The Austim'an Theory of Sovereignty
519
state. Sovereignty may, or may not, therefore, reside in the electorate. Some, in attempting to avoid Austin's difli culty, have located sovereignty in the
plicity of Austin's analysis, says: “My view, on the contrary, is that a simple
people.
This has been questioned on
answer must almost always be incorrect
the ground that the people possess no
in the case of modern constitutional governments, unless a peculiar and care
organ through which they can stamp their authority. Willoughby has pointed out that the “Sovereignty of the People" can only mean the "right" or “might" of revolution. But this power lies out
Sidgwick, in Chapter XXXI of his "Ele ments of Politics," in denying the sim
fully limited meaning is given to the question; and, even if it is saved from
incorrectness by careful definition of the question, a simple answer is still liable
side of law, and is not a normal sov
to be misleading, because it unduly con
ereignty. Others find this ultimate sovereignty in "Public Opinion." Pro fessor Richie has drawn the distinction between public opinion, as ultimate
centrates attention on an arbitrarily
political sovereignty, and the political power of the state as exercised through established organs. It is clearly to be seen that, after all, the attempt to trace sovereignty back of the electorate leads to confusion and
uncertainty.
The criticism of Austin's
theory along this line has no practical value other than to direct attention to the fact that there is an ultimate power
which all governmental agents must reckon with in the final analysis. Of course, this force is indefinite and diffi
cult to determine.
It may be a different
selected portion of the facts to which it relates.
I hold that, in a modern
constitutional state, political power that is not merely exercised at the discre
tion of a political superior,—or that must, therefore, be regarded as superior
or ultimate,-is usually distributed in a
rather complex way among different bodies and individuals." Sidgwick has done more than all others to show the real complexity and difiiculty that at tends any efiort to really trace sov ereignty to its fundamental social stratum.
This difficulty causes Willoughby to acknowledge, after a careful considera tion and criticism of Austin's analysis, that he almost came back to Austin's
element in different countries or it may change from time to time in the same country. It may, or may not, be a
view on final consideration. Willoughby then says: “The position taken in this
majority of the citizens.
It may be
treatise is that those persons or bodies
or political in
are the sovereigns who have the legal power of expressing the will of the state. Behind these persons we do not need
commercial,
religious,
nature. More than likely, it will be the element that is suffering some hardship through the oppressive measures of the functions of government. Certainly, that element which is being oppressed is
likely to attempt to assert sovereign
to look.
When we have located these
authoritative, volitional organs of the
state, we, qua lawyers, do not need to search further.”
power.
Austin’s view is clearly wrong when
CONCLUSION
he regards the location of sovereignty
A study of Austin’s views in the light
as a simple matter. It is readily seen from the previous paragraph that it is
of his critics has a tendency to increase
a very difficult matter in a normal state.
lawyer. His doctrine of legal sovereignty
respect for the views of this great English
