UNIT - II
SOVEREIGNTY
The word ‘sovereignty” means supreme and
final legal authority above and beyond which no
legal power exists.
Jean Bodin defined sovereignty as “absolute
and perpetual power of commanding in a state.
It is supreme power over citizens and subjects
unrestrained by law”.
Sovereignty has two aspects :
1) Internal sovereignty
2) External sovereignty
Internal sovereignty means that the State is
supreme over all its citizens, and associations.
External sovereignty means that the state is
independent and free from foreign or outside
control.
Characteristics of Sovereignty:
1. Sovereignty is absolute from the legal point of
view.
2. Sovereignty is permanent.
3. Sovereignty of the state is universal. It extends
to all within its territory.
4. Sovereignty is inalienable (Unchallengeable).
5. Sovereignty cannot be divided between or
shared by a plurality.
6. Sovereignty is exclusive.
Kinds of Sovereignty:
Titular Sovereignty
De Facto and De Jure Sovereignty
Legal and Political Sovereignty
Popular Sovereignty
Titular Sovereignty:
By titular sovereignty we mean sovereignty by the title only.
It refers to the sovereign powers of the king or monarch who has ceased to
exercise any real authority.
In theory he may still posses all the powers but in practice sovereign
power is enjoyed by some other person or body of persons.
Titular sovereign is only a symbol of authority, a legacy of past.
Britain presents a good example of titular sovereign. The king is the titular
head and he does not enjoy any real powers.
Actual powers are enjoyed by council of ministers and parliament.
De Facto and De Jure Sovereignty
De facto sovereignty indicates to a sovereign who without legal support or
constitutional support enjoys sovereign power.
De jure sovereign is recognized by law or the constitution, but not in
position to practice its power.
In case of revolutions, that is a successful overthrow of the existing regime
in a state tree may be de facto and de jure sovereigns.
For example when Mussolini came to power in Italy in 1922, de facto
sovereignty passed into his hands although Victor Emmanual was the de
jure sovereign.
Legal and Political Sovereignty:
The sovereign is supposed to be absolute and omnipotent.
It functions according to its own will. Law is simply the will
of sovereign.
There is none to question its validity.
Legal sovereign grants rights to its citizens and there can be
no rights against him.
It means rights of citizens depend on the will of legal
sovereign and any time he can take away.
Characteristics of Legal sovereign -
1. The legal sovereignty is always definite and determinate .
2. Legal sovereignty may reside either in one person or in a body of persons.
3. It is definitely organized, precise and known to law.
4. Rights of citizen are gift of legal sovereign.
5. The will of state is expressed by the legal sovereign only.
6. Legal sovereignty is absolute. It cannot be question.
But behind the legal sovereignty there is another power, which is unknown
to law. It is political sovereignty.
In practice absolute and unlimited authority of the legal sovereignty does
not exist anywhere.
The will of legal sovereignty is actually sharpened by many influences,
which are unknown to law.
All these influences are the real power behind the legal
sovereign; and this is called political sovereignty.
In modern representative democracies the political
sovereignty is very often identified with either the whole
mass of the people or with electorate or with public opinion.
The legal sovereign cannot act against the will of political
sovereign.
Popular Sovereignty
When the sovereignty resides in the people of the state it is called as
popular sovereignty.
The principle of popular sovereignty regards people as the supreme
authority. It is people who decide right or wrong. People are not bound by
any natural or divine law.
Government exists only as a tool for the good of the people. It should be
held directly responsible to the people. It can exercise authority only on the
basis of the law of land.
Will of the people should not be ignored popular sovereignty is the basis of
modern democratic system.
AUSTIN’S THEORY OF
SOVEREIGNTY (MONISTIC
VIEW):
In the 19th century the theory of sovereignty as
a legal concept was perfected by Austin, an
English Jurist.
He is regarded as a greatest exponent of
Monistic Theory.
In his book ‘Province of Jurisprudence
Determined (1832) Austin observed’.
Austin’s theory of sovereignty depends mainly
upon his view on nature of law. According to
Austin “Law is a command given by a superior
to inferior”.
1. Sovereign power is essential in every political society.
2. Sovereignty is a person or body of persons.
3. Sovereign power is indivisible.
4. The command of sovereignty is superior to over all
individuals and associations.
5. Austin’s theory says that the obedience to sovereign must
be habitual.
In brief we can say that sovereignty according to Austin is
supreme, indivisible and unquestionable.
CRITICISM
The first criticism is regarding sovereignty residing in a
determinate superior. Even sovereign’s acts are shaped
by so many other influences, such as morals, values and
customs of the society.
Secondly Austin says that the sovereign is possessed of
unlimited powers, which is again not acceptable. It is
possible only in theory not in practice.
Thirdly Austin says that sovereign is indivisible. All
powers Must be centered in the hands of one person
or a body of persons called sovereign. But this has been
also disproved by Federal system of governments.
PLURALIST THEORY OF
SOVEREIGNTY:
