Evaluating the Jurisprudence of Sovereignty in John Austin

Abstract

John Austin’s theory of sovereignty was espoused in his Province of Jurisprudence Determined (1832). Predisposed by the Hobbesian Leviathan, Austin’s view is still quite distinct and unique. In his legal or monistic theory of sovereignty there is a line drawn between law and morality. Austin further affirms that every positive law is directly or circuitously issued by a sovereign person or body to members of the independent political society wherein that person or body is sovereign or supreme. In Austin, sovereignty is absolute, indivisible, permanent, and always resides in the determinate person or in a body of persons. He sees it as an integral and most potent weapon of a state without which it is impossible to function as such. Thus, the determinate human superior is the only law-maker. His commands are laws and without him the state can have no laws. This study critically appraised Austin’s theory of sovereignty, weighing its effectiveness and feasibility of practice in modern day governance of independent political societies and states. This inquiry adopted the methods of analysis and hermeneutics, breaking down some of the complex concepts used in the theory and interpreting the use and meaning of terms for easy understanding and appreciation. It is discovered that although Austin understands sovereignty as an integral and necessary element of a states” existence, his view is antithetic to popular sovereignty, self-determination of nations within a sovereign state and public opinion as he vests unlimited power in the sovereign. The study concludes that while taking into cognizance the importance of sovereignty in a state as Austin opines, one would not accept his view that the sovereign is absolute and indivisible in the light of other indices that impact on the dynamics of societal growth and development of states.