Discuss Austin’s concept of Sovereignty.
Answers
Answer:
Hii
Explanation:
John Austin (1790–1859) was born in the United Kingdom. He was the founder and father of the Analytical school of law. He is known for his theory of sovereignty and legal positivism mentioned in his book “Province of Jurisprudence”. In his initial career, he has served in the army for 5 years and also in the chancery bar of the UK. In 1826, he was appointed as the professor of jurisprudence at the University of London.
He spent two years in Germany thereafter, studying the ancient Roman law and civil law which later on become his very ideologies in the framing of Positive school of law. Austin abandoned teaching in 1833. After working for the government at certain reputed designations, he died in 1859 in Surrey, UK.
The definition of law according to Austin was, “Law is a command of the sovereign backed by a sanction.”[1] Breaking this definition into its fundamentals: –
Command, of
Sovereign, which if not followed attracts
Sanction.
Now in order to fully understand Austin’s theory of Legal positivism, let us explain these elements in a concise and comprehensive manner.
Command: Commands are expressions of desire given by superiors (sovereign) to inferiors (general public). There are commands which are laws and which are not, Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then by the troops.[2]
Observation: From the above definition we can conclude that Austin’s definition of commands gives the sovereign authority status of ultimate supreme, and imply that the authority of the sovereign is absolute which is the opposite of the constitutional framework which prevails in India, and for that matter in any peaceful democracy. This definition expresses that the sovereign, that is, the person/people in power is politically superior, but in democratic countries, it is not true. Every citizen has the same right same that of a President/Prime Minister/Chief Justice.
It also disregards other sources of law, like laws made by judges (considered as mere delegates) in form of precedents, laws made by the executive as statutory instruments, etc which hinders the growth of not only the jurisprudence of the country but also of the society, government and private institutions and economy.
Sovereign: 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 persons or persons.