CENTRAL UNIVERSITY OF SOUTH

BIHAR

SCHOOL OF LAW AND GOVERNANCE

jurisprudence

ASSIGNMENT ON CASE: “SOVEREIGNTY THEORY OF AUSTIN

AND ITS RELEVANCY IN MODERN SOCIETY”

SUBMITTED TO:
Prof. S.P. Srivastava
PROFESSOR and head CUSB, SLG

SUBMITTED BY:
SAMTA KUMARI
ENROLLMENT NO. CUSB2213125091
BA.LLB 5 TH SEMESTER

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 ACKNOWLEDGEMENT

I take great pleasure in expressing my deepest gratitude and obligation to my course

instructor and guide, PROF. S.P. SRIVASTAVA (Professor and Head) CUSB, SLG. His
dedication and helping attitude towards the students were solely responsible for the
completion of my assignment. His class lectures and timely advice and suggestions have
proved to be of immense importance in completing this work.

I owe a profound gratitude to our School of Law and Governance, Department of Law for
providing us with suitable facilities, notably the access to Manupatra, Heinonline etc.,
required to complete this work.

I thank my parents and family members for their constant support and encouragement. I am
extremely thankful to them for making me what I am. I also thank my all friends who have
directly or indirectly helped me in many ways during my studies. Last but not least, I am
grateful to God for everything.

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 TABLE OF CONTENT

S.NO TITLE PAGE

NO.
1. STATEMENT OF FACT 4
2. OBJECTIVE 4
3. RESEARCH METHODOLOGY 4
4. INTRODUCTION 5
5. AUSTIN’S SOVEREIGNTY THEORY 5-7
6. CRITICISMS OF AUSTIN’S THEORY 7-9
7. RELEVANCE IN MODERN SOCIETY 9-11
8. COMPARATIVE ANALYSIS 11-12
9. CASE STUDIES 13-15
10. CONCLUSION 15-16
11. BIBLIOGRAPHY 16

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 STATEMENT OF FACT

Sovereignty has been a fundamental concept in jurisprudence, central to understanding the

authority and functioning of a legal system. John Austin's theory of sovereignty emphasizes
the absolute and indivisible power of a determinate human superior. However, this theory has
faced criticism for its limitations in addressing pluralistic, democratic, and globalized
societies. In the modern era, where sovereignty is influenced by constitutions, international
law, and global institutions, the relevance of Austin's theory warrants a critical analysis.

OBJECTIVE

 To analyze Austin’s sovereignty theory and its key elements.

 To evaluate the criticisms of the theory in the context of modern political and legal
systems.
 To assess the applicability and relevance of Austin’s concept of sovereignty in
contemporary governance, with examples from democratic and authoritarian regimes.
 To explore modern interpretations of sovereignty and their alignment or departure
from Austin’s principles.

RESEARCH METHODOLOGY

 Doctrinal Research: A detailed study of primary sources such as Austin’s *The

Province of Jurisprudence Determined* and other legal texts.
 Comparative Analysis: Examining sovereignty across various legal systems, including
federal structures and authoritarian regimes.
 Case Studies: Analyzing countries like India, USA, China, and North Korea to
understand the practical application of sovereignty theories.
 Internet-Based Research: Utilizing reliable online legal resources and scholarly
articles to incorporate contemporary perspectives.

INTRODUCTION
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In its most fundamental sense, sovereignty refers to the supreme authority within a defined
territory. It denotes the power to make and enforce laws without being subject to external
authority. The concept is pivotal in jurisprudence as it forms the cornerstone of statehood,
governance, and the legitimacy of legal systems. Sovereignty is not merely a legal construct
but also a political and philosophical principle that defines the autonomy and supremacy of a
governing entity.

John Austin, a 19th-century legal theorist, is renowned for his analytical approach to
jurisprudence. His theory of sovereignty, articulated in *The Province of Jurisprudence
Determined*, emphasizes the role of a determinate human superior whose commands
constitute law. Austin’s definition of sovereignty as an absolute, indivisible, and legally
supreme authority laid the groundwork for positivist legal thought, separating law from
morality and focusing solely on the nature and function of legal rules1.

The objective of this assignment is to delve into Austin's sovereignty theory, critically analyze
its principles, and explore its relevance in the contemporary era. While Austin's views have
profoundly influenced legal theory, the dynamic nature of modern political systems and
globalization presents significant challenges to his conceptualization of sovereignty. This
discussion aims to bridge the gap between Austin’s classical ideas and their applicability in
today’s multifaceted legal and societal contexts.

AUSTIN’S SOVEREIGNTY THEORY

a. Definition and Key Elements

Austin’s sovereignty theory, central to legal positivism, conceptualizes sovereignty as the

legally supreme authority within a political system. The sovereign holds ultimate power, from
which all legal rules emanate 2. His theory detaches law from morality, asserting that the
validity of law rests solely on its origin from the sovereign.

1. Sovereignty as a Legally Supreme Authority

1
John Austin, The Province of Jurisprudence Determined 25 (Wilfrid E. Rumble ed., Cambridge University Press,
1995).
2
H.L.A. Hart, The Concept of Law 50 (Oxford University Press, 2nd ed., 1994).

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  Sovereignty signifies the apex of legal command within a state, holding
unchallengeable authority over its subjects3.
 It serves as the source of all laws, ensuring their legitimacy and enforceability.

2. Characteristics of Sovereignty

 Indivisibility of Sovereignty
 Sovereignty cannot be shared or divided among multiple entities.
 A divided sovereignty leads to confusion, undermining the effectiveness of laws.
 Sovereign as a Determinate Human Superior
 The sovereign is a clear, identifiable human authority or assembly with the ultimate
power to command.
 This authority operates independently, without being subordinate to any external
force.
 Command and Obedience
 Laws are commands issued by the sovereign to the subjects, creating an obligation to
comply.
 Obedience to these commands is expected from all individuals within the sovereign’s
jurisdiction.
 Sanctions for Disobedience
 The sovereign enforces compliance through sanctions or penalties for non-
observance.
 The fear of punishment ensures the effectiveness of the legal system.

b. Features of Sovereignty

1. Unlimited, Indivisible, and Absolute4

o Sovereignty is boundless and unrestricted, with no limits on its scope.

o It remains indivisible to avoid conflicts and preserve legal certainty.
o The sovereign wields absolute authority, free from external constraints.

2. Distinction Between Sovereign and Subjects

3
“Austin’s Theory of Sovereignty,” Legal Service India, available at
https://www.legalserviceindia.com/legal/article-103-austin-s-theory-of-sovereignty.html (last visited Nov. 25,
2024).
4
John Salmond, Jurisprudence 54 (Sweet & Maxwell, 12th ed. 1966).

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 o Sovereignty establishes a clear demarcation between the ruler (sovereign) and
the ruled (subjects).
o While the sovereign creates and enforces laws, the subjects are bound to obey
them without question.

c. Austin’s Example of a Sovereign

Austin illustrates sovereignty using examples of centralized authorities, such as:

1. The Monarch

 A king or queen who exercises absolute power over the state, commanding obedience
from all subjects5.

2. The Legislative Assembly

 A determinate body of lawmakers in modern states that functions as the sovereign

authority.
 It creates laws and holds supreme legal authority within the political structure.

Austin’s examples underscore his focus on identifying sovereignty within tangible,

identifiable entities that exert ultimate control in a legal system.

CRITICISMS OF AUSTIN’S THEORY

Despite its foundational role in legal positivism, Austin’s theory of sovereignty has faced
significant criticism due to its limitations in addressing the complexities of modern legal and
political systems.

a. Lack of Recognition of Internal Pluralism in Society6

 Oversimplified View of Sovereignty:

 Austin's concept assumes a homogeneous society governed by a single, indivisible
authority, failing to account for societal pluralism and diversity.
 Modern societies are characterized by multiple power centers, including religious
institutions, cultural organizations, and civil societies, which influence governance.

5
John Salmond, Jurisprudence 54 (Sweet & Maxwell, 12th ed. 1966).
6
“Relevance of Austin's Sovereignty in the 21st Century,” iPleaders, available at
https://blog.ipleaders.in/relevance-austins-sovereignty-21st-century/ (last visited Nov. 25, 2024).

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 b. Inapplicability to Federal States

 Challenges in Federal Systems:

 In federal structures like the USA and India, sovereignty is divided between central
and state governments7.
 Austin’s insistence on indivisibility conflicts with the shared sovereignty that defines
federal systems.
 For instance, Indian states exercise legislative powers under the Constitution,
challenging Austin’s “single sovereign” concept.

c. Disregard for the Role of Customs, Conventions, and Public Opinion

 Neglect of Non-Legal Norms:

 Austin's theory views law solely as commands from the sovereign, disregarding the
significance of customs and conventions that shape societal behavior.
 Public opinion, though not codified as law, often exerts significant influence on
governance and legal reform (e.g., the abolition of untouchability in India).

d. Irrelevance in International Law

 Sovereignty is Not Absolute in International Relations:

 In international law, sovereignty is limited by treaties, conventions, and the influence
of global organizations like the United Nations8.
 States voluntarily cede aspects of their sovereignty to participate in the international
order, contradicting Austin’s idea of absolute, indivisible authority.

e. Complexity in Determining a Determinate Sovereign in Democracies

 Ambiguity in Democratic States:

 Democracies operate on principles of popular sovereignty, where power is distributed
among various institutions (e.g., legislature, executive, judiciary).
 Identifying a single, determinate sovereign becomes challenging in parliamentary
democracies like India or constitutional republics like the USA9.

7
H.L.A. Hart, The Concept of Law 50 (Oxford University Press, 2nd ed., 1994).
8
“Austin’s Theory of Sovereignty,” Legal Service India, available at
https://www.legalserviceindia.com/legal/article-103-austin-s-theory-of-sovereignty.html (last visited Nov. 25,
2024).
9
“Austin’s Theory of Sovereignty,” Legal Service India, available at
https://www.legalserviceindia.com/legal/article-103-austin-s-theory-of-sovereignty.html (last visited Nov. 25,
2024).

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 RELEVANCE IN MODERN SOCIETY

Austin’s sovereignty theory, despite its criticisms, retains partial relevance in modern
contexts, especially when examined through the lens of specific political situations and
contemporary challenges.

a. Applicability in Specific Contexts

1. Examples of Absolute Sovereignty in Authoritarian Regimes:

o Authoritarian governments often centralize power, reflecting Austin's notion of

an absolute sovereign.
o For example:
o North Korea: The Supreme Leader wields complete authority, with laws
functioning as commands enforced by sanctions10.
o Saudi Arabia: The monarchy exemplifies a near-absolute sovereign, where the
king’s authority is supreme.

2. Application in Emergency Situations:

o In times of crisis, law-making powers are often centralized, resembling

Austin’s theory:
o India during the Emergency (1975-77): The central government exercised
concentrated powers, temporarily overriding state autonomy11.
o USA’s War Powers Act: Provides the President significant powers in
emergencies, resembling Austin’s concept of a determinate sovereign12.

b. Challenges in a Modern Democratic Setup

1. Role of the Constitution as the Supreme Authority:

o In modern democracies, the constitution, not an individual or body, is the

ultimate authority.
o Example:

10
H.L.A. Hart, The Concept of Law 50 (Oxford University Press, 2nd ed., 1994).
11
H.L.A. Hart, The Concept of Law 50 (Oxford University Press, 2nd ed., 1994).
12
John Austin, The Province of Jurisprudence Determined 25 (Wilfrid E. Rumble ed., Cambridge University
Press, 1995).

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 o India: The Constitution governs all organs of the state, challenging Austin’s
idea of a human superior as the sovereign.

2. Division of Powers in Federal Systems:

o Federal structures inherently conflict with Austin’s indivisible sovereignty.

o Example:
o United States: Sovereignty is shared between the federal government and
states, each exercising autonomy in certain domains.

3. Influence of Global Organizations:

o Modern states are influenced by international bodies that limit absolute

sovereignty.
o Examples:
o United Nations: Nations must comply with UN resolutions and international
treaties.
o World Trade Organization (WTO): Member states adhere to trade regulations,
curbing unilateral sovereign authority.

c. Contemporary Perspectives on Sovereignty

1. Evolving Concept of Shared or Pooled Sovereignty:

o The European Union (EU) exemplifies shared sovereignty, where member

states transfer certain powers to central institutions for collective decision-
making.
o Example:
o EU policies on trade and immigration are binding on member states,
challenging traditional notions of sovereignty.

2. Sovereignty in the Digital Age – Cyber Sovereignty:

o With advancements in technology, the concept of sovereignty has expanded to

include control over cyberspace.
o Examples:

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 o China’s Great Firewall: Reflects cyber sovereignty by strictly controlling
internet access within its borders.
o Global Data Protection Laws: Such as the EU’s GDPR, illustrate the
extraterritorial assertion of sovereignty in the digital realm13.

COMPARATIVE ANALYSIS

Below is a comparison of Austin’s sovereignty theory with modern theories, emphasizing the
evolution and adaptation of the concept to meet the complexities of contemporary
governance.

13
John Austin, The Province of Jurisprudence Determined 25 (Wilfrid E. Rumble ed., Cambridge University
Press, 1995).

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Analysis

1. Austin vs. Pluralists:

- Pluralists like Duguit and Laski challenge Austin’s monolithic approach by highlighting
that sovereignty is not exclusive to a single authority but shared across social groups and
institutions14.

2. Austin vs. Sociological Perspectives:

- Sociologists like Ehrlich argue that law and sovereignty are byproducts of social norms
and practices, not mere commands from a central authority.

3. Austin vs. Constitutional Theorists:

- Kelsen reframes sovereignty as a constitutional principle rather than a personal or

institutional command, better addressing the complexities of modern legal systems.

14
“Austin’s Theory of Sovereignty,” Legal Service India, available at
https://www.legalserviceindia.com/legal/article-103-austin-s-theory-of-sovereignty.html (last visited Nov. 25,
2024).

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 CASE STUDIES

A. Absolute Sovereignty: China and North Korea

1. China

- Centralized Authority:

 The Communist Party of China (CPC) exercises absolute control, functioning as

the sovereign authority. All branches of government are subordinate to the CPC,
aligning with Austin’s idea of a determinate and supreme sovereign15.

- Command and Obedience:

 Laws and policies are directives from the CPC, enforced through state machinery
with strict sanctions for disobedience.

- Challenges to Austin's View:

 The role of public opinion and global pressures, especially in regions like Hong
Kong or Tibet, reveals the limitations of absolute sovereignty in a globalized
world.
 The influence of international treaties and trade agreements demonstrates diluted
sovereignty in practice16.

2. North Korea

- Supreme Leader as Sovereign:

 The Kim dynasty exemplifies Austinian sovereignty, with the leader holding
ultimate control over legislative, executive, and military functions.

- Law as Command:

 Laws and directives emanate directly from the leader, with strict penalties for
dissent.

- Modern Observations:
15
John Austin, The Province of Jurisprudence Determined 25 (Wilfrid E. Rumble ed., Cambridge University
Press, 1995).
16
“Relevance of Austin's Sovereignty in the 21st Century,” iPleaders, available at
https://blog.ipleaders.in/relevance-austins-sovereignty-21st-century/ (last visited Nov. 25, 2024).

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  Despite its absolute sovereignty internally, North Korea’s dependence on China
and other nations for economic support highlights the erosion of absolute
sovereignty in international relations.

B. Diffused Sovereignty: India and the USA

1. India

- Federal Structure:

 Sovereignty is divided between the Union and State governments, as per the Indian
Constitution, challenging Austin’s notion of indivisible sovereignty.
 Legislative powers are distributed among the Union, State, and Concurrent Lists
(Seventh Schedule)17.

- Supreme Authority:

 The Constitution, not any individual or institution, is the ultimate source of

authority. This aligns with Kelsen’s theory of constitutional supremacy.

- Role of Judiciary:

 The judiciary enforces constitutional limits, further diluting Austin’s idea

of a determinate sovereign18.

- Modern Implications:

 Federal disputes, like those over GST or water-sharing agreements,

demonstrate the practical diffusion of sovereignty.

2. USA

- Federal Division of Powers:

 The sovereignty is shared between the federal government and individual

states, with certain powers reserved for each.

- Checks and Balances:

17
“Cyber Sovereignty in the Digital Era,” Council on Foreign Relations, available at https://www.cfr.org/cyber-
sovereignty (last visited Nov. 25, 2024).
18
“Relevance of Austin's Sovereignty in the 21st Century,” iPleaders, available at
https://blog.ipleaders.in/relevance-austins-sovereignty-21st-century/ (last visited Nov. 25, 2024).

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  The separation of powers among the executive, legislative, and judicial
branches ensures no single entity holds absolute power.

- Constitution as Supreme Law:

 The U.S. Constitution establishes a framework of limited sovereignty,

aligning more with constitutional theories than Austinian sovereignty.

- Challenges to Sovereignty:

 Issues like state secession (Civil War) and modern debates on state versus
federal authority (e.g., abortion laws) highlight the complex interplay of
sovereignty in a federal system.

Key Takeaways from Case Studies

 Absolute Sovereignty: While nations like China and North Korea align
with Austin's theory, they face limitations in global interactions, revealing
the erosion of absolute sovereignty in the modern era.
 Diffused Sovereignty: Federal systems like India and the USA highlight
the inadequacies of Austin’s indivisible sovereignty in complex democratic
setups.
 Modern Evolution: The increasing role of international law, treaties, and
organizations like the UN underscores the need to move beyond Austin’s
traditional framework of sovereignty19.

CONCLUSION

Austin's theory of sovereignty remains a foundational pillar in legal jurisprudence, offering a

clear and systematic approach to understanding the nature of law and authority. By defining
law as the command of a determinate sovereign backed by sanctions, Austin provided a
framework that shaped the study of legal systems globally. However, his theory's rigid and
absolutist nature has been criticized for its inability to accommodate the complexities of
modern democratic, federal, and pluralistic societies. Its disregard for the influence of

19
John Austin, The Province of Jurisprudence Determined 25 (Wilfrid E. Rumble ed., Cambridge University
Press, 1995).

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customs, conventions, and international laws makes it less relevant in today's interconnected
world.

Despite its limitations, Austin’s theory holds relevance in certain contexts, such as
authoritarian regimes and emergency governance, where centralized authority is paramount.
Yet, modern governance demands an evolution of the concept of sovereignty to reflect the
realities of constitutional supremacy, the division of powers, and the growing influence of
global institutions. As we face new challenges like cyber sovereignty and transnational
cooperation, sovereignty must adapt to balance state authority with the demands of a
globalized and digitally interconnected society.

Thus, while Austin’s theory serves as a valuable starting point, sovereignty in the 21st century
must evolve into a more flexible and inclusive concept, aligning with contemporary political,
legal, and technological realities.

BIBLIOGRAPHY

Sources used in making this assignment:

Book:
1. John Austin, The Province of Jurisprudence Determined 25 (Wilfrid E. Rumble ed.,
Cambridge University Press, 1995).
2. H.L.A. Hart, The Concept of Law 50 (Oxford University Press, 2nd ed., 1994).
3. John Salmond, Jurisprudence 54 (Sweet & Maxwell, 12th ed. 1966).
Websites:
1. “Austin’s Theory of Sovereignty,” Legal Service India, available at
https://www.legalserviceindia.com/legal/article-103-austin-s-theory-of-
sovereignty.html (last visited Nov. 25, 2024).
2. “Relevance of Austin's Sovereignty in the 21st Century,” iPleaders, available at
https://blog.ipleaders.in/relevance-austins-sovereignty-21st-century/ (last visited Nov.
25, 2024).
3. “Cyber Sovereignty in the Digital Era,” Council on Foreign Relations, available at
https://www.cfr.org/cyber-sovereignty (last visited Nov. 25, 2024).

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