John Austin, the famous English Jurist, who gave one of the most authentic definition of sovereignty, in his book Lectures on Jurisprudence published in 1832. His theory of Sovereignty has left an indelible imprint on the subject of sovereignty and even today the concept of sovereignty cannot be studied without reference to Austin. Austin’s theory was criticised by many scholars such Sir Henry Maine, Clark, Sidgwick, Laski etc.
Criticism of Austin’s Theory
1. Sovereignty does not reside in a determinate human superior. Sir Henry’Maine pointed out that sovereignty does not reside in a determinate superior. He pointed out that sovereignty and the power of sovereign can never be absolute. e.g. Maharaja Ranjit Singh, he said that he could have commanded anything yet never in his life he issued a command which could be properly called as law. The rules which regulated the life of his people were derived from customs, usages and conventions. He himself was subject to customery la’ws of the community.
Not only in the Asian society but even in the Western society no sovereign could disregard the social customs and traditions. In the medieval period the Church exercised complete control over the authority of the sovereign. Accordingly, Sir Maine concludes that sovereignty has never been or can never be absolute.
2. Maine also pointed out that Austin’s theory is inconsistent with the concept of popular sovereignty. It is not true in a democratic society. In democracy sovereignty resides in the people. In this sense, sovereignty cannot be determinate. Austin also does not take into account, what is today called as political sovereignty.
3. According to Laski, law is not simply a command of a sovereign. It must be based on the moral sense of the society. There cannot be a law opposed to social, moral values and customs.
4. Sovereign power can never be absolute and unlimited. Even the most powerful dictators and autocratic rulers could not ignore the public opinion, or prevailing customs and tradition. Theoretically, we may say that the power of the sovereign is absolute but in reality, in every society there are forces which can challenge the authority of the state.
5. Austin lays too much emphasis on force. He believes that obedience can be exacted by the threat of force. But force and coercion are unproductive in the long run. In fact repeated use of force can become counter-productive. Force is something which destroys its own roots. It is not force but the willing consent which should be the basis of authority.
6. In a modern democratic state the location of the sovereign is practically impossible. In a Parliamentary system sovereignty is located in Parliament. But behind the Parliament is the political sovereign i.e. the common voters. And behind this political sovereign is the mass of people, who make-up for the popular sovereign.
Thus in a democratic society it is practically impossible to discover the sovereign in the Austinean sense.
7. Austin also failed to distinguish between legal, political and popular sovereignty. In a Parliamentary system while Parliament is the legal sovereign, the electors are the political sovereign, and the masses, popular sovereign.
8. Austin also failed to recognize the role of other associations within the modern state. Laski has pointed out that in a modern state, there can be powerful associations and groups, which exert great pressure on its members.
9. In the international system no state is externally free from foreign dominations or influences. Even powerful states cannot disregard” the feelings of the smaller states; on the other hand the smaller states are constantly under economic or political j pressur of the larger states.
10. The greatest defect of Austin’s theory is that it is undemocratic. According to him the sovereign is the determinate superior while the people are subordinate dependent on him. Such a theory will logically lead to despotism.
Austin’s theory is further criticised on the ground that it assigns absolute and Unlimited power to the sovereign. The pluralist do not agree with this argument, they maintain that the state is an association like many other associations in a society. Therefore, the pluralists accused Austin’s doctrine of a single and unifying sovereignty. They argue that sovereignty in modern state is diffused and shared by many associations and institutions. Externally also sovereign states cannot ignore the limitations put by the
international Law, Austin’s theory is therefore regarded as legal fiction. Laski is of the opinion that the idea of an independent sovereign state is fatal to the well being of humanity. Today, the States of the World constitute an’ international society. There are several common international problems which cannot be solved without international co-operation. For example, international terrorism cannot be tackled without the co-operation of different states. Similarly, agencies of the United Nations work in close co- operation. Besides, there are multi-national corporations (M.N.C.) and trans-national organisations, having their activities across national and continental boundaries. Today, in addition to regional co-operation, there is a process of globalisation of the world economy. The world economy is now closely integrated. Therefore, in such a situation Austin’s theory does not hold ground