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SOVEREIGNTY

Sovereignty is most important and essential


element of the state.
The term has been taken from the Latin word
supernus which means supreme.
The state is regarded as supreme, having supreme
legal power over all individuals and associations.
Aristotle referred to the supreme power of the state.
Conditions in the medieval period were not
conducive to the development of the concept of
sovereignty because the king, the feudal lords and
Pope all claimed to be the superior authority.

The conception of sovereignty was introduced into


political theory by the French writer Bodin.According to
him, Sovereignty is the supreme power over citizens
and subjects, unrestrained by law. To Bodin sovereignty
is absolute, and perpetual power within a state.
Hobbes Leviathan is the embodiment of sovereignty.
Locke stood for political sovereignty.
Rousseau advocated popular sovereignty.
Bentham agrees that sovereignty is unlimited by law,
and urged the necessity for the sovereign to justify his
power by useful legislation with the object of promoting
the greatest happiness of the greatest number.

Definitions:
1.Willoughby-Sovereignty is the supreme will of the
state.
2. According to Harold J.Laski The sovereign is legally
supreme over any individual or group and possesses
a supreme coercive power.
3.John Austin- If a determinate human superior, not in
the habit of obedience to a like human superior,
receives habitual obedience from the bulk of a given
society, that determinate human superior is the
sovereign in that society, and that society, including
the superior, is a society political and independent.

Attributes of Sovereignty :
1. Absoluteness
2. Universality
3. Permanence
4. Indivisibility
5. Inalienability
6. Exclusiveness

Kinds of Sovereignty :
1. Titular Sovereignty
2. Political Sovereignty
3. Legal Sovereignty
4. De Jure and De Facto Sovereignty
5. Popular Sovereignty

Austins Theory of Sovereignty :


Theory of sovereignty, as enunciated by Austin, depends
mainly upon his view of the nature of law.
According to Austin, command given by a superior to an
inferior.
If a determinate human superior, not in a habit of
obedience to a like superior, receives habitual
obedience, from the bulk of a given society, that
determinate human superior is sovereign in that society,
and that society (including the superior) is a society
political and independent.
Austins doctrine of sovereign may reduced to the
following propositions.

1. In every political and independent community, some person


or body of persons who exercise sovereign power.
2. That the sovereign is a determinate person or body of
persons. It is concerned with man and every State must have
a determinate human superior who can issue commands and
create laws.
3. Human laws, and not divine laws, are the proper subject of
State activity.
4. That determinate human superior must not himself obey any
other higher authority. His will is supreme over all individuals
and associations.
5. That the sovereign receives habitual obedience from the bulk
of the community. Obedience must be a matter of habit and
not merely occasional.

6. The command is the essence of law. Whatever the


sovereign commands is law, and law prescribes to
do certain things and not to do others. Failure to
obey laws, is visited by a penalty.
7. The sovereign power is indivisible. It is a unity and
is the incapable of division. Division of sovereignty
means destruction of sovereignty.
In brief, Austins analysis of sovereignty embraces
the existence of the supreme power which is
determinate, absolute, illimitable, inalienable,
indivisible, all comprehensive and permanent.

Austins first contention that sovereignty resides in a


determinate human superior is put to strong criticism
by Sir Henry Maine. He argues that the greatest kings
cannot issue commands which are opposed to customs,
traditions, usages and religious beliefs of the people.
Prof. Laski is of the view that Austins unlimited
sovereign cannot exist in practice, because various
social, ethical, economic and cultural associations,
which serve the interests of the citizens, are no less
sovereign than the state.
We cannot find a determinate sovereign in any state,
which commands others and obeys no one.

The emergence of federal states is a contradiction


of Austins sovereignty is indivisible.
Austin regarded law as the command of the
sovereign. This implies that the basis of law is
force. That is not true because the foundation of
law is social solidarity. The British common law is
an outcome of long standing customs and
traditions.
There is an essential difference between a law and
a command. Law is obeyed by both- those for
whom it is made and those who make it. Command
is an order, whosoever gives it does not obey it.

Pluralist Theory of Sovereignty :


The Pluralist theory of sovereignty was a strong reaction of
Monistic Theory of Sovereignty.
According to this the state as an association of other
associations. Pluralism was a doctrine for a limited state
and divided sovereignty.
The main components of this theory are Maitland,
Durkheim, GDH Cole, Laski, MacIver etc.
The Pluralists regarded sovereignty as limited and divided.
They believe that many associations, institutions and
groups in the society perform multifarious functions.
Some of these associations existed even prior to the state.

The individuals owe their allegiance to the


associations which serve their interests and these
associations are co-sovereigns. They advocated
decentralization of authority.
They regarded that the state as an arbiter in case of
conflicts between various associations.
Pluralists supported the democracy and liberalism
because the state derives its authority from the will
of the people.
They argued that the state does not create laws. Law
exists prior to the state. The state only gives it a
definite expression in the form of statutes.

Criticism :
According to them associations are independent and cosovereign. But in practice this will degenerate into social
disorder and anarchy.
A division of decentralized powers does not imply division of
sovereignty.
Pluralism fails to generate feelings of patriotism and unity.
Pluralists are uncertain regarding the abolishment of the
state.
Sovereignty can be divided and limited in a classless
societies but pluralists did not aim for such society.
The Pluralists advocated unity in diversity. This cannot be
established in the absence of a sovereign power.