The Juristic analysis of sovereignty has a history stretching back to the Roman empire. The Roman jurists worked out a theory of Imperium and found the source of law in the will of the prince.
In modem times the development of the theory of sovereignty coincided roughly with the growth of the State in power, functions and prestige.
From Bodin, through Hobbes and Bentham, this juristic idea reached its climax in John Austin as contained in his lectures on Jurisprudence, published in 1832. Austin endeavoured to build up an exact juristic terminology and to present a clear outline of the organisation of a government’s legal power.
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The theory of sovereignty, as enunciated by Austin, depends mainly upon his view of the nature of law. Law, according to Austin, is a “command given by a superior to an inferior. From this definition of law he develops his theory of sovereignty in the following words:—
“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 human superior is sovereign in that society, and that society (including the superior) is a society political and independent.”
Austin’s doctrine of ‘sovereign’ may be reduced to the following propositions:—
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(i) That there is, in every political and independent community, some person or body of persons who exercise sovereign power. Sovereign power is as essential in every political society “as the centre of gravity in a mass of matter.”
(ii) That the sovereign is a determinate person or body of persons. “He is not necessarily a single person: in the modem western world he is very rarely so; but he must have so much of the attributes of a single person as to be determinate.”
The State for Austin is a legal order in which there is a determinate authority acting as the ultimate source of power. Sovereignty, therefore, neither resides in the general will as Rousseau conceived, nor in the mass of the people, nor in the electorate, as none of them is a determinate body.
Nor has the sovereignty of God or gods any significance in the business of the State. It is concerned with man and every State must have a determinate human superior who can issue commands and create laws. Hence human laws, and not divine laws, are the proper subject of State activity.
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(iii) 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. The determinate human superior may act unwisely, or dishonestly, or in an ethical sense, unjustly, but for the purpose of the legal theory the character of his action is unimportant. So long as laws emanate from the legal sovereign, they are commands which must be obeyed.
(iv) That the sovereign receives habitual obedience from the bulk of the community. That is to say, obedience must be a matter of habit and not merely occasional. Obedience rendered to an authority for a short time does not make it a sovereign. Austin’s thesis is that obedience to the sovereign authority must be continuous, regular, undisturbed and uninterrupted.
Moreover, obedience rendered to the sovereign must not necessarily be from the whole of the society. It is enough for purposes of the sovereign power if it comes from the bulk of the society its large majority. Where habitual obedience from the bulk of the society is not forthcoming there is no sovereign power. Thus, sovereignty involves not only the submission of the many but also its permanence.
(v) That command is the essence of law. Whatever the sovereign commands is law, and law prescribes to do certain things and not to do others. Failure to obey laws, as commanded, is visited by a penalty.
(vi) That the sovereign power is indivisible. It is a unity and is incapable of division. Division of sovereignty means destruction of sovereignty.
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 person.
But Austin’s theory is a lawyer’s view of sovereignty and it has been subjected to a searching criticism, particularly by Sir Henry Maine and other historical jurists. Sovereignty, according to Maine, does not reside in a determinate human superior. “A despot with a disturbed brain,” he says, “is the sole conceivable example of such sovereignty.”
Maine emphasizes the existence of “vast mass of influences, which we may call for shortness moral that perpetually shapes, limits, or forbids the actual direction of the forces by its sovereign.”
He cites the example of Ranjit Singh, ruler of Punjab, whom Maine characterised as an absolute despot apparently possessing qualities of Austin’s conception of the sovereign power. Ranjit Singh, Maine says, “could have commanded anything; the smallest.disobedience to his commands would have been followed by death or mutilation.”
Yet, Ranjit Singh never “once in all his life” issued a command which Austin could call a law. “The rule which regulated the life of his subjects was derived from their immemorial usages, and these rules were administered by domestic tribunals, in families or village communities.”
Even a despot like Ranjit Singh, Maine concludes, dare not issue a command which would compel an unwilling people to change their deep- rooted habits and customs. If he does it, he will confront the risk of revolution.
Ranjit Singh’s laws were primarily derived from customs, usages, and religious injunctions and they were administered by the village panchayats (councils). But it is not only in regard to “oriental society” that Maine finds Austin’s analysis inadequate.
In the “world of western civilisation,” he says, no sovereign, however despotic, could disregard “the entire history of the 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.”
Austin’s conception of a determinate sovereign is also inconsistent with the well-accepted ideas of political and popular sovereignty. It ignores the power of public opinion and does not take into consideration the existence of political sovereignty, which is now believed as the ultimate sovereign power in a State. Sir Henry Maine, accordingly, concludes that it is a historical fact that the sovereign has never been determinate.
The Federal State presents another difficulty about vesting sovereignty in a determinate person or body. Sovereignty is indivisible and the sovereign body which has the power to amend the Constitution cannot be described as a determinate body.
In the United States, for example, the constitutional powers of government are divided between the federal government and governments of the ‘states’ as the constituent units are named there. No change can be made in the Constitution without amending it.
The Constitution amending body is Conventions or two-thirds majority of each House of Congress which may propose an amendment and State legislatures or State Conventions which ratify them by a prescribed majority.
In India, too, powers between the Central Government and the State Governments are divided and changes therein can be brought about by the process specified in the Constitution for amending it.
The Constitution amending authority is sovereign, but this sovereign authority is diffused. There are three methods of amending the Indian Constitution. In some cases it is a simple majority of both the Houses of Parliament, in others, which are specified in the Constitution.
It is the two-thirds majority of the members present and voting in each House of Parliament plus a majority of the total membership in each House, and ratified by the legislatures of one half of ‘States,’ constituent units, and for the rest it is a majority of the total membership in each House of Parliament and a majority of not less than two-thirds of the members present and voting in each House of Parliament.
But the Constitution may itself limit the Constitution amending authority. Carl J. Friedrich maintains that where the constitution amending power is vested in the Legislature, “limitations are usually imposed upon it.”
In France, an amendment of 1884 provided that the republican form of government should never be made the subject of proposed revision. Article V of the United States Constitution prescribes that no State, without its consent, can be deprived of its equal representation in the Senate.
Austin’s definition of law that it is a “command given by a superior to an inferior,” which forms the basis of his theory of sovereignty, cannot be accepted as a simple truth. Laski says that to think of law as simply a command is even for the jurist “to strain definition to the verge of decency.”
No sovereign can ignore the existence of customary law which has grown through usage in every country. Customary law is not the fiat of a determinate superior, and in earlier stages of society laws were seldom, if ever, positive commands of a sovereign.
Ranjit Singh, to again quote Maine, “never issued a command which Austin would call a law. He never made a law and never did or could have dreamed of changing the civil rules under which his subjects lived.”
Even a sovereign legislative assembly, like the British Parliament, dare not pass a law which aims to violate the established customs and traditions of the country. Maclver has aptly said that “State has little power to make custom, and perhaps less to destroy it, although indirectly it influences customs by changing the conditions out of which they spring.”
Custom is not a deliberate statute; it is the outcome of ages and even an autocrat must be the guardian and servant of customs, if he desires to obviate the possibilities of a revolution. For, custom, “when attacked, attacks law in turn, attacks not only the particular law which opposes it, but what is more vital, the spirit of law-abidingness.”
Austin himself was fully conscious of the force behind customs and maintained, “Whatever the sovereign permits, he commands.” Austin argued that customs, unless enforced by courts of justice, are merely “positive morality”; rules enforced by opinions. But as soon as courts of justice enforce them, they become commands of the sovereign, conveyed through the judges who are his delegates or deputies.
The concept of law, prior to the Analytical School, conveyed the notion of order first and then the notion of force. The Analytical Jurists, on the other hand, lay down unhesitatingly that the notion of force has priority over the notion of order.
Austin lays too much emphasis on force and prescribes that disobedience of law is visited by a penalty. It means, in the words of the Analytical School, that people obey laws for fear of punishment.
The modern view is that we obey laws not because their disobedience is accompanied by punishment; we obey them because there is in us the spirit of law- abidingness. Laski says, “The notion of command” in law “is contingent and indirect and the idea of penalty is, again, save in the most circuitous way, notably absent”. He holds that the individual conscience is the only true source of law.
Austin’s conception is also out of tune with a Welfare State. In a Welfare or Social-service State the content of law is of great importance than the source of law. We obey it, because it promotes social solidarity, as Leon Duguit says. He carries his argument to the extent that laws are not created by the State, but it is the laws that create the State. Krabbe discovers the spring of law in the community’s sense of justice.
Austin’s theory is further criticised on the ground that it invests the sovereign with absolute and illimitable powers. The Pluralists maintain that the State is an association like various other associations and, therefore, the sovereign authority cannot be invested with unique sovereign powers.
They oppose the Austinian doctrine of a single and unified sovereignty, and emphasize the importance of associations, which are, for their purposes, as sovereign as the State is for its purpose. Sovereignty, accordingly, is neither unity nor absolute. It is diffused and hedged all around within and without the State.
Externally, Austin’s sovereign power is limited by the prescription of International Law, and the concept of internationalism has made it still more incompatible. Austin’s theory of sovereignty, therefore, is now regarded not only a legal fiction, but a baneful and dangerous dogma which should be expunged from the literature on international relations.
Laski is even of the opinion that the notion of an independent sovereign State is, on the international side, fatal to the well-being of humanity. It is a bold, but realistic statement which Laski makes and the developments since World War I (1914-18) testify it.
Today, the States constitute an international society and it is commonly realised that the increasingly vast problems which concern the well-being of humanity are not local but international.
The problems of food, health, education, and population are in essence local problems, but their solutions are found in the deliberations of international organisations like the W.F.O., the W.H.O., the UNESCO, etc. all agencies of the United Nations. Even the restoration of order and establishment of lawful government within the country has become an international concern.
It is, impossible, under the circumstances, to accept the legal theory of sovereignty as valid for political philosophy, as it postulates for the sovereign such powers as cannot in fact be exercised. Moreover, it narrows down “the meaning of vital terms to a content which, if maintained, would be fatal to the existence of society.”
We cannot accept law, which is an important factor in the life of the State, from the purely legal point of view. Law must be built upon general social environments. To separate it from all these forces and influences is to defeat the very purpose of law. It should, however, be admitted that as an analysis of strictly legal nature of sovereignty, Austin’s is clear, and logical.