The Green Bag
516 all associations of subjects.
)7
The point
of view is largely that of the lawyer, in which sovereignty is regarded as an
entity and the power that exercises sovereignty is assumed to possess it.
CRITIQUE The objections to the Austinian theory of sovereignty have proceeded along two rather distinct lines. The first re gards Austin's theory as abstract in nature and that it gives an erroneous conception of the state. The second admits that this theory correctly indi cates the person or persons who are
legally competent to issue commands,
but that it falls short in that it does not . really trace out the ultimate repository
of political power.
The latter view is the
one that has produced the most argument in recent years, but the former objection
was the one raised by Sir Henry Maine and his criticism will now be revived. Sir Henry Maine's views grew out of observations which he made during seven years spent as a legal member of the council for India. His critique was formulated and presented in a course of lectures on the “Early History of
Institutions" which were delivered at Oxford. His criticism was the result of the study of a type of institutions which had little in common with those of Eng
land, which furnished the basis for Austin's views.
The basal difference
was that in which formal and definite statute law furnished the evidence of sovereign authority in contrast with a country in which custom was the basis
of sovereignty. The oriental mind knows nothing of statute and the oriental despot relies completely on “ancient usage and religious awe." In the light of his observation of this fact, Maine began to question whether there “is in every independent political community some single person or combination of persons
which has the power of compelling the other members of the community to do exactly as it pleases.” Maine cites an instance of a despot in India "the smallest disobedience to whose com mands would have been followed by death or mutilation." But in spite of this power, he never issued a command that Austin would call a law. There fore, historically, Austin's theory of sov ereignty was not broad enough; his conceptions of law, state and sovereignty did not contemplate such a community
as here described. But Maine went further.
He con
tended that Austin’s conception was contrary to fact when applied to Western civilization. He contended that on final analysis this theory must finally locate sovereignty in every state in the passes sion of force. He thought this view dis regarded “all the characteristics and attributes of government and society except one,” which left out of account such mighty influences as “the entire history of the community, the mass of
its historic precedents, which in each community determines how the sov— ereign shall exercise, or forbear from exercising his irresistible coercive power.”
It would be an injustice to Austin‘s theory, however, to say that he did not,
in any sense, contemplate this idea of custom. One of his maxims was: “What the sovereign permits, he commands." Austin was most familiar, as a lawyer, with a system of custom as remarkable, if not so absolute, as that in the contem plation of Sir Henry Maine. The Eng lish common law was well developed in
Austin's day. Even the principles and doctrines of equity were being given effect and force daily in the chancery courts. The dit‘ference in the two sys tems-those of England and India
was in the relative absoluteness of the two systems.
In England Austin knew
