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This paper is an attempt to analyze the notion of sovereignty as
postulated by John Austin & its prevalence in modern Indian political
order. It begins with tracing the evolution of the doctrine of
sovereignty and how Austin defined this concept. After a discussion on
Austin's views about sovereignty a critical analysis of the same had
been undertaken. In this section Austin's view on sovereignty has been
criticized for reasons explained in detail.
Coming closer home, A brief discussion ensues on the existence of a
sovereign as postulated by Austin in modern India, the section concludes
with the observation that Austin's sovereign does not have any place in
Modern India.
The Historical Evolution Of The Doctrine Of
Sovereignty
Various dicta in New Testament express 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 , the sixteenth century
bought with it various changes 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 therby 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 Concept Of Sovereignty.
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
peace full 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 had spent considerable years at
German universities, as a lawyer he was trained on Coke Institutes ,
Blackstonian commentaries and chaotic other haphazard legal records
available, this would have caused a dep dis-satisfaction with the form
of English Law. 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
For Austin laws are commands of sovereign supported by sanction. .The
word law presupposes a command that obliges a person to a course of
conduct, being a command it must issue from a determinate person with
the threat of displeasure if not obeyed.
Austin's concept of sovereignty has been discussed in his book '
Province of Jurisprudence Determined .He uses the concept of sovereignty
to define law and the content of jurisprudence. In his own words
"The matter of jurisprudence is positive law, law simply and strictly so
called or laws set by political superiors to political inferiors. A law
, in the most general acceptance in which the term is employed may be
said to be a rule laid down for the guidance of an intelligent being by
an intelligent being having power over him.. Of the laws set by men to
men, some are set by political superiors, sovereigns ;by persons
exercising supreme government ,in independent nations or independent
political societies [this is the subject mater of positive science of
law"
According to Austin the superiority which is styled sovereignty and the
independent political society that sovereignty implies is distinguished
from other superiority and other societies by the following
characteristics-
1.The bulk of the given society are in a habit of obedience to a
determinate and common superior, that common superior could either be an
individual or a certain body aggregate of persons.
2. This individual or body of individuals is not in habit of obedience
to a determinate individual, though laws set by opinion ( laws
improperly so called according to Austin) may affect the conduct of this
body but there is no determinate person or aggregate of person to whose
command this individual renders habitual obedience.
To define it in words of Austin "If a determinate human superior not in
a habit of obedience to a superior receives habitual obedience from the
bulk of a given society that determinate superior is sovereign that
society ,independent political society."
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.
Critical Analysis Of His Concept Of
Sovereignty.
According to Austin only those commands that are given by a political
superior i.e. sovereign are laws strictly so called that is law in the
real sense, this would mean that the existence of a state or sovereign
is a pre condition for laws to be formed & obeyed This definition of law
cannot stand the scrutiny of history. Historically law is older than any
form of government or state. Through a mature political system, a state
may develop a machinery for creating, applying and enforcing the rules
but no doubt laws may exist even in the absence of a state machinery.
Any era in human history would defy the definition of law given by
Austin. Even in primitive societies where there was no organized state
or sovereign, there were rules behind which the community threw the
whole weight of its organization. The structure in these societies was
such that a man suffered if these rules were disobeyed. Even though here
were no machinery of the sovereign to implement these rules , a
primitive man followed these obligations as he knew no would help him in
future. In the middle ages an application of Aiustinanin definition
would give very less compass to law, for at that time there was the law
of the church, the law of the merchants, and though all of them governed
the day to day behavior of the bulk of the population and was enforced
by the state, none of these would be law according to Austins'
definition. Definition of law given by Austin is thus incomplete from an
anthropologists view. Anthropologists urge that primitive law serves the
same function as modern law serves today and that essence of law is its
function rather than the form in which it is created or the method in
which it is enforced.. Thus law should be defined by its function rather
than its form or origin.
But though the above criticism stands true , it cannot be said that
Austin did not recognize any other source of law except for the command
of the sovereign. In his own words
"while however either directly or remotely ,the sovereign or supreme
legislator is the author all laws but immediately and directly laws can
have different authors" He recognizes ''judicial legislation as a
subordinate source of law''. Thus he accepted that at times judges do
make laws , but still he was of the view that 'judicial legislators
legislate arbitrarily" Thus we see that there is a subtle acceptance of
judge made laws unless of course they do not go against the commands of
sovereign. But still he defines law only on the basis of its source and
not function. Because even if he accepts judge made law he pre supposes
a state machinery to enforce them while anthropologists agree that there
are various laws that govern day to day conduct and are observed with
due diligence without the support of any state machinery for their
enforcement take fore example religious practices.
By postulating that sovereign is free from all restraints of any kind
of law and that no sanctions of any nature can be imposed on him Austin
seems to inject an anarchical element into the world order and was
probably giving an excuse for the worst excesses of 19th century
sovereigns . The power of sovereignty according to Austin is incapable
of legal limitation, thus it follows that the notion that rules of law
might bind sovereign in their dealings was foreign to Austin. This means
that within his territory a sovereign is free from all restraints as he
is the sovereign. But the facts of international life are different
today. Now a days procedures exist to make state liable for injuries
caused to foreigners in their land. 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.
Prevalence & Relevance Of Austin's Sovereign In
Modern Indian Political Order.
In this part of the paper an attempt has been made to analyze the
existence of Austin's sovereign in modern India.
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 ,
capital , with their expert lobby sit and 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 (which is soon becoming a rare phenomena in present world order)
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.
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
chose 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.
3. Austin 's theory that law emanate only from the sovereign authority
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. But 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.
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 constitutbal and hence valid
otherwise it can be struck down.
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.
Conclusion
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. But
that in no way undermines the importance of his excellent work.
Auistin'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 current 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.
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