State And Sovereignty in Indian Legal System

Index

Introduction

SECTION 1: THE NOTION OF STATE

ETYMOLOGICAL MEANING

DEFINITIONS

ESSENTIAL ELEMENTS

FUNCTIONS

CLASSIFICATION OF STATE....

SECTION 2: THE NOTION OF LAW

DEFINITIONS

TYPES OF LAW

SOURCES

SECTION 3: THEORIES CONCERNING STATE, LAW AND THEIR RELATIONSHIP

THEORIES CONCERNING STATE

THEORIES CONCERNING LAW

THEORIES CONCERNING THE RELATIONSHIP BETWEEN STATE AND LAW......

Conclusion; a lawless state or a stateless law?

Bibliography
 Acknowledgement

First and foremost, I would like to express my deepest gratitude to our Prof. Dr. Surekha
Tanuja, for invaluable guidance, feedback, and constant encouragement throughout the
duration of this project. Her passion for Jurisprudence and Law is extraordinary and her wisdom
is contagious, her insights greatly facilitated the progress of understanding of the subject and
finishing this project.

In addition, I would like to acknowledge my classmates for their camaraderie and assistance during the
project. Their questions and insights helped me forming my points.
Introduction
The origin of the State seems to have been shrouded with mystery. It is difficult to say whether
the State had a singular origin or it evolved as a continuous process. The history of human
civilization reveals that men as social being tended to live in larger groups under a common
authority for the purpose of regulating their interests inter-se as also for the adjustment of
relations between it and similar other groups. The State evolved from a simple to a more
complex form with extension of its activities. Eventually, the strong political society in turn
contributed to the formation of a modem governmental State. The main factors which
contributed to the evolution of the State include sociability of man, kinship, religion and
industry. The war also led to the growth of a social organizational form of larger group called
the State for the sake of protection and self-preservation of its people.

1. The notion of state

"The State which would provide everything, absorbing everything into itself, would ultimately
become a mere bureaucracy incapable of guaranteeing the very thing which the suffering
person every person needs: namely, loving personal concern.

We do not need a State which regulates and controls everything, but a State which, in
accordance with the principle of subsidiarity, generously acknowledges and supports initiatives
arising from the different social forces and combines spontaneity with closeness to those in
need." -Pope Benedict XVI

1.1 Etymological Meaning

The expression 'State' is derived from the Latin term 'status', which means 'standing'; i.e.,
position of a person or a body of persons. It is difficult to give a precise definition of State
because different political thinkers and jurists have defined it in different ways.

1.2 Definitions
Some of the generally accepted definitions of the State as given by eminent Jurists are as
follows

Woodrow Wilson defined 'State' as a people organized for law within a definite territory".

According to Dallas, "a State is a body of free persons, united together for the common benefit
to enjoy peaceably what is their own, and to do justice to others".

Holland.-According to Holland a "State is a numerous assemblage of human, beings, generally

occupying a certain territory amongst whom the will of the majority or of an ascertainable class
of persons is, by the strength of such majority or class made to prevail against any of their
member who oppose it."

Salmond defines State as "an association of human beings established for the attainment of
certain ends by certain means." The State is a society of men established for the maintenance
of peace and justice within a definite territory by way of

force. It therefore, follows that the central authority of political society which is called State
must be powerful enough to command obedience of its subjects and must be able to withstand
external aggression.

Grotius has defined "State as the complete union of freemen who join themselves together for
the purpose of enjoying law and for the sake of public welfare."

Mac Iver defines "State as an association which is acting through law as promulgated by a
government, endowed to this end with coercive power, maintains within a community
territorially demarcated the universal external maintains within com conditions of social order.

Brierly.

According to Brierly, "a State is an institution, that is to say, it is a system of relations which
men establish among themselves as a means of securing certain objects, of which the most
fundamental is a system of order within which their activities can be carried on."
Professor Goodhart defines State in terms of its purpose. He states that "the purpose of society
which we call a State is to maintain peace and order within a demarcated society. The minimum
and essential purpose of the State is, therefore, to make life possible."

1.3 Essential Elements of the State

The state has four essential elements:

1. Population

2. Territory

3. Government

4. Sovereignty

1.4 Functions of the State

It has been generally accepted that war and administration of justice are the two main
functions of the State. But in the modem context war may not be an essential function of the
civilised States as they may get their disputes settled by peaceful means without resorting to
war. Broadly speaking, the primary function of the State is maintenance of law and order within
its defined territory. Besides maintenance of law and justice, the State also has to perform
certain secondary functions, namely, legislation and taxation.

1.Primary Functions.
As rightly pointed out by Hobbes, the primary functions of the State are to provide adequate
safeguards and defence to its people against external aggression and ensure maintenance of
law and order within the community. Administration of justice is also one of the primary
functions of the State. These are also called the constituent functions as they are necessary for
the very existence of the State.

Herbert Spencer also supported the view that primary functions of the State include defending
the country against external aggression, and to maintain internal law and order. According to
Friedmann, the primary functions of the State are confined to defence, foreign affairs, police
and currency management. He prefers them to call as traditional functions of the State.

II. Secondary Functions.

These functions are mostly related to welfare activities of the State. The main secondary
functions of the State are legislation and taxation. It is through a well- regulated scheme of
taxation that the State collects, its revenue which is essential for its activities. Commenting on
the welfare functions of the State, Salmond rightly observed, that the State collects its revenue.
The nineteenth century idea of 'police State' has lost all its credence in the wake of modem
welfare State'. The dimensions of secondary functions are expanding fast in the modem States.
The directive principles of state mire envisaged in Part IV of the Constitution of India contain an
elaborate scheme of welfare activities of the State which can be treated as its secondary
functions.1

Friedmann has referred to five different secondary functions, which a modern States have to
perform. The State has to act as 'protector', as Provider', as an 'entrepreneur', as economic
controller and as an Arbitrator. These functions may be elaborated as under

(1) As a Protector. State has to manage administration of justice, disaster management etc.

(2) As a Provider.-State has to provide public and social services such as public works, health,

insurance, employment, education and other contract services.

(3) As an Entrepreneur.--The State has to conduct industrial and commercial activities including
railways, banking, shipping, mining, State trading etc. These services may be State owned or in
the form of companies, corporations, public enterprises etc.

(4) As Economic Controller. State has to manage financing, planning. It allocates economic
resources to different departments, public and private institutions and has the responsibility of
ensuring equitable distribution of wealth taking special care of poor indigent and weaker
sections of society. Price control is also of State's most important function.2

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(5) As an Arbiter.--State *has to ensure industrial peace through tribunals, wage boards,
commissions, awards etc. It seeks to resolve problems of different nature through ADR
methods which include arbitration, conciliation, mediation and negotiations.

With the expansion of human activities in modern life, the State has a duty to ensure socio-
economic and political justice to its citizens and fulfil the objective of a welfare State.

1.5 Classification of States

The States may broadly be classified into two heads, namely, (1) Unitary and (2) Federal State.

1. Unitary State is one where the supreme legislative power of the State vests in one central
authority. It is not made of territorial divisions. Thus, a unitary State possesses a single
sovereign organ exercising domain over the whole territory comprised within the State. The
power of law-making is also exercised by one central legislative authority. For example, Great
Britain is a unitary State where Parliament is the sole repository of sovereign power. Other local
authorities, such as, county councils have also the power to make laws but this power is
conferred upon them by the Act of the Parliament and can be taken away by the Parliament
anytime. Thus there is a single legislature at the apex which makes the State unitary in nature.

2. Federal State, on the other hand, is one which is itself and for defined common purposes in a
Union which, theoretically at least/ is aggregate or group of constituent states. Nathan defines
federation as "an aggregate of small States which while each retaining its separate identity, are
united together indissoluble".3

According to Dicey, a "federal State is a political contrivance intended to reconcile national

unity with the maintenance of State rights". Maciver defines federation as the formal division of
sovereign powers between the constituent or part states and the larger state which they
compose.

2. Notion of law

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2.1 Definitions of law

Law as a concept has dwelled and developed over centuries throughout the world. Therefore it
is has been defined differently by various jurists depending upon the conditions of the society.
Most famously known as the "command of the sovereign".

John Austin "A rule laid down for the guidance of an intelligent being by an Intelligent being
having power over him. A body of rules fixed and enforced by a sovereign political authority."

Max Weber "Law...exist if it is externally guaranteed by the probability of coercion (physical or

psychological) to bring about conformity or avenge violation, and is applied by a staff of people
holding themselves specially ready for that purpose."

Thomas Hobbes "Law is the formal glue that holds fundamentally disorganised societies
together."

Plato "An embodiment of Reason", whether in the individual or the community'.

Glanville Williams "Law is the cement of society and also an essential medium of change.
Knowledge of law increases one's understanding of public affairs. Its study promotes accuracy
of expression, facility in argument and skill in interpreting the written word, as well as some
understanding of social values".

2.2 Types of Law

There are four (4) types of law:

1. common

2. criminal

3. civil

4. administrative

All four types of law may either be substantially or procedurally-based. Substantive law is the
"purpose "of the law. Procedural law concerns the methods in which a law is executed.
Procedural law dictates the operation of the judicial system. It is the guidelines for the criminal
justice system. Procedural law serves as the set of rules police officers, attorneys and judges
must follow when enforcing the law. For example, when an individual is placed into custody for
allegedly committing a crime he or she is placed under arrest, if indigent assigned counsel, and
arraigned on the charges pending. The aforementioned is required to satisfy rules of procedure.
There are rules of procedures within every part of the American judicial system, jury selection,
entering evidence, examining witnesses, compiling discovery etc.

Common law is judge-made, not codified or enacted through written legislation. Common law is
established through precedent and customary traditions. Unlike codified law, common law
varies among jurisdictions. For instance, what may be acceptable behavior in one state may not
be a violation in another.

For example, at one time the state of Utah predominantly followed the Mormon religion. The
Mormon religion promoted polygamy. The state of Utah did not possess any laws pertaining to
polygamous marriages. This behavior was acceptable in Utah in the late 19th century due to
custom, tradition, and practice. Utah has been the only state in the union that has ever
accepted the act of polygamy. Presently, polygamy has been outlawed in the State of Utah. We
will discuss in a later lesson the difference between the states judicial systems.

Common law and the remaining three types of law may never contradict the United States
Constitution even if the law is not explicit in the black letter. Common and codified law may
never directly of indirectly limit the rights afforded to each individual in the Constitution. A
judge may use common law to supplement codified law in a court decision.

Criminal law is generally derived by codification. A criminal case must be brought by the state
and/or state prosecutor. In criminal law, the more severe the crime, the more severe the
punishment. For example, lengthy prison sentences may be given for more severe crimes. The
burden of proof in criminal law is beyond a reasonable doubt. This is a higher standard of proof
when compared to civil law.

Civil law is a private remedy. The burden of proof in civil law is a preponderance of evidence. A
civil case must originate through an inured private party. Civil law only carries monetary based
punishments, such as damages or compensation to relieve pain and suffering 4

Administrative law includes rules and regulations enforced by various government agencies.
Regulating agencies that possess administrative adjudicative powers are: public utilities
commissions, state motor vehicle agencies, environmental departments or commissions, solid
waste commissions, consumer protections agencies and traffic safety administrations. The
average person does not realize it, but everything we purchase, from a personal motor vehicle
to a gallon of milk, is regulated by a state or federal administrative agency. Administrative law
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was designed to protect the average person and regulate business enterprises that provide
goods and services to the general public.

2.2 Sources of law

The main sources of law In India are the Constitution, statutes (legislation), customary law and
precedents. Statutes are enacted by Parliament, State legislatures and Union Territory
legislatures. Besides, there is a vast body of laws known as subordinate legislation in the form
of rules, regulations as well as bye-laws made by Central/State governments and local
authorities like municipal corporations, municipalities, gram panchayats and other local bodies.
This subordinate legislation is made under the authority conferred or delegated either by
Parliament or State or Union Territory legislatures concerned. Judicial decisions of superior
courts like Supreme Court and High Courts are important sources of law. Decisions of Supreme
Court are binding on all courts within the territory of India. Local customs and conventions
which are not against statute, morality, etc., are also recognised and taken into account by
courts while administering justice in certain spheres.

3. Relation between law and state

3.1 Theories of the State

The origin of States has been a favorite subject organized city States which according of
speculation. The Greeks organized city states which according to them had a divine origin. Later
speculators not convinced with the divine origin of States, explained the rise of political society
by the hypothesis of an 'original contract' theory of which Hugo Grotius was the main
supporter. However, this theory was later proved 5 superfluous and untenable by subsequent
thinkers. Thus, political thinkers have propounded various theories regarding the origin and
evolution of the Rates. There are five main theories which explain the origin of the State. They
are5

1. The Divine Theory,

2. The Natural Theory,

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3. The Social Contract Theory,

4. The Patriarchal Theory,

5. The Matriarchal Theory.

1. Divine Theory

According to this theory, the State is the creation of God. This theory was developed in the
middle ages in Europe because of the influence of Christianity which regarded King as the
representative of God having divine right to rule. The oriental rulers sought to justify their
power to rule over their subjects on the basis of this theory. The Islamic countries also regarded
the King as a shadow of God. In Europe, however, the controversy arose between the Church
and the State, both claiming political authority on the ground of the Divine authority. Both
agreed that the ultimate source of power and authority emanated from the divine origin but
the dispute was whether this right was vested in the temporal authority of the Pope or the
Emperor. The supporters of the Church held that divine authority was vested in Pope while
supporters of the State argued that the divine power to rule was vested in the ruler directly by
God, hence Church was subordinate to the authority of the King. 6

Hindu mythology also accepted the divine right of King to rule over his subjects. It was,
therefore, believed that disobedience to King was sinful. However, subsequently due to moral
degradation of rulers and their greed for power, there was chaos and confusion and the Kings
become despotic rulers and anarchy prevailed. This brought about considerable influence upon
the minds of the people and the theory of divine origin of the State gradually gave way to the
social contract theory

2. The Natural Theory

This theory suggests that man is a social being and the instinct of his sociability has given rise to
the origin of the State. Aristotle staunchly supported this theory and therefore, it is also known
as Aristotle's theory of origin of State. He argued that the interests of the individual and the
State were identical and men could not live outside the State. The purpose of the State,
according to this theory was to promote general welfare of its people. The theory, however,
fails to explain the various influences which led to the formation of the State.

3. The Social Contract Theory

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The theory pre-supposes that the State is a creation of agreement by the people. The people
pay obedience to the authority of the State because they have agreed to do so. Hobbes, Locke
and Rousseau were the main exponents of this theory.7

Thomas Hobbes (1586-1679)

He lived at the time when there was Civil war in England between Protestants and Catholics. In
his classic work Leviathan (1651) he supported the despotic rule of Stuart Kings and argued that
people have no right to revolt against the government's authority. Acc. to Hobbes, the state of
nature is characterized by the "war of every man against every man," a constant and violent
condition of competition in which each individual has a natural right to everything, regardless of
the interests of others. Existence in the state of nature is, as Hobbes famously states, "solitary,
poor, nasty, brutish, and short."

• John Locke (16324704)

Locke was against despotic monarchical rule and supported English Revolution of 1688 in the
reign of King James II who was succeeded by William III with people's support. The Glorious
Revolution thus established the supremacy of the British Parliament and opposed restrictions
on people liberties by the ruler. The King's title being conferred by the Parliament, it w obvious
that he could rule only with the consent of the Parliament, i.e., the people. Through his two
treatises on government in 1690, Locke supported limited constitutional monarchy. He
accepted that man originally lived in state of nature but the life of people in it was not one of
universal war but preeminently social in character. The men lived together according to reason
without a common superior with authority to judge them. However, there was no one to tell
them what the rule of reason is. The want of a settled law induced people to abandon the state
of nature and enter into an agreement for the purpose of establishing a civil society under a
sovereign.

• Jean Rousseau (1712-1788)

Jean Jaques Rousseau was a French philosopher who improved upon the social contract theory
regarding the origin of State which was propounded Thomas Hobbes and subsequently
modified by John Locke. Keeping in view the English glorious revolution of 1688, Locke had
rejected the Hobbesion concept despotism of sovereign as a law make and projected the view
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that State can into existence to guarantee and protect natural rights of men. He observed th
State and as well as the law, both were the product of General will of ti people and sovereign
was to rule only as per the law by using his legislative powers. Thus emergence of State and its
sovereign power was the result people relinquishing their natural rights and in return, received
civil liberty of freedom of expression, press, assembly and equality etc.8

'Thus Rousseau also supported the social contract theory of the evolution of State but his views
radically differed from those of Hobbes and Locke. According to him, the life of people in the
state of nature was perfectly hap and, people enjoyed their freedoms. But the necessities of
self-preservation protection of private property compelled people to enter into a contract ago
themselves by which they surrendered their right, not to an individual but to the community as
a whole for their general good.

Then there are Patriarchal theory and Matriarchal theory also.

3.2 Theories concerning law

Natural Law Theory

Natural law theory is the earliest of all theories. It was developed in Greece by philosophers like
Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other philosophers like Gairus,
Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. In their studies of the
relation between nature and society, these philosophers have arrived at the conclusion that
there are two types of law that govern social relations.

One of them is made by person to control the relations within a society and so it may vary from
society to society and also from time to time within a society. The other one is that not made by
person but controls all human beings of the world. Such laws do not vary from place to place
and from time to time and even used to control or weigh the laws made by human beings.
These philosophers named the laws made by human beings as positive laws and the laws do
not made by human being as natural laws.

Natural law is given different names based on its characteristics. Some of them are law of
reason, eternal law, rational law, and principles of natural justice.

Natural law is defined by Salmond as "the principles of natural justice if we use the term justice
in its widest sense to include all forms of rightful actions." Natural law theory has served

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different societies in many ways. The Romans used it to develop their laws as jus civile, laws
governing roman citizens, and jus gentium, laws governing all their colonies and foreigners. The
Catholic Pope in Europe during the middle age become dictator due to the teachings of Thomas
Aquinas that natural law is the law of God to the people and that the pope was the
representative of God on earth to equally enforce them on the subjects and the kings. At the
late of the Feudalism stage, Locke, Montesque and others taught that person is created free,
equal and independent by taking the concept of Natural law as the individual right to life,
liberty, and security. Similarly, Rousseau's teachings of individual's right to equality, life, liberty,
and security were based on natural law. The English Revolution of 1888, the American
Declaration of Independence and the French Revolution of 1789 were also results of the
Natural law theory. Despite its contribution, however, no scholar could provide the precise
contents of the natural law. As a result, it was subjected to criticisms of scholars like John
Austin who rejected this theory and latter developed the imperative called positive law theory. 9

Positive Law Theory

Positive law theory is also called, imperative or analysts law theory. It refers to the law that is
actually laid down by separating "is" from the law, which is "ought" to be. It has the belief that
law is the rule made and enforced by the sovereign body of the state and there is no need to
use reason, morality, or justice to determine the validity of law.

According to this theory, rules made by the sovereign are laws irrespective of any other
considerations. These laws, therefore, vary from place to place and from time to time. The
followers of this theory include Austin, Bentham and H.L.A Hart. For these philosophers and
their followers law is a command of the sovereign to his/her subjects and there are three
elements in it: command; sovereign; and sanction. Command is the rule given by the sovereign
to the subjects or people under the rule of the sovereign. Sovereign refers to a person or a
group of persons demanding obedience in the state. Sanction is the evil that follows violations
of the rule.

This theory has criticized by scholars for defining law in relation to sovereignty or state because
law is older than the state historically and this shows that law exists in the absence of state.
Thus, primitive law (a law at the time of primitive society) serves the same function as does
mature law With regard to sanction as a condition of law in positive law, it is criticized that the
observance of many rules is secured by the promise of reward (for example, the fulfilment of
expectations) rather than imposing a sanction. Even though sanction plays a role in minority
who is reluctant, the law is obeyed because of its acceptance by the community "habit, respect

9
for the law as such, and a desire to reap the rewards which legal protection of acts will bring"
are important factors the law to be obeyed.10

The third main criticism of definition of law by Austin (positive law theory) is that it is superficial
to regard the command of the sovereign as the real source of the validity of law. It is argued
that many regard law as valid because it is the expression of natural justice or the embodiment
of the sprit of people.

Marxist Law Theory

Marxists believe that private property is the basis for the coming into existence of law and
state. They provide that property was the cause for creation of classes in the society in which
those who have the means of production can exploit those who do not have these means by
making laws to protect the private property. They base their arguments on the fact that there
was neither law nor state in primitive society for there was no private property. The theory has
the assumption that people can attain a perfect equality at the communism stage in which
there would be no private property, no state and no law. But, this was not yet attained and
even the practice of the major countries like the former United Soviet Socialist Russia (U.S.S.R.)
has proved that the theory is too good to be turn [Beset; 2006 ]. Nevertheless, this theory is
challenged and the theory of private property triumphs.

Realist Theory Of Law

Realist theory of law is interested in the actual working of the law rather than its traditional
definitions. It provides that law is what the judge decides in court. According to this theory,
rules not put to use to solve practical cases are not laws but merely existing as dead words and
these dead words of law get life only when applied in reality. Therefore, it is the decision given
by the judge but not the legislators that is considered as law according to this theory. Hence,
this theory believes that the lawmaker is the judge and not the legislative body.

This theory has its basis in the common law legal system in which the decision previously given
by a court is considered as a precedent to be used as a law to decide future similar case. This is
not applicable in civil law legal system, which is the other major legal system of the world, and
as a result this theory has been criticized by scholars and countries following this legal system
for the only laws of their legal system are legislation but not precedents. This implies that the
lawmaker in civil law legal system is the legislative body but not the judge. The followers of this

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theory include Justice Homes, Lawrence Friedman, John Chpman Gray, Jerom Frank. Karl N.
Lewelln and Yntema.

3.3 Theories of Inter Relationship Between State and Law

Jurists have always expressed divergent views about the relationship between the State and the
law. Three main theories have been propounded in this regard According to one view, the State
is superior to law because it creates law while the other view holds that law precedes the State.
There is another view which suggests that the law and the state are the same looked from the
point of view of the functions they perform.

Law as a product of state

The English jurists Austin and Bentham have expressed a view that law is a product of the state.
According to Austin, positive law is essentially a creation of the state. However the sovereign
himself is not bound by the law which is binding on his subjects. He has unbridles power to
repeal, annul or abrogate thelaws so enacted. Hagel also supported this view and opined that
law is a product of the state. The Nazi and Fascist rulers treated Law as a creation of State and
the ruler was above Law.11

Law is above the State

Yet another school of juristic thought believed in the supremacy of law and held that law is
above the State. Harold Laski, Duguit and Sir Ivor Jennings asserted that sovereign is bound by
law and he is not above law. Krabbe also supports this contention and holds that the ruler
cannot change the law by his mere volition. In fact, law checks the arbitrary exercise of power
by the State, i.e. the Executive.

John Rawls agreed that political power is always coercive backed by state machinery enforcing
the laws. But in order to ensure stability, laws should be acceptable to all the citizens as just
and fair. Political society being ever-lasting, citizens have no choice to leave it voluntarily as in
case of any-private association. The laws should, however, be aimed at removing disparity to
the maximum possible extent so that the gap between the less advantaged and more
advantaged may be minimized if not obliterated.

State and Law are one and the same,

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The term Sovereignty is derived from old French word Souverain, meaning supreme power
within a territory. In political sense, it is the ultimate power or authority , in the process of
decision making of the state and to maintain an order. Its concept is one of the most
controversial ideas in political science and international law, said to be inter-related to concept
of state and government along with independence and democracy. It is understood in three
dimensions- i) The holder of sovereignty , ii) The absoluteness of sovereignty and iii) The
internal and external dimension of sovereignty. The sovereignty in embedded in any political
institution. And numerous states together forms a sovereign state system.12

Emergence of Sovereignty

During 16th century France Jean Bodin brought up the concept of sovereignty to bolster the
French kings power above the rebellious feudal lords, to facilitate the transition from feudalism
to nationalism. The philosopher who provided most of the term with the modern meaning was
the English philosopher Thomas Hobbes, he argued that in each individual state, some person
or body of person shall have the ultimate and absolute authority to validate a law, to divide the
provided authority, in his opinions was essential to destroy the unity of any state.

Whereas , the theories of English philosopher John Locke and the French philosopher Jean-
Jacques Rousseau provides that state is based upon formal and informal compact of the citizen
within that territory. It is a social concept by way of which citizen entrust the power to a
government as may be necessary for the interest of common protection, it lead pt the
development of the doctrine of the sovereignty , found the expression in the American
Declaration of Independence (1776).

Later, the twist was given to the doctrine was in the French Constitution (1791) as a statement
sovereignty is one , indivisible, unalienable and imprescriptible; it belongs to the Nation ; no
group can attribute sovereignty to itself nor can an individual arrogate it to himself. And so the
popular notion of national sovereignty was now combined with the idea of national sovereignty
, and not to be exercised by any unorganised people in the state or territory , but by a nation
organized in states.

Jurist John Austin (1790-1859) in 19th century developed the concept of sovereignty further. He
investigated who exercises sovereignty in the name of people or of the state. In his
investigation report he concluded that, sovereignty is vested in a nation's parliament, which is a
supreme organ that enacts laws binding upon everybody else but that is not itself bound by the
laws and could change the laws at its will.

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But this does not fits in every states, but a particular system of government, as like in Great
Britain (19th century).

Austin's notion of legislative or parliament sovereignty does not apply tantamountly, one such
situation is the American constitution. The constitution of United States, specifically, the
fundamental laws of the federal union, did not endow the national legislature with such
supreme power as the defined in sovereignty, meanwhile imposed restriction upon it.

Moreover, in case of Marbury v. Madison (1803), The Supreme Court of United States held
itself to have an embedded right to declare any law unconstitutional through the process of
judicial review. Even if this case did not lead to any significant judicial sovereignty, but it gave
sovereign power to the fundamental law of the state, i.e. the Constitution.

Kelson opined that in fact law and the State are the two sides of the same coin. He observed,
"When we think of the abstract rules we speak of the law, when we consider the institutions
which the rulers create, we speak of the State".

Conclusion

There can be existence of law without the existence of state but the vice versa is not possible,
since the order in a society is brought by laws and a lawless society would not constitute a
state.

Law without the state is law made primarily outside of state power. It is also called
transnational stateless law, or stateless law, or private legal orderings. These orderings, being
recognized with some autonomy from the state, challenge traditional ways of thinking about
the law. The increasing role of non-state actors in lawmaking takes two different forms. On the
one hand, non- state actors have an important role in the making of law within the established
legal systems. through lobbying and other means of influencing lawmakers in established legal
systems. On the other, non-state actors also create norms outside and independently of these
systems. It is this second dynamic in normative systems and norm development that is referred
to as law without the state. Inspite of the same. The foregoing analysis makes it abundantly
clear that law and State are intimately inter-linked. The question as to which of the two is
supreme has to be answered in context of the polity of the State concerned. Thus in England,
the supremacy of the State is evident from the fact that law is considered to be a command of
the sovereign who is above and beyond law. But in India, it is not so. Even the Upnishads have
reiterated more than once that "Law is the King of Kings" and no one, not even the King is
above law. The Code of Manu has also acknowledged the supremacy of law over the ruler and
expected the King to follow the tenets of dharma, i.e. the law in governance of his subjects. The
modern Indian polity upholds the supremacy of law as a constitutional mandate preserved
under art. 12 of the constitutulon. The Supreme Court has time and again upheld the
supremacy of the Constitution to strengthen Rule of Law. Thus in 1.M. Singh v. Borobubu
Singh', the Apex Court observed

"No one in this country is above law and governance is not of men but of the rule of law which
permits no one to claim to be above law."

The supremacy of the Constitution, which is the law of the land in India, has been preserved by
the judiciary through the process of judicial review. The expression 'state' as defined in Art. 12
of the Constitution includes the Parliament, the Government of India and the State
Government, legislatures; States, local bodies and even the Judiciary. The Constitution is
supreme and above all these institution.

Bibliography

Paranjape, N.V. Studies in Jurisprudence and Legal Theory, Eight Ed. 2016, Central Law Agency.

Kumar, Narender, Constitutional Law of India, ninth ed. 2016, Allahabad Law Agency.

Badyal, J.S, Indian Government and Politics, revised 2017.

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