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John Austin's theory on soverginityTRANSCRIPT
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
MATS LAW SCHOOL,MATS UNIVERSITY,RAIPUR
POLITICAL SCIENCE PROJECT
ON
JOHN AUSTIN’S THEORY OF SOVEREIGNITY
SUBMITTED TO=
Mr. Yogesh Bais Sir
SUBMITTED BY=
AMAN GYAN DAS
B.A.L.L.B (hons.) SEMESTER- I
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
CONTENTS
Acknowledgement
Objective
Research Methodology
Brief introduction of John Austin
Concept of sovereignty
Austin’s 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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
ACKNOWLEDGEMENTS
I would like to thank my POLITICAL SCIENCE teacher Mr. Yogesh Bais for giving me this special project “JOHN AUSTIN’S 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.
I’d 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
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JOHN AUSTIN’S 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.
OBJECTIVE-
So 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 Austin’s 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.
INTRODUCTION-
BRIEF INTRODUCTION OF JOHN AUSTIN-
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
John 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
Era - 19th-century philosophy
Region - Western philosophy
School - Legal positivism
Main interest - Legal 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 Austin’s 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
terms, he said, signifies the same notion—that of “law,” denotes a different part of that
notion, and connotes the residue
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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 SOVEREIGNITY-
The 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 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.
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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, Austin’s doctrine of sovereignty emphasis on following points:-
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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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.
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.
EXAMPLE-
Suppose 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.
Austin’s Imperative Law
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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 LAW-
According to Austin, positive law has three characteristic features:
(a) it is type of command, the law is command issued by the uncommanded commander—
the 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:
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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)
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. Austin’s 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.Austin’s 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, Austin’s 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.
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
PRESENT SCENARIO-
What I personally feel, in the present scenario of the world if the Austin’s 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 Hitler’s regime. At present we can find such state is Taliban where
Austin’s 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 today’s world prospective concept of Austin is not widely accepted, it is
limited to few sovereign country.
RELEVANCE OF AUSTIN’S 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 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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
them satisfied and prevent the withdrawal of support in the next elections. Thus we can say
that Austin’s 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 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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
the power to exert a lot of pressure to finally determine what laws are formulated and
most often have the final say.
3. Austin’s 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 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 Austin’s 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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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 doesn’t 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 Austin’s 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 Austin’s 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.
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.
CONCLUSIONFrom this project I come to conclude that Austin’s 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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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. Austin’s
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 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
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JOHN AUSTIN’S THEORY OF SOVEREIGNITY
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.
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. 439–82 [UK ed.; US ed: vol. 118, pp. 222–244].
5. Heywood, Andrew, Political Theory, (3rd Ed.), Palgrave Macmillan, 2005
WEBLIOGRAPHY
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