John Austin (1790-1859) was an English jurist. He is regarded as the founder of the school of Analytical Jurisprudence, which sought to analyse the nature of law, right and sovereignty. He expounded his theory in his book on Jurisprudence, published in 1832. His views had great influence on the lawyers, jurists and writers on Law in England and America. But they were severely criticised by the writers of Historical Jurisprudence in the 19th Century who refuted Austinian Theory on the basis of the history of Law and State, and by the Pluralists in the twentieth century.
Austin on Law:
Austin begins his theory of Sovereignty by first defining law, which, he says, is “a command given by a superior to an inferior.” In other words, it is a general command to do or abstain from doing certain acts, issued directly or indirectly by the Sovereign or the Superior to a person or persons, who are his inferiors, in the sense that they are subject to his authority.
Austin on Sovereignty:
He then defines the Sovereign or Superior in a State as thus: If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society is society political and independent”. He adds further: “to that determinate superior the other members of the society are subject, or on that determinate superior the other members of the society are dependent”.
Analysis of Austin’s Definition:
The following conclusions or corollaries can be drawn from Austin’s theory:
1. Only a determinate person or body of persons can be sovereign: It means that sovereignty cannot belong to the general will, as Rousseau said, or to the people or to the public opinion, as it is said by the advocates of popular sovereignty, or to any superhuman being as is the Islamic view. It belongs to a determinate human superior, i.e., a definite person or body of persons.
2. The power of the sovereign is legally unlimited or absolute, because the laws which he makes are obeyed by all, while he himself does not obey any law. Hence there can be no limit to his power. He makes his own limits. Legally speaking the sovereign is all mighty.
Sovereignty is indivisible: If sovereignty is divided by law between two or more persons or bodies of persons, then one of the two things would happen. Either one of them will limit the authority of the other, and thus become the real sovereign, or any other person in a body of MONIST AND PLURALIST THEORIES OF SOVEREIGNTY
persons who has legally limited the authority of the others would become the real sovereign. It means, therefore, that sovereignty may be formally distributed, but cannot be really divided. This is the case in a federal State.
3. State is such a society which is organised by rule and obedience. A law is a command calling for obedience. State exists only when there is sovereignty and subjection or obedience to the law or command of the sovereign. Sovereignty is as necessary in the State “as the centre of gravity in a mass of matter”.
To sum up, Austin asserted that sovereignty is determinate, supreme, absolute, illimitable, inalienable, indivisible, all-comprehensive and permanent power. His theory can be summarized in four words: Sic vole, Sic juber-thus I will, thus I command. Indeed, he had further developed and elaborated the views of Bodin, Hobbes and Bentham. Like Bodin and Hobbes, he endeavoured to show that sovereignty is supreme power unrestricted by law.
Like Bentham, he sought to distinguish law from morals. His primary purpose, however; was to define law and sovereignty in such exact and clear terms as to become the basis of the science of law or jurisprudence. In this purpose, he succeeds to a great extent, because his theory of sovereignty became the lawyers’ view of sovereignty and law. With him the monastic view of the sovereignty of the State became precise and well-defined. It was, however, vigorously assailed by Maine and other historical jurists in the nineteenth century and by the Pluralists in the twentieth century.
Criticism
However much Austin’s theory may be useful for a lawyer or jurist, it does not properly explain the nature of sovereignty. It has been subjected to severe criticism by many writers and political scientist, e.g., Sir Henry Maine, Henry Sidgwick and H.J.Laski. The following objections are raised against it:
History does not support Austin’s view of absolutism.
Austin’s view that the determinate sovereign has absolute power was subjected to severe criticism by Sir Henry Maine in his lectures on “The Early History of Institutions”. Maine belonged to the school of Historical Jurisprudence. He cited the examples of the rulers in India, Europe and America, to show that no one of them possessed that supreme and absolute power which a determinate sovereign possesses, as Austin asserts. Instead of it, the supreme power of every sovereign in history is found to be limited by internal considerations and restrictions. He first referred the case of Ranjeet Singh, the Sikh Ruler of the Punjab during 1801-39, who could be regarded an absolute sovereign in Austinian sense, because he “could have commanded anything; the smallest disobedience to his command could have been followed by death or mutilation”.
Yet Ranjeet Singh never once in his life issued “a command which Austin could call a law. The rules which regulated the life of his subjects were derived from their immemorial usages and these rules were administered by domestic tribunals (called punchayats) in families or village communities”. Thus among Eastern communities, the custom was the real king and not the sovereign ruler, whose authority was limited by ancient customs, usages, religious traditions and beliefs of his subjects.
Maine further contends that this is true not only of the “oriental society” but also of the “world of Western civilisation”. There also no sovereign, however, despotic, could disregard “the entire history of community, the mass of its historic antecedents, which in each community determines how the sovereign shall exercise or forbear from exercising his irresistible, coercive power”. Maine, therefore, concludes that the determinate human superior, as Austin defined him, exists nowhere. Only “a despot with a disturbed brain is the sole conceivable example of such sovereignty”. It is, therefore, a historical fact that sovereignty has never been determinate. On the basis of Maine’s criticism, Laski remarked that “Austinian Theory is artificial to the point of absurdity”
Austin’s theory does not apply to existing States.
When confronted with the problem of pointing out the determinate human sovereign in an existing State like England, Austin was unable to give a clear-cut answer. Instead of it, he variously replied that (i) Parliament is sovereign, or (ii) the King, the Lords and the electors are sovereign or (iii) the electorate is sovereign when Parliament stands dissolved, etc. But obviously this answer has not the clarity of his definition. And it includes that astounding assertion that the electorate is sovereign, although it cannot at all be a determinate body, as Austin’s sovereign must be. As regards the USA, Austin was driven to the conclusion that the body which has the power to amend the Constitution is the sovereign. But such a body cannot be determinate. Moreover, its sovereignty is not absolute, because its power to amend the Constitution is restricted to the specific amendments and no more. To find out the determinate sovereign in a federal State, as Laski says, is an impossible adventure. So Austin failed to show the determinate human superior who is sovereign in the present-days States.
Austin failed to distinguish legal and political sovereignty.
The reason why he found it difficult to apply his theory to the existing States was that he did not distinguish legal from political aspects of sovereignty. His theory is an attempt of a lawyer to give a lawyer’s view of sovereignty. It is a theory of legal sovereignty. He was right, therefore, when he said that the King-in-Parliament is sovereign. But when he tried to include the electorate in it as well, because it elects the member of the House of Commons, he failed to keep in mind that it is fiot legal sovereign, because it cannot make laws. At the same time, legal sovereign, the King- in-Parliament, is not absolute, because it is conditioned by a number i influences and forces which constitute political sovereignty.
It is opposed to the idea of popular sovereignty.
It is pointed out by Sidgwick, Clark, Ritchie and others th Austin’s theory is inconsistent with the idea of popular sovereignty. It alf ignores public opinion and disregards the General Will. Austin’s sovereig has the support of force alone and not of the will of the people. It is pointc out that legal sovereign is not real sovereign, but is a formal sovereign. Bi here his critics have really missed the point. The Austinian can rightly sa (hat so long as the legal sovereign does not embody the General Will or th will of the people into actual laws, it will remain ineffective. No law-cou will enforce the desires of the people till they are not enacted by the legi sovereign, whose laws or decisions alone it recognises.
It gives a wrong conception of the nature of law.
No part of Austin’s theory is more severely criticised than h conception of law, as the command of the sovereign. For instance, Lasl says that to regard law as the command of the sovereign is, even for th jurist, “to strain definition to the verge of decency”. Austin’s conception : attacked on two grounds, historical and sociological. In history, law did nc originate as the command of the sovereign but as the custom of the people law grows, as Maine explained it, as the people grow: it develops with th people. No sovereign, however despotic, could disregard customs. “Ranjet Singh”, says Maine, “never issued a command which Austin would call law”. The rules which regulated the lives of his subjects were derived fror their immemorial usages and administered by their village Punchayati Moreover, “Ranjeet Singh never did or could have dreamed of changing th civil rules under which his subjects lived”. Even in the developed States c today, the social order is maintained by customary rules. For instance, sovereign legislature, like the English Parliament, dares not pass a la> which upsets the established customs and traditions of the country.
Austi endeavoured to meet this criticism by saying that “whatever the sovereig permits, he commands.” His critics retorted that the sovereign has to perm what he cannot command. This is the sociological role of law in human life Austin believed that law is obeyed only when it is issued as a commanc But law is obeyed for various reasons, among which force or coerciv power of the sovereign is only one, and often a subordinate one. Really th reasons why laws are obeyed are popular opinion, the sense of right, th conditions of social life, habits, a sense of common interests and also, a Maine says, superstition and instinct which is “almost as blind ani unconscious as that which produces some of the movements of our bodies” Furthermore, there are certain kinds of laws which cannot be callei commands in any sense whatever, as, for instance, the enabling laws. It ignores the right and freedom of voluntary associations.
Later, the Pluralists attacked Austin’s view of absolute and indivisible sovereignty. According to them, sovereignty is neither a unity nor absolute. There are several other associations which are of equal, if not greater, importance for the well-being and moral growth of the individual. Whatever might have been the case in the past, the State today is not the only object of the loyalty of the citizens. It is no longer a power- organization. It is a social service State. Service and not command is its prominent characteristics. Other associations share sovereignty and loyalty of the citizens. In such conditions, Austinian view of absolute, indivisible and all-comprehensive sovereign power is both incorrect and dangerous.
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