Austin’s theory of sovereignty (monistic view)
In the 19th century the theory of sovereignty as a legal concept was perfected by Austin, an English Jurist. He is regarded as a greatest exponent of Monistic Theory. In his book ‘Province of Jurisprudence Determined (1832) Austin observed’ “if a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society and that society (including superior) is a society political and independent.” To Austin in every state there exists an authority to which a large mass of citizen show compliance. This authority is absolute, unlimited and indivisible.
Austin’s theory of sovereignty depends mainly upon his view on nature of law. According to Austin “Law is a command given by a superior to inferior” the main tenets of Austin’s theory of sovereignty are as follows-
1. Sovereign power is essential in every political society.
2. Sovereignty is a person or body of persons. It is not necessary that sovereign should be a single person.
Sovereignty may reside in many persons also. Austin explains that a “Sovereign is not necessarily a single person, in the modern western world he is rarely so; but he must have so much of the attributes of a single person as to be a determinate.” To Austin state is a legal order, in which there is a supreme authority, which is source of all powers. Sovereignty is concerned with man, and every state must have human superior who can issue commands and create laws. Human laws are the proper subjects of state activity.
3. Sovereign power is indivisible. Division of sovereignty leads to its destruction. It cannot be divided.
4. The command of sovereignty is superior to over all individuals and associations. Sovereign is not bound to obey anyone’s order. His will is supreme. There is no question of right or wrong, just or unjust, all his commands are to be obeyed.
5. Austin’s theory says that the obedience to sovereign must be habitual. It means that obedience should be continuous. He also includes that is not necessary that obedience should come from the whole society. It is sufficient, if it comes from the lay majority of people. Obedience should come from bulk of the society otherwise there is no sovereign.
In brief we can say that sovereignty according to Austin is supreme, indivisible and unquestionable. Like all other theories of sovereignty Austin’s theory is also not free from criticism. The first criticism is regarding sovereignty residing in a determinate superior. Even sovereign’s acts are shaped by so many other influences, such as morals, values and customs of the society.