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Examine Austin’s view of sovereignty.
How a sovereign is identified in the command theory of

law and discuss the existence of the sovereignty as a postulate in the current scenario in India.
Austin’s view of sovereignty?
In simple terms, sovereignty is a key concept in understanding the nature of law and political au-
thority. Austin's Theory of Sovereignty means that in every society, there exists a supreme power or
authority (the sovereign), whose commands or laws the members of the society habitually obey.
He defined sovereignty as the supreme, ultimate power in a political community. In his view:
• Command Theory of Law: Austin argued that the basis of law is the command of a
sovereign. Law, according to him is a command issued by a recognized political authority,
and it is characterized by the idea that disobedience to these commands will result in punish-
ment. He focused on the relationship between the command-giver (sovereign) and the com-
mand-receiver (subjects).
• Sovereign as Uncommanded Commander: Austin emphasized that the sovereign
is not bound by legal rules; instead, the sovereign is the one who makes the laws. The sover-
eign has the power to issue commands, and these commands are backed by the threat of
sanctions.
• Ultimate and Indivisible Authority: Austin viewed sovereignty as ultimate and in-
divisible. The sovereign's authority is supreme, meaning that there is no higher authority
within the political community. Additionally, the sovereign's authority cannot be divided; it
is concentrated in a single ultimate authority.
• Positive Law and Sanctions: Austin distinguished between positive law (the actual
laws in force) and morality. He believed that positive law is distinct from morality and that
the validity of law is not dependent on its moral content but on its origin from a recognized
sovereign authority. Sanctions, such as punishment, are essential to enforce the sovereign's
commands.
Austin's view of sovereignty had a significant impact on legal and political thought, especially in
the development of legal positivism. However, his strict emphasis on the command theory of law
and separation of law from morality has been subject to criticism and has sparked debates in subse -
quent legal philosophy.
How a Sovereign is identified in command theory of law?
According to Austin, the law is the command of the sovereign imposing a duty which is en-
forceable by sanction. The study and analysis of positive law are based upon the law which
is strictly applied by political superiors to political inferiors.
The basic features of Command theory are:
• Command (by political superiors).
• Duty (imposing duty on political inferiors).
• Sanction.
• Sovereignty.
How a sovereign is identified in the command theory of law:
• Habitual Obedience: The identification of the sovereign is based on the observable

fact of habitual obedience. The sovereign is the entity whose commands are regularly fol-
lowed by the majority of the population. This habitual obedience distinguishes the sovereign
from ordinary individuals within the political community.
• Commanding Power: The sovereign, as identified by Austin, possesses the power
to issue commands. These commands are not suggestions or requests but authoritative direc-
tives that carry the force of law. The ability to make and enforce commands is a defining
characteristic of the sovereign.
• Non-Obedience to Others: A crucial aspect of Austin's definition is that the sover-
eign does not habitually obey anyone else within the same political community. This is what
distinguishes the sovereign from ordinary individuals who may obey the sovereign's com-
mands but are not themselves sovereign. The sovereign stands at the apex of the legal and
political hierarchy.
• Recognition by the Population: The identification of the sovereign is not solely de-
termined by the sovereign's self-proclamation but by the recognition of the population. The
fact that the majority habitually obeys the commands of a particular person or body is essen-
tial for that entity to be recognized as the sovereign.
• Absence of a Higher Authority: The sovereign, according to Austin, is the highest
and ultimate authority within a given political community. There is no higher authority to
which the sovereign is subject. The absence of habitual obedience by the sovereign to an-
other authority is a critical criterion.
Existence of sovereignty as a postulate in the current scenario in India?
1. Austin’s theory of sovereignty presumes that people will exactly obey what the sovereign will
command which is not true in the present scenario in India politics. His theories put the habitual
obedience by subject on the bottom line of the philosophy. Those who deem the sovereign as the fit
will obey voluntarily. Those who think sovereign as faulty will obey in the fear that the evil of their
resistance will surpass the evil of obedience. The people who deem the government as unfit criti-
cize, protest and resist the government and its policies. Which sometimes causes even the total fail -
ure of constitutional machinery like one observed in 1975 when Indira Gandhi (then PM) imposed
emergency.
the presumption of habitual obedience, which is at the very basis of Austin’s sovereign theory
can’t prevail in the present Indian political and legal society.
2. According to Austin, only those commands that are given by a political superior i.e. sovereign are
laws the real sense. Though, there is a subtle acceptance of law made by judges (precedents) unless
except it goes against the laws made by the sovereign but it is not appropriate in any sense.
In India, the Supreme Court is the keeper of the constitution and it has the power to declare any leg-
islation as void if it contravenes any of the provisions of the constitution and thus protects the fun-
damental rights of the people of the country. But according to Austin, courts/judges are the mere the
subordinate sources of law and they have to function within the parameters set by the sovereign
3. Also, according to Austin’s definitions, customs are also not a source of law and thus not applica-
ble. Law of the church, the law of the merchants, and many other personal and customary laws like
Hindu Law, Muslim law, etc which are in existence much before this theory, though not been ac-
knowledged but governing the day to day behaviour of the bulk of the population and is enforced by
the state, none of these would be law according to Austin’s definition.
4.Austin has postulated that the sovereign is free from all restraints of any kind of law and that no
sanctions of any nature can be imposed on him. The command of sovereignty is superior to overall
individuals and associations. The zero accountability of the sovereign in Austin’s theory brings the
whole country and its people at the mercy of a single person who can decide someone’s life and
death according to his mood and personal whims. Also, because there is only one body as sover-
eign, it is more prone to attacks and outside pressure from foreign leading to political instability. In
modern times, if such things into existence into any country, it will become much more vulnerable
to rebels, riots or even full-fledged war.
5.Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e. sovereign will
make laws, the sovereign will execute the laws and the sovereign only will administer the law. This
philosophy is also in contravention with the idea of democracy and the Indian federal structure.
In Golak Nath v. State of Punjab, it was clearly laid down that separation of power is uncompromis-
able provision of the constitution
Conclusion
We can say that Austin’s theory is not quite relevant to India in modern times as it does not take
into consideration multiple things like international law, separation of power, democratic form of
government, etc which have let India maintain its integrity, unity & prosperity and flourish over the
course of time from the colonial British rule to the biggest democracy of the world. Also, because
of India’s vast cultural, religious heritage and having the most youth in the world, not everything
can be done in accordance with the almost 150 years old theory formed under extreme legislative
conditions.

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Examine Austin’s view of sovereignty.

How a sovereign is identified in the command theory of

Austin’s view of sovereignty?

How a Sovereign is identified in command theory of law?

The basic features of Command theory are:

• Command (by political superiors).

• Duty (imposing duty on political inferiors).

How a sovereign is identified in the command theory of law:

• Habitual Obedience: The identification of the sovereign is based on the observable

Existence of sovereignty as a postulate in the current scenario in India?

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