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The Idea Of Sovereignty In Austinian Theory (International Context) And Positivism

Abstract:
John Austin is considered by numerous individuals to be the maker of the school of analytical jurisprudence, and also, more explicitly the way to deal with law known as legal positivism. According to him, the central nature of law is commands (orders) of a sovereign.[1] Through this paper, I would like to analyze the concept of sovereignty in Austin's work, the application of his theory in an International context.

Even though Austin's position was valid about the legal system of his time, the same cannot true hold for the international legal system. If a substitution is fundamental, it would be shown that international law is in reality Ëœreal law' with a fairly genuine Ëœsovereign.[2]

The paper also seeks to investigate how a natural law-based jurisprudential theory would have been better than Austinian positivist theory that Allies worked from in Nuremberg trials. The paper also highlights key struggles between natural and positive law as expressed by Austin.[3] The paper will also state criticisms of his work in general and how Austin could defend his position.

Analysis:
Austin's idea of Sovereignty is mentioned in his book The Province of Jurisprudence Determined. He utilizes the idea of power and sovereignty to characterize the law and the substance of law. As indicated by Austin, the superiority and free political society that sovereignty suggests are different from other societies.

According to him, the main part of the given society is in a propensity for submission to a determinate and same superior and that regular superior could either be an individual or a specific body of people. This individual or assortment of people isn't in the propensity for obedience to a determinate individual, however laws set by opinion (laws improperly termed by Austin) may influence the activity of this body, yet there is no determinate individual to whose command this individual renders routine submission.[4]

Since each law in a free political society is set straightforwardly or by implication by a sovereign individual to an individual in a condition of subjugation to its creator, along these lines, it follows from the idea of a sovereign that the authority of a sovereign is unequipped for lawful restriction. If the ruler was limited by the commands of another superior he can't be the sovereign. The force of the sovereign establishing limitations would be liberated from chains of positive law.

He openly expresses that the laws forced by a sovereign on themselves are just rules of positive morality, they are simply rules that they follow as guidelines, the sovereign is not obliged to follow it by a legitimate or political approval, for if the sovereign is lawfully bound to follow it, the sovereign would be in a satiate of coercion to a higher authority or sovereign.[5]

According to Austin, the reason behind submitting to a sovereign and the reason for which sovereign exists is for the best conceivable progress of people of the community. From this appropriate reason for which sovereign exists, Austin construes the reason for ongoing obedience which he says is lined in the standard of utility.[6]

International Context:
Through his positivist theory, John Austin hypothesized that international law is not true law. He took the stance that international law is not law as it has no sovereign. Austin stated that law is a subdivision of command. He characterized a command as:
an insinuation or articulation of a wish to do or shun from accomplishing something, upheld by the ability to do damage to the actor on the off chance that he resists.

Further, he believed that 'the individual to whom the order is given is under an obligation to comply with it', and the threatened harm is characterized as a sanction. This position was intensely critiqued by H.L A. Hart who was of the view that the possibility that law comprises simply of orders supported by threats is deficient to clarify present-day legal systems.[7] This affirmation by Austin demonstrates that if a law does not come from the desire of a determinate sovereign then it isn't real law.

It inspires the thought of No political sovereign, no law. Consequently, international law, in Austin's works, can become positive law just under a worldwide domain whose rulers order the submission of every single subordinate state. Austin's view on the sovereign authority to make a law, actual law, has seen both support and criticisms.

In supporting his declaration, some have contended that Austin is being misquoted, as he generally implied the thought of institutional authority and never the people who head these establishments. This fundamentally involves the position that the sovereign power that Austin discusses, is in the institutional structure within the setting of making laws for example Parliament-and never in the people who assume a part inside the foundation in the activity of their elements of making laws for example officials. This development looks to isolate the idea of 'singular command' from 'institutional sovereignty'.[8]

Additionally, the sovereign is also best perceived as a metaphor to imply that it ought to be seen as an impression of a single will. This statement focuses on a comprehensive perspective on the standards of international law. Laws ought not to be built in seclusion however as an entirety of the desire of individuals to pick delegates to address them in the law-making organizations, to make laws that they will follow.

Subsequently, the theory of command is only a constructive metaphor that demonstrates that rules by the organizations and the rulers are restricting and complied as though individuals willed every one of the standards.[9] There are certain criticisms also given against his theory. Hans Kelsen evaluated Austin's command hypothesis and showed that in numerous social orders, it is difficult to distinguish a sovereign following Austin's implication.

It is because the attention on a sovereign makes it hard to clarify the coherence of overall sets of laws: another ruler will not fit in with the sort of propensity for obedience that Austin sets as a model for a framework's rule creator. Hart suggested that the term command infers a progressive construction of individualistic force, with law. However, this affirmation isn't reflected in the present overall sets of laws, as legislation frequently has a self-restricting power.[10]

International law which is likewise alluded to as the law of countries is an assemblage of differed laws, standards, and customs that apply among States and other global lawful characters perceived as international actors. International law doesn't have an implementing entity or as Austin puts it, a 'sovereign' and it is completely a willful undertaking by States. This is an idea that has been mediated by the Permanent Court of International Justice.

Additionally, implementation power in international law only exists when States agree to be limited by an understanding for example treaties are considered as binding as between States that conclude them. Further, international law is an independent framework that is not compelled to follow the legal orders of States.[11] It is distinctive in various ways, for example, The UN Charter in its Preamble sets the primary goal of the United Nations which is pointed toward building up conditions under which respect and confidence should be practiced according to obligations emerging from treaties and different roots of international law.

The goal of the UN Charter is upheld in various ways for example through courts, councils, multilateral deals - and by the Security Council, which can affirm peacekeeping missions for worldwide harmony and security. Hence, the UN Charter stands apart as a delegate of international law all in all. A perusing of Chapter XVI, Article 103 of the United Nations Charter, gives that the duties under the UN Charter supersede the terms of any other settlement.[12] As stated, the will or consent of the states is the premise of international law as a reason for the commitments of States.

This is express for treaties which States need to agree to be bound to and it is certain also for customary international law with which States through agreement consent to be bound. The General Assembly of the United Nations exhibits a lot of comparability to the legislature, but it does not have forces to deliver binding laws and rather it issues goals that serve just as suggestions. International law falls short of jurisdiction for enforcement on cases before it.

The jurisdiction of ICJ in petulant cases relies on the assent of just the states involved. There is no global police force or an official system of law implementation, and also no preeminent executive authority. International law lacks a legitimate 'sovereign' power to authorize it. But on the other hand, parts of the 'sovereign force' can be followed to specific provisions of the UN Charter.[13] Article 5 of the UN Charter states that the Security Council can suspend a member from the United Nations if preventive measures have been taken by the Council against such a member.

The powers of the Security Council as shown could be understood to signify 'sovereign' sanctions and consequently restricting Austin's view that international law comes up short on an appropriate 'sovereign' that can give sanctions. The Security Council, when it confirms that a matter falls inside or past the domestic purview of the state, in this way partakes in characterizing the nature and extent of the legitimate space known to international law as a sovereign power.

The Security Council has the position to change the current distribution of sovereign force by considering the certain issue to fall outside the sovereign authority of a state and under the purview of the international area.[14]

Austin's emphasis on a 'Sovereign' can't be concluded in any municipal legal system, except based on what was known as the Middle Ages. Metropolitan legal systems have a sovereign for the sake of the executive, yet even the supposed sovereign is limited by the laws that it makes, and thus as it makes laws, so it should comply with them or as the English thinkers legitimately put it, 'As you make your bed, so you should lie on it.' A similar idea applies to the international legal system since States are similarly sovereign, they should follow the goals of the United Nations once they become members and the equivalent applies to non-members too. They should stick to the principles in great faith, inability to follow which sanctions might be forced on them by the 'Sovereign' ordered to do as such (security council).[15]

For Austin, the law is considered to be properly so-called if it flow[s] from a determinate source¦ a determinate sane being, or a determinate body. He offers no solid strategy for recognizing the one genuine sovereign, except for the sovereign's incomparability and society's acquiescence to it.

This issue of distinguishing a singular sovereign is quite possibly the most noticeable and continuous target for his critics. In a circumstance such as that of Spain, where there are contending sovereignties (Spanish and Catalan), it is difficult to figure where does either of the sovereigns fall in Austin's categories. The only conceivable arrangement would be to characterize the laws of Spain as inappropriately so-called as they do not come from a determinate source but rather two clashing sources.[16]

This is ostensibly prohibited, as it would portray Spain as a country with no 'proper' law, despite its advanced acknowledgment as a lawful state. Consequently, Austin's meaning of sovereignty is so confined to just include the least difficult of systems; ones in which it is simpler to distinguish a singular sovereign. Complex frameworks, like Spain's, are accordingly consigned to non-law circles outside of Austin's hypothesis.

This is a misrepresentation and over-simplification of the law. Such is the situation in the United States of America, where law-making power is scattered between the states each as a little sovereign. Austin's hypothesis along these lines misses the mark when applied to both genuine instances of setup of politico-lawful states and non-Western societies that are undeveloped.[17]

The Nuremberg Tribunal, made as the legal arm of the United Nations to try leading Nazi war criminals, worked on a very basic level Austinian positivist proposition; in particular that the legitimacy of law comes from its creation by the sovereign and that morality does not affect the substance of the law.

The trials at Nuremberg introduced globally, John Austin's command hypothesis and his separability theory, or that lawfulness and morality are generally isolated. Command theory by Austin was vigorously used by the defense during Nuremberg Trials. While a portion of Austin's originations of legal positivism was expressly dismissed by the Nuremberg, the most key originations of positivism was held: that law does not have to be connected to morality. Fundamentally, a positivist will contend that legitimate obligation is defined in terms of power, intimidation, control, as well as rules separated from principles of moral right or wrong. Austin's hypothesis of law intensely impacted American law specialists.[18]

One of whom was the prestigious Justice Oliver Wendell Holmes, the father of legal realism, a sister law to legal positivism. Holmes held the thought laid out in his renowned work, The Path of Law that law ought to be seen through the utilitarian focal point as an apparatus of social control, insight, and crude statist force of a sovereign. Like Austin, Holmes accepted that law is legitimate, separated from any moral contemplations.

The tribunal's obligation to positivist's origination of the division of law and morality can be found in the manner that they react to the Nazi defense contentions. By speaking towards Austin's legal positivism, the Nazi defense lawyer put down the philosophical borderline in which the trial was to take place. This would move the trial to the benefit of the Nazis while the Allies battled with blending their positivist thoughts of sovereignty with a viable prosecutorial plan.[19] While most positivists would hold that mass homicide is not right, outside set law, they would have little reason for building up explanations behind it.

The only way by which the devoted legal positivists of the arraignment might lawfully censure the activities of the Nazis was by an appeal to a higher human law. This would appear as international law as authorized by the court and the United Nations. Nonetheless, sadly for the Allies, the sovereignty of international law over Hitler's Nazi Germany was restricted to a little, dubiously phrased treaties.

Hence Natural law has got its spot in international relations. Due to Natural law's status as moving from the unceasing law of God, it has a space on the international stage. Its solidarity lies in its interesting capacity to be a compass representing countries, maintaining them up to a characteristic, absolute norm of good and bad. Natural law in its exemplary structure is old and admired. Positivism is a later concept and a dismissal of natural law's standards.[20] Natural law is common to all individuals, including human government. Positivism is narrow in its methodology and restricted to the nature and capacity of the sovereign.

Natural law is immovably grounded in equity and genuine truth. Positivism expands upon the moving sands of political force. Natural law rises above and is grounded in an extraneous source. Positivism can just consider the law to be the way it is and fails to recognize the legitimate government of a free group and a gathering of burglars applying their will over masses of casualties. On account of the Nuremberg Trials, Hitler's scandalous discrimination laws which denied the Jews of all their social equality is an ideal illustration of a law that negates serving basic good.[21] The Nazi discrimination laws ought not to have been seen as law by any means.

Had the arraignment at Nuremberg embraced a natural law way to deal with the Nazi inquiry for conviction, it would have furnished them with genuine grounds to do as such. All things considered, natural law might have been a feasible jurisprudential way of thinking about the Nuremberg Trials.

Under the perspective of natural law, where the essential fundamentals of ethical quality, for example, don't kill, are known to all, bad human organizations like Hitler's Third Reich would be responsible. The pioneers who arranged mass homicide, killing, subjugation, and extradition of whole human groups could never have had the option to take cover behind the skirts of lawful positivism and utilize the work of Austin's command hypothesis.[22]

Criticisms:
The portrayal of laws as command creating a propensity for obedience in Austin's work distorts the nature of power given to the law. His prerequisite that sovereignty, as characterized by him, is fundamental for the presence of law pointlessly keeps away validity of primitive and modern customary law, along with international and constitutional law. His program to decrease the undeveloped body of guidelines to a bunch of basic principles (demands combined with a threat to harm) is an inconceivable undertaking.

It is withdrawn from present-day thoughts of logical strategy.[23] Austin's idea of sovereignty (a determinate individual or people with no propensity for acquiescence to another such individual or group) and perception of independent political society is ungainly to the purpose of being unfathomable inside current legal systems.

Austin has ignored or darkened the important relationship of law to morality. This has been a significant issue in modern discussions based on the expression legitimate positivism. Lon Fuller and Ronald Dworkin have been significant critics, holding the view that Austin has distorted, if not overlooked, the unavoidable presence of morals inside the law.[24]

Austin's Defense:
Austin's theory could be defended by stating that the sovereign should be viewed from a jurisprudential point of view and not a bundle of actual authorities who are making the law. This would keep away the confusing analysis of the legal framework in terms of real people. The idea of a political society is indirectly related to numerosity. A complex society could see the requirement of the legal profession, but a simpler society might not need legal counselors and jurisprudence.

Austin's clear differentiation between custom and law is supplanted differently.[25] Kelsen puts law concerning customary acknowledgment of law by the general community, whereas Hart stresses the significance of customary acknowledgment by the legal community. Both of these catalysts permit international and constitutional law to be handled as laws properly so-called. Austin's stance on the connection of law to morality is not straightforward and can have more than one interpretation.

His explanation of the nature of law to be a certain thing and its decency and disagreeableness as another has been taken to imply that morality has no bearing on law. This need not be so. He is talking here of utilizing value proclamations to affirm, object or improve the law as it is. This he demands is not a matter of Juris science. Improvement is a matter of morals, particularly the study of legislation.[26]

End-Notes:
  1. Brian Bix, John Austin, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY, ( February 8, 2018), https://plato.stanford.edu/entries/austin-john/#Crit
  2. Allan Munyao Mukuki, The Normative Irrelevance of Austin's Command theory in International law, 28 Nomor 569, 569 (2016).
  3. Judah Murray, Natural law and legal Positivism in the Nuremberg Trials, LU, 1, 3 (2014).
  4. Monika Saroha, Austinian Concept of Sovereignty and its Existence in Indian political order, Legal Services India, http://www.legalservicesindia.com/articles/sover.htm
  5. Ibid
  6. Ibid
  7. Allan Munyao Mukuki, The Normative Irrelevance of Austin's Command theory in International law, 28 Nomor 569, 570 (2016).
  8. Id. at 571
  9. Ibid
  10. Id. at 572
  11. Id. at 575
  12. Id. at 576
  13. Ibid
  14. Patrick Maklem, Humanitarian Intervention and Distribution of Sovereignty in International Law, NYU 1, 17 (2006).
  15. Supra note 7, at 577
  16. Aisha, U-K Umaru, Austin's Sovereign: A True Legal Theory?, Research gate (February 19, 2020), https://www.researchgate.net/publication/339365818_Austin's_Sovereign_A_True_Legal_Theory
  17. Ibid
  18. Supra note 3, at 12
  19. Id. at 13
  20. Supra note 3, at 30
  21. Ibid
  22. Supra note 3, at 31
  23. Richard T. Bowser & J. Stanley McQuade, Austin's Intentions: A Critical Reconstruction of His Concept of Legal Science, 29 Campbell L. Rev. 47, 57 (2006).
  24. Ibid.
  25. Supra note 24, at 58
  26. Id at 59

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