SOVEREIGNTY

No concept of INTRODUCTION
times, there was sovereignty in ancient
no concept of times; India.-In
times. However, in ancient books sovereignty as it ancient
is understood
within a state or more we find
mention of an
in modern
correctly absolute
speaking within a authority
India.In India, in olden territory.
of God and he times, the
the king was
representative was simply, to execute considered as as the
i.e., the laws in the laws
given Vedas and Smritis. given by God,
from religious dominance had The idea of the secular
not taken birth, state free
days cannot be called therefore, the kings of those
sovereign in the modern sense of the
Greece.-In ancient Greece, so far as word.
of Homer and other can be gathered from the poems
contemporary works, the king was
valour. He was assisted by his birth and
by his nobles but he was not bound
and opinions and he could work in by their views
accordance with the
in the General opinion of the people
Assembly. Later on, the General
powerful. Thus, in Greek city states Assembly became very
the sovereign power vested in the
people. They assembled at a fixed
place to pass laws, to try cases, to declare
war and peace and to
give their verdict on many other matters
with the administration of connected
justice.
Rome.-In Rome, in ancient times, the king assisted by an
advisory
body decided the internal matters as well as the external
policy of war and
peace. But they acted in accordance with the
opinion of the comitia curiata.
The 'comitia curiata' was an assembly of all the able bodied
persons of the
state. This can be said to be a form of popular sovereignty.
During the
Republican period the comitia curitia' became a limited body and in the
mperial period it practically became ineffective, (though theoretically the
principle of popular sovereignty continued) and the emperors usurped all the
powers. The Roman emperor commanded obedience from a large number of
the nations of Europe. They developed a theory of universal power
8Overeignty). The power of the emperor meant universal subjection.
Middle Ages-In the Middle Ages the Church became very powerful.

.
The Pope of Rome became the central authority. He had
his jurisdiction not
In many cases Popes
Only on religious matters but on secular matters also.
But about thesame
power extended to the recognition of kings and emperor.
transformed and took the
a
Lne system took birth which was gradually
(159)
.
.
 JURISPRUDENCE
This syst m was the
160

of the word. f the

sense out of the feudal
feuda
in the modern grew
shape of sovereignty territorial
sovereignty
idea of
feudal.system. The the unit and
estate was
system. the landed had
Feudal syster em.-In this system, The feudal lordsto thecertain
of the society. were subject powen
base of the political organisation their turn, of
and they in on the basis land.

s
over their tenants was established it
Powers of power by the other above
of the king. Thus, a hierarchy was restricted this way, the society
this way,
T power of the one in this hierarchy by certain
rules. In
and the
and the relationshipwas regulated the conditions changed
in a legal order. Gradually tended towarda
to these changes
was organised came into existence due swallowed up by the
new forces which were
authorities or the feudals owner of the
The local the absolute
centralization. Now, the king became
king. came into existence,
higher authority-theand thus the territorial sovereignty
under him contributed
territory factors
and Renaissance-The other were which Reformation and
Reformation of the idea of sovereignty
to the development of the universal
caused the overthrowing
Renaissance. The Reformation became free from the
In many countries the Church
authority of the Pope. into the hands of the secular
direct control of the Pope and it went
became free from all external control. The
power-the king. Thus, the king
state. Thus, the territorial state
Renaissance brought the idea of the nation
control and had absolute authority
emerged. It was free from any external
over its This authority or power of the state is known as
subjects.
sovereignty and the states having this power are called sovereign States.
The relationshipbetween the two sovereign states was that of equals and
the rules which determined these relations came to be known as
Internationallaw.

Development of the Concept of Sovereignty

Machiavelli.-From the above discussion, it is clear that the concept
of the state and sovereignty came into being after
the Middle Ages and
developed during Reformation and Renaissance. We may trace the idea
me absolute authority in the state in the
wrie
contemporary writers.
Machiavelli said that politics is a secular science. The state is and
absolute au
is an end in itself, There are no restrains
on its
powers-neither ol the
Church nor of the natural law'. The of
power the ruler over his subjec is
absolute and there are no legal limitations
upon it except the mautei
prudence and policy. Machiavelli did not advance
Though the germs of the theory of the idea beyona
sovereignty are in his writings, 1t
be said to be a theory of sovereignty. c
Bodin-Thetheory of
sovereigntywasfirst given
used the term Sovereign the
Bodin. He, for the firsttime, by French urist
"Sovereign"is derived from it) in his book De la glish wo
(TheEngl:
he
introduced in the political science.
it Republique' and rs
Bodin himself said that he
jurist to make an attempt todefine the
term was
Majestas est 8umma ('sovereign'). He define
in ciuesas
potestas subditors legibusque
Theabsoluteand
perpetual power
within a state.
 SOVEREIGNTY
According to 161
Bodin, the ruler
absolute power of law is the source
But the law of all
oroprietary rights andmaking.
to keep of nature
laws. Hehas the
Bodin's theory that faith with makes him to
another ruler. It is this respect
distinguishes him from
inspiration from Bodin point in
and, later on, this Machiavelli. Hobbes took
Austin and many other
jurists. theory was his,
adopted by Bentham,
Hobbes;
Bentham.-Hobbes
thatthe sovereign was developed the
theory further. He said
The sovereign's completely absolute and
power extended over was not bound
including the religion. by
matters within anything.
all the
Bentham also the state
Support of the absolute supported the same view
power of the but his
The sovereign had was on
the authority forsovereign
the utilitarian
grounds.
should conform to the purpose of framing laws which
theory of
frame laws from a utilitarian utility. In other words, the
point of view. sovereign should
Austin-The theory of was
He defined lawput in"the
systematic form by Austin. sovereignty a very elaborate and
sOvereign'. This definition as command of
involved a discussion of
power, that is, the sovereign and the his
sovereignty. Austin defined
"If a sovereign as
determinate human superior,not
a like superior, in the habit of obedíence
receives habitual of
society, that determinate
obedience from the bulk
superior is sovereign in that
ofa given
society (including the societyand the
superior) is a societypolitical and
Thus, according to Austin, independent."
sovereign has two marks
(1) He is not in the habit
of obedience to any
is called the political superior.This
negative mark.
(2) He must command the habitual obedience
from the bulk of his
subjects.This is called
the positivemark.
The sovereignty includes both the marks
and in the want of anyone of
them, therè can be no
sovereignty.
The sovereignty as defined in the absolutist theories (given by
Hobbes and Austin) has Bodin,
***.*:
three characteristics .
(1)Sovereignty is essential in thestate.
(2) Sovereignty is indivisible.
(3) Sovereignty isunlimited and illimitable.
(1) Sovereignty is essential in the
state.-In every political society
here is always a
supreme power whosewill ultimately prevails. This
Supreme power vests in a single individual or a group of individuals."Some
argue that in ancient times therewerecommunities in which there was no
cn supreme power.Itis submitted that the sovereignty înitspresent form
8a post-Reformation development. Therefore, the theory is not applicable
ancient communities. Some say that it is possible that in future there
ght not be any supreme power as sovereign in the stateand rules shall
De obeyed by the people on account of theirmerit. The theory that
Sovereignty in essential isnot impaired by this hypothesis,and inthe
Present concept of the state, sovereignty is an essentialelement of it It is
eces8arythat the sovereignty should be always within t
the state. ma
partly or wholly external to the state. Thus, this first characteristie

generally accepted by all

F-13
 JURISPAUDENCE
aracteristic
of
162 second char the
indivisible.-The state the soverej
eignty vests
in
is In every or the gronn
person group has
(2) Sovereignty That the
is that
it is indivisible.
of persons. even in casses,
is indivisible, where
sOvereigntyor a defined group holds the power
one person This power
the state.
power in as the British Parlhament,
view is thanat the Auustin's
Supremein a group. The group,
system stin
Salmonds's
t vests
as a unit and not in severalty.
is not applicable
even to the British
the execuitiv power
because
in
Jointly the
of indivisibility the Parliament, also sup
theory vests in of Lords. Anson
the legisilative power in the House
power is a mista taken view.
and the judicial that this
crown, is submitted vests in it. It can cho
of Salmond. It all power
the view and tha
the Parliament sovereignit is the power of the Parliament
is
England, the and
the executive and The executive and
judiciary the judiciary perfom
over all of them.
ultimately prevails by the Parliament. Thus tha
which have been permitted
only those functions
on the British system
of Government
is applicable
theory of indivisibility arises in the application of theor
which is a unitary system. The dificulty of powers,
in U.S.A. there is separation
in a federal system. For example,
are free from the control of
The legislature, the executive and the judiciary
each of them are prescribedin
each other. The powers and the functions of
the Constitution which none of them can change. Secondly, the power is
case d
divided between the federal governments and the states. This is the
of the indivisibility theory say that
divided sovereignty. The supporters the

sovereignty vests in the Constitution. It is submitted that nobody would

agree to it that an inanimate object-a book of few pages-can be sovereign.
Someothers say that the sovereigntyvests in the body which amends the
constitution because its authority is absolute and uncontrolled
Tnis
proposition also does not appeal to reason. A body which comes in
existence only after long intervals and for a
limited time and purpose can
be called sovereign. The same
problem arises in other federal
In Australia, the powers are countries a
divided between the states and the
Commonwealth (Federal) Government. The
provisions) can be
Constitution (except rtain
amended only by an absolute
of the Commonwealth
Parliament followed
majority in both the n
referendum) by a of the by an approval (through
majority electors the
states and in the voting both in
Commonwealth. According to majority
is
sovereignty vested in the Austiniaaian theory
power to amend the legislature and the the
of the Constitution is given electorate. In India,
to the same
provisions of the Union Parliamei aent but
concurrenceof the Constitution cannot be ut the
States. Thus amended withou
would be to according to
considered be vesting in
is now clear
states. It is
that the theory of the the Union and the
Austin's theory, the soverreignty
State Legislatiature.
f
G the state
applicable
overnment, asin ne U.A. to
te itself, as a
only to the indivisibility is not
states where
solve the
applicable
there is unitary 6ys that
federal

problem. Dr. vs
Though this theory corporation, should
this is not the
meremoves the difficulties
be Jethro Brown
considered as
rei
theory as such is concept of which we have thed
never sovereignty descr tins
(8) applicableon most as envisaged by
of the
the third Sovereignty
characteri
is
unlimited and states.
of the
sovereignty is that toAustin
illimitable.--According
alimiteo
sovereign
 SOVEREIGNTY

and it is illimitable.

positive law and from the

political society, that the
He says :
"it followsfrom
nature of the
the essential
sovereignty and
difference
163

of a

of a sovereign power of monarch properly so called independent

authority in its or the
of legal collegiate and power
sovereign capacity, is
limitation...supreme power limited incapable
contradiction in terms." Tb a by positive law is a flat
not mean that the great extent, this view is
sovereign is correct, but it does
he likes. There are a number completely absolute and he can do
of limitations on anything
sovereign cannot get a the power, for
thing done which is example, a
cannot pass a law which would physically impossible, or he
receive a general
society. The condemnation from the
supporters of this theory that there are
power, but they say that they are accept limitations on the
on only de facto. There can be
limitations the power. It is submitted that this no de jure
there are de jure limitations also. contention is wrong and
For example, in
the Union nor a State India, normally, neither
Legislature is competent to make laws on
which are not assigned to them in the subjects
the Constitution.Their
limited by Fundamental power is again
Rights and other constitutional
court has a power of provisions. The
judicial review of all such
power of judicial review is still more legislation. In U.S.A., the
extensive. In the name of the
process' the court can declare 'due
any law to be void if it considers
unreasonable. The other it
organs of the government, in the same
subject to the limitations given in the way, are
Constitution. Therefore, the
characteristic that sovereignty is unlimited and
them in the case of these states.It is illimitable does not prove
true only in case of Britain where the
Parliament is supreme and
sovereign.Thus, the third characteristic has also
no universal
application.
Now it is clear that the characteristics of
absolutist writers have a sovereignty given by the
very limited application.The
concept of state has
undergone considerable change, and it is
likely to undergo still more vital
changes in future. Therefore, it is
possible that in future the theory might
not remain
applicable to any state at all. Then it will have
only a historical
importance and nothing more than that.
Now, some recent theories in
sovereignty shall be discussed.

Other Theories of Sovereignty

Dicey's theory.-In the end of the 19th
century, many writers gavethe
theory of popular sovereignty. Dicey was one of these writers. He said
that
there are two kinds of sovereigns-the political and the legal.
Legislature
the Parliament) is the legal sovereign because it has the supreme
power ot
law-making. Behind the legal sovereign there is the political
electorate). The legal sovereign acts in accordance with thesovereign (the
wishes of the
political sovereign. During the time when the House of Commons
remains
dissolved and the elections have not taken
place, the sovereignty directly
sts
in the political sovereign (the electorate, the House of Lords and the
king together are sovereign). When the elections are held and the
Parliament has been constituted then the sovereignty directly vests in the
egal sovereign and thepolitical sovereign remains sovereign only indirectly.
Or a stable government, it is necessary that there must be harmony in the
Views of the legal and the political sovereign. It is submitted thatthis theory
 ,JURISPRUDENCE
164
Brown about the
nor convincing theory
of Jethro
times. His

8
apDra. ch
1s neither very logical is
theory-The in modern of the state whil
Jethro Brown's concept
very popular
the changed as a corpo
sovereignt has become account poration,
nty
and he that the state,the
takes into
sociologica
cal He says
for achievement its
his thenry.
organs and agents or a group of pers
ropounding
n. It acts through is not a person
as such is ereign
soveg
The sovereign
The community
corporate purpose community. of the governr
government. This
istinct and separate
from the organs
will through to s theories failed 8olve
it its general which the earlier
and expresses of problems
solves a number
heory
and as such it has a universal application. of law" makes s
in his pure
theory
Kelsen's theory.-Kelsen that there can be concent
also. He says
on the sovereigmty law. The state is
observations from and above the
as distinct and separate
sOvereignty
The only meaning that can
be given to the stat
simply a legal order. from and independent
is a unity distinct
is that the legal order
sovereignty
of the other similar legal orders.
the idea of state sovereignty. He says
Duguit's theory-Duguit rejects
that the state is in no way different from other human organisations. The
'social
solidarity" is the end of all human institutions including the state
The state has no absolute and unlimited powers and it is bound by the rule
of to Duguit, state
social solidarity. Thus, according sovereignty is a
meaningless term and the state has no supreme and superior
powers. It is
submitted that Duguit's theory is more concerned
with what ought to be
than what is and his theory does not find
of things. any support from the actual state

Pluralist theory.-The Pluralists

sovereignty.A very forceful writer of this also reject the idea of sta
means that the individual is the school is Prof.
Laski. Pluralism
member of state as
other associations. The state is well as of a number o
essentially an
associations compete among association or group.
beings. There is no reasonthemselves for the allegiance Tne
why the of the huma
allegiance to the state. The individual should
to thestate allegiance of the owe exclusi
only) but it individualis not
theory are that the is plural in single (him
nature.The
existence of the implications oftthe Plural
concurrenceof its state
allegiance to the
eitizens with the depends upon the B
neral

individual. Thus,
state is apparent
conditioned by other
this theory
purpose of the
kinds of
state a
the
the
allegiancces of
associations.
Though the state 1sconsiders the state
the other associati as a
ations
thisway rejected by arenot subordinate
progressivetheory. It
theindividualfreedom
this
keeps
the

theory.This
inview
comprehensive and
to it.
theory of the
feder
:
eration of

The statecentral associatio

is,in

Marxist
dominanceof one view.The
and the the
the freedon growing
freedom of
classoverMarxists say
g
demand
demand and
associations.
sovereign
sovereignty
and importa
ye
1S,e
state are the

, exercised to
that the
other
instruments of protect the classofthe state simply lects
production
production in in its renoft
2
SeeChapter
SeeDuguits VII, The Pure
theory,
interest
its hana
hand.
Theory of
of society.Thepowers
01 the
Thus, the class which
state
th
n
Chapter V.
The Law. power on
Sociological
School
 SOVEREIGNTY
165

sovereignty is
only for the
protection of that class. In classless
(according to Marxists, it is bound to society
come) the state shall 'wither and
consequently, there shall be no away'
that question of the state It is
submitted in the countries where sovereignty.
the
the Marxists' ideology, the state instead ofgovernments have been formed on
'withering away' has become very
powerful and sovereignty has been demonstrated in a
naked form. Therefore,
this theory is not supported by the actual
state of affairs.

Conclusion
has become very powerful; the
State
concept of sovereignty
might change.-In modern times, though much has been said
against
sovereignty, in actual practice state has grown very strong and
supreme. No
state is ready to recognise any kind of external control and a number of

times arbitrary acts have been done in a complete disregard of the world
the state has come to regulate all the spheres of the
opinion. Internally, now
life of the
community. The state has asserted its sovereignty in present times
submitted thatthis is due to many reasons.
it never It
as had done before. is
The perpetual danger of war, the atmosphere of cold war and economic and
political necessities have caused the state to assume centralized and
uncontrolled power. But such a state of things is not to last long. The
tendencies of change have started appearing. The sovereignty is to suffer
and internally.International law has become
from both the sides-externally
indispensable without becoming effective. As the recent instances have
also. It would work as an
shown, in the near future it will grow
effective

external check upon the absolute power of the state.

The sovereignty is to
world wide demand for
suffer internally also. There is a growing
the powers of the government. Even in England, where
decentralization of like
form of unitary government, writers of eminence
there has always been
Kamsay Muir and Sidney Webb have suggested the devolution or the power.
a regional devolution and latter a functional devolution.
Tne former suggests also of
there have been theories and practice of
n india, since ancient times, emphasis
In modern times, there is increasing the freedom of
it.
decentralization.
demand of individual freedom andof Pluralists has
Secondly, the growing
the sovereignty. The theory
associations might impair Under the circumstances, the
a wide support and appreciation. Now, the whole
received become totally inapplicable.
would is essential
Absolutist theory with the remark that sovereignty
discussion may
be concluded it is not absolute.
of sovereignty is that
the state. The present concept
n de facto and de jure limitations upon
it.

There are certain

.
.*