Austin’s theory of sovereignty mainly involves three inter-related propositions—first, the location of sovereignty in a determinate human superior; second, the legal superiority of sovereign authority and the finality of positive law in the form of law as the command of the sovereign; and third, the indivisibility and absoluteness of sovereignty. By the very fact of assigning final legal authority to the sovereign, it creates an image of the State which is legally unified and does not allow other groups any autonomy. We will see how this aspect of the theory has been attacked by various shades of pluralists who posit the ‘real personality’ of associations, groups etc. against the State. Austin’s theory of positive law and its finality tend to deny any other source of law. This has been contested by sociological analysis by jurists who claim that the authority of law is independent of the State. Before we look at pluralist critiques of the monist theory, we may briefly discuss some other critiques of sovereignty.
Historical jurists like Henry Maine, Clark, Sidgwick and others have found the first proposition of Austin—that sovereignty must reside in a determinate human superior—lacking in historical evidence. Henry Maine, in Early History of Institutions, has sought to show that this proposition cannot be universally applied in understanding the location of sovereignty in a determinate superior. He shows how empires in the Eastern Hemisphere were generally characterized by the absence of such an authority. Maine cites an exception in the Sikh kingdom of Punjab ruled by Maharaja Ranjit Singh who exercised despotic power. However, even he was not above the customary laws of the contemporary community and never issued a command in the Austinian sense of the term. Maine’s conclusion is that ‘it is a historic fact that sovereignty has repeatedly been for a time in the hands of a number of persons not determinate.’29 This, Maine maintains, is true not only in the case of such empires but also the ‘abiding place of sovereignty in the republic of the United States.’
The proposition of legal superiority is also criticized on the basis of inconsistency with the concept of popular sovereignty and the present-day idea of political sovereignty. While the concept of popular sovereignty gives supremacy to the people as custodians of ultimate power, political sovereignty takes cognizance of the power of public opinion. Thus, critics have pointed out uncertainties in the location of sovereignty as proposed by Austin. However, uncertainty in the location of sovereignty does not exclude its presence altogether. And to that extent, we may concede to Austin the credit of giving a definite formulation to one of the most important characteristics of the State.
Historical jurists have also criticized the second proposition of Austin, law emanating from a determinate human superior, which lies at the basis of his theory of sovereignty. This is based on the ground of the multiplicity of sources of law, particularly customary law, which has evolved through usage and interpretations. English common-law could be cited as an example. Austin’s concept of sovereignty wrongly treats all law as being merely the command of the sovereign and exaggerates the single element of force by neglecting historical and social facts. Jurists like Duguit would say that law is an expression of social necessity and a condition of social solidarity. Notwithstanding these refutations, experience suggests that with the increasing role of the State as an agency of development and a regulator of various activities, it has led to various types of social and economic legislation. This provides sanction and legal force both behind and against different social and historical customs. Social legislation like the Hindu Marriage Act of 1956 in India gives legal force to certain customs while acts like the anti-sati and anti-child marriage acts go against social customs.
Critics have also found the proposition of the indivisibility and absoluteness of sovereignty untenable. Austin’s concept of sovereignty in democratic parlance could be treated as legislative sovereignty. However, critics point out that other than the legislature, there are organs of government like the executive and judiciary that exercise power and at times override it. As such, sovereignty is not indivisible. If we take the example of Indian democracy, the legislature, in the last analysis, may enjoy legislative/legal sovereignty as it can bring constitutional amendments and even overturn judicial pronouncements of the highest courts. However, we should not overemphasize this aspect, as there are still limitations on the legislature. For example, in several pronouncements in cases like the Keshavananda Bharati Vs. State of Kerala (1973), Minerva Mills Vs. Union of India (1980), etc. the Supreme Court has held that the amending power under Article 368 of the Constitution of India does not enable the Indian Parliament to disturb what they called, the ‘basic structure’, features or framework of the Constitution of India. In this, the objectives specified in the Preamble like the republican and democratic form of government, the secular character of the Constitution and also features like judicial reviews, the rule of law, etc. have been mentioned by the Court.30 Similarly, in USA, the rigid procedure of constitutional amendments attest to some form of legislative sovereignty for the legislature. On the other hand, the principles of checks and balances emerging out of the separation of powers give a semblance of the divisibility of sovereignty in USA. Some writers like Dicey have differentiated between political and legal sovereignty. This differentiation has been construed to mean the division of sovereignty itself between ‘the determinate human superior’ and ‘the numerous body of the commons.’
Like Hobbes, Austin’s sovereign is unlimited and not to be restrained by any higher law. Sovereignty, being legally unrestrainable and not in the habit of obedience to a like sovereign, gives rise to legal despotism. Theorists of political pluralism have vehemently criticized such a proposition and argued for political and historical limits on it. Beside pluralist criticism, Laski has also criticized Austin’s monist concept of sovereignty on historical, legal and political grounds about which we will discuss in detail while dealing with Laski’s views.
Austin treats his sovereign as the legal head of a political community who is not in the habit of obedience to a similar sovereign. Given this formulation, it can be assumed that in the era of political and humanitarian intervention by some countries in the internal affairs of others, he would not have been comfortable with this trend of ‘shared sovereignty’. Notwithstanding critiques of his theory, we may concede to Austin the credit that he was thinking of legal sovereignty which, depending on the nature of the case, could be located in a determinate authority and not of political sovereignty, which may abide in an indeterminate number of persons. On the whole, we may say that so far as sovereignty in the strict legal sense is concerned, Austin’s theory is logical and forceful. In fact, as Garner says, Austin’s views are accepted by most English jurists, by many in Germany and in USA by Willoughby amongst others.
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