Sovereignty

Dr. Avinash Samal

Assistant Professor
Hidayatullah National Law University
Raipur, Chhattisgarh
What is Sovereignty?
 It is the most essential attribute of the state which
differentiates it from all other associations
 It makes the position of the state distinct by entrusting
to it the final law-making power
 It is essentially a juristic concept implying supreme and
final power
 Every independent state has an ultimate authority from
which there can be no appeal
 This authority is supreme both in internal and in external
matters
 Subjection to the provisions any treaty or rules of
international law and membership of any international
organization like the United Nations are considered as
auto-limitations and are obeyed at the will of the state.
Definitions of Sovereignty
 The term 'sovereignty' is derived from the Latin word
'superanus' which means supreme.
 It means the absolute and ultimate power of the state in its
territorial domain.
 "The supreme power over citizens and subjects,
unrestrained by law." – Jean Bodin
 "The supreme political power vested in him whose acts are
not subject to any other and whose will cannot be
overridden." – Grotius
 "That characteristic of the state by virtue of which it cannot
be legally bound except by its own will, or limited by any
other power than itself.” – Jellinek
 “The commanding power of the state; it is the will of the
nation organized in the state; it is the right to give
unconditional orders to all individuals in the territory of the
state." – Duguit
 "The original, absolute, unlimited power over the individual
subjects and over all associations of subjects." – Burgess
Meaning

 Legalistic in nature
 It views the state as a supreme and
unrestrained agency, which through its
coercive power can compel individuals
and associations within its territorial
confines, to obey its commands.
 It enjoys the monopoly of power to
punish those who violate its commands.
Characteristics of Sovereignty

 Absoluteness
 Universality or all
comprehensiveness
 Inalienability
 Permanence
 Indivisibility
 Exclusiveness
 Imprescriptibility
Types of Sovereignty

 Legal Sovereignty
 Political Sovereignty
 Popular Sovereignty
 National Sovereignty
 Titular Sovereignty
 De Jure Sovereignty
 De Facto Sovereignty
Legal Sovereignty
 It is the supreme law making power of a state which is not
bound by any law and which enjoys habitual obedience from
the people.
 Violation of the commands of the legal sovereign invites
punishment.
 "The legal sovereign is that determinate authority which is able
to express in a legal form the highest commands of the state
that power which can override the prescriptions of the divine
law, the principles of morality, the mandates of public opinion,
etc." – Garner
 Law is nothing but the command of the legal sovereign. It is
the source of all legal rights. Courts recognise only the laws
made by a legal sovereign.
 The concept of legal sovereignty found the most
comprehensive treatment in Austin's theory of sovereignty
known as Monism.
 The British Parliament, with the consent of the monarch, is
competent to issue the highest commands of the state.
Political Sovereignty
 Behind the legal sovereign lies the will of the people which is
the final source of authority.
 "Behind the sovereign which the law recognises there is
another sovereign to whom the legal sovereign must bow. That
body is politically sovereign, the will of which is ultimately
obeyed by the citizens of the state“ – Dicey
 Gilchrist defines it as "the sum total of the influences in a state
which lie behind the law“.
 John Locke – Limited Government, Constitutional Monarchy,
Rule with the Consent
 The term 'political sovereignty' is vague and indeterminate. It
is very difficult to say where it rests.
 Collective community - the mass of the people - the general
will - public opinion - with the physical power of that part of
the people who can bring about a successful revolution
 In representative democracies it is said to reside in the
electorate which can replace one legal sovereign by another
through periodic elections.
Popular Sovereignty
 Popular sovereignty originated with the anti-monarchical
writers of the 16th and 17th century. People have
supreme power and ultimate authority rests with them.
 In the 18th century Rousseau’s doctrine of “general Will’
became the driving force of the French Revolution.
 Jefferson made it the basis of the American Declaration
of Independence.
 The doctrine received further impetus in the 19 th
century with the growth of democracy.
 It became a powerful revolutionary idea which
overturned monarchies in the European continent.
 It is difficult to locate popular sovereignty: (a) "the total
unorganised indeterminate mass" (b) the electorate.
 In actual practice, popular sovereignty seems to mean
nothing more than ‘public opinion’ in times of peace and
the ‘might of revolution’ in times of crisis and conflict.
National Sovereignty
 It was first formulated by the French revolutionists in
their Declaration of the Rights of Man.
 It means that sovereignty resides essentially in the
nation – a collective body of all the people enjoying
independence from external control.
 It is an affirmation of the principle that sovereignty is a
power of the nation personified and a denial of principle
of individual sovereignty.
 It is an abstract concept since national sovereignty can
be exercised by or manifested through individuals and
institutions.
Titular Sovereignty
 It refers to a monarch who at one time was
actual sovereign, but has ceased to be such.
 As the constitutional or ceremonial head of
the state he is called a titular sovereign.
 The monarch of England is officially referred
to as the "sovereign" although his powers are
only nominal.
 In practice the vast array of powers are
exercised by the cabinet which acts on behalf
of the titular sovereign.
De Jure Sovereignty
 It is the sovereignty which is legally entitled
to the obedience of the people.
 It has its foundation in law, not in physical
power alone.
 The de jure sovereign is competent to issue
the highest command of the state.
 As a matter of fact it may not be the actual
sovereign, for it may be expelled or
overthrown
 But it is lawfully entitled to issue commands
and exact obedience.
De Facto Sovereignty
 It is the actual sovereign which exercises control over
the people and enjoys their real obedience to its
commands.
 It is the "sovereignty which is actually able to make its
will prevail, though it may be without legal basis“
 “The person or body of persons who can make his or
their will prevail whether with the law or against the law:
he, or they, is the de facto ruler, the person to whom
obedience is actually paid“ – Bryce
 De facto sovereignty rests on force, physical or spiritual.
 This sovereign may be an usurping King, a dictator, a
priest, a prophet or even a charismatic leader.
 Mao Tse Tung (Ching Kai Shek: 1949)
Nature and Basis of
Sovereignty
 Legalistic view – Traditional
conception of sovereignty
based on law
 Liberal View – sovereignty
grounded not on naked power
or coercion but on legitimacy
Cont…

 Legitimacy of sovereignty rests on state’s

ability to resolve conflicts, establish harmony
and to serve the general interest of the
community.
 Modern liberals take this position and they
give less importance to coercive power and
more to ideological power of the state.
 State can enforce its supreme power through
consensus, developing the habit of obedience
and serving the community by performing
welfare functions.
 They believe in the efficacy of coercive power
of the state in times of crisis in order to save
the socioeconomic and political order.