517
The Austinian Theory of Sovereignty Parliament could set aside or
than the conception of law as conceived
modify any common law custom it saw
by Austin. But the most successful attack that has been made on the Austinian theory has grown out of the criticism that
that fit.
The principal defect in Austin's
theory, at this point, was in not see ing that there was a dormant sover eignty in the state which would have become active had they set aside custom to such a revolutionary extent as to have aroused the people to op position.
The main objection to Austin’s theory, in this connection, is in his interchange able use of the terms law and sovereignty. Obviously, this confusion makes his
theory inapplicable to a large extent to half organized states and completely in applicable to primitive communities, because in such communities as these positive law is non-existent and custom is the only source of power. Legally considered with reference to communi ties completely organized, in which there is a definite source of statute law, his
theory is substantially correct. It is obviously true that, by extend ing the meaning of law to include the force of custom, Austin's analysis can be made substantially true. Some recent authors have preferred to extend the meaning of law to meet the criticism of Maine. Woodrow Wilson has done this in his “The State" (Chapter XIV, page 587). “Law," says he, "is the will of the state concerning the civic conduct of those under its authority. This will may be more or less formally expressed: it may speak either in custom or in specific enactment. Law may, more
Austin's analysis is correct as far as it goes, but that it does not go far enough. While it does indicate the source from whence commands issue, it does
not
really determine the ultimate repository of political power. The result of this criticism has resulted in a twofold
classification of sovereignty; viz., legal sovereignty and political sovereignty. Austin would not be subject to criti cism here if there was not evidence that he confused the two conceptions. The confusion came in applying his doctrine. In attempting to locate sovereignty in England and the United States, it is clearly evident that his conception of political sovereignty was both too super ficial and too simple. just as it was the tendency of earlier writers to emphasize legal sovereignty, in the present time the tendency has been to emphasize political sovereignty. This change has resulted from the growth of the idea of democracy. The tendency toward democracy has re sulted in calling into question legal sovereignty, and, out of the confiict of
opinion, clearer notions of the concepts have resulted. Dicey says: “Behind the sovereign which the lawyer recog nizes,
there
is
another
sovereign
to
whom the legal sovereign must bow." This statement gives evidence of two
over, be the will either of a primitive
facts: first, it draws the line between the
family-community such as we see in the earliest periods of history, or of a highly organized, fully self-conscious state such as those of our own day." In the same chapter, Dr. Wilson finds the source of law in custom, religion, adjudication, equity, scientific discussion and legisla
two conceptions of sovereignty, and, secondly, it gives emphasis to the more fundamental nature of political sov~
of power as a juristic conception, and the state’s actual competency. “Sov
tion.
ereignty belongs to the state as a per
This view, however, is much wider
ereignty.
Willoughby lays great stress
on distinguishing between potentiality
