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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