This article is written by Anubhav Garg and further updated by Shefali chitkara. This article covers a thorough analysis of the theory of sovereignty which was given by John Austin. It also covers the relevance of this theory considering the political and legal system of our country. The article begins with the brief about the father of this theory, John Austin. It further discusses the analytical or positive school of law and also covers the origin, significance, and criticism of this theory. 

Introduction

Sovereignty is a system wherein there is a supreme and independent authority to run the nation. It is that component of the state that differentiates it from other political authorities because in a sovereign state, there is only one supreme authority. It means that the state is not dependent on any other state or any other international organisation. The Roman empire can be considered as a historical point from where the analysis of sovereignty started. At that time, the jurists made a “Theory of Imperium” and found that the source of law is ‘the will of the prince’. This theory was then gradually developed along with the power of the state and its functions. 

From Hobbes and Bentham, the juristic idea behind this theory reached John Austin and he made an exact terminology and enunciated the “Theory of sovereignty”. 

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In the words of Austin, “Law is the command of a sovereign backed by the sanction”. This definition has formed the basis of the theory of sovereignty. It mentions three essential components of this theory i.e., command, sovereign and sanction which have been discussed below. In the words of Austin, if a superior human receives habitual obedience from a group of people in a given society, that superior becomes sovereign in the society, and that society is known to be a political and independent society. 

Let us now look at the brief about John Austin before dealing with the theory of sovereignty. 

A brief about John Austin (1790- 1859)

John Austin, who was born in the United Kingdom is known as the father and the founder of the analytical school of law. He has written a famous book named “Province of Jurisprudence Determined” and is also known for the theory of sovereignty and legal positivism. He was initially in the army for five years and was also a part of the Chancery Bar of the United Kingdom. 

He was appointed as a professor of jurisprudence and taught jurisprudence at the University of London. He also spent two years in Germany and studied ancient Civil law and Roman law and this eventually helped him frame his ideologies regarding the Positive school of law. He taught and worked for the government in various posts. Unfortunately, he died in the United Kingdom in 1859. 

Analytical or positive school of law vis-a-vis sovereignty 

The analytical school of law challenged the natural law theory and stated that laws originated from a sovereign authority and are not based upon moral principles. This school emerged in the 19th century after the natural law theory lost its significance. It tried to differentiate between how the law currently exists and how it should be in a true sense. The analytical school was originally founded by Jeremy Bentham. This was further developed by John Austin who gave the theory of sovereignty which is a part of the analytical school of law. Bentham and Austin are often regarded as the founders of the analytical school of law. Other scholars who made contributions in advancing the analytical school or positivist school of law are Sheldon Amons, Sir Williams Markby, Holland, Salmond and Hart. 

There are four principles of the analytical school of law. These are:

  • Law is a product of human will,
  • Every law consists of command, sovereign and sanction,
  • Analytical school focuses on positive law, and
  • Law is separate from morality. 

Jeremy Bentham also emphasised on the significance of sovereignty and command in his theory. However, Bentham’s theory in analytical school placed less emphasis on sanctions unlike John Austin. Further, Austin’s theory of law also distinguished between the “Laws properly so called” and “Laws improperly so called”. Proper laws are those which are imposed by the person in authority and improper laws are those which are imposed by analogy and not sanctioned by the state. Proper laws are further divided into three types- human laws, god’s laws and positive laws. He also divided improper laws into two types- laws by analogy and laws by metaphor. 

Theory of sovereignty

Sovereign is a state which is independent. Sovereignty is taken from a Latin word “Supernus” which means supreme. Sovereignty is an absolute independence in matters of citizenry unlike the earlier rule of colonial powers. If a country is sovereign, it is free to choose for itself on how to be governed, whom to make rulers and the overall policies regulating the internal and external matters. 

If a nation is sovereign, it resists external control and pressure over a country. For example, India is a sovereign nation as has been clearly indicated in the Preamble of our Constitution as well. The countries which are sovereign are expected to act independently and make policies in the interests of the people and not as per any external foreign pressure. 

John Austin defined law as “A command of the sovereign backed by the sanction”. On the basis of this understanding of law, he developed his theory of sovereignty. According to his theory, the law is the command of the sovereign and not any moral principles. His theory was based on the premise that if a determinate human superior receives habitual obedience from the people in a society, he is considered as sovereign and the society is political and independent. The legitimacy of law is derived from the command of the sovereign and not through the adherence of any moral values. This theory is also known as the absolute theory or monistic theory or non-pluralistic or single theory of sovereignty. 

The three essential components in this definition which are mentioned above have been explained and critically analysed below.

Command

It is a desire of the sovereign to his subordinates or the general public. Some commands by the sovereign could be laws and some are not laws. Laws can be distinguished from other commands in their generality as per John Austin. The command given by the superiors on the parade grounds and obeyed by the troops are not laws but only the command of the sovereign. 

According to the definition of command given by Austin, the supreme power lies with the sovereign. It implies that it is the absolute authority which is not subject to any control. This somewhat opposes the constitutional framework of democracy that is currently prevailing in India which suggests that people are supreme. The definition given by Austin implies that the sovereign is politically superior but that is not true in democratic nations. John Austin failed to consider the laws made in the form of statutory instruments and those made by the judges as precedents. This in turn can negatively  impact the growth of jurisprudence, economy, society in general and other institutions of our country.  

Sovereign

He is the individual or the body of individuals who commands the general public or his subordinates but is himself not liable to obey any other individual. In his definition, John Austin had tried to convey that the individual who is the sovereign is not accountable to any other individual and everyone has to follow the directions and commands of the sovereign. 

Further, Austin had also tried to convey that the powers given to the sovereign are not divisible. He is the one who can make, execute and administer the laws within his State. This is again opposing and contradicting the idea of democracy and principle of federalism.

Absolute and indivisible sovereign

According to the theory, sovereignty is absolute and indivisible. The powers given to the sovereign are inalienable and it cannot be divided among other authorities in a nation. It can also not be transferred to any other foreign authorities.

Punishment/ Sanction

The word “Sanction” has been taken from Roman law. It has been defined by Salmond as “The instrument of coercion by which any system of imperative law is enforced”. 

It can be said that sanction is that force which is used upon an individual when that individual fails to obey the commands of the sovereign. John Austin’s definition of sanction sounds autocratic as it is defined as a use of physical force by the state in order to surpass the individuals who have not obeyed the directions of the sovereign. This element further  suggests that there is no room for participation by the people of the nation in the matters of the government which is sovereign. 

In the current scenario, people not only obey laws out of fear of sanctions but also out of morality and responsibility. There is a mutual understanding between the State and the people. In India, which is a diverse country, there could be no absolute monarch. In the book written by Austin titled “Province of Jurisprudence Determined”, he admitted that “His philosophies are very objective and separates the law from morality, ethics, values or any other social norm and it sees the law as it is and not as it ought to be”. It is clearly visible that Austin ignored few essential components like voluntary obedience of law, mutual understanding and respect while defining the law.

This theory is considered as unique since it separated law from ethics, morality, justice and values. Austin was appreciated for the simplicity and spontaneity in his work. However, it was also criticised by other schools of law. This theory was formulated at the time of great legislative reforms in England which was also appreciated. 

There are two other elements reflected in the theory of sovereignty apart from the above-mentioned elements. These are:

Validity of law

According to the theory of John Austin, the  law is the command of the sovereign and not any moral principles. The validity of law is derived from the command of the sovereign and not through the adherence of any moral values.

Jurisdiction

Another essential element is the territorial scope of the powers of the sovereign. According to the theory, a sovereign can exercise the authority over all individuals within its jurisdiction and sovereignty can operate within a particular nation and its defined jurisdiction. 

Implications of the theory of sovereignty

There are few implications of the theory of sovereignty regarding the understanding of law and the nature of political authority. These are as follows:

Association with legal positivism

Legal positivism is that theory of law that emphasises on the conventional nature of law and the idea that all the laws are made by legislators. The theory of sovereignty is associated with legal positivism. The theory of sovereignty has also separated the law from morality and the components of the legal system like judicial precedents and legislative enactments. It denied the dependence of law on moral principles. 

Further, it had emphasised on the authority of the sovereign as a source of legal validity. Likewise, legal positivism has rejected the morality of laws and focused on the creation and enforcement of the laws in the society. It can also be said that legal positivism has stood in contrast with the theory of natural law. Positivists have even argued that the laws are derived from the organs of government like legislature and courts instead of ethical principles.

John Austin had emphasised much on the separation of law from morality. It was argued that though, law may have moral content but it is not necessarily moral. Sovereign is the source of validity of law and not any moral or ethical values. John Austin defined law keeping it separate from morality, values and other social norms. 

Legal duty to obey the sovereign

Legal duties arose from the commands of the sovereign. Every individual has a duty to obey the laws as they are backed by the threat of sanctions. The idea of duty is related to the concept of coercion and the duty to obey the sovereign is fundamentally based on the threat of those sanctions instead of any moral imperative.

Indivisible powers of sovereign

There is an insistence on the indivisibility of powers of the sovereign because it has crucial implications on the organisations of the political power. Any attempt to divide the power of a sovereign among other organs in a nation undermines the theory of sovereignty. 

Habitual obedience by the people

The authority of the sovereign is maintained by the continuous obedience of the directions of the sovereign by the people. If people stop obeying the sovereign, the authority no longer remains sovereign. It acted as an empirical component in Austin’s theory because the existence of sovereignty is dependent on the observable patterns of behaviour.

Significance and impact of Austin’s theory in modern Indian politics and legal society

The theory has proved to be significant and has left a positive impact on the jurisprudence of our country. It acted as a base for the growth of legal positivism and a support for several other theorists like Herbert Lionel Adolphus Hart. HLA Hart’s theory was based on the critique of John Austin’s theory. Hart’s theory was also centred on legal sanctions but Hart’s theory removed the sovereign and allowed the theory to advance through secondary sources. 

Austin had also offered insights on the mechanism through which law operates as a tool of social control by studying the role of commands, sanctions and sovereignty. It has even provided clarity on legal subjects and various legal theories. Further, it has provided a framework for understanding the relationship between law and power and the nature of legal authority.

Criticism of Austin’s theory of sovereignty 

After analysing the theory of sovereignty, its implications and the significance, the following criticism can be drawn for this theory. 

Absolute, unrestricted and indivisible powers of the sovereign

It can be inferred from Austin’s theory of sovereignty that no sanction can be imposed on the sovereign and he is supreme authority over other individuals or groups of individuals. The sovereign has all the powers to control his subordinates and everything is dependent solely on his wishes. Since a single body is acting as a sovereign, there can be political instability and he can become vulnerable to foreign attacks.

This theory makes the sovereign completely absolute but this is practically not possible. Even the monarchs earlier were subjected to certain codes of conduct and were not completely immune from their actions.

It seems that Austin favoured monarchy by giving the absolute powers to the sovereign. Sovereign is not made liable to obey the orders of any individual and others are obligated to obey all his demands and commands. 

The theory also mentions that the powers of the sovereign are not divisible and the sovereign only has the power to make, execute and administer the laws. 

In the case of Golak Nath vs. State of Punjab (1967), Chief Justice Subba Rao clearly stated that the separation of power is an important and uncompromisable provision in the Indian Constitution. He stated that 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 all the three organs minutely. It further expects them to be exercised within their respective powers without overstepping their limits. All the organs have to function within the spheres allotted to them by the Constitution. No authority is supreme under the Constitution of India. The Constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the Constitution.

Thus, it can be clearly inferred from the above facts that the theory formulated by Austin is not suitable to the modern Indian political and legal system because it can lead to political instability and a lot of chaos. 

Continuous obedience by the people

John Austin presumed that the sovereign will command and people will obey but the same is not true in today’s time. It has also been presumed that people are perfectly politically educated. Individuals who feel that the sovereign is fit, will obey him voluntarily; those who feel that the sovereign is not fit, will obey him in fear of sanction and those who are confused, will obey him out of custom.

This does not exist in today’s time because if people feel that the government is unfit, they will criticise and protest against the government. For instance, the marches against the government when the Indira Gandhi government imposed emergency in 1975. Further, it cannot be presumed that the people of India are politically educated because one-third of the population of the country cannot read and write. This is also because of the reason that people are not aware about politics and the government. 

Thus, the presumption of continuous and habitual obedience by the people which is the most essential element of the theory of sovereignty cannot prevail in the modern political and legal system of India. 

It does not give room to the ideas of democracy, constitutionalism and separation of power

In the words of Austin, only those commands are laws which are given by the sovereign. In India, the Supreme Court can declare any law as not valid if the provisions of the Indian Constitution are violated by the legislature. For example, as per Article 13 of the Indian Constitution, the Supreme Court can declare any law as invalid if it violates the rights enshrined under Part III of the Constitution. The Supreme Court acts as the protector of our Indian Constitution. However, according to John Austin, courts are the secondary sources of law and they are under the sovereign. John Austin did not consider customs as the source of law. Other personal and customary laws like law of the merchants, law of the church, Muslim law and Hindu law were also not considered as law by John Austin. Thus, he did not consider the common law system which is a part of many nations’ legal setting. 

Thus, the theory of sovereignty was considered incompatible with the current legal and social system of India because it did not take into consideration the idea of democracy, separation of power and constitutionalism.

No consideration to human elements and other fundamental values of the Indian Constitution

John Austin ignored the human elements like cooperation and basic understanding between the State and people of that State. It has also ignored the fundamentals like equality, freedoms, and liberty that are essential to any democratic nation. 

It further did not consider the principles and provisions enshrined in the Preamble and the Constitution of India. India is a “Union of States” as mentioned under Article 1 of the Indian Constitution and the States of India are integrated and autonomy of the individual is preserved. This theory has not taken the same into account. This theory supported the idea of having a sovereign authority and giving absolute powers to a single authority as opposed to a democratic system like ours.

Ignorance of international law

Every country is required to follow international laws because violating the same is not good for a nation’s overall socio-economic well-being and it can lead to a crisis in a country and also restrictions in terms of imports and exports. But, the theory of sovereignty does not give any consideration to international laws or relations and gives the sovereign the supreme power of the land. 

Thus, from the above facts, it can be said that this theory is not practically applicable in the modern era of globalisation considering the influence of international organisations like the United Nations Security Council (UNSC), International Monetary Fund (IMF), United Nations Human Rights Commission (UNHRC), etc. 

Ignored the idea of popular sovereignty

This theory is against Rousseau’s concept of general will and therefore, is also against the idea of democracy. Rousseau believed that legitimate laws are based on the general will of the people and this will actually remind the government leaders that they depend on the people for their authority. 

However, according to the theory of John Austin, the sovereign is superior and every other individual is subordinate to him. John Austin had ignored popular sovereignty and gave all the power to the sovereign instead of giving it to the people.

Absence of sovereignty with the determinate person in a federation

The theory is against the principle of federalism as all the powers are given to the sovereign unlike what happens in a federal State where power is given to different levels of government by our Constitution and ultimately vests in the people instead of the President or any other single individual. 

Not applicable to England

As per John Austin, the king of the Parliament in England is sovereign. However, even the king himself has to consider the general will of the people and he is not the only source of power. The people are the true source of power in England. Thus, the assertion given by John Austin was incorrect.

This theory has been criticised by Sir Henry Maine with few other jurists who believed that sovereignty does not reside in the determinate human superior. 

Conclusion

Austin’s theory of sovereignty or command theory highlights that law is the command of supreme power whose orders must be followed by every individual in the society. Further, if people do not follow the sovereign’s orders, they will have to face the sanctions. It can be said that this theory of sovereignty is not much relevant in today’s time as it does not take into consideration multiple things like separation of power, democratic government and International law. India’s vast culture, diversity and growing demands of the youth also resist the applicability of this theory as young people often want participatory democracy and transparency and with sovereignty, everything would be in the hands of a sovereign.

However, this theory has definitely helped in the evolution and growth of jurisprudence and law. It has also served as a reminder of the challenges that are involved while understanding the concept of sovereignty. Austin was one of those jurists who was able to articulate law with much simplicity and clarity. This has opened a way for other jurists like HLA Hart to evolve their work in the modern day legal system. It can be said that this theory has served as a foundational concept in legal philosophy which offered a systematic and analytical approach in understanding law and its nature. 

Frequently Asked Questions (FAQs)

Who is John Austin?

John Austin was an English jurist and had written a lot of famous books including the “Province of Jurisprudence Determined” (1832). He is the father of the analytical school of jurisprudence and legal positivism. He had given a famous theory of sovereignty which is exhaustively discussed in this article. 

Who is the founder of the theory of sovereignty?

John Austin is known as the father and founder of the theory of sovereignty.

What is meant by the term “Sovereignty”?

Sovereignty refers to the state of independence and autonomy to take decisions and elimination of any other external or foreign control in the matters of the state.

What are the three main elements in the theory of sovereignty?

The three major essentials in the theory of sovereignty as given by John Austin are command, sovereign and sanction.

Who is the father of utilitarianism?

Jeremy Bentham is known to be the father of utilitarianism. His core belief was, “it is the greatest happiness of the greatest number that is the measure of right and wrong”.

Which was the famous book of Jeremy Bentham on jurisprudence?

The famous book written by Jeremy Bentham was “Limits of Jurisprudence defined”.

What are the features of sovereignty as per John Austin?

According to Austin, sovereignty is absolute, permanent, universal, inalienable, indivisible and exclusive with the sovereign. Further, the obedience to sovereign is habitual and continuous. 

Who is sovereign as per John Austin?

Any determined human superior is sovereign whose commands are abided by his subordinates. In a civilised society, the state is the sovereign and there must be habitual obedience by the majority of the people to a sovereign. 

References

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