John Austin and the Monist Theory of Sovereignty

While Hobbes and Bentham championed the concept of legal sovereignty, it is John Austin (1790–1859), an English jurist, in whose hand it gets its fullest expression. Furthermore, as Vincent maintains, like Bodin and Hobbes, Austin also identified the sovereign with the State.²⁴ John Austin in his Lectures on Jurisprudence (1832) formulated his concept of sovereignty. According to Garner, Austin’s formulation of sovereignty was conditioned mainly upon his view of the nature of law, which he defines in a general way as the ‘command given by a superior to an inferior’.²⁵ Austin declared the sovereign to be the single source of law.

Austin’s concept of sovereignty and independent political society emerges with clarity in his Lectures on Jurisprudence. He observes:

If a determinate human superior not in a habit of obedience to a like superior receives habitual obedience from the bulk of given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.²⁶

Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject.²⁷

Every positive law, or every law simple and strictly so-called, is set, directly or circuitously, by a sovereign person or body to member or members of the independent political society where in that person or body is sovereign or supreme.²⁸

The following characteristics of the sovereign emerge:

• Distinct sovereign authority: A sovereign is a determinate human superior and a definite authority, not the abstract General Will of Rousseau or the mass of the people and electorates, which are not fixed.
• Right to obedience and possession of force: The sovereign is so because it is not subject to obey a superior and receives habitual obedience from society. The determinate human superior possesses power ‘to put compulsion without limit on subjects or fellow subjects.’
• Law as command of the sovereign: Law emanates directly from the sovereign and is the command of this determinate superior and defines the superior–subject relationships. Law is backed by sanction. This doctrine of positive law gives it finality also and in case of conflict with the law of God or social laws, positive law being the command of the sovereign must prevail.
• Sovereign has absolute, indivisible and unlimited authority: The sovereign is not subject to any legal restraints. Its power is absolute and indivisible. The sovereign receives obedience from the bulk of society internally and does not give obedience to similar sovereigns externally.
• Political and independent society: A society with a determinate human superior is political and independent. For Austin, like Hobbes, political communities necessarily require a sovereign as it is a defining characteristic for them.
• Monist theory of sovereignty: Austin’s is a monist theory of sovereignty as the sovereign is the only source of law and positive law is the expression of the legal sovereign of the State. Austin’s theory implies thesuperiority of positive law over the law of nature or the dictates of reason. Furthermore, the sovereign is also a necessary condition for the political nature of society and its independence.