John Austin’s Theory of Sovereignty

1 January 2017

The concept of sovereignty is one of the most complex in political science, with many definitions, some totally contradictory. Usually, sovereignty is defined in one of two ways. The first definition applies to supreme public power, which has the right and, in theory, the capacity to impose its authority in the last instance. The second definition refers to the holder of legitimate power, who is recognized to have authority.

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When national sovereignty is discussed, the first definition applies, and it refers in particular to independence, understood as the freedom of a collective entity to act. When popular sovereignty is discussed, the second definition applies, and sovereignty is associated with power and legitimacy. Sovereignty and Political Authority On the international level, sovereignty means independence, i. e. , noninterference by external powers in the internal affairs of another state.

International norms are based on the principle of the sovereign equality of independent states; international law excludes interference and establishes universally-accepted rules. Thus, sovereignty is eminently rational, if not dialectical, since the sovereignty of a state depends not only on the autonomous will of its sovereign, but also on its standing vis-a-vis other sovereign states. From this perspective, one can say that the sovereignty of any single state is the logical consequence of the existence of several sovereign states.

It is thus a serious mistake to assume that sovereignty is possible only within the framework of the classic type of state, i. e. , a nation-state, as do representatives of the “realist” school, such as Alan James and F. H. Hinsley, or neo-Marxist theoreticians like Justin Rosenberg. One should not confuse the concepts of nation and state, which do not necessarily belong together, or assume that the concept of sovereignty was formulated clearly only in terms of the theory of the state. Closer to the truth is John Hoffman’s assertion that “sovereignty has been an insoluble problem ever since it became associated with the state.

Even though a concept of sovereignty did not exist before the 16th century, it does not follow that the phenomenon did not exist in political reality, and that it could not have been conceptualized differently. For example, Aristotle does not mention sovereignty, but the fact that he insists on the necessity for a supreme power shows that he was familiar with the idea, since any supreme power — kuphian aphen with the Greeks; summum imperium with the Romans — is sovereign by definition.

Sovereignty is not related to any particular form of government or to any particular political organization; on the contrary, it is inherent in any form of political authority. The problem with sovereignty appeared at the end of the Middle Ages, when the question posed was no longer only about the best form of government or the limits of political authority, but about the relation between the government and the people, i. e. , the relation between ruler and ruled in a political community. What is sovereignty? Alain de Benoist 1. 2 John Austin Austin’s basic approach was to ascertain what can be said generally, but still with interest, about all laws. Austin’s analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is forced to fill in much of the meta-theoretical, justificatory work, as it cannot be found in the text.

Where Austin does articulate his methodology and objective, it is a fairly traditional one: he “endeavored to resolve a law (taken with the largest signification which can be given to that term properly) into the necessary and essential elements of which it is composed” As to what is the core nature of law, Austin’s answer is that laws (“properly so called”) are commands of a sovereign.

He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar: * “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with.

Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”). Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee. * The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution.

Austin thought that all independent political societies, by their nature, have a sovereign. * Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e. g. , the laws of physics).

Austin also wanted to include within “the province of jurisprudence” certain “exceptions,” items which did not fit his criteria but which should nonetheless be studied with other “laws properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing action but without sanctions (a concept Austin ascribes to “Roman [law] jurists In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion, morality, convention, and custom.

However, also excluded from “the province of jurisprudence” were customary law (except to the extent that the sovereign had, directly or indirectly, adopted such customs as law), public international law, and parts of constitutional law. Within Austin’s approach, whether something is or is not “law” depends on which people have done what: the question turns on an empirical investigation, and it is a matter mostly of power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it rarely is.

Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much that is law that is not moral, and what makes something law does nothing to guarantee its moral value. “The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals” In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking as “highly beneficial and even absolutely necessary”).

Nor did Austin find any difficulty incorporating judicial lawmaking into his command theory: he characterized that form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the “tacit commands” of the sovereign, the sovereign’s affirming the “orders” by its acquiescence. It should be noted, however, that one of Austin’s later lectures listed the many problems that can come with judicial legislation, and recommended codification of the law instead.

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