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This article has been written by Anubhav Garg, a student of Delhi Metropolitan Education. In this article, he has talked about John Austin’s theory of sovereignty and its relevance in India’s current political and legal scenario.  

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Note*: This write-up is the author’s original content. The author has acknowledged the sources from where some facts have been taken for educational purposes. Any form of criticism or appreciation is the author’s personal point of view and is not meant to be offensive or insulting to anyone in any manner.

About John Austin (in brief)

John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London.

He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK.

Austin’s Theory of Sovereignty Explained

The definition of law according to Austin was, “Law is a command of the sovereign backed by a sanction.”[1] Breaking this definition into its fundamentals: –

  1. Command, of
  2. Sovereign, which if not followed attracts
  3. Sanction.

Now in order to fully understand Austin’s theory of Legal positivism, let us explain these elements in a concise and comprehensive manner.

Command: Commands are expressions of desire given by superiors (sovereign) to inferiors (general public). There are commands which are laws and which are not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.[2]

Observation: From the above definition we can conclude that Austin’s definition of commands gives the sovereign authority status of ultimate supreme, and imply that the authority of the sovereign is absolute which is the opposite of the constitutional framework which prevails in India, and for that matter in any peaceful democracy. This definition expresses that the sovereign, that is, the person/people in power is politically superior, but in democratic countries, it is not true. Every citizen has the same right same that of a President/Prime Minister/Chief Justice.

It also disregards other sources of law, like laws made by judges (considered as mere delegates) in form of precedents, laws made by the executive as statutory instruments, etc which hinders the growth of not only the jurisprudence of the country but also of the society, government and private institutions and economy.

Sovereign: 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 persons or persons. [3]

Observation: From the above definition of the sovereign, we can conclude that according to John Austin, the sovereign is not accountable to anyone but the whole realm has to follow whatever the sovereign dictates which are in stark contrast with the idea of democracy and Indian federalism. Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will make laws, the sovereign will execute the laws and the sovereign only will administer the law. This philosophy is also in contravention with the idea of democracy and the Indian federal structure. 

Sanction: This term is derived from Roman Law. According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced. Physical force is the sanction applied by the state in the administration of justice[4]

Observation: From the above definition of Austin, we can conclude that sanction is the force/evil which follows to if the individual if he/she fails to obey the command of the sovereign. His theories have put sanctions as more of a physical force state uses to suppress the non-abiders, which is very autocratic and narcist per say. This definition does not give room to people participation in government and we can say that having a difference of opinion (which is very crucial for the development of any country socially, politically and economically one can be subject to the sanction too.

In a modern democracy, people don’t abide by laws merely out of the fear of sanctions, but they do so voluntary as well out of morality and responsibility. This leads to the cooperation between the state and the subjects and this cooperation and understanding between the people and the state helps in the effective execution of the law and smooth introduction of social change. Also, we should not ignore the fact that in the modern era, even the sovereign can’t implement everything on brute strength or influence, especially in a country like India which is so diverse in its every facet.

Even Austin has himself admitted in his book, Province of Jurisprudence, that his philosophies are very objective and separates the law from morality, ethics, values or any other social norm and see the law as it is and not as it ought to be. The same can be observed in his definition of law, where he has outrightly ignored the subjective but very important elements of the law (like voluntary obedience of law, mutual understanding between state and subjects, beliefs and disbelief of people regarding law and its implementation) which applies on the humans who are themselves subjective beings. 

Though Austin’s work has received criticism from other schools of law as well but the simplicity of Austin’s work has continued to attract adherents. What is unique about Austin’s work is it separates law form justice, morality, ethics, values or any other kind of social norms. The same is the reason for the simplicity and spontaneity of his work. Also, we have to be cognizant of the fact that Austin has formulated these theories when England was going under great legislative reforms.

Relevance in modern Indian politics & legal society|Criticism

From the critical analysis of Austin’s theory of sovereignty and legal positivism, the author has made the following inferences and has tried to establish the relevance of the same to the modern Indian political and legal society.

  1.   Presumption about the subjects

Austin’s theory of sovereignty presumes that people will exactly obey what the sovereign will command which is not true in the present scenario in India politics.[5] His theories put the habitual obedience by subject on the bottom line of the philosophy. Those who deem the sovereign as the fit will obey voluntarily. Those who think sovereign as faulty will obey in the fear that the evil of their resistance will surpass the evil of obedience. And those who are not certain about will obey sovereign out of custom. Also, Austin’s theory presumes that people are perfectly educated politically.[6]

But that is not true in the modern scenario. The people who deem the government as unfit criticize, protest and resist the government and its policies. Which sometimes causes even the total failure of constitutional machinery like one observed in 1975 when Indira Gandhi (then PM) imposed emergency. There are many other examples in India only where we have seen people like Anna Hazare, Ramdev and Kejriwal protesting and organizing marches against the government and demanding changes in its structure or introduction of new laws or amendment of existing. Also, in a country like India, where one-third of the country (35million people approx) can’t read and write and where people can kill each other because of fake news and propaganda, it would be lethal and unfair to presume that most population is politically educated.

Thus, we can say that the presumption of habitual obedience, which is at the very basis of Austin’s sovereign theory can’t prevail in the present Indian political and legal society.

  1.   Doesn’t give room to common law other law-making bodies

According to Austin, only those commands that are given by a political superior i.e. sovereign are laws the real sense. He has tried to define the law from the sources of its origin than its functions. Though, there is a subtle acceptance of law made by judges (precedents) unless except it goes against the laws made by the sovereign but it is not appropriate in any sense. 

In India, the Supreme Court is the keeper of the constitution and it has the power to declare any legislation as void if it contravenes any of the provisions of the constitution and thus protects the fundamental rights of the people of the country. But according to Austin, courts/judges are the mere the subordinate sources of law and they have to function within the parameters set by the sovereign. Also, executive bodies like CBI, police, MCDs which are directly in touch with the public and understand their needs better, can’t make laws for the public’s benefit because statutory instruments are the recognized source of law. If all this is applied in the modern scenario it can lead to serious chaos and disrupt the country.

 Also, according to Austin’s definitions, customs are also not a source of law and thus not applicable. Law of the church, the law of the merchants, and many other personal and customary laws like Hindu Law, Muslim law, etc which are in existence much before this theory, though not been acknowledged but governing the day to day behaviour of the bulk of the population and is enforced by the state, none of these would be law according to Austin’s definition. Thus, Austin was also not cognizant of the common law which is the foundation of many countries’ governmental setup.

Thus, we can infer that Austin’s theory is incompatible with modern political and social scenario of India as it doesn’t give room to the very basic ideas of democracy, constitutionalism and de-centralization and separation of power.

  1.   Ignorance of human elements and the fundamental values of the constitution

In Austin’s definition of sanction, we can see that he has ignored the human elements like mutual understanding and cooperation between the state and the subjects and on the other hand, we can see that he has made vague presumptions about the subjects like habitual obedience, which is an extremely rare phenomenon in the modern world. He hasn’t established the right balance between the role of the state and citizens and their relationship with each other.[7]

Also, Austin’s theory has totally ignored the values and ethics like Liberty of thoughts and beliefs, Equality of status, etc which are enshrined in the preamble and are the fundamentals of the Indian constitution. Also, India because of its religious and cultural diversity, has not been considered as a federal state where all the power is with sovereign by the constitution-makers. It has been beautifully made as a “Union of states” as mentioned in U/A 1 of the constitution. This is to keep all the states integrated in India but at the same time preserve their individual autonomy and give them a sense of freedom both of which are in favor of the nation. But Austin’s theory is never short-sighted in this context and there is no such arrangement in his theory.

Thus, we can infer from the above information that Austin’s theory can’t be applied in the modern political and legal Indian society because of being very rigid and short-sighted approach towards running the state and ignorance of the core values of democracy. 

  1.   Absolute, unrestricted and indivisible powers to sovereign

Austin has postulated that the sovereign is free from all restraints of any kind of law and that no sanctions of any nature can be imposed on him. The command of sovereignty is superior to overall individuals and associations. The zero accountability of the sovereign in Austin’s theory brings the whole country and its people at the mercy of a single person who can decide someone’s life and death according to his mood and personal whims. Also, because there is only one body as sovereign, it is more prone to attacks and outside pressure from foreign leading to political instability.

Austin seems to inject an anarchical element into the world order and was probably giving an excuse for the worst excesses of 19th-century sovereigns like Nazi Germany, slaughtering of Jewish people, world war, etc by imparting sovereign absolute power. Sovereign is not bound to obey anyone’s order. There is no question of right or wrong, just or unjust, all his commands are to be obeyed. Again, the epitome of absolute power can corrupt absolutely. In modern times, if such things into existence into any country, it will become much more vulnerable to rebels, riots or even full-fledged war.

Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will make laws, the sovereign will execute the laws and the sovereign only will administer the law. This philosophy is also in contravention with the idea of democracy and the Indian federal structure. 

In Golak Nath v. State of Punjab, it was clearly laid down that separation of power is uncompromisable provision of the constitution by C.J. Subba Rao in the following words: –

“The three organs of the government have to exercise their functions keeping in mind certain encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without overstepping their limits. All the organs must function within the spheres allotted to them by the constitution. No authority which is created by the constitution is supreme. The constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the Constitution.”[8]

Thus, we can infer from the above facts that all Austin’s theory is not suitable for the modern Indian political and legal scenario because it leads to political instability, anarchy, and social chaos.

  1.   Not cognizant of international law

In the modern era, there are multiple international laws every country has to follow. The importance of international laws can be understood from the fact that nowadays procedures exist to make the state liable for injuries caused to foreigners in their land.

Various other principles of international law seem to have cored the concept of sovereignty. A sovereign doesn’t have the power to perpetuate inhumane action against his citizens as the same shall come into great criticism from the world order and it shall soon have to face the consequences of surviving in a hostile world atmosphere if it continues to do so.[9] Also, violation of International laws is also not good for a nation’s socio-economic well-being leading to serious crises and various other restrictions in terms of imports/exports. Especially, in case of a country like India which is trying to boost its economy and GDP by means of foreign investment and exports in recent times under the campaign like Make in India.  But Austin’s theory doesn’t give any room to international laws/relations and makes sovereign the supreme and all-pervasive authority of the land who is not answerable to any.

Thus, from the above facts, we can say that Austin’s theory is a bit impractical to apply in the modern era of globalization and the influence of international organizations like United Nation Security Council (UNSC), International Monetary Fund (IMF), United Nation Human Rights Commission (UNHRC).  

Conclusion

In the light of the above discussion, we can say that Austin’s theory is not quite relevant to India in modern times as it does not take into consideration multiple things like international law, separation of power, democratic form of government, etc which have let India maintain its integrity, unity & prosperity and flourish over the course of time from the colonial British rule to the biggest democracy of the world. Also, because of India’s vast cultural, religious heritage and having the most youth in the world, not everything can be done in accordance with the almost 150 years old theory formed under extreme legislative conditions.

But it can’t be denied that Austin’s work has made a very significant contribution in the evolution of law and Jurisprudence as a subject. Austin was the one of the jurists who were able to articulate law with such simplicity and clarity which has opened up the way for other jurists to evolve that work in modern day legal system.

Endnotes

[1] Jurisprudence and Legal Theory, 5th edition by VD Mahajan

[2] Jurisprudence and Legal Theory, 5th edition by VD Mahajan

[3] Jurisprudence and Legal Theory by P.S.A. Pillai Edition, 3rd edition, by P.S.A. Pilla

[4] Jurisprudence and Legal Theory, 5th edition by VD Mahajan

[5] http://www.legalservicesindia.com/articles/sover.htm

[6] https://blog.ipleaders.in/john-austins-analytical-approach-positive-law/

[7] https://www.brainkart.com/article/Austin-s-Theory-Of-Sovereignty-(Monistic-View)_1626/

[8] https://indiankanoon.org/doc/120358/

[9] https://blog.ipleaders.in/john-austins-analytical-approach-positive-law/


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