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Austin’s theory of Sovereignty in modern India and Pakistan

Written by: Radhika Raman - I am a IV TH year law student at national law institute university Bhopal
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We seldom try to question the genesis of our legal theory. The way we gaze at the stars without finding a reason for their origin, is exactly the way we follow laws without questioning them and without even understanding their origin. Much ink has been spilt by legal philosophers trying to provide with a solution to this ever-ending debate, as to what is law.

The project paper does not intend dealing with such wider a question, but emphasizes and evaluates only one of the greatest thinkers ever who succeed in establishing law as the degree course after much stride. Austin has marked a phenomenal change in the entire understanding of legal theories.

Austin in Province of Jurisprudence Determined broke the shackles of natural law, following his teacher Bentham, and provided for a newer legal theory, which was more scientific in nature. What the paper intends is to find out the validity of his finding of law as the command of the sovereign and it’s relevance to the present context. In doing so the paper has been divided into various sections. It begins with tracing the evolution of the doctrine of sovereignty and how Austin defined this concept. The next section deals with the critical analysis of the same. In this section Austin's view on sovereignty has been criticized for reasons explained in detail. And lastly a brief discussion ensues on the existence of a sovereign as postulated by Austin in modern India and pakistan, the section concludes with the observation that Austin's sovereign does not have any place in Modern India but is definitely standing tall in Pakistan.

The Historical Evolution of The Doctrine Of Sovereignty

The Roman province believed in the dictas in New Testament, which expressed the thought that the supreme power actually has received divine sanction by being permitted to prevail, that it has a rightful claim to obedience. These dicta are an evidence of the sentiments of roman provincial under the earlier empire .The prevalent answer to any question about the source of legal sovereignty and the moral claims of a sovereign to the obedience of its subjects was that god had appointed certain powers to govern the world and to resist would be a sin. It was admitted that there were two sovereigns and each was absolute-The pope in spiritual and the emperor in temporal matters.

However, late around, the sixteenth century various changes took place which shook the existing fabric of thought and belief. These included the crumbling of feudal structure of the society, pope's authority being met with a revolt and half the Europe was taken from his sway, a new sprit of inquiry, skeptical in its tendencies sprang up in Europe( a characteristic of renaissance). Thus the traditional doctrine regarding the basis of authority which had been sufficient for the middle ages had faded, morals began to be separated from theology, people started questioning the basis of a kings' claim to obedience. A new explanation of the nature of political society was now needed and from this time onwards new theories of state power began to appear.

The first theory which exerted wide influence was that of Jean Bodin In his view sovereignty was the highest power in a state which is subject to no laws but is itself the maker and master of them. It may reside in either on person or in a number of persons , but in either case it is above law, incapable of any limitation and having an absolute claim to the obedience of all. He admitted that in some way the sovereign is subject to Law of God and laws of nature , and is therefore he is bound to respect the rights of property and personal freedom.

Nearly a century later a similar theory was put forward by Thomas Hobbes. He based his sovereignty on a covenant of each member of a community with another member to surrender all their rights and powers into the hands of one person or body who thereby becomes the sovereign. Since the sovereign is not himself a party to the contract it cannot be annulled by those who made it . The authority of the sovereign is therefore permanent and unlimited. Jermy Benthem revived Hobbes theory of absolute sovereign and justified it. Thus we see that much before Austin , there were other great philosophers who had defined sovereignty

Austin’s Theory of Law

The work of the English jurist John Austin (1790-1859) remains the most comprehensive and important attempt to formulate a system of analytical legal positivism in the context of the modern state Historical Context- Austin places the notion of sovereignty at the basis of his theory of law. Austin borrowed from the European experience he had .The sudden break up of the roman empire after thousands of year of peaceful rule made people realize that peace can be maintained only through a singe unified authority with infinite power of command at its disposal. Moreover Austin wrote his works at a time when England was in need of vast legislative reforms. He attributed this chaos to loose thinking and did not regard natural law as a useful tool to bring in sound changes and since his aim was designed to search for a coherent system of law he divorced law from morals, ethics, religion and other social norms. Keeping in mind this factual context in which he was writing, now we shall discuss his ideas of sovereignty

Austin’s most important contribution to legal theory was his substitution of the command of the sovereign for any ideal of justice in the definition of law. Austin defines law as:
A rule laid down for the guidance of an intelligent being by an intelligent being having power over him Law is thus strictly divorced from justice and instead of being based on ideas of good and bad, is based on the power of a superior. This helps in understanding Austin with reference to the social contractual theorists like Hobbes and others.

Austin for his legal system has created a categorical classification of laws. The first division of law is that into laws set by God to men (law of God), and laws set by men to men (human laws). The former class of laws is of no real juristic significance in Austin’s system, compared, for example with the scholastic teaching which establishes an organic relation between divine and human law. In Austin’s positivist system, which refuses to relate law to goodness or badness, the law of God seems to fulfill no other function than that of serving as a receptacle for Austin’s utilitarian beliefs. The principle of utility is the law of God.
Human laws are divisible into laws properly so called (positive law) and laws improperly so called. The former are either laws set by political superiors (either ‘supreme’ or ‘sub-ordinate’) to political sub-ordinates (such as statutes and buy-laws), or laws set by subjects, as private person’s in pursuance of legal rights granted to them. As an example, Austin gives the rights of a guardian over his ward. But since the legal nature of such rights derives from the indirect command of the superior who confers such right on the guardian, it is obvious that every enforceable private right must fall within this category. Laws improperly so called are those which are not set – directly or indirectly – by a political superior. In this category are diverse types of rules: rules of clubs, laws of fashion, laws of natural science, the rules of so called international law. To all these Austin gives the name of ‘positive morality’.

The positive law or ‘law properly so called, which remains is characterized by four elements, command, sanction, duty and sovereignty:
Laws properly so called are species of commands. But, being a command, every law properly so called flows from a determined source . . . whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear; and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. . . . Every sanction properly so called is an eventual evil annexed to a command . . . Every duty properly so called supposes a command by which it is created . . . and duty properly so called is obnoxious to evils of the kind.

The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard to their goodness or badness
All positive law is deduced from a clearly determinable law-giver as sovereign.

Every positive law, or every law simply and strictly so called, is set by a sovereign or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.

Austin subdivided laws ‘properly so called’ into laws set by God, Divine laws, and laws set by men to men acting as political superiors or in pursuance of rights conferred by political superiors. Then he applied the term ‘positive law’ to every law set by men to men or what he called the ‘law simply and strictly so called’ so as to distinguish them from the laws of God. ‘Positive laws’ are the subject matter of jurisprudence. Separate from all these are the laws set by men to men neither as political superiors, not in pursuance of rights conferred upon them by such superiors. They are still ‘laws properly so called’ because they are commands, but he distinguished them from positive law by giving them the term ‘positive morality’

Under the head of laws ‘improperly so called’ Austin placed, first of all, ‘laws by analogy’, i.e., laws set and enforced by mere opinion, such as the laws of fashion, international law and so forth. These also Austin termed ‘positive morality’ – ‘positive’ so as to distinguish them from the laws of God, ‘morality’ so as to distinguish them from positive law or law strictly so called. Laws ‘improperly so called’ also included ‘laws by metaphor’.

The sovereign is thus defined by Austin as:

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

Austin explains that the superior may be an individual or a body or aggregate of individuals. The sovereign is not himself bound by any legal limitations, whether imposed by superior principles or by his own laws. Any higher principles or self-limitations are merely guides which the sovereign may discard.
Limits of the sovereign-.Since every law in an independent political society is set directly or indirectly by a sovereign person to a person in a state of subjection to its author, therefore it follows from the nature of sovereign that the power of a monarch is incapable of legal limitation. If a monarch was bound by the commands of another superior he cannot be the sovereign. The power of the sovereign imposing restraints would be free from fetters of positive law. According to Austin even though sovereign bodies have attempted to oblige themselves or to oblige their successors to their sovereign powers the position that they are incapable of any limitation will hold true universally. He clearly states that the laws imposed by sovereign on themselves are merely "rules of positive morality", they are merely principle that they adopt as guidelines, sovereign is not constrained to observe it by a legal or political sanction, for if the sovereign was legally bound to observe it, the sovereign would be in a sate of subjection to a higher superior or sovereign.

Rationale behind obeying a sovereign - According to Austin the purpose for which the sovereign exists is the greatest possible advancement of human happiness, of the people of the community which the deity has commanded it to rule. From this proper purpose for which sovereign exists, Austin infers the cause of habitual obedience which he says is bottomed in the principle of utility. If the enlightened masses thought that sovereign accomplished its proper purpose, this would be their motive to obey. If they deemed the government to be faulty a fear that the evil of resistance might surpass the evil of obedience would be their inducement to summit to the sovereign, for they would not persist in obedience to a government which they deemed imperfect if they thought a better government might probably be got by resistance. But Austin takes into account also those who are not adequately informed or enlightened, he says that such people render obedience as a consequence of custom, they pay obedience as they are in a habit of obeying, here prejudice ( prejudice here refers to opinion and sentiments which have no foundation in the principle of general utility) and not utility is the factor that is responsible for obedience. The habitual obedience arises from a perception by the bulk of the community of the utility of the government or a preference of any government to anarchy. Thus according to him the general cause of permanence of government is that the general masses were desirous of escaping to a state of government from a state of anarchy. Thus they submit freely or voluntarily to a sovereign.

Command: An Element of Law
It is highly necessary to understand the meaning of command as referred by Austin before proceeding any further. ‘Command’ is distinct from requests, wishes and so on. As per Austin, all the rest are simply expression of desire, while commands are expressions of desire given by superiors to inferiors. This creates an hierarchy of status among those governed and those governing. The governed are bound by the desires expressed by the superiors and cannot demur. This relationship of superior to inferior consists for Austin in the power which the former enjoys over the latter, i.e. his ability to punish him for disobedience. Consequently, the subjection of the inferior to the superior consists in his ability to suffer a penalty for disobedience. In a sense, then, the idea of a sanction is built into the Austinian notion of command.

Austin himself said that ‘law is a species of command’, and not vice versa. Thus, it again becomes important to understand what is the characteristic feature of law which distinguishes it from rest of the commands. Here, reference can be made to Salmond , where he tries explaining this with the help of an illustration. Suppose a state governed by an absolute ruler R. Here the law is what R commands. But the converse might not be true. All commands by R are not law. He may command his servants to prepare for the banquet. This is not law. We have to distinguish law and instructions, e.g., to close the window, to turn up the heater, etc. R being an absolute ruler could have his servants executed for disobedience even otherwise . Austin distinguishes laws from other command by their generality, and laws he classified are general commands . But then he himself says that there can be exceptions. Generality alone, then, is neither necessary nor sufficient to serve as the distinguishing feature of law.

Austin’s Imperative Law

Diametrically opposed to the theory of natural law is the positivist, or imperative, theory of law. This theory distinguishes the question whether a rule is a legal rule from the question whether it is a just rule. Even Austin has said that jurisprudence is concerned not with what law ought to be but with the question what law is, and seeks to define law, not by reference to its content but according to the formal criteria which differentiate legal rules from other rules such as those of morals, etiquette, and others. Though this approach is often criticized as sterile and inadequate because it fails to take moral considerations into account, it was never intended by such exponents as Austin to exclude the problem of evaluating law; but in fact analysis was considered as the first of the preliminary task of critical assessment.

According to Austin, positive law has three characteristic features:
(a) it is type of command
(b) it is laid down by a political sovereign
(c) it is enforceable by a sanction

For to qualify as law, a command must have been given by a political superior, or sovereign. This is what he calls ‘laws properly so called’. Following then above discussion, a sovereign is any person, or body of persons, whom the bulk of a political society habitually obeys, and who does not himself habitually obeys some other person or persons. The latter proviso serves to exclude viceroys, colonial governors and so forth, who are obeyed by those whom they rule, but who are not there own masters but are subordinate to a higher ruler. Accordingly, one difference between the order of a gunman and the decree of a dictator is that the latter enjoys a general measure of obedience while the former secures a much more limited compliance.

Criticisms And Their Evaluation
Austin was a positivist thinker of his time. For Austin goodness or badness of law was not to be tested, but what was critical was what can be termed as law. His theory has been criticized by various authors.

To start with, Dias in his writings have criticized Austin. First he said that Austin could not explain the existence of international law; and secondly, he said that linking means of securing obedience to identification of law was to confuse law with functioning of it. Today we see that various other principles of international law seem to have cored the concept of sovereignty. A sovereign does not have the power to perpetuate inhumane action against his citizens as the same shall come into great criticism from the world order and it shall soon have to face the consequences of surviving in a hostile world atmosphere if it continues to do so.
Dias further says that Austin as per his command theory, perceived an independent party who can command expressly or tacitly, or can receive obedience or submissions. The question, which arises, is whether a determined person, or body of persons, can be discovered who might be regarded as having commanded the whole corpus of the law. Elaborating this point Dias says that a sovereign is a sovereign within a ‘state’, and ‘state’ is a legally defined organization consisting of territory, population, government and a measure of independence in external relations. Who commanded these requirements? Again, it might be thought that the present monarch and members of both Houses of Parliament can command any law they please. However, it has been pointed out that the individuals who comprise the sovereign body have attained their positions by virtue of laws . Who, then, commanded these laws? Whoever commanded them in turn owed their authority to command to the observance of other laws. There is no sense in saying that the laws which brought them to their positions were their own commands. Dias says that developments in 1688-1689 in England shows that the Crown in Parliament in no sense commanded the rule that its commands shall be law. It was acceptance of it as the supreme commander, particularly by the judges, that entitled it to command henceforth. Moreover, it is artificial to pretend that any member of Parliament. believes that the law of the land has emanated from his commands, for the vast majority of laws existed before he was born. To attribute commands to people, who have neither commanded nor believe that they have done so, is a fantasy as per Dias.

Another question which is being raised is that the common law and much legislation was already in existence and continued to exist unaffected even before 1689, when Parliament was accepted as Sovereign. Even if it is assumed with Austin that these laws had emanated from earlier commands, the question is why and how commands of a former sovereign continue to be laws under his successor. Austin's reply was that this comes about by virtue of 'tacit command': what the sovereign permits, he commands. This implies that the sovereign knows of the earlier commands and decides not to interfere. But then a subsequent question arises, when did the sovereign decide so. Which otherwise would mean that, the decision, assuming that there was one, not to interfere with this prior command, and which thereby invests it with fresh authority, can only be that of the sovereign himself. There may be two situations (i) a sovereign may consciously permit the continuance of a former law, or (ii) such a law may continue by default simply through not being repealed. Tacit command may superficially fit case (i) though it will be noticed that even an actual decision not to repeal is a decision not to command. How, then, can a decision not to repeal impart fresh law-quality to something which never ceased to possess it? Tacit command ceases to be even superficially applicable to case (ii), since non repeal by default is in no sense 'the expression of a wish', which was Austin's own description of command. The continuance of the majority of the laws of a previous sovereign are instances of (ii). In any case, tacit command fails to explain why the laws and system, which continue, are, the same laws and system. If then, tacit command is rejected, as suggested by Dias, what remains is the proposition that laws remain in force until repealed. Also the actual command of the sovereign also comes into force as law only when it has been made complying substantive procedure.

Dias says that Austin went on to assert that a sovereign cannot command himself, ie place himself under an obligation. Further, to confer a power on another is to specify the conditions and lay out the guidelines under which other persons may create obligations, subject to sanctions specified by the sovereign. Delegation of authority is thus commanding that people shall obey the commands of another. The attributes of sovereignty, which followed from this, are that it is illimitable, indivisible and continuous. His denial that the sovereign could be limited relegated substantial areas of constitutional law to positive morality. The sovereign cannot be under a duty, since to be under a duty implies that there is another sovereign above the first who commands the duty and imposes a sanction; in which case the first is not sovereign. But this way Austin has actually relegated most of the Constitutional provisions and also seems to go against the cherished rule of law as proposed by Dicey.

Further Dias says that Austin’s continuity of the sovereign is not proper because what shall be the situation when the parliament is being dissolved. In whom does the sovereignty lie in such situations. Austin had no answer. This sounds a valid criticism because, in a federal structure as ours it is very difficult to find who is sovereign. The power has been decentralized and has been distributed among the various players. Now, if the parliament which has delegated the power gets dissolved or a state assembly gets dissolved, who shall be treated as the sovereign. Austin did not provide for the solution.

Friedman has also been among those who have criticized Austin for his theory. His main critisim of Austin has been on the aspect of law being the species of command. Austin considered all kinds of legal acts, whether statutes, decrees, by-laws, contracts, administrative and judicial acts, represent different stages in the unfolding of the law and acquire the character of legal acts by the sanction of the ultimate law giving authority. But why not consider the fact that all these are further subject to the mechanism of judicial control which may then condemn the actions by the all powerful State. Austin did not provide an explanation to this. Might be, under the conditions under which he wrote, the parliament in England was all-supreme and the courts could not have gone beyond the express provisions of the law. But today, after the cases of Wednesbury Corporation Case and Ridge v. Baldwin the position has changed and the judiciary has let out the task to correct inaction on part of the mighty State. The recent example of Bihar Assembly Dissolution can be taken into account, which authenticates that today the rule is not the classical of ‘might being right’.

Regarding international law also Austin has been severely criticized. The sovereign to exist has to have a relation with the world at large and have to have a dealing with them. We cannot in todays world create two pigeon holes with one having a international law and the other with municipal law; and both being exclusive from one another. Austin has been perplexed in appreciating and contemplating the future situations. A sovereign is one who is internally supreme and externally free.

Salmond has critically examined Austin and has provided for various criticisms against his theory. The first of his criticism being that the greater part of a legal system consists of laws which neither command nor forbid things to be done, but which empower people by certain means to achieve certain results. For this he cites the example of those laws which empower the citizens the right to vote, laws concerning making of wills etc. At this point the theory could be saved by arguing that a rule conferring a right on one person is really an indirect command addressed to another: a law empowering the citizen to vote is really an order to the returning officer to register the vote. But this saves the theory at too high a price. To regard a law conferring power on one person as in fact an indirect order to another is to distort its nature. Thus, Salmond says that such rules shall be different from the commands which are made directly addressed to a person like “do not steal”. Hence it is very remote to justify law in such a fashion.

Further, the word command suggests the existence of a separate commander. But this may not be true for the modern day nation state. The power has been dispersed in the hands of various agencies of the State. The State itself is divided into federal structure, thereby making a dent in the original theory of Austin where he said that the sovereignty is indivisible and is immutable. Thus, the definite ascertained body which reaps uncontrolled power does not exit in reality.
Moreover, command conjures the picture of an order given by one particular commander on one particular occasion for the recipient I.e., the masses. But laws do continue even after the law giving sovereign ceases. How can Austin justify such a situation. One can defend this by arguing that the continuation of the laws will depend on the will of the present sovereign. He is free to repeal the existing laws and is also free to bring in some new law replacing the earlier laws. And if he allows the continuation of the existing laws, means he has commanded the continuation. This should be taken as the tacit command and hence, the theory is defended. But one should not forget the point that there may be laws and legal provisions which the sovereign cannot change and no repealing power is left for the present and changing sovereigns. Few examples can be given that of the constitutional provisions. There are certain provisions which even if the parliament wishes, cannot change or repeal. Austin cannot justify this being in his theory. The judiciary has created the ‘basic structure’ of the Constitution in Kesavanand Bharati Case and the provisions enumerated there are beyond the amending powers of the parliament and the house. The list was not exhaustive and the list is increasing day by day. They cannot entrench this line. Thus, Austin’s theory ceases here.

There further exists a confusion that Salmond highlights regarding sovereign. He says that sovereignty lies not in power but in having authority. Austin was bewildered when he setout to identify sovereign in England. At first he sights the sovereign is a composite body comprising the Crown, the House of Lords and the House of Commons. But since the latter house is elected and must therefore ultimately obey the electorate, the House of Commons cannot on Austin's theory qualify as part of the sovereign. Accordingly he concludes that the real sovereign is that body which consists of the Crown, the House of Lords and the commons themselves. In fact, however, this larger body never issues any orders or decrees, nor, if it did, would they qualify as law under our present constitution. The real sovereign is, in fact, the Crown, the House of Lords and the House of Commons, whose enactments, whether made at the instance of or at the request or under the pressure of the electorate, the city, the trade unions or in general, what the electorate wills, continue to count as law. Hence it now becomes difficult to accept the preposition that sovereign is not in the habit of obeying others.

Hart says, in many societies, it is hard to identify a “sovereign” in Austin's sense of the word (a difficulty Austin himself experienced, when he was forced to describe the British “sovereign” awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of “habit of obedience” that Austen sets as a criterion for a system's rule-maker. A few responses are available to those who would defend Austin. First, some commentators have argued that Austin is here misunderstood, in that he always meant “by the sovereign the office or institution which embodies supreme authority; never the individuals who happen to hold that office or embody that institution at any given time” ; there are certainly parts of Austin's lectures that support this reading e.g., Austin 1995: Lecture V, pp. 128-29; Lecture VI, p. 218. Secondly, one could argue (Harris 1977) that the sovereign is best understood as a constructive metaphor: that law should be viewed as if it reflected the view of a single will (a similar view, that law should be interpreted as if it derived from a single will, can be found in Ronald Dworkin's work (1986)).

According to Hart a “command” model seems to fit some aspects of law poorly (e.g., rules which grant powers to officials and to private citizens—of the latter, the rules for making wills, trusts, and contracts are examples), while excluding other matters (e.g., international law) which cannot be excluded from the category of “law”.

More generally, it seems more distorting than enlightening to reduce all law to one type. For example, rules that empower people to make wills and contracts perhaps can be re-characterized as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of “nullity”) on those who fail to comply with the relevant provisions. However, such a re-characterization that misses the basic purpose of those sorts of laws—they are arguably about granting power and autonomy, not punishing wrongdoing. A theory which portrays law solely in terms of power fails to distinguish rules of terror from forms of governance sufficiently just that they are accepted as legitimate by their own citizens. The constitutive rules that determine who the legal officials are and what procedures must be followed in creating new legal rules, “are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons.” (Hart 1958: p. 603).

When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart 1958, 1994), he did it by criticizing and building on Austin's theory: for example, Hart's theory did not try to reduce all laws to one kind of rule, but emphasized the varying types and functions of legal rules; and Hart's theory, grounded partly on the distinction between “obligation” and “being obliged,” was built around the fact that some participants within legal systems “accepted” the legal rules as reasons for action, above and beyond the fear of sanctions.

Prevalence & Relevance of Austin's Sovereign In Modern India and Pakistan.

In this part of the paper an attempt has been made to analyze the existence of Austin's sovereign in modern India and Pakistan.

1. .Austin's notion that all laws come from the sovereign may be true theoretically, and laws in our country (i.e. statue made laws at least) are a result of the act of the politically superior that is the legislators but the same is not true practically as they are not a reflection of the will of the superior in the real sense. Though many laws come directly from the parliament , but they merely reflect the desire of these politicians to maintain support of the major organized groups in the country and to meet their interests satisfactorily. Under the conditions of the day the huge combination of labor, capital, with their expert lobby sit in wealthy treasuries, any group is able to compel recognition and secure desired legislation. Only the fact that these groups are competing amongst themselves prevents the government from becoming a helpless tools in their hands. Even then the grinding impact of competing pressures upon the government requires political astuteness of a high order to keep them satisfied and prevent the withdrawal of support in the next elections. Thus we can say that Austins emphasis that sovereign is the main stream of law is not just.. Law emanating only from the sovereign may be fit for a totalitarian regime like Pakistan where the government can use its monopoly of law making and executive powers for the re shaping of laws in disregard of the democratic processes, but in a democratic country like India the same is not possible. The interplay between the public opinion and state action has become very complex these days whether we are concerned with the abolition of dowry ,the creation of legal remedies against administrative action or the introduction of a new ground of divorce there is always some interrelation between the state machinery that produces these changes and social opinion of the community in which they are intended to operate. public opinion on vital issue is expressed through the elected representatives in the house, and also through public discussion in press , radio, public lectures .It can thus be concluded that legislative practices in our country provide for opportunities to the public to participate in the legislative activities of those to whom these powers are delegated. On the contrary, Musharraf regime in Pakistan has created an authoritarian rule which is a narrowly based government that is not responsive to the needs and aspirations of those not connected with the government Moreover, the on-going judicial crisis has convinced the world that Musharraf wants the total submission of all state institutions to his personalised and centralised rule. The result is thus that due to a lack of a credible popular base such a centralised and authoritarian power structure has not been able to address the participatory pressure with reference to social, economic and political development in Balochistan(suicide bombing and violence). In the case of Sindh, the issues of provincial participation and access to water resources remain unresolved. The Frontier province is threatened by the rising tide of violence and religious extremism. It also expresses dissatisfaction with the federal government’s management of water resources and sharing of profit of power generation. The results of the government policies in the tribal areas are uncertain

2. Austin postulates a political superior in a political society who is habitually obeyed by the majority of the population. This means that sovereign is the highest authority , the strongest authority in a political system. According to Austin sovereign is the person who has the last word in a particular connection. But the issue is that how can one determine the 'highest authority' in a democratic country like India , to identify the strongest power would involve an investigation of a lot of legal as well as well extra legal forces which determine how a state shall operate. Who is the highest authority, is it the masses who choose the government, is the legislators who finally make laws, is it the judiciary that has the power to strike down laws made by the parliament, is it the executive as laws that are enforced are selected by administrators today, what they consider worthy of implementing is duly enforced other laws are followed more in breach than in obedience. Is it the constitution according to which all others are expected to act or is it again the masse by whom the constitution has been formed ? Who do we call supreme. Besides these forces there are other socio - economic forces that have the power to exert a lot of pressure to finally determine what laws are formulated and most often have the final say. But in Pakistan General Pervez Musharaff presides over a hierarchical political order on military lines — the ‘commanding officer’ supported by the army-intelligence establishment that has the backing of the top bureaucracy for governance and political management. The next layer comprises the co-opted political leadership (i.e. ruling Pakistan Muslim League and its allies) who deal with the day-to-day administrative and political management. The government carefully controls the recruitment of civilians to the position of power and influence, making it clear to them that what matters most is loyalty to the leader.

3. Austin’s theory that law emanate only from the sovereign authority fails in India as much as it would fail in other common law countries. There are various other very important sources of law which cannot be ignored at all. His theory would fit only one portion of law that is the law made by the legislative body. However, the word law is of wilder amplitude and includes not only laws but bye-laws, notifications, customs which are not made by the state. Another important category that Austin does not include in his definition of law is Judge made laws , in this era of judicial activism where judiciary does not only interpret law but also makes law this category cannot be ignored. principles of justice, equity, good conscience are important principles that are always kept in mind while implementing any law none of them. But the ongoing judicial crisis in Pakistan gives a different story, suspension of the chief justice of Pakistan and the manner of his treatment by the government states, another strategy that is to overawe the adversary with state power. Here the chief justice was pressured by the president and the prime minister to resign. The manifestation of this varies from case to case. Nawab Akbar Bugti was killed by the law-enforcement agencies and Sardar Akhtar Mengal was arrested.

4. Similarly Austin's concept of unlimited and indivisible sovereignty is quite inappropriate in the Indian set up or any democracy. The sovereign does not have the power to command anything that it desires. It is as much bound by rules and regulation embodied in the constitution and other laws as any common man. Legislature is bound by the constitution and in almost all cases court has the power to decide whether an act done by the government is constitutional and hence valid otherwise it can be struck down. On the other hand in Pakistan there is no recognition of a General Will which guarantees freedom. Musharraf is the pivot of power in the current political arrangements and exercises effective administrative power over the civilian and military institutions. By exercising more powers than assigned by the constitution, he has also stifled the natural evolution of the federal cabinet and the parliament. There is no equality of all citizens before the law, and the protection of those human rights which a particular people deem to be essential to them. This proposition has a vital implication for the integrity of the state and society.

Thus we can say that the notion of sovereignty in India at present certainly not what Austin would define as sovereignty, the concept of sovereignty is under restraint which is very justified as the concept of an unlimited illimitable and indivisible sovereignty is a superfluity that debases the very cannon of Indian Jurisprudence. In Pakistan, though the Austin’s concept can be seen in, the authoritarian government but the world has experienced that how ineffective it has been in exercising force and, thereby creating disorder, including violence and religious extremism. Currently, the Musharraf government faces four sets of problems: the judicial crisis, law and order situation (including suicide bombings and violence in Balochistan), financial and political autonomy for the provinces, and attempts by several extremist Islamic groups to impose their version of Islam through coercion and intimidation. Thus it has embarrassed the Pakistani Government at the international level.

In the forgoing discussion, an attempt had been made to analyze Austin's notion of sovereignty vis -a-vis the modern day state. His theory of sovereignty did not seem to be applicable in modern day democracies. Though the concept of Austin are still in existence in countries like Pakistan but now the legal community and the societal groups are in the forefront of the anti-Musharraf protest. The crisis of state power and legitimacy was manifested with tragic clarity on May 12 in Karachi. It is widely believed that on that day a political party allied to the federal government tried to “show its strength” by preventing the chief justice from addressing the local Bar Association: There was a breakdown of law and order and a blood bath ensued. The following day there was a countrywide protest strike from Karachi to Khyber by the people of Pakistan, united in their moral outrage against injustice. As Barrington Moore, Jr. has argued, moral anger and the associated sense of injustice are rooted in the sense of injury that is felt when a social rule is perceived to have been violated.

Nevertheless, that in no way undermines the importance of his excellent work. Austin's concepts about various legal concepts might not seem true in modern times but we should not forget that Austin is regarded as one of the noted jurist of all times as much for his work and theory of law as for the methodology employed to arrive at his theory. In his case both the ends arrived at as well as the means used to arrive at them provided a great stimulus to the study of both 'law' as well as 'jurisprudence.' Austin made numerous effort to establish law and jurisprudence as discipline .He succeed in his attempts in the year 1839 when the first batch of law graduates passed out from the university. Austin propagated and established that law can be studied in a scientific manner, in his times science had a very progressive and promising scope therefore the only way law could be established, as a discipline was to link it with the scientific methodology. Austin postulated a general theory of law and studied law with the help of verifiable facts.

Thus we can conclude that with change in times, Austin's views might not appear very true for the preferred political and legal order of the world but his greatest contribution of establishing law as a discipline that can be studies in a scientific manner secure an esteemed position for him in the canals of jurisprudence

• P. J. Fitzgerald, Salmond on Jurisprudence, 12th Ed., Sweet & Maxwell, (1996)
• R.W.M. Dias, Dias Jurisprudence, 5th Ed., Aditya Books Pvt. Ltd., (1994)
• W. Friedman, Legal Theory, 5th Ed., Universal Law Publishing Co. Pvt. Ltd., (1999)
• Lectures on Jurisprudence 86 (4th Ed., Campbell (1876))
• Professor Olivecrona, Dias Jurisprudence, 5th Edi., (1994), p. 347
• Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223
• Kesavanand Bharati v. State of Kerala AIR 1973 SC 1461
• Cotterrell 2003, p. 63
• Brian Bix, John Austin,
• Daily Times Hasan Askari Rizvi H

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Added Date: 27 Apr 2008

Austin, Hart and Kelson on Sanction as an integral part of law:
According to Austin “It is only conditional evil that duties are sanctioned or enforced. It is the power and the purpose of inflicting eventual evil and not the power and purpose of imparting eventual good which gives to the expression of a wish the name of the command.

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