NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

Political Science

Third Trimester

Project on;

John Austin Theory of Sovereignty

Submitted to: Submitted by:

Dr. Raka Arya Gaurav Singh

(Associate Professor) (2018BALLB34)

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 Table Content

1. Certificate………………………………..3

2. Acknowledgment………………………..4

3. Objectives……………………………….5

4. Research methodology………………….5

5. Introduction……………………………..6

6. Definition………………………………..7

7. Characteristics…………………………..7

8. Importance of sovereignty………………9

9. Kind of sovereignty…………………….10

10. Background of john Austin……………..11

11. Concept………………………………….12

12. Criticism………………………………...14

13. Conclusion………………………………15

14. Bibliography…………………………….15

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 CERTIFICATE

This is to be certified that the following project work has been done by Gaurav Singh, who is
currently pursuing BA.LLB (Hons) course at National Law Institute University, Bhopal, the
following project has been done as a part of the curriculum and for the subject- Political Science,
and this project has not been plagiarized from any source, nor has been published in any article
or journal.

Date: ……………

Signature of the Student……………………...

Signature of the Supervisor……………………

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 ACKNOWLEDGEMENT

I would like to acknowledge and extent my heartfelt gratitude to Prof. Raka Arya for guiding me
throughout the development of this analysis of this case into a coherent whole by providing
helpful insights and sharing his brilliant expertise. I would also like to thank the officials of The
Gyan Mandir, NLIU for helping me to find the appropriate research material for this case
analysis. I am deeply indebted to my parents, senior and friends for all the moral support and
encouragement.

Gaurav Singh

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Objectives:

The proposed research paper aims to achieve the following objectives:

1. To understand the meaning of sovereignty.

2. To understand the view point of Austin toward the “Sovereignty
3. To understand kind/types of sovereignty

Research Methodology:

For the proposed study, Doctrinal Methodology is used.

Literature Review:

 Dr. S.R. Myneni; Political Science

 R.C. Agarwal; Political Theory

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Introduction

The term “sovereignty” derived from the latin word ‘superanus’ which means the
‘supreme’. It means that in every full-fledged or independent state there is an ultimate authority,
an authority from which there is no appeal. This authority is supreme both in internal and in
external matters. Internally, no individual or group of individuals has the legal right to act
contrary to the decision of the sovereign power. In external matters, too the sovereign state is
supreme.

Sovereignty denotes the supreme power of the state. The conception of sovereignty like
many other conception in political science, is evolutionary in nature and character. Gilchrist says,
“the word sovereignty comes from a latin word ‘supranus’ which means supreme. The use of the
word ‘souverain’ as technical term in political science dates from the publication of a work
called the ‘Republic’ by the Franch author, Jean Bodin, in 1576. The idea of sovereignty was
common before his time, though it was called by other names. In Aristotle we read of the
‘supreme power’ in the state and the Roman Lawyers and medieval writers speak of the ‘fulness
of power’ of the state”.

Sovereignty is a term of political theory. Over the ages this single word has aroused great
passions and violent conflict and brought about historic relovtions in the political society. It is
not a term of art with a fixed and immutable meaning. Like another word in political theory-“the
people”- it has different meaning in different times and in different place1

According to Bodin, sovereignty is (1) personal, (2) indivisible and (3) absolute. But sovereignty
is not personal in a republic; it is neither indivisible nor absolute in a federation founded on a
written constitution. In Britain Dicey divided sovereignty between the people and parliament.
According to him, political sovereignty resides in the people and legal sovereignty in parliament.
His theory of parliamentary sovereignty has exercised powerful influence on lawyer and
statesmen in India.2

1
https://www.jstor.org/stable/43949964?seq=1#metadata_info_tab_contents
2
https://www.jstor.org/stable/43949964?seq=1#metadata_info_tab_contents

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Definition of Sovereignty:

1. Jean Bodin- “sovereignty is the supreme power over citizens and subjects unrestrained
by laws”.
2. John Austin- “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, the dterminate
superior is sovereign in the society, and the society, including the superior, is a society
political and independent.”
3. Fredrick Pollock- “sovereignty is neither the supreme power which is neither temporary
nor delegated nor subject to rules which it cannot alter nor answerable to any other power
on earth”.
4. Blackstone- “sovereignty is “the supreme irresistible, absolute, uncontrolled authority in
which the supreme legal power resides”.
5. Edward Jenks- sovereignty is “the authority which is the last resort, controls absolutely
and beyond appeal, the actions of every individual member of the community.”

Characteristics of Sovereignty:

Sovereignty has many characteristics.According to legal theory the following are the most important
ones

1. Absoluteness- the sovereignty of a State is absolute and unlimited. There is no legal

power within or outside the State, superior to it. It is supreme overall individuals and
groups of individuals within the State. The State issues orders to all and receives orders
from none because it has sovereignty. Sovereignty is the very essence of the personality
of the State. However, the natural inherent rights of the individuals, customs and belief
international laws, etc. are the limitations of the sovereignty.
2. Universality.-The sovereignty of the State is in comprehensive and universal. The State
authority extends to in persons, things, groups and associations within its territory
without any exception. It is the master and others are it subordinates. No one has either
the authority, or the capacity, to challenge its power. The only exceptions are the by
diplomatic representatives is only a matter of international courtesy and is no real
exception. The privileges so granted can be removed by the sovereign at any time.

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3. Permanence.-Sovereignty is permanent. It means that sovereignty continues as long as
the State exists. The sovereignty does not cease to exist with the death or dissolution of a
particular holder of it, but shifts immediately to the successor. Sovereignty lives so long,
as the State exists. In England people used to W. "The King. is dead, long live the King."
It means, the ruler is dead. but the State is permanent. However, if a State is totally
destroyed by natural calamities or annihilates, sovereignty also gets terminated, otherwise
it is permanent.
4. Indivisibility- Sovereignty by nature cannot be divided into parts. Calhoun says,
“Sovereignty is entire thing, to divide t, is to destroy it." Gettle says, "If sovereignty is
divided, more than onState exists and sovereignty is 'destroyed. “Sovereignty represents
the supreme will. Once it is divided, it no more remains a will. There cannot be two
sovereigns in a State. Critics point out that sovereignty is divided between the Centre and
the Province. In a federal State. This argument is not valid. What is divided in a
federation is not sovereignty but the exercise of its powers. Even in a federal State,
sovereignty rests with the State as a whole in Centre.

5. Inalienability-Sovereignty is inalienable. It means that sovereignty cannot be transferred

to any other body without destroying it. If the sovereign transfers his supreme power, he
ceases to be sovereign. The abdication of a sovereign or monarch also does not mean the
alienation of sovereignty. It is merely a change in the form of government by the
resignation of his position by a titular sovereign.

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Importance of Sovereignty:

Sovereignty is the most important element of State. There can be no State without sovereignty.
Sovereignty makes the State supreme in both internal and external matters. A State can be
independent only if it enjoys sovereignty. The importance of sovereignty can be in the following
ways:

1. Sovereignty is the supreme power over all individuals and associations. The State is able
to control and regulate the activities of different associations and individuals because it
can punish anybody with its sovereign power.
2. Sovereignty is the most important feature which differentiates the State from other
associations which have no sovereign power.
3. The State can maintain unity and integration when it has supreme powers. Society will
become worse and mutual disputes will occur without sovereign power in the State.
4. Sovereign authority is essential to maintain order in society. Without sovereignty anarchy
will prevail in society and there will be chaos and disorder.
5. State exists, survives and continues only when there is sovereignty.
6. The State can give protection to the citizens from any external threat or internal
disturbances with its sovereign power. It is the responsibility of the State to create an
atmosphere of peace and security in the society. One State controls and curbs any anti-
social and anti-national elements since it possesses coercive power.
7. The State is able to make laws to regulate the relations between individuals because it has
sovereignty. The State cannot frame and implement laws in the absence of sovereignty.
8. A country can be an independent one only when it has sovereignty. Sovereignty makes
the State to run trade and commerce freely and frame its foreign policy for the sake of
welfare of the people.

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Kind of Sovereignty:

1. Titular Sovereignty- The term sovereignty is used in different senses, and failure in
distinguish them result in much confusion. The term titular sovereignty is used with
reference to a king or other monarchical ruler who at one time was a real sovereign, but
who for a long time has ceased to be such. The king of England is officially referred to as
the sovereign', although hit sovereignty i; only nominal. Real power passed to other
hands long ago. Therefore, the sovereignty of the king is a harmless fiction.3
2. Legal Sovereignty- A distinction is often made between legal sovereignty and political
sovereignty. The legal sovereign is the supreme law-making body in the Slate. Only its
commands are laws. It can override prescriptions of divine law. The principles of
morality, and dictates of public opinion. Such a m is found in England in the King-in-
Parliament. Legal sovereign is the lawyers conception of sovereignty. It is the
determinate person referred to in Austin’s definition of sovereignty. Courts recognize
only those laws which emanate from such a sovereign authority.
The following are characteristics of legal sovereignty:4
1. It is always definite, determinate, organized, precise and known to law.
2. It alone has the power to issue command.
3. Disobedience to its laws means punishment
4. All legal rights emanate from the legal sovereign and it can withdraw or annul them at its
will.
5. The authority of the legal sovereign is absolute and unlimited and supreme
6. It may reside either in the person of a monarch or it may be vested in a body of persons as in a
democracy.

Political sovereignty:

Political sovereignty is the body whose will is ultimate, obeyed by the citizens of the State. It is
indefinite and Mt recognized by Courts. Political sovereignty is supreme and high in democracy.
It is identified with the community or with the mm. or public opinion. The will of the people is
expressed through elections, public meetings, press, etc. Gilchrist says, The political sovereign
3
Political theory, by Eddy Asirvatham and K.K Misra.
4
Political science, by Dr. S.R. Myneni.

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means the sum total of influences in a State which lie. behind the law. In modern representative
government we might define it roughly as the power of the people." According to Prat Garner,
'Behind the legal sovereign, however, is another power. legally unknown,unorganise ' and
incapable of expressing the will of the State in the form of legal command, yet with a power
whose will must ultimately prevail in the State. This is the political sovereign. That is why Dicey
says, "Behind the sovereign whom the law recognizes, there is another sovereign to whom legal
sovereign must bow." In democracy, political sovereignty is identified with the electorate that is
the body of citizens who have the right to vote. In a democracy, the legal sovereign does what
the political sovereign desires. Similarly, in a democracy, the law-making bodycannot ignore
public opinion. The electorate exert its influence on legal sovereignty through the press,
platform, literature, election, etc. Hence, Dicey says that political sovereignty is a body whose
will is ultimately obeyed by the citizens of the State. The political sovereignty means the sum
total of the forces in a State which influence and control the making of law. The relation between
the legal sovereign and the political me rein is intimate and organic. They are two aspects of the
sovereignty of the State like the obverse and reverse of the same coin, They constantly act and
react on each other. Ultimately the legal sovereign should manifest the will of the political
sovereign In a direct democracy, there is no difference between the legal sovereign and political
sovereign. In an indirect democracy, legal Mereignty belongs to the legislature and political
sovereignty belongs to the electorate. The legal sovereign simply translates the wishes the
political sovereign into laws.

Background of John Austin:

John Austin is the nineteenth-century legal philosopher, known as the founding father of the
school of "legal positivism". His work focused on laws relating to human behavior and excluded
from his study the laws relating to inanimate matter. (The laws of physics). He was born March
3, 1790 to the creation of Mill, in England. He grew up in a merchant class family. He served
briefly in the army before starting his legal training. He was called to the bar for legal practice in
1818. But it took a few cases and he gave his legal practice of law in 1825. But the bitter
experience of his life, his analytical mind and his intellectual honesty and of his colleagues
improved He was named the 1st. Professor of Law at the University College of London in 1826.
During this time, the professor's auction was closely related and associated with Bentham and his

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circle. In the year 1832, the Austin conference series "The Province of Determined
Jurisprudence" was published in this series of lectures, said that all the laws with which meaning
related to mandates, duties and sanctions. Each of these terms, he said, means that the same idea:
that of "law" indicates a different part of that notion, and connotes the residue (that is, each term
implicitly carries the other two). In 1838, he was part of a commission investigating the
administration's complaints in Malta, a British colony. Over the next decade, Austin lived with
his wife Sarah Taylor Austin abroad and served outside their own country. In the year 1848 they
returned to England and then stayed regularly. On December 1, 1859, Austin died. Similarly, the
researcher has worked hard and put all his potential to achieve the desired result of this project.
He classified each topic separately to generate a better understanding of the project

Concept of John Austin theory of Sovereignty:

Austin's concept of sovereignty was discussed in his book 'Province of Certain Jurisprudence.
Use the concept of sovereignty to define the law and the content of jurisprudence. In his own
words: "The question of jurisprudence is the positive law, the law, simply and rigorously called,
or the laws established by politicians superior to the inferior politicians." A law, in the most
general acceptance in which the term is used, is a Rule established by law, the guide of an
intelligent being by an intelligent being who has power over him. Of the laws established from
man to man, some are established by political superiors, sovereigns, people who exercise the
supreme government, in independent nations or in independent political societies [this is the
subject of the science of positive law. According to Austin, the superiority that is called
sovereignty and independent political society that implies sovereignty differs from other
superiorities and other societies with the following characteristics: 1. Most of the given society
has the habit of obeying a certain and common superior, that the common superior could be an
individual or a particular body of people. 2. This individual or body of individuals does not have
the habit of obeying a particular individual, although the laws established by opinion (laws
improperly called according to Austin) can influence the behavior of this body, but there is not a
single person or a set of people At whose command this person makes habitual obedience.

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Define it in the words of Austin "If a certain human superior who does not have the habit of
obeying a superior receives the usual obedience of the majority of a certain society, that
determined superior is sovereign of society, the independent political society.

Limits of the sovereign: since every law in an independent political society is established directly
or indirectly by a sovereign person to a person in a state of subjection to its author, therefore,
from the nature of the sovereign derives that the power of a Monarch is not able to limit the law.
If a monarch was limited by the orders of another superior, he cannot be the sovereign. The
power of the sovereign's imposing restrictions would be free of obstacles to positive law.
According to Austin, despite the fact that sovereign bodies have sought to impose or tie their
successors to their sovereign powers, the position of being unable to limit any limits will remain
universally true. He clearly states that the laws imposed by the sovereign on themselves are
simply "rules of positive morality", they are simply the principle that they adopt as guidelines,
the sovereign is not obliged to observe them through a legal or political sanction, because if the
sovereign were legally obliged to observe it, the sovereign would be in a state of submission to a
superior or superior sovereign.
Reasoning behind the obedience of a sovereign: according to Austin, the purpose for which the
sovereign exists is the greatest possible progress of human happiness, of the people of the
community to which the divinity has ordered him to govern. From this very purpose for which
the sovereign exists, Austin deduces the cause of habitual obedience which, according to him, is
based on the principle of utility. If the enlightened masses thought that the sovereign had fulfilled
his true purpose, this would be the reason to obey. If they consider the government to be
defective, the fear that the evil of resistance could defeat the evil of obedience would be their
incentive to give in to the sovereign, since they will not persist in obedience to a government
they consider imperfect if they thought it was better. The government could probably be obtained
from the resistance. But Austin also takes into account those who are not adequately informed or
enlightened, says that these people pay obedience as a result of the habit, that they obey as they
used to obey, here prejudice (here the prejudice refers to the opinion and feelings that they are
not based on the principle of general utility) and not of utility is the factor responsible for
obedience. Habitual obedience stems from a perception of most of the community about the
utility of the government or a preference of any government for anarchy. Therefore, according to

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him, the general cause of government permanence is that the general masses wanted to flee in a
state of government of a state of anarchy. Thus, freely or voluntarily submit to a sovereign.

Criticism:

1. Austin’s conception of sovereignty ignores the realistic theory of the State which states
that the State is a useful instrument for promoting social good, and as such its laws are
obeyed when they are designated to promote that end.
2. The power of the sovereign is not absolute. Sir Henry Maine says that even despotic
rulers could not violate customs along with the people. The canons of morality, code of
conduct described in religion, etc. we’re not violated by rulers because of which they
were not completely absolute.
3. Austin’s theory recognizes the legal sovereignty and ignores the political and popular
sovereignties. Dicey observes that in a democratic State the legal sovereign should
bow to the political sovereign.
4. Sir Henry Maine says that Austin’s conception of sovereignty is inapplicable. To
underdeveloped communities where customs and religious Opinion are powerful
forces.
5. According to Laski and Cole, the State is an association among several associations
and as such it cannot be invested with the unique sovereign power of the community
which has their own sphere of activity with which the State has no business to
interfere.
6. Sir Henry Maine points out that sovereignty does not completely reside in a
determinate human superior. According to him, it is very difficult to locate 3
determinate sovereign even in a despotic State.
7. Austin’s view that sovereignty is indivisible has been challenged by some critics. They
cite the example of Federal States of the USA. And India in which power divided
between the Centre and several constituent units.

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Conclusion

Austin's ideas of different lawful ideas may not appear to be valid in current occasions, yet we
should not overlook that Austin is viewed as a standout amongst the most critical legal advisers
ever for his work, the hypothesis of law and the approach used to reach to his hypothesis. . For
their situation, both the finishes and the methods used to contact them have given an incredible
boost to the investigation of both the "law" and the "law". Austin tried various endeavors to build
up law and statute as an order. He prevailing in his endeavors in 1839, when the main gathering
of law graduates swooned at the college. Austin has spread and has built up that the law can be
contemplated experimentally; At the time, science had a dynamic and promising reason, so the
main manner by which the law could be set up was the order to interface it to logical system.
Austin has proposed a general hypothesis of law and concentrated the law with the assistance of
unquestionable actualities.

Hence, we can infer that with the evolving times, Austin's suppositions may not appear to be
extremely consistent with the political and legitimate request favored by the world, yet his most
noteworthy commitment to the making of the law as an order that can be examined
experimentally ensures a regarded position for him in the channels of law.

Bibliography

1. https://www.jstor.org/stable/43949964?seq=1#metadata_info_tab_contents
2. Political theory, by Eddy Asirvatham and K.K Misra.
3. Political science, by Dr. S.R. Myneni.
4. http://www.legalserviceindia.com/article/l213-Austins-theory-of-Sovereignty-in-modern-India-
and-Pakistan.html

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