The most important definition sovereignty is given by John Austin. John Austin in his book ‘The Province of Jurisprudence Determined’ said that,

“If there is a specific authority in a particular society, or those who are not loyal to any other authority, but have the general loyalty of all the people of that society, then that superior authority is called sovereign and the society with that sovereign authority is an independent and political society.”

From the above definition of the sovereign, we can conclude that according to John Austin, the sovereign is not accountable to anyone but the whole realm has to follow whatever the sovereign dictates

According to Austin the superiority which is an aspect of sovereignty and the independent political society that sovereignty implies is distinguished from other superiority and other societies by the following characteristics-

1. That the sovereign receives habitual obedience from the bulk of the community. That is to say, obedience must be a matter of habit and not merely occasional. Obedience rendered to an authority for a short time does not make it a sovereign. Austin’s thesis is that obedience to the sovereign authority must be continuous, regular, undisturbed and uninterrupted. Moreover, obedience rendered to the sovereign must not necessarily be from the whole of the society. It is enough for purposes of the sovereign power if it comes from the bulk of the society its large majority. Where habitual obedience from the bulk of the society is not forthcoming there is no sovereign power. Thus, sovereignty involves not only the submission of the many but also its permanence.
2. This individual or body of individuals is not in habit of obedience to a determinate individual, though laws set by opinion may affect the conduct of this body but there is no determinate person or aggregate of person to whose command this individual renders habitual obedience.

CRITICAL ANALYSIS

There have been many criticisms of this idea of a sovereignty as propounded by Austin and they are as follows:

1. It is established in his theory that the sovereignty 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. The sovereign therefore, may act unwisely, or dishonestly, or in an ethical sense, unjustly, but for the purpose of the legal theory the character of his action is unimportant. So long as laws emanate from the legal sovereign, they are commands which must be obeyed and this can be detrimental to society.
2. According to Austin, only instructions issued by a political superior, i.e., a sovereign, are laws in the strict sense; this would imply that the presence of a state or sovereign is a prerequisite for the formation and enforcement of laws. This definition of law cannot withstand historical inspection. Law predates any form of government or state in history. A state may establish a mechanism for generating, implementing, and enforcing rules as part of a mature political system, although laws may exist even in the absence of such equipment. Any period in human history would contradict Austin’s concept of law.
3. Austin’s view of a definite sovereign also contradicts widely held notions of political and popular sovereignty. It disregards the strength of public opinion and fails to acknowledge the presence of political sovereignty, which is now widely regarded as a state’s ultimate sovereign authority.
4. Austin’s theory of sovereignty assumes that everyone would do precisely what the sovereign commands, which is not the case in India’s current political situation. His ideas place the subject’s habitual obedience at the heart of the philosophy. Those who believe the sovereign is the most suitable will submit willingly. Those who believe the sovereign is flawed will comply out of concern that the evil of their opposition will outweigh the harm of their submission. Those who are unsure will, out of habit, follow the king. He hasn’t contemplated the prospect of the people refusing to obey the sovereign.
5. Austin proposed that the sovereign is immune from all legal restrictions and that no punishments of any sort may be inflicted on him. Individuals and groups are inferior to the command of sovereignty. According to Austin’s thesis, the sovereign’s zero responsibility places the entire country and its inhabitants at the mercy of a single individual who may decide on someone’s life and death based on his mood and personal whims and this presents a very dangerous situation. Austin has also been criticized for not giving consideration to the formation of law-making bodies other than the sovereign.

REFERENCES

1. https://blog.ipleaders.in/austin-sovereignty-theory/
2. http://www.legalservicesindia.com/articles/sover.htm
3. https://www.slideshare.net/arnabbd/theory-of-sovereignty-john-austin
4. https://www.brainkart.com/article/Austin-s-Theory-Of-Sovereignty-(Monistic-View)_1626/

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