Sovereignty

Definitions

Jean Bodin: “Sovereignty is the Supreme power over

citizens unrestrained by Law”
Blackstone : “Sovereignty is the supreme, irresistible,
absolute ,uncontrolled authority in which the supreme
legal power resides”
Willoughby: “Sovereignty is the Supreme will of the
State”
Traditional View of Sovereignty

 Sovereignty is an attribute of the State

 It is the supreme will of the State
 It is a legal coercive power of the state
 Sovereignty lies in a person or a body of persons
 Sovereignty makes the law and exerts obedience from the people
 The sovereign power is absolute and without any limitation
Concepts

Internal :
It makes laws which are universally applicable within the
boundaries of the State.
External:
The external Sovereignty gives total freedom to the state in
international field. Externally , Sovereignty is absolute and
free from any outside interference
Characteristics

Permanence (It coexists with the state)

Absoluteness
Universality
Inalienability (Alienation would mean state suicide,
Sovereign Power cannot be lost due to its non exercise.)
Exclusiveness: State possesses the Sovereign Power and is
legally competent to extract obedience
Indivisibility: To divide it is to destroy it
Kinds of Sovereignty
 Real and Titular
 Legal and Political
 Legal Sovereign is thus a determinate person or a body of persons empowered to
make laws and issue commands. King –in- Parliament is the Legal Sovereign.
 Identification of the holder of supreme power ion the legal sense
The authority of the legal sovereign is thus characterized by legal sanctity and
it is unlimited and all individuals and associations are bound by it.
 Political Sovereign: Electorate constitute Political Sovereign
Political Sovereign is not recognized by the court of law. They make their
presence felt during General Elections
In a narrow sense, the electorate constitutes the political sovereign, yet in a wider
sense it may be said to be the whole mass of population including every person who
contributes to moulding of public opinion whether he is a voter or not”
De Facto Sovereign
Sovereign is in actual command of the situation and
who really enforces the command.
De Jure Sovereign
Person or body of persons legally competent to issue
commands.
Popular Sovereignty
 Althusius says, Sovereignty resides in the people as a
corporate body, which cannot be transferred to any other
person or organisation.
 Rousseau is generally regarded as the father of the concept of
popular sovereignty.
 American Constitution represented the first successful attempt
of a people to create and enact consciously and deliberately a
system of government.
Popular Sovereignty

 Gettel says “The American Constitution represented the first

successful attempt of a people to create consciously and
deliberately, a system of government, and to enact consciously and
deliberately, a system of government, and to enact the principles of
a political philosophy into law. The idea of a fundamental document,
created by a special representative body, created for the purpose and
formally approved, by the people was one of the most important
contributions of the period”
 The American and the French Revolutions made the concept of
popular sovereignty as the basis of a democratic state.
Rousseau’s concept of Popular Sovereignty

Men are by nature free and equal

The right of the government must be based on some
compact freely entered into by these equal and
independent individuals
As a result of this compact, the individuals become an
indivisible part of a body of sovereign people which has
an alienable right of determining its own internal
constitution and legislation
Popular Sovereignty

Popular Sovereignty is essentially a democratic doctrine

which puts immense faith on the people, their rights and
capabilities. They constitute a corporate body which is
supreme and source of all authority in the state. The
governmental authority, so created, is limited in nature,
subservient and responsive to the wishes of this great
corporate body.
Popular Sovereignty – Ashirwatham (contd.)

 Government does not exist for its own good. It exists for the good of the
people.
 If people’s wishes are deliberately violated , there are chances of a
revolution.
 Easy means should be provided for a legal way of expressing opinions
 Government should be held directly responsible to the people through
frequent elections, local self governments, referendum, initiative and
recall.
 Government should exercise its authority, directly in accordance with the
laws of the land and not act arbitrarily.
Austin’s Theory of Sovereignty

Lectures on Jurisprudence (1832)

“If a determinate human superior, not in the habit
of obedience to a like superior, receives habitual
obedience from the bulk of a given society, that
determinate superior is sovereign in that society
and the society (including the superior) is a society
political and independent”
Propositions

Sovereignty is necessary for the State

Sovereignty resides in a determinate person
Sovereignty is the supreme power in the state
Sovereign receives habitual obedience from the bulk of the
society
Law is the command of the sovereign
Sovereignty is indivisible
Criticisms
 Identification of Sovereign is difficult.
 Sovereignty has never been absolute(social customs, religion,
morality and ethics)
 Law as the command of Sovereign is erroneous.
McIver: “Customs when attacked by Law, retaliate in return, and in
this retaliation, they attack not only the particular law, but also the
spirit of law abidingness”
 Sovereignty is not indivisible.(legislature, executive and judiciary)
 Austin ignores the concept of Political Sovereignty.
Pluralism and its Rise
Durkhiem, Laski MacIver, G.D.H.Cole
 Pluralism rose as a reaction against state absolutism.
 Expansion of Democracy and Welfare State:
Pluralists aimed at Decentralisation of Authority.
Welfare State witnessed the expansion of State activities. Modern
State is overburdened with work
 Revolt against Monistic Sovereignty
Pluralists sought for revival of Guilds of medieval ages. Pluralists
wanted to revive these in the form of associations
 Growth of Federations: Centre-State and federating Units.
 Development of Internationalism.
Pluralists Criticism of Austinian Sovereignty
Criticism 1
Existence of Associations/ Organisations in the Society
State as an Association. It is just one of the many
Associations in the Society.
Associations not the creation of State: By their very nature
they are original, formed for specific purpose. They also
operate independent of State. They should be given
functional freedom and state should not monopolise
sovereignty.
Professional Organisations, labour unions, trade
organisations as important as those of the state. Associations
should have the power to make laws in their respective areas
Criticism 2
Law and State Sovereignty
Law is not the command of the superior to the inferior. The
state is both the child and parent of Law. Origins of Law lie
in their social requirements.
Laws are followed not because of the fear of punishment but
they are necessary for collective existence.
If the advantages of Social life are to be maintained , rules
have to be observed, otherwise society disintegrates.
Criticism 3
Internationalism and State Sovereignty
Article 2 and 24 of the Charter of the United Nations put
limitations of State Sovereignty
Article 2 (4) All members shall refrain from the use of force
against territorial integrity
Article 24: Members confer the responsibility of
maintenance of peace and security on the Security Council
U.N. Declaration of Human Rights is another step
International Law is becoming a fact of International Life
 Nuremberg Trials after World War II refused to accept the waging of
aggressive war as a prerogative of State Sovereignty