicial system
Critical appraisal
Conclusion
References

ACKNOWLEDGEMENTS
Page | 2

JOHN AUSTINS THEORY OF SOVEREIGNITY


I would like to thank my POLITICAL
SCIENCE teacher Mr. Yogesh Bais for
giving me this special project JOHN
AUSTINS THEORY OF SOVEREIGNITY.
And the entire faculty, who had always
been there at my side whenever I
needed some help regarding any
information. They have been my
mentors in the truest sense of the
term. The administration has also been
kind enough to let me use their
facilities for research work. I thank
them for this.
The given project helped me a lot to
understand the theory, its relevance,
its demerits, its criticism. I thank him
for his help and support in guiding me
to do this project.
Id also like to thank all the authors,
writers, columnists and social thinkers
whose ideas and works have been
made use of in the completion of this
project.

Research Methodology
Page | 3

JOHN AUSTINS THEORY OF SOVEREIGNITY


I have referred sources on the internet as well as a few books on Sovereignity available in the
university library besides adding my personal views and knowledge of the topic. Books and
other references as guided by the faculty of Political science have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been referred.
Footnotes have been provided wherever needed.
This Research Project is descriptive and analytical in nature. Secondary and Electronic
resources have been largely used to gather information and data about the topic.

OBJECTIVESo through this project it is an effort made by the ME to analyze the


notion of sovereignty as postulated by John Austin. It begins with
introduction of the theory giver, tracing the evolution of the doctrine
of positivism and how Austin defined this concept. After analysing the
Austins views about sovereignty a critical analysis of the same had
been undertaken. In this section Austin's view on sovereignty has been
criticized for reasons explained in detail. And then the conclusion of
the project which brings the finale inspection on the theory of john Austin.

INTRODUCTIONPage | 4

JOHN AUSTINS THEORY OF SOVEREIGNITY


BRIEF INTRODUCTION OF JOHN AUSTINJohn Austin is considered by many to be the creator of the school of
analytical jurisprudence, as well as, more specifically, the approach to law
known as legal positivism. Austin's particular command theory of law
has been subject to pervasive criticism, but its simplicity gives it an
evocative power that continues to attract adherents.Firstly,some general
information about JOHN AUSTIN

Born-

3 March 1790
Creeting Mill, Suffolk

Died-

1 December 1859 (aged 69)


Weybridge, Surrey

Era19th-century philosophy
RegionWestern philosophy
SchoolLegal positivism
Main interestLegal philosophy

John Austin is the early-nineteenth-century legal philosopher who is widely


known as a founding father of the school of legal positivism. His work
focused on laws relating to human conduct, and he excluded from his
study those laws relating to inanimate matter (the laws of physics). He
was born on 3rd march 1790 at creating mill, in England. He was grown in
a family of merchant class. He briefly served in the military before
beginning his legal training. He was called to the bar for the legal practice
in 1818. But there he took few cases and quit his legal practice of law in
1825. But with the bitter experience from life his analytical mind and
intellectual honesty improved colleagues and he was named the 1st
professor of jurisprudence at university college, London in 1826.
During this period of time, profressor auction was closely related and
associated with Bentham and his circle. In year 1832 Austins series of
lectures was published The Province Of Jurisprudence Determined

in

this series of his lectures he claimed that all of the laws with which he was
concerned involved commands, duties, and sanctions. Each of those

Page | 5

JOHN AUSTINS THEORY OF SOVEREIGNITY


terms, he said, signifies the same notionthat of law, denotes a
different part of that notion, and connotes the residue
In 1838, he served in a commission which was investigation about the
complaints of management in Malta, a British colony. In the following
decade Austin lived with his wife Sarah Taylor Austin in abroad and served
outside from his own country. In year 1848 they returned to England and
then stayed regularly. On December 1, 1859 Austin died.
I have tried hard and put all his potential to brings out the desired result
from this project.I have separately categorised each and every topic to
generate the better understanding towards the project.
CONCEPT OF SOVEREIGNITYThe sovereign is defined by Austin as: If a determinate human
superior, 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(1) is a society political and independent.Austin explains that
the superior may be an individual or a body or aggregate of individuals.
The sovereign is not himself bound by any legal limitations, whether
imposed by superior principles or by his own laws. Any higher principles or
self-limitations are merely guides which the sovereign may discard.The
concept of sovereignty is one of the most complex in political science,
with many definitions, some totally contradictory. Usually, sovereignty is
defined in one of two ways. The first definition applies to supreme public
power, which has the right and, in theory, the capacity to impose
its authority in the last instance. The second definition refers to the
holder of legitimate power, who is recognized to have authority.
When national sovereignty is discussed, the first definition applies, and it
refers in particular to independence, understood as the freedom of a
collective entity to act. When popular sovereignty is discussed, the second
definition applies, and sovereignty is associated with power and

Page | 6

JOHN AUSTINS THEORY OF SOVEREIGNITY


legitimacy. 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 1.including the superior
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(2) 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.
Austin wrote his theory at the time when England was in need of
vast legislative reforms. So his idea was guided by the situation which
can be found in his theory.
For Austin laws are the command supported by sanction.
Law is command given by superior to inferior.
So, Austins doctrine of sovereignty emphasis on following points:-

Page | 7

JOHN AUSTINS THEORY OF SOVEREIGNITY


a) The bulk of the given society is in a habit of obedience to
determinate superior. This determinate superior is the sovereign in
the society, and that society is political and independent.
b) In every political and independent community, some person or
body of persons who exercise sovereign power.
c) That such a determinate human superior must not himself
obey any other higher authority. His will is supreme over all
individuals and associations and he is subject to no control, direct or
indirect.
2.prejudice here refers to opinion and sentiments which have no foundation in the
principle of general utility

d) That command is the essence of law. Whatever the sovereign


command is law, and law prescribes to do certain things and not to
do others.

Command: An Element Of Law


Command is distinct from requests, wishes and so on. As per Austin, all
the rest are simply expression of desire, while commands are
expressions of desire given by superiors to inferiors. This creates
an hierarchy of status among those governed and those governing.

The governed are bound by the desires expressed by the superiors and
cannot demur. This relationship of superior to inferior consists for Austin in
the power which the former enjoys over the latter, i.e. his ability to punish
him for disobedience. Consequently, the subjection of the inferior to
the superior consists in his ability to suffer a penalty for
disobedience. In a sense, then, the idea of a sanction is built into the
Austinian notion of command.

Page | 8

JOHN AUSTINS THEORY OF SOVEREIGNITY

Austin himself said that law is a species of command, and not vice
versa. Reference can be made to Salmond , where he tries explaining this
with the help of an illustration.
EXAMPLESuppose a state governed by an absolute ruler R. Here the law is what R
commands. But the converse might not be true. All commands by R are
not law. He may command his servants to prepare for the banquet. This is
not law. R being an absolute ruler could have his servants executed for
disobedience even otherwise . Austin distinguishes laws from other
command by their generality, and laws he classified are general
commands . But then he himself says that there can be exceptions.
Generality alone, then, is neither necessary nor sufficient to serve as the
distinguishing feature of law.

Austins Imperative Law


It is diametrically opposed to the theory of natural law is the positivist, or
imperative, theory of law. This theory distinguishes the question whether
a rule is a legal rule from the question whether it is a just rule. Even Austin
has said that jurisprudence is concerned not with what law ought to be
but with the question what law is, and seeks to define law, not by
reference to its content but according to the formal criteria which
differentiate legal rules from other rules such as those of morals,
etiquette, and others. Though this approach is often criticized as sterile
and inadequate because it fails to take moral considerations into account,
it was never intended by such exponents as Austin to exclude the problem
of evaluating law; but in fact analysis was considered as the first of the
preliminary task of critical assessment.
CHARACTERSTIC FEATURES OF POSITIVE LAWPage | 9

JOHN AUSTINS THEORY OF SOVEREIGNITY


According to Austin, positive law has three characteristic features:
(a) it is type of command, the law is command issued by the
uncommanded commanderthe sovereign
(b) it is laid down by a political sovereign, a sovereign is one who is
habitually obeyed
(c) it is enforceable by a sanction, such commands are backed by threats
John Austin is best known for his work developing the theory of legal
positivism. He attempted to clearly separate moral rules from "positive
law."Austin was greatly influenced in his utilitarian approach to law by
Jeremy Bentham. Austin took a positivist approach to jurisprudence; he
viewed the law as commands from a sovereign that are backed by a
threat of sanction. In determining 'a sovereign', Austin recognized it as
one who society obeys habitually. To qualify as law, a command must have
been given by a political superior, or sovereign. This is what he calls
laws properly so called,a sovereign is any person, or body of persons,
whom the bulk of a political society habitually obeys, and who does not
himself habitually obeys some other person or persons. The latter proviso
serves to exclude viceroys, colonial governors and so forth, who are
obeyed by those whom they rule, but who are not there own masters but
are subordinate to a higher ruler.Within Austin's approach, whether
something is or is not law depends on which people have done what:
the question turns on an empirical investigation, and it is a matter mostly
of power, not of morality. Of course, Austin is not arguing that law should
not be moral, nor is he implying that it rarely is.. He is merely pointing out
that there is much that is law that is not moral, and what makes
something law does nothing to guarantee its moral value. The most
pernicious laws, and therefore those which are most opposed to the will of
God, have been and are continually enforced as laws by judicial
tribunals(3)

P a g e | 10

JOHN AUSTINS THEORY OF SOVEREIGNITY


He was the founder monist sovereignty who believes in the rule of
power in one authority. This is also an attempt made by the researcher
to describe the legal theory of sovereignty which received its logical
analysis at the hands of john Austin. Austins conclusion formed the basis
of the prevailing system of jurisprudence and they exercised immense
influence of political thought in England and the United States of America.
Till recently, sovereignty has been viewed as absolute internal sovereignty
and complete internal sovereignty and complete external independence.
juristic analysis of sovereignty has a history stretching back to the Roman
Empire. In modern times the development of theory of sovereignty
conceded roughly with the growth of the state in power, functions and
prestige. But in 1832 when Austin published his lectures titled province
of jurisprudence then the concept of sovereignty reached to its climax.
The theory of sovereignty mainly depends upon his view of the nature of
law. Law, according to Austin is a command given by a superior to an
inferior.Austins doctrine of sovereign may be reducing to the following
propositions:That there is, in every political and independent community, some
person or body of persons who exercise sovereign power. That the
sovereign is a determinate person or body of persons. That such a
determinate human superior must not himself obey any other higher
authority.

3.(Austin 1832/1995: Lecture V, p. 158).

Therefore, In brief, Austins analysis of sovereignty embraces the


existence of the supreme power which is determinate, absolute illimitable,
inalienable, indivisible all-comprehensive and permanent. It is subject to
no limitation or command by any other superior.

P a g e | 11

JOHN AUSTINS THEORY OF SOVEREIGNITY


PRESENT SCENARIOWhat I personally feel, in the present scenario of the world if the Austins
theory is evaluated with present prospective, it is not applicable in present
democratic country and in in common legal system. It is applicable in
totalitarian state which was prevailing in Germany during Hitlers
regime. At present we can find such state is Taliban where Austins
theory of sovereignty is applicable. In Myanmar the present military
ruler Than Shwe have crushed the democracy and he has house arrested
the Aung-swang suu-ki who is fighting to re-established the democracy in
such a country. So it can be said that at present Myanmar is that state
who is fulfilling the sovereignty concept given by Austin(4). Similar
condition is in Zimbabwe, Uganda etc. Where there is complete
failureness of democratic process. So, in todays world prospective
concept of Austin is not widely accepted, it is limited to few sovereign
country.
RELEVANCE OF AUSTINS THEORY IN INDIAN LEGAL SYSTEM
Under this part of the project paper an attempt has been made by me to
analyse the existence of Austin's sovereign in modern India.

1. Austin's theory tells that all laws come from the sovereign may be true
theoretically, and laws in our country are a result of the act of the politically
superior that is the legislators but the same is not true practically as they are
not a reflection of the will of the superior in the real sense. Though many
laws come directly from the parliament, but they merely reflect the desire of
these politicians to maintain support of the major organized groups in the
country and to meet their interests satisfactorily.
4.because there command is given by determinate superior

Under the conditions of the day the huge combination of labour capital ,
capital , with their expert lobby sit and wealthy treasuries any group is able
P a g e | 12

JOHN AUSTINS THEORY OF SOVEREIGNITY


to compel recognition and secure desired legislation. Only the fact that these
groups are competing amongst themselves prevents the government from
becoming helpless tools in their hands. Even then the grinding impact of
competing pressures upon the government requires political astuteness of a
high order to keep them satisfied and prevent the withdrawal of support in
the next elections. Thus we can say that Austins emphasis that
sovereign is the main stream of law is not just(5) for the re shaping of
laws in disregard of the democratic processes, but in a democratic
country like India the same is not possible. The interplay between the
public opinion and state action has become very complex these days
whether we are concerned with the abolition of dowry, the creation of legal
remedies against administrative action or the introduction of a new ground of
divorce there is always some interrelation between the state machinery that
produces these changes and social opinion of the community in which they
are intended to operate. Public opinion on vital issue is expressed through
the elected representatives in the house, and also through public discussion
in press, radio, public lectures .it can thus be concluded that legislative
practices in our country provide for opportunities to the public to participate
in the legislative activities of those to whom these powers are delegated.
2. Austin postulates a political superior in a political society who is
habitually obeyed by the majority of the population. This means that
sovereign is the highest authority, the strongest authority in a political
system. According to Austin sovereign is the person who has the last word
in a particular connection.
But the issue is that how can one determine the 'highest authority' in a
democratic country like India , to identify the strongest power would
involve an investigation of a lot of legal as well as well extra-legal
forces which determine how a state shall operate.
Who is the highest authority, is it the masses who chose the government,
is the legislators who finally make laws, is it the judiciary that has the

P a g e | 13

JOHN AUSTINS THEORY OF SOVEREIGNITY


power to strike down laws made by the parliament, is it the executive as
laws that are enforced are selected by administrators
5. Law emanating only from the sovereign may be fit for a totalitarian regime) where the government can use
its monopoly of law making and executive powers

today, what they consider worthy of implementing is duly enforced other


laws are followed more in breach than in obedience. is it the constitution
according to which all others are expected to act or is it again the masse
by whom the constitution has been formed ? Who do we call supreme.
Besides these forces there are other socio - economic forces that
have the power to exert a lot of pressure to finally determine
what laws are formulated and most often have the final say.

3. Austins theory that law emanate only from the sovereign authority in
India as much as it would fail in other common law countries. There are
various other very important sources of law which cannot be ignored at
all(6). His theory would fit only one portion of law that is the law made by
the legislative body. But the word law is of wilder amplitude and includes
not only laws but bye-laws, notifications, customs which are not
made by the state. Another important category that Austin does not
include in his definition of law is Judge made laws , in this era of judicial
activism where judiciary does not only interpret law but also makes law
this category cannot be ignored.
4. Similarly Austin's concept of unlimited and indivisible sovereignty
is quite inappropriate in the Indian set up or any democracy. The
sovereign does not have the power to command anything that it desires. It
is as much bound by rules and regulation embodied in the constitution
and other laws as any common man. Legislature is bound by the
constitution and in almost all cases court has the power to decide whether

P a g e | 14

JOHN AUSTINS THEORY OF SOVEREIGNITY


an act done by the government is constitutable and hence valid otherwise
it can be struck down.
So the notion of sovereignty in India at present certainly not what Austin
would define as sovereignty, the concept of sovereignty is under restraint
which is very justified as the concept of an unlimited illimitable and
indivisible sovereignty is a superfluity that debases the very cannon of
Indian Jurisprudence.
6. Principles of justice, equity, good conscience are important principles that are always kept in
mind while implementing any law none of them.

CRITICAL APPRAISAL
So here are the different criticisms of Austins theory. According to Austin
only those commands that are given by a political superior i.e. sovereign
are laws strictly so called that is law in the real sense, this would mean
that the existence of a state or sovereign is a pre condition for laws to be
formed & obeyed This definition of law cannot stand the scrutiny of
history. Historically law is older than any form of government or state.
1. Austin doesnt explain the succession of sovereign and
continuity of law. This criticism was done by H.L.A. Hart.
2.Austin gave too much emphasis on command. But this command is
absent in constitution law and in other law except criminal and traffic law.
3. Sir Henery Maine criticise Austins by saying that sovereign does not
reside in a determinate superior. He emphasises on the vast mass of
influences. He cited the example maharaja Ranjit Singh ruler of Punjab by
saying that he was the determinate superior and sovereign according to
the Austins criteria. Yet Ranjit Singh never once in all his life issued
command which Austin could call a law.
4. Austin theory was further criticised on the ground that it invests the
sovereign with absolute and illimitable powers.

P a g e | 15

JOHN AUSTINS THEORY OF SOVEREIGNITY


5. Hart criticises Austin's definition of law as a command of the sovereign
backed by sanctions. He contends that a legal system does not resemble
a gunman situation writ large.

CONCLUSION
From this project I come to conclude that Austins analysis of sovereignty
embraces the existence the supreme power which is determinate,
absolute, illimitable, all comprehensive and permanent. I also made an
attempt to analyze Austin's notion of sovereignty and his proposed
theories. His 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. Austins concepts 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 efforts 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

P a g e | 16

JOHN AUSTINS THEORY OF SOVEREIGNITY


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.

Bibliography

Primary Sources
1. Austin, John (1832/1995), The Province of Jurisprudence Determined, W.
Rumble (ed.), Cambridge: Cambridge University Press) (first published,
1832).
Secondary Sources
1. Bentham, Jeremy (1789/1996), An Introduction to the Principles of
Morals and Legislation, (J. H. Burns & H.L.A. Hart, eds., Oxford: Oxford
University Press).
2. Bhargava, Rajeev and Ashok Acharya: Political Theory, An Introduction, Pearsons
Education, 2008.
P a g e | 17

JOHN AUSTINS THEORY OF SOVEREIGNITY


3.Hart, H.L.A. (1954), Introduction to John Austin, The Province of
Jurisprudence Determined, (H.L.A. Hart, ed., London: Weidenfeld &
Nicolson), pp. vii-xxi.
4.Mill, John Stuart (1863), Austin on Jurisprudence, Edinburgh Review,
vol. 118 (Oct. 1863), pp. 43982 [UK ed.; US ed: vol. 118, pp. 222244].
5. Heywood, Andrew, Political Theory, (3rd Ed.), Palgrave Macmillan, 2005
WEBLIOGRAPHY

P a g e | 18