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 The Austim'an Theory of Sovereignty

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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