A Critique of the Austinian Theory of Sovereignty

By W. B. BIZZELL, D.C.L.

I.

AUSTIN'S VIEWS STATED USTIN’S theory of sovereignty is found

in

his “]urisprudence,"

which is the substance of a course of‘ lectures delivered during the brief period of his professorship at the University of London (1826-1832). His legal scholar ship was of a high order. In addition to his training in the common law of England, he spent some time in Ger

many in the study of

jurisprudence.

His views, which he later expressed in his lectures, were doubtless largely influ enced by his training in the philosophy

of the law while in Germany. Austin begins his sixth lecture (the one which contains his ideas of sov

ereignty) by asserting that subjection is the correlative of sovereignty and that

sovereignty is inseparably connected with the expression “independent politi cal society.”

He then asserts that there

are four marks of sovereignty, as fol lows: (1) the bulk of the society must obey; (2) this obedience must come from a common superior; (3) this obedi ence must be to a determinate superior; and (4) the obedience must be habitual and not occasional. He divides political sovereignty into

state. He says: “When the sovereign portion consists of a single member, the supreme sovereignty is properly a monarchy, or the sovereign is a mon

arch.” Austin contends that there is a contradiction of terms in the phrase “limited monarch.” “He is not sov ereign, but is one of a sovereign num ber,” says he, with reference to the ruler in a limited monarchy.

Austin then, in a concrete way, applies his idea of sovereignty to a few types of states.

In his own country, he locates

sovereignty in (1) the King; (2) the peers; and (3) the electorate.

He says:

“But, speaking accurately, the members of the commons’ house are merely trus

tees for the body by which they are elected and appointed; and, conse quently, the sovereign always resides in the King, and the peers with the electoral

body of the commons." In the consideration of such types of

relations as that of Indian princes to the English government, or that of Frederick of Prussia to Brandenburg, which many had termed “half sovereign states," Austin said such relations as these may be classed as follows: (1) those states which are wholly subject; (2) those

which are perfectly independent; and

two portions: namely, the portion which

(3) those which are jointly sovereign.

is sovereign and the portion of its mem bers which are subject. Austin con

These comprised all the possible rela tions. This classification removed all

tends that, in order to merge the latter class into the former, it would be neces

doubt as to the first two. In the third class, he gave the name of composite

sary to find a political sovereignty in which all the members were adults and of sound mind, which he considers im possible. With this twofold classification, he seeks the source of sovereignty in the

state or supreme federal government. He concluded by denying the existence

of a half sovereign state.

“I believe

no government is sovereign and subject

at once; nor can be properly styled half or imperfectly supreme.”