Austin Theory of Sovereignty - Concept of

Positive Law & Command

Understanding the Austin Theory of Sovereignty is a significant milestone in the study of political science
and legal theory. This theory, introduced by John Austin, a 19th-century British jurist, has had far-
reaching implications in how we perceive sovereign power and its functions. This comprehensive article
explores the contours of Austin's Theory of Sovereignty, dissecting its significance and relevance in
various aspects of modern politics and legal societies, including its impact on Indian politics.

What is Austin Theory of Sovereignty?

John Austin's Theory of Sovereignty is rooted in his legal positivist philosophy. Here are the key
points of this theory:

o Sovereignty, according to Austin, resides in a determinate human superior. The sovereign, in

a civilized society, is the state.
o The sovereign commands must be habitual. The majority of the society must be in a habit of
obedience to a sovereign.
o The sovereign is not in the habit of obedience to a determinate human superior.
o Austin's Sovereign is indivisible and illimitable, embodying absolute power.

Detailed Examination of the Austin Theory of

Sovereignty
Understanding the intricacies of the Austin Theory of Sovereignty requires an in-depth exploration of
its foundational pillars. At the heart of Austin's theory lie three significant concepts: Positive Law,
Command, and Sanctions. To fully comprehend the essence of this theory, it is imperative to delve
into these concepts and understand their interconnectedness.

The Concept of Positive Law

Positive law, as conceived by Austin, forms the bedrock of his Sovereignty Theory. This concept can
be traced back to his legal positivist philosophy, which sought to draw a clear distinction between
'law as it is' and 'law as it ought to be.'

Austin described positive law as a rule laid down for the guidance of an intelligent being by another
intelligent being who has power over him. This definition enshrines two key elements of Austin's
understanding of law:
 o The law is prescriptive: It outlines a course of action or a standard of conduct that must be
adhered to. It guides individuals' actions, ensuring they act in a manner consistent with the
society's overall functioning and order.
o The law emanates from an authoritative figure or entity: The individual or body
formulating the law possesses power over those to whom the law applies. This power
differential is an indispensable part of Austin's conceptualization of positive law.
o
o The Concept of Command
o Another critical facet of the Austin Theory of Sovereignty is the Concept of Command. In
Austin's legal framework, laws are commands issued by a sovereign. They are not merely
advisory or discretionary in nature; instead, they are binding directives that individuals are
obliged to obey.
o Austin's commands aren't necessarily specific to individual actions. They are generally
targeted towards classes of actions, providing broad, overarching guidance that applies to a
wide range of scenarios. This universal applicability ensures the sovereign's influence
permeates all aspects of the society it governs.
o The Concept of Sanctions
o Underpinning Austin's concept of command is the idea of sanctions. Sanctions serve as
deterrents, discouraging disobedience of the sovereign's commands. When a law (command)
is violated, a penalty (sanction) is imposed, underscoring the binding nature of the
sovereign's commands.
o In Austin's theory, sanctions are integral to ensuring compliance with the law. They manifest
the sovereign's power, instilling a sense of fear or obligation that compels individuals to
abide by the laws. Without sanctions, commands lose their coercive force, and laws are
reduced to mere recommendations.
o The interplay between Positive Law, Command, and Sanctions in Austin's Theory forms a
comprehensive framework for understanding the nature, creation, and enforcement of laws.
This understanding is crucial in analyzing the dynamics of power and authority in any
given society.

Relevance of Austin Theory of Sovereignty in Modern

Indian Politics
The Austin Theory of Sovereignty resonates deeply in the framework of Modern Indian Politics. Here
are a few illustrations:

o The Indian Constitution encapsulates Austin's theory by making the state the supreme law-
giving authority.
o The concept of Parliamentary Sovereignty, a fundamental aspect of Indian democracy, can be
traced back to Austin's theory.
o Austin's theory forms the basis for the democratic structure in India, where the elected
representatives exercise sovereign power on behalf of the people.
Criticism of Austin Theory of Sovereignty
While the Austin Theory of Sovereignty has been widely influential in shaping our understanding of
sovereign power and legal systems, it has also been the subject of various criticisms. It's important to
delve into these to achieve a comprehensive understanding of the theory.

Ignorance of Ethical Considerations

One of the main criticisms of Austin Theory of Sovereignty is that it ignores ethical considerations.
Austin's positivist approach solely focuses on 'law as it is,' disregarding 'law as it should be.' Critics
argue that by excluding moral elements from law, Austin overlooks the essential role that ethics
plays in shaping societal norms and legal systems.

Rigidity of Sovereign Power

Another point of contention is the rigid portrayal of sovereign power. Critics argue that Austin's
portrayal of sovereignty as absolute, indivisible, and unlimited does not take into account the
complexities of modern states. In contemporary democratic societies, power is typically divided
among various institutions, and no single entity possesses absolute authority. This critique contends
that Austin's theory fails to reflect the realities of shared and limited power in modern governmental
structures.

Insensitivity to Customary Laws and International Law

Austin's emphasis on the notion that laws are commands issued by a sovereign has also been
criticized for its insensitivity to customary laws and international law. These legal norms do not
necessarily originate from a determinate sovereign and do not fit within Austin's command-oriented
framework. This critique highlights the theory's limitations in comprehensively addressing the full
range of legal norms.

The Problem of Habitual Obedience

The concept of habitual obedience, a key tenet of Austin's theory, has also been criticized. Critics
argue that in complex modern societies, obedience to law is not merely a habit but rather a
conscious recognition of the law's legitimacy. This criticism emphasizes that the simplistic notion of
habitual obedience does not adequately capture the multifaceted reasons individuals adhere to laws.

Despite these criticisms of Austin's theory, its impact on our understanding of sovereignty and law is
undeniable. The theory has stimulated substantial scholarly debate, pushing us to question and
analyze the nature of power and authority in our societies. The discussions and debates it continues
to generate underscore its enduring relevance in the fields of political science and legal theory.