Theories of Sovereignty

Dr. Avinash Samal

Assistant Professor
Hidayatullah National Law University
Raipur, Chhattisgarh
Various Theories of
Sovereignty?
 Monism or Monistic Theory
 A classical defence of the determinate,
absolute and indivisible character of state
sovereignty
 Pluralism or Pluralistic Theory
 A protest against the monistic theory of
sovereignty that stresses the limited
nature of state sovereignty
 It must be shared between the state and
a host of other associations which are as
natural and indispensable as the state.
Monistic Theory

 Can be traced back to Hobbes and

Bentham
 John Austin - The most prominent
representative of the ‘Analytical School
of Jurisprudence’ gave an elaborate
treatment to the concept of sovereignty
 His treatise on "The Province of
Jurisprudence Determined" (1832)
contains a brilliant and precise
exposition of the monistic or legal
theory of sovereignty
Factors Responsible for
Monistic theory of Sovereignty
 The monistic theory of the state was born in an age of
crisis
 The monistic political thinkers, who evolved the doctrine
of state sovereignty, did so in order to reinforce the
authority of the state in a period of crisis.
 Originally, the sovereign state emerged to vindicate the
supremacy of the political authority against ecclesiastical
claims. Subsequently, it extended its supremacy to every
department of human activity, religious or otherwise.
 The theory of sovereignty became an instrument of
monarchical despotism in the hands of Hobbes.
 Bentham was the spokesman of the English middle class
that aspired to control the English state by way of
parliamentary sovereignty.
John Austin’s Concept of
Sovereignty
 "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 superior is
sovereign in that society, and the society
(including the superior) is a society political
and independent.“
 Laws are defined simply as the command of a
superior to an inferior.
 The primary reason for the bulk of a given society
rendering obedience to the sovereign is his power of
punishment for non-compliance with his commands.
Implications of John Austin’s
Concept of Sovereignty
 Determinate authority acting as the ultimate source of
power.
 Neither the people, which is indeterminate, nor the
general will (Rousseau's conception), which is impersonal
and abstract, can be designated as sovereign.
 Absolute and unlimited authority
 The sovereign receives habitual obedience from the
people but not in the habit of obedience to a like
superior.
 Law as the command of the sovereign
 Whatever the sovereign commands is law, and without
him there can be no law. Law is a command of the state
obliging the subject to do, or to refrain from doing,
certain acts, failure to obey being visited by punishment.
 Sovereignty is indivisible
 Sovereign power is by definition incapable of limitation.
 To divide sovereignty between two or more persons or
bodies of persons is to limit it.
Criticism
 Sovereign as determinate superior
 Sir Henry Maine in his "Early History of Institutions"
illustrates that in many of the Empires of the East there
is nothing to correspond with the of Austin’s ‘Determinate
Superior’
 He argues that Austin's conception is inapplicable to
underdeveloped communities where custom is a powerful
force.
 Citing the case of Ranjit Singh (King of the Sikhs, 1801-
39 who was absolutely despotic) who was a perfect
embodiment of Austinian sovereignty, Maine wrote:
 "I doubt whether once in all his life, he issued a command
which Austin would call a law".
 The rules which regulated the life of his subjects were
derived from their usages and customs.
 No sovereign can afford to ignore the social customs
which do not, of course, proceed from his authority.
 As MacIver aptly observes: "The state has little power to
make customs and perhaps less to destroy it.”
Criticism
 Location of Sovereignty
 The people of the state;
 The organization which has a legal right to make or
amend the constitution of the state;
 The sum total of the legal law making bodies in the
government of the state
 The two possible meanings that can be given to the
term "people" in defining popular sovereignty are
"the total unorganizing indeterminate mass"
the electorate.
 People, as understood in the first sense, cannot
obviously be the sovereign. As regards the second,
people must act only through legal channels if they
are to be regarded as sovereign in any sense.
Criticism
 United Kingdom - Unitary State
 Location of sovereignty is not a problem as there is no
distinction between constitutional law and statutory law.
 The most perfect example of the Austinian view is, of
course, the position held by the King-in-Parliament.
 All bills passed by both houses of parliament and
assented to by the monarch become the law of the land.
 United Sates – federal structure – difficult to locate
sovereign
 Neither the President, nor the legislatures of federal or
State, enjoy absolute legal powers. Judicial review limits
their constitutional powers. Sovereignty therefore, is not
vested in them but rests in that body which has the
power to amend the constitution
Criticism
 Absolute and unlimited
 It conflicts with the basic ideas of
democracy.
Austin talks in terms of a hierarchical order
characterized by superior-subordinate
relationship while democracy is a society of
equals.
Austin's idea is inconsistent with a democratic
polity based on popular sovereignty
Criticism
 Sovereignty is also limited by the power
of the electorate and of public opinion.
 In a democratic state, the legal sovereign
should bow to the political sovereign.
 The sovereign is compelled by the logic of
political realities to respect the articulate
needs and desires of the electorate.
 Limits of human endurance – When
sovereign ignores those limits, it enters the
dangerous zone of popular rebellion
 Rebellions are foot notes to the problem of
sovereignty – H J Laski
Criticism
 The Pluralist Argument – They argue that the state is but
one association among several and, therefore, it cannot
be invested with the unique sovereign power of the
community
 They contend that the voluntary associations should not
be dictated to by the state.
 State sovereignty is limited internally by constitutional
law and externally by international law.
 International law backed by world public opinion puts
definite limits to the power of the state in its relations
with other states.
 The theory of sovereignty developed in a self-sufficient
age cannot be maintained in a world where the
interdependence of states is so marked.
Criticism
 Sovereignty as indivisible - is seen as an
untenable proposition.
 In every state there is a division of function
though not of will and without such division
no government can be run effectively.
 It is argued that sovereignty is shared
between the legislative, executive and judicial
branches and between the national and state
governments in a federation.
 The distinction between legal and political
sovereignty also has at times been
interpreted as the divisibility of sovereignty.
Criticism

 The theory of dual sovereignty in

the American Federal System
 It was enunciated by Hamilton and Madison
 The Supreme Court upheld it in Chisholm V.
Georgia (1792) and observed that the United
States is sovereign as to the powers which
have been conferred upon the national
government, and the "states" are sovereign
as to those which were reserved to them.
Values
 On account of these limitations and
deficiencies it is impossible to make the
monistic theory of sovereignty valid for
political philosophy.
 It grossly neglects the socio-political forces in
every community which profoundly influence
the operation of its legal instrument.
 The chief merit, however, of the theory is
that, as a conception of the legal nature of
sovereignty, it is clear and logical.
Pluralistic Theory of
Sovereignty
 Political pluralism is seen as a protest against
the monistic theory of state sovereignty
 Pluralism recognizes the existence of variety of
associations and groups in society which are as
natural and necessary as the state and they
must enjoy independence and autonomy from
the control of the state.
 Pluralists argue that concentration of power at a
single central source results in a tyrannical
social order. The dispersion of power to
peripheral points of the body politic is the basis
of free societies.
 Unlike the anarchists who want to abolish the
state, the pluralists retain state but restrict its
area of operation.
Cont…

 As opposed to the monistic-state defined as “one which

possesses, or which should possess, a single source of
authority that is theoretically comprehensive and
unlimited in its exercise”, the pluralist state is seen as:
 “one in which there exists no single authority that is all
competent and comprehensive, no unified system of law, no
centralised organ of administration, no generation of political
will".
 Modern society is a web of associations which emerge
naturally to fulfil the diverse needs and aspirations of the
members of a society and they must have functional
freedom and the state which is but one among numerous
associations must not claim monopoly over sovereignty.
 Pluralistic theory advocates division or sharing of
sovereignty on group basis, and limited sphere of state
action.
Factors Responsible for Rise of
Pluralism
 Pluralism emerged as a reaction to the
absolutist conception of the state which
influenced the militarists and fascists.
 Hegel's glorification of the state was a
threat to individual freedom and the
autonomy of associations.
 Both individualists and pluralists
challenged the legal and moral
supremacy of the state.
Cont..

 The rigid legal view of sovereignty known as

monism is also regarded by pluralists as the
principal actor responsible for the rise of
pluralism.
 They consider the legal view of sovereignty as
a dangerous doctrine
 Rise and spread of federalism – The scholars
argue that sovereignty in the Austinian sense
is difficult, if not impossible, to locate in a
federal state and as such pluralism is the only
logical solution.
Exponents of Pluralism
 Pluralism received wide support in
England, North America and some of
the European countries
 Ottovon Gierke of Germany and F. W.
Maitland of England are the earliest
proponents of pluralism
 They argued that permanent
associations which arise naturally
possess real personalities. They have
rights and duties as groups regardless
of the state's formal sanction.
Cont…
 Emile Durkheim has given special attention to
the position of professional and economic
groupings in society.
 Pleading for transferring the function of
economic control from the state to the
vocational group, Durkheim suggests that the
professional groups must be re-established both
as bases for political representation and as
sources of economic regulation.
 Sidney Webb and Beatrice Webb envisaged a
"Social Parliament" and a "Political Parliament",
the former to represent individuals as members
in a 'social democracy' and the latter to
represent them as citizens in a 'political
democracy'.
Cont…
 A. D. Lindsay - the state is merely "an
organization of organizations" and can have
control over other associations only if, and in so
far as, the citizens are prepared to concede it
such power.
 Earnest Barker argues that the groups are prior
to the state and have their own functions
independent of the state. He characterizes the
state as a 'group of groups' or a 'community of
communities‘.
Cont…
 Laski's conception of Pluralism was fundamentally a
revolt against the Philosophy of Hegel and the
jurisprudence of Austin.
 In his "Authority in the Modern State" and the
“Foundations of Sovereignty and other Essays" Laski
assails the moral validity of the doctrines that attributes
sovereignty to the state.
 Appealing to the claims both of individual conscience and
of various group loyalties, he writes:
 "The only State to which I owe allegiance is the State in
which I discover moral adequacy… our first duty is to be
true to our conscience". The state, moreover, "is only one
among many forms of human association. It competes for
men's loyalty and obedience with voluntary associations
which meet our diverse needs and aspirations.”
Cont…
 Laski advocated administrative decentralization
 His conception of social organization implied a federalist
concept of society in the economic as well as political
spheres.
 He visualized "a society in which authority is not
hierarchical but coordinate."
 The administrative machinery of the modern state
should be organized to provide the greatest opportunity
for continuous consultation between the government and
the people in their various associative capacities.
 In his "A Grammar of Politics"(1925), Laski moved away
from his earlier position and accepted the need of
"ultimate reserve power of the state".
 He conceded that sovereignty of the state was necessary
for the fulfilment of its functions.
Criticism
 Pluralistic theory of sovereignty is a gross exaggeration
and it suffers from logical contradiction.
 While in theory they plead for the reduction of state
activities, in practice they assign to the state much
power for implementing their schemes.
 The pluralists attempt to abolish sovereignty but are
finally compelled to restore it
 The dividing line between pluralism and anarchism is
very thin. Rejection of the monistic theory of sovereignty
leads to logical position of the anarchists.
 If the state is an association like other associations it
ceases to be a state and the way is wide open for
anarchy and disorder.
Criticism
 The numerous groups and associations do not
run along parallel lines, nor do they operate
in water-tight compartments. There is
overlapping of functions, the clash of interests
and the conflict of loyalties in society.
 The supreme power of the state is needed for
"the special function of adjusting and
adjudicating such clashes as well as of caring
for certain common interest".
 If the state is merely one association among
many, have more or less similar power and
status; it is difficult to see how it can
satisfactorily fulfil its unique function of
adjustment and adjudication.
Criticism
 The objections of pluralists to Austinian concept of law
tends to confuse the substance with the form of law.
 It is true that the substance of law is derived from
usages, practices and needs of a community.
 Austin's chief interest is in the form of law - its legal
source.
 No law, however good substantially, is valid unless it is
formally recognized by the state.
 The terms 'social solidarity' and 'sense of right' do not
have the precision conveyed by the term 'legal
sovereignty'.
 These terms are incapable of giving us specific laws that
can be interpreted and enforced by the courts of law.