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An estimated 5-minute read

Austin’s concept of sovereignty and its relevance in Indian Legal System and in Indian Judiciary

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By- Abhinav Thakur

Positivism is something which is morality neutral and based on empiricism (experiment and observation). It was the reaction to the vagueness of Natural law. So Austin was the important theorist from positivist law. 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, an English jurist. 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. The pluralists, the recent school of thought, reject outright the concept of absolute authority of the state and plead for division of sovereignty between the state and various other associations like various other associations with a specific purpose to perform. The function of the state are well defined and it has no rightful claim to eminence. The pluralists, in brief, maintain that sovereignty is divisible and the state is not supreme and unlimited in its authority.

On emphasising the evolution of concept of sovereignty the researcher can say that the 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. 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 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.
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.

So through this project it is an effort made by the researcher to analyze the notion of sovereignty as postulated by John Austin. It begins with 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 he brings the conclusion of the project which brings the finale inspection on the theory of john Austin.


SYNOPTIC BIOGRAPHY John Austin (1790–1859)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 (that is, each term brings with it by implication the other two).

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.
Similarly the researcher has tried hard and put all his potential to brings out the desired result from this project. He separately categorised each and every topic to generate the better understanding towards the project.

AUSTIN’S CONCEPT OF SOVEREIGNITYAustin 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.v  For Austin laws are the command supported by sanction.v  Law is command given by superior to inferior.

So, Austin’s doctrine of sovereignty emphasis on following points:-Ø  The bulk of the given society are in a habit of obedience to determinate superior. This determinate superior is the sovereign in the society, and that society is political and independent.Ø In every political and independent community, some person or body of persons who exercise sovereign power.Ø  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.
Ø  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.

The demand of personal obedience in Austin's theory means that the span of the life of the legal system determines the period of existence of the laws of the system and hence also of the legal system itself. Austin came out with the solution of "tacit" command for the problem of continuance of old laws. In fact, Austin's theory of a legal system is at best an explanation of a momentary legal system which contains all laws of a legal system valid at a certain moment. These are usually not laws of the system. It is a sub-class of the system. For every momentary legal system there is a legal system which contains all laws of a legal system. It is logically impossible for a legal system to contain an empty momentary system. There is not a moment at which a legal system exists but has no laws valid at that moment.....Full Article
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