The Austinian Theory of Sovereignty
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Austin saw in the supreme govern ment of the United States the typical federal state. He traced sovereignty,
John Austin is usually regarded as the
in this form of government, back of the
principal member of what is called the
ruling and law-making functions, to the electorate. "I believe that the sov
analytical school of political scientists. By some he has been regarded as the
ereignty of each of the states, and also
founder of this school. (See footnote in Leacock's “Elements of Political
of the larger state arising from the fed eral union, resides in the states’ govern ments as forming one aggregate body; meaning by a state's government, not its ordinary legislature, but the body of its
AUSTIN AND HIS SCHOOL
Science," page 54.) This view can hardly
There is one other phase of Austin's
be correct. The analytical school dates from the latter half of the sixteenth century. Long before Austin's time, the importance of the doctrine of sovereignty was realized and the analytical school was largely responsible for this realization. It would be more nearly correct to say
discussion which is necessary to indicate fairly his theory of sovereignty; that is,
that Hobbes was the real founder of this school. Many of the ideas of Austin,
his views of the limits of sovereign power.
in fact, can be found in the conception of sovereignty held by Hobbes. There were at least two views in common be tween them: (1) both conceived of sovereignty as territorial in character, and (2) both regarded sovereignty as indivisible. On this second point, both resorted to the same concrete illustra tion—division of sovereignty in a limited monarchy. Hobbes also held that con stitutional law did not limit the sover eignty of the prince.
citizens which appoints its ordinary legis lature, and which (the union apart) is properly sovereign therein."
He begins this phase of his discussion
by the assertion that "the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of
legal limitation," with emphasis on legal. He then proceeds to show that an un constitutional act of the 'sovereign is not
illegal, but merely immoral.
His view
of what constitutes constitutional law is interesting. He regards constitutional
law as those maxims or principles, which
Professor Burgess also approaches the
have been adopted, either from utility,
conception from the same point of view as does Austin. The conception of sov ereignty held by Austin and Burgess will illustrate the similarity of these views. Austin says: "If a determinate human superior not in the habit of obedience to a like superior receive habitual obedi
or belief in their conformity to divine will, which are tacitly observed by the
most influential part of the community. Constitutional law is, therefore, “the positive morality, or the compound of positive morality and positive law."
Since its violation is not illegal, it is
ence from the bulk of a given society,
not a limitation on sovereignty, or, using Austin’s exact words: "Conse— quently, although an act of the sovereign which violates constitutional law may
that determinate superior is sovereign in that society, and that society (in cluding the superior) is a society politi cal and independent.” Burgess ex
be styled with propriety unconstitu
presses this idea in this way:
tional, it is ‘not an infringement of law
understand by it (sovereignty) the original, absolute, unlimited, universal
simply and strictly so-called, and cannot be styled with propriety illegal."
“I
power over the individual subject and
