Breaking down the austinian sovereign
Foreign governments use varied criteria and political considerations when deciding whether or not to recognise the sovereignty of a state over a territory. Austin's Concept of Sovereignty Historical Context-Austin places the notion of sovereignty at the basis of his theory of law.
This is not law. Though many laws come directly from the parliamentbut they merely reflect the desire of these politicians to maintain support of the major organized groups in the country and to meet their interests satisfactorily.
Does Sovereignty Reside in India?
Conclusion In the forgoing discussion, an attempt had been made to analyze Austin's notion of sovereignty vis -a-vis the modern day state. His main critisim of Austin has been on the aspect of law being the species of command.
Law is a command of sovereign notes
Similarly Austin's concept of unlimited and indivisible sovereignty is quite inappropriate in the Indian set up or any democracy. But under certain cittumstances the Parliament can legislate even on subjects listed in State list. In Austin's positivist system, which refuses to relate law to goodness or badness, the law of God seems to fulfill no other function than that of serving as a receptacle for Austin's utilitarian beliefs. He may command his servants to prepare for the banquet. Parliament can make the law on subjects listed in Union List. A new explanation of the nature of political society was now needed and from this time onwards new theories of state power began to appear. The Pluralists challenge the claims of the state to supremacy on the ground that society consists of many associations and the state is but one among them. It has been said that a more decentralized authority would be more efficient in keeping peace because the deal must please not only the leadership but also the opposition group. However, the word law is of wilder amplitude and includes not only laws but bye-laws, notifications, customs which are not made by the state. He clearly states that the laws imposed by sovereign on themselves are merely "rules of positive morality", they are merely principle that they adopt as guidelines, sovereign is not constrained to observe it by a legal or political sanction, for if the sovereign was legally bound to observe it, the sovereign would be in a sate of subjection to a higher superior or sovereign. All these political thinkers are of the opinion that John Austin has laid unnecessary emphasis on this only one element the order of the sovereign and ignored many other elements. Secondly, one could argue Harris that the sovereign is best understood as a constructive metaphor: that law should be viewed as if it reflected the view of a single will a similar view, that law should be interpreted as if it derived from a single will, can be found in Ronald Dworkin's work
Thus the traditional doctrine regarding the basis of authority which had been sufficient for the middle ages had faded, morals began to be separated from theology, people started questioning the basis of a kings' claim to obedience.
The first of his criticism being that the greater part of a legal system consists of laws which neither command nor forbid things to be done, but which empower people by certain means to achieve certain results.
Austin has marked a phenomenal change in the entire understanding of legal theories. Baldwin the position has changed and the judiciary has let out the task to correct inaction on part of the mighty State.
Thus, Bryce suggests that legislative sov-ereignty is divisible and it may be concurrently vested in different persons or bodies co-ordinating together wholly or partially, through acting in different spheres.
based on 40 review