The idea of “Sovereignty” in Austinian Theory

Introduction:

“Democracy and liberty are not the same. Democracy is little more than mob rule, while liberty refers to the sovereignty of the individual” – Walter E. Williams[1].

As this quote suggests our sovereignty is the most important feature of any individual or any country.

Each state has its important components such as population, territory, government, and sovereignty.  Sovereignty is the power of the supreme. In simple terms, sovereignty means the legal status of a state which provides the ability to legitimate or control the territory of the state. A state without sovereignty is gregarious because the state is dependent on sovereignty and thus the sovereignty becomes the most substantive part to constitute a complete state.

Sovereignty is a word that directly refers to the king or monarch. It has supreme law-making power as an authority and its powers are unlimited within the territory of the state. It means the state does not depend on anyone in the territory and has that supremacy of being an independent authority of the state.

Meaning of Sovereignty

The word sovereign is derived from the Latin word ‘Superanus’ which theoretically means ‘the supreme’. Here, the state is the supreme and has control over all the people residing within the territory. The state is free to frame any kind of laws it wants to for the purpose of people and nobody has any right to oppose the state in any case. All the laws framed by the state are expected to oblige and follow it if in case people do not follow it the person would be punishable under laws for the same. Sovereignty has different kinds such as legal, political, national sovereignty, and so on.

Many theorists and realists have defined sovereignty in their different views. According to Jhon Bodin sovereigntyis “the supreme power over citizens and subjects, unrestrained by law”.

The above definition tells that the state possesses powers such as which is the supreme among all the people in the state, it is an absolute law i.e each one of the states is expected to follow it, and it has unlimited power over citizens which is not a basic feature but a very important element of state from without which the state forms to be incomplete.

John Austin[2]

Austin[3] is eminent as an ‘English legal theorist’ and also renowned as ‘Father of English Jurisprudence’.

His famous books are ‘Province of Jurisprudence Determined’ and ‘Lectures on Jurisprudence’.

Austin has contributed a lot to the field of law and especially jurisprudence.

• Austin has defined law as “Law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.
• He said, “law is a command by sovereign backed by a sanction”.
• He has also propounded different kinds of law namely law properly so-called and law improperly so-called.
• He has set out a legal positive school of law.
• Command Theory is Austin’s pioneering work.

Sovereignty theory of Austin

Austin’s theory of sovereignty states that “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 sovereign and that society (including the superior) is a social-political and independent”.

• Law is command according to Austin. Austin’s theory of sovereignty says that command of sovereignty is followed by sanction. He says that the law imposing the duty is sovereign and enforceable by sanction.
• The command is given by political superiors as a duty to the political inferiors for which if in case the inferiors do not abide by it, will be backed by the sanction.
• Law of command implied by the sovereign to the inferiors are in simple words can be said as a duty imposed by the sovereign and sanction is backed to it if either the duty is questioned or not completed.

Important Ingredients[4]

1. Command
2. Duty
3. Sanction
4. Sovereignty

These important elements of the theory are explained briefly below –

Command

Here, the political superior is considered an intelligent person.

The command is the proclamation of the desire of the intelligent person, who decides another person to do or not to do any act and the violation of the same will amount to punishment sanctioned by the authority.

Necessary ingredients of command are the existence of two parties namely;

• Political superior (commander)
• Political inferior (commanded)

The command is the most important primary part of the theory.

Duty

Duty is an act of wish which a sovereign wants the inferior to follow compulsorily without fail. If the duty is unfollowed then the sanction of the sovereign grant backed by it.

Duty is the second foremost important element of the theory by which the theory is incomplete.

Sanction

It is the consequences that are to be occurring after violation of the command or questioning of the command. According to Austin’s sense of theory to identify law, the sanction is not relevant but in sovereignty, if the system of sanction is absent then it is deemed to be irrelevant. 

 Any sanction must not be backed by any reward because sanction is a negative consequence that is to be sanctioned on the inferiors who violate the duty of command ordered by their political superior.

Sanction is not a positive consequence such that to include rewards such as for example, if a particular act is done then there is an offering of reward for the same.

Sovereignty

Sovereign according to Austin is a political superior who is the source of all laws.

Sovereignty does not have a duty to follow or any kind of sanction given to it because sovereignty itself the supreme and no need to follow any other kind of evil consequences.

Sovereignty is not to be questioned by the inferiors and sovereignty is not ruled by any supreme authority because the sovereign is itself considered as supreme and free to impose punishment on their inferior as it has unlimited power.

Sovereignty is indivisible in nature.

Therefore, sovereignty is supreme and does not obey or abide by any other authority.

Prerequisite[5] or essential of Theory of Sovereignty

1. Sovereignty within the State is essential
2. Sovereignty is indivisible
3. Sovereignty is unlimited

Further is the explanation of the features mentioned above;

Sovereignty within the State is essential

According to Austin, every state must possess the power of sovereignty which is the supreme when it is compared to the superior of the state. So, sovereignty is the first credential in the theory. For which without sovereignty the state would be as ‘a man without soul or spirit says’ Austin.

Sovereignty is Indivisible

Sovereignty is indivisible because the state should be vested on the supreme power as a single person or body of authority is to be held as responsible for its functions and exclude division of functions, privileges among various other parts of the authority.

Sovereignty is Unlimited

Sovereignty is unlimited in nature. As Austin has mentioned in his theory the power vested on the state is considered as supreme and there is no power binding to the same. He also expressed his opinion that if there is a limitation on the sovereignty of the state then it would create a contradiction in terms of society.

Criticism of The Austanian Theories[6]

The sovereign is itself supreme and does not have any limitations for its powers this was the first critique which gave a negative impact on the theory. For example: In Indian Constitution, it has said that certain provisions are laid down for the people which says that laws must not be made against those provisions.

1. As Austin said that law is a command but according to the critiques point of view law is not compulsorily to be a command, likewise all the commands are not a law strictly.
2. Sovereignty is indivisible, while this was a major critique, they say that to take an example of any state, when it comes to sovereignty is there is a division of work or authority among the superior people.
3. The theory of sovereignty was criticized for not being in test of practical reality.
4.  The unlimited power on sovereignty is an undesirable because no one can impose such amount of power on anybody.
5. The command given by the superior is determinant to form a law but whatever is commanded by the superior practically cannot become law by itself.

Case Laws

Ayyapppankutty v. The State of Kerala[7] on 10^th Jan 1986

Facts:

In this case, the petitioner was undergoing imprisonment in the central jail, the police and other state authorities have published his photographs, this was the ground for the petition and he said that the action is violative of his basic fundamental rights because by this action his future would be affected adversely.

Issue:

One of the most important issues of the case was a conflict between the state interest and the liberty of the citizen. Liberty given to the citizen by the state is thus limited and does not possess more power than the police authority. It is the responsibility and duty of the police to prevent such crimes to occur in the future and even other central governments possess the power of sovereignty over the prisoners, its duty is to establish peace in the society.

Held:

It was held based on Austin’s theory that without law and order, the liberties of people cannot be meaningful and since it is a criminal case, it is evident that the prevention of crimes is the basic power of the police and the other body of authorities of the state.

Thus, the petition was rejected by the court of law.

Govind v. State of Madhya Pradesh[8] on 18^th March 1975

Facts:

The petitioner was acquitted in a few criminal cases, the police considering the evidence of the charge sheet against him found out that he is a habitual criminal and kept him under surveillance. The petitioner alleged that police has filed a false case against him and under the same surveillance, the police frequently visit his domicile and harassed him. The movement of him is watched by the Chowkidar and village people which deemed his reputation down. Thus, he filed a case against the police and others that it violates his fundamental rights.

Issue:

The issue raised here was whether surveillance was violative of the fundamental rights of the citizen.

Held:

The Madhya Pradesh Police Regulation 855 and 856 has the force of law subjected to surveillance and does not violate fundamental rights instead it restricts the liberty of the citizen to control the future occurring of crimes from the person who is under surveillance.

In this case, the honorable judge referring to Austin theory said that it is the power of the police to frequently visit the domicile of a person under surveillance, Regulation 855 and 856 is not violative of the fundamental right of any citizen because it is confined only to the person under surveillance, the law has provided liberty but therefore, also restricts it.

Thus, the petition was dismissed on grounds that the regulation was having the force of law, which is supreme.

Conclusion

Sovereignty is an important aspect of any state.

Without sovereignty, a state shall seem nothing because sovereignty is the essence of any state. Sovereignty is explained by numerous theorists from Bodin to Austin, but Austin’s theory of command was very famous because it was simple to understand.

Austin’s theory of sovereignty suggested that the supreme power will give a duty which is backed by the sanction which is clear that he talked about a single ruler.

The concept of sovereignty has become a controversial aspect in the 20^th century.

For example: when any person in favor approaches the authority and they deny it then people start protesting for it. Thus, sovereignty has become contradictory in nature.

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References:

[1] Walter E. Williams. (n.d.). AZQuotes.com. https://www.azquotes.com/quote/364535 (last visited: 29^th Aug, 2021).

[2] Prof. S.N. Dhyani, Jurisprudence and Indian Legal Theory, 7 & 8, (4^th ed. 2002). 

[3] Ibid, 55.

[4] Prof. S.N. Dhyani, Jurisprudence and Indian Legal Theory, 53, (4^th ed. 2002). 

[5] Prof. S.N. Dhyani, Jurisprudence and Indian Legal Theory, 113,114 & 115, (4^th ed. 2002). 

[6] Prof. S.N. Dhyani, Jurisprudence and Indian Legal Theory, 55 & 56, (4^th ed. 2002). 

[7] Ayyappankutty v. The State of Kerala, 1987 CriLJ 1593.

[8] Govind vs State Of Madhya Pradesh, 1975 AIR 1378, 1975 SCR (3) 946