The classical theory of sovereignty in general and its Austrian exposition in particular have been subjected to scathing criticism by many philosophers and political scientists. Some of these criticisms are give below:
(1) Sir Henry Maine, the leader of the historical school of thought, has criticized the determinate and absolute character of sovereignty.
According to him, sovereign is neither determinate nor absolute. He gives the example of Maharaja Ranjit Singh and other Asian potentates who exercised absolute and despotic powers without any restraint of legislature or electorate, parties or press etc.
But even these potentates could not ignore religions, customs and public opinion. Austin replied to such criticism that since the sovereign permits these, he commands them. But the fact of the matter is that he permits because he cannot do otherwise.
If a potentate were to exercise power arbitrarily ignoring all these, his very authority would be in danger and would be overthrown.
(2) As T.H. Green has pointed out, law is obeyed not because of physical sanctions behind it but because of its contents, h is the consciousness on the part of citizens that obedience to law is essential to the promotion of common welfare that lies behind this obedience to law and not the fear of penalties.
(3) No sovereign can receive habitual obedience from the bulk of the society unless its laws, in the opinion of the citizens, promote common interests.
One is apt to agree with John Chipanan Gray that “the ruler or real sovereign is always undiscoverable”. Then the powers of a legal sovereign howsoever definite it may be are never absolute.
Behind the legal sovereign in democracy or dictatorship or monarchy there is a political sovereign which consists of the public opinion, Press, Platform, Broadcasting, religion, culture and so many other known or unknown forces.
The point that sovereignty is indivisible has also been subjected to a scathing criticism by the American philosophers also like Madison and Hamilton.
They point out that in federal structure like that of U.S.A., sovereignty of the state is divided between the federal union on one hand and the federating units on the other hand so that the whole sovereignty consists of a number of partial sovereignties.
Austinian school of philosophers meet this criticism by saying that even in a federation sovereignty is singular and it lies in the amending body of the constitution. They say, it is the governmental authority which is divided but not the sovereignty.
(4) Sovereignty is externally limited by international law, which imposes duties upon states and which they are obligated to perform. Nonperformance of these duties means delinquency on the part of the state punishable under international law.
(5) The sociologists have criticized this theory on principles of justice, sense of moral values and law of equity, which in actual practice limit the state action. Laws are not merely commands of the sovereign, rather they reflect the needs of society at a particular moment.
In fact, only the state is the protector of laws and governs according to them and hence they are a limitation on it. The state is a useful instrument for promoting social good. It follows that laws must be obeyed when they are designed to promote that end.
Man has a sense of right and wrong. Laws of the state will not be obeyed if these are contrary to the sense of reason and justice of the people.
(6) Pluralists have criticized this theory on the ground that society is federal and plural rather than monistic. State is only one out of many associations in society. There are numerous associations and groups in society established independently of the state.
For example, church, family, trade unions, political parties, economic associations are formed independently of state. State is to protect these associations only by regulating their external conduct. They have their own internal life and purpose.
They very often influence the laws of state. These independent associations in a way share the sovereignty of the state as they collectively serve a greater purpose than the state itself. The supporters of Austin, however point out that these associations are allowed to function only with the pleasure and approval of the Sovereign and as such they arc no encroachment on the authority of the Legal Sovereign.
The legal sovereign whereas allows them to exist can also curb them when required. In Nazi Germany and Fascist Italy all sorts of associations were subordinated to the will of the legal sovereign.
(7) The authority of the state is limited by the constitution of state. The constitution is considered to be the Supreme law of the land and the determinate legal sovereign like the Indian Parliament or U.S. Legislatures cannot go against the constitution.
(8) People have fundamental rights as defined by the ‘constitution’. These are limitations upon the state. State and law do not create rights; rights precede the state. It only protects them.
(9) Austin defined sovereignty in terms of ‘power’ and not in terms of ‘purpose’. State in every community has a purpose to perform. That purpose becomes a limitation upon the state.
The extent of the realization of that purpose and not the physical force at the disposal of the state, justifies its existence and the exercise of the sovereign authority. Duguit beautifully points out that the modern state is a social service state and, therefore, the idea of public services should replace the idea of sovereignty.
Gone are the days when state used to perform only police and military functions and concept of common will and obedience was so much emphasized. Now the state is more of a service institution than a governing body.
Thus the legal theory of sovereignty as laid down by Austin does not stand the test of practical reality. As MacIver points out physical force is not the essence but only differentia or criterion of the state.
Sovereignty belongs to the state because the performance of the purpose of the state demands it. Thus sovereignty is limited by the purpose.