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AUSTIN’S CONCEPT OF SEVEREIGNTY

Austin's concept of sovereignty has been discussed in his book, Province of


Jurisprudence Determined. He uses the concept of sovereignty to define law and the
content of jurisprudence. In his words, "The matter of jurisprudence is positive law, law
simply and strictly so called or laws set by political superiors to political inferiors. A law,
in the most general acceptance in which the term is employed may be said to be a rule
laid down for the guidance of an intelligent being by an intelligent being having power
over him…Of the laws set by men to men, some are set by political superiors, sovereigns;
by persons exercising supreme government, in independent nations or independent
political societies [this is the subject mater of positive science of law."1

The state for Austin is a legal organization, in which there is a determinate


authority vested with sovereign power. So, sovereign power according to Austin is
clearly identifiable since he is a determinate authority. Hence he made it clear that the
people cannot be sovereign since they as such are an indeterminate entity.

The determinate authority enjoys absolute and unlimited sovereign power. As such,
sovereign receives habitual obedience from people in the sense that people develop habit
of paying blind obedience to sovereign. At same time, sovereign is not in habit of paying
obedience to like superior, simply because there is nobody superior to sovereign in
society. At this point, Austin influenced by writings of Hobbes.

According to Austin, law is the command of the sovereign – implying that commands
issued by sovereign become law for society. He also made it clear that any disobedience
of sovereigns command is to be followed by physical punishment. Therefore it was
obligatory/ compulsory on part of people to obey sovereigns command, which itself
constituted the law.

Sovereignty in Austin’s’ theory is indivisible, because it must belong to one


determinate authority alone, cannot be divided between two bodies.2

1
http://www.legalservicesindia.com/articles/sover.htm
2
http://www.scribd.com/doc/21133166/Political-Science-Notes-3
PREVALENCE AND RELEVANCE OF AUSTIN'S SOVEREIGN IN MODERN
STATES

In this part of the paper an attempt has been made to analyze the existence of Austin's
sovereign in modern states.3

1. Austin's notion that all laws come from the sovereign may be true theoretically, and
laws in modern states (that is, statute made laws at least) 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. Under the conditions of the day the huge combination of labor, capital,
with their expert lobby sit in 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 a helpless tool in their hands. Even
then the grinding impact of competing pressures upon the government requires political
astuteness of a high order to keep 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.. Law emanating only from the sovereign may be fit for a
totalitarian regime like Pakistan where the government can use its monopoly of law
making and executive powers 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
3
http://www.legalservicesindia.com/articles/sover.htm
legislative activities of those to whom these powers are delegated. On the contrary,
Musharraf regime in Pakistan has created an authoritarian rule which is a narrowly based
government that is not responsive to the needs and aspirations of those not connected
with the government Moreover, the on-going judicial crisis has convinced the world that
Musharraf wants the total submission of all state institutions to his personalised and
centralised rule. The result is thus that due to a lack of a credible popular base such a
centralised and authoritarian power structure has not been able to address the
participatory pressure with reference to social, economic and political development in
Balochistan(suicide bombing and violence). In the case of Sindh, the issues of provincial
participation and access to water resources remain unresolved. The Frontier province is
threatened by the rising tide of violence and religious extremism. It also expresses
dissatisfaction with the federal government’s management of water resources and sharing
of profit of power generation. The results of the government policies in the tribal areas
are uncertain

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
choose 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 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 the power to exert a lot of
pressure to finally determine what laws are formulated and most often have the final say.
But in Pakistan General Pervez Musharaff presides over a hierarchical political order on
military lines — the ‘commanding officer’ supported by the army-intelligence
establishment that has the backing of the top bureaucracy for governance and political
management. The next layer comprises the co-opted political leadership (i.e. ruling
Pakistan Muslim League and its allies) who deal with the day-to-day administrative and
political management. The government carefully controls the recruitment of civilians to
the position of power and influence, making it clear to them that what matters most is
loyalty to the leader.

3. Austin’s theory that law emanate only from the sovereign authority fails 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. His theory would fit only one
portion of law that is the law made by the legislative body. However, 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. principles of
justice, equity, good conscience are important principles that are always kept in mind
while implementing any law none of them. But the ongoing judicial crisis in Pakistan
gives a different story, suspension of the chief justice of Pakistan and the manner of his
treatment by the government states, another strategy that is to overawe the adversary with
state power. Here the chief justice was pressured by the president and the prime minister
to resign. The manifestation of this varies from case to case. Nawab Akbar Bugti was
killed by the law-enforcement agencies and Sardar Akhtar Mengal was arrested.

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 constitutional and hence valid otherwise it can be struck down. On
the other hand in Pakistan there is no recognition of a General Will which guarantees
freedom. Musharraf is the pivot of power in the current political arrangements and
exercises effective administrative power over the civilian and military institutions. By
exercising more powers than assigned by the constitution, he has also stifled the natural
evolution of the federal cabinet and the parliament. There is no equality of all citizens
before the law, and the protection of those human rights which a particular people deem
to be essential to them. This proposition has a vital implication for the integrity of the
state and society.

Thus we can say that 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. In Pakistan, though the
Austin’s concept can be seen in, the authoritarian government but the world has
experienced that how ineffective it has been in exercising force and, thereby creating
disorder, including violence and religious extremism. Currently, the Musharraf
government faces four sets of problems: the judicial crisis, law and order situation
(including suicide bombings and violence in Balochistan), financial and political
autonomy for the provinces, and attempts by several extremist Islamic groups to impose
their version of Islam through coercion and intimidation. Thus it has embarrassed the
Pakistani Government at the international level.

An attempt has been made to analyze Austin's notion of sovereignty vis -a-vis the modern
day state. His theory of sovereignty did not seem to be applicable in modern day
democracies. Though the concept of Austin are still in existence in countries like Pakistan
but now the legal community and the societal groups are in the forefront of the anti-
Musharraf protest. The crisis of state power and legitimacy was manifested with tragic
clarity on May 12 in Karachi. It is widely believed that on that day a political party allied
to the federal government tried to “show its strength” by preventing the chief justice from
addressing the local Bar Association: There was a breakdown of law and order and a
blood bath ensued. The following day there was a countrywide protest strike from
Karachi to Khyber by the people of Pakistan, united in their moral outrage against
injustice. As Barrington Moore, Jr. has argued, moral anger and the associated sense of
injustice are rooted in the sense of injury that is felt when a social rule is perceived to
have been violated.
Nevertheless, 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 effort
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.

Austin's views might not appear very true for the preferred 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