HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

COURSE CONTENT AND READING MATERIAL

LA
I M
COURSE CODE: BA.LL.B. 101

COURSE TITLE: POLITICAL THEORY

S H
U
BA.LL.B. 1st Semester

L
P N
H
Course Content Developed & Edited By

Dr. Ved Praksh,

Assistant Professor, Political Science,

HPNLU Shimla.
 MEANING, NATURE & DEFINITION OF POLITICAL SCIENCE

Meaning
Man is a social animal. He cannot live in isolation, because he is not self-sufficient and the natural instinct
to survive compels him to live a collective life. According to Aristotle, this collective life necessitates a
political mechanism of rules, regulations and leadership. An organized society needs some system to make
and enforce rules for orderly behaviour in society. This led to the evolution of a political system with
elaborate governmental institutions & procedures in each society. Therefore, man is also a political animal.
Political science is one of the oldest subjects of study of this political life of man.
______________________________________________________________________________________
_____
Nature
Politics is not only a mere institution of governance but also a mechanism for achieving societal goals.
Political science is a social science concerned with the theory and practice of politics and the description
and analysis of political systems and political behaviour. It includes matters concerning the allocation and
transfer of power in decision making, the roles and systems of governance including governments and
international organizations, political behavior and public policies.
Political science is thus a study of the state in the past, present and future;
of political organization, political processes and political functions;
of political institutions and political theories.
Political science has several subfields, including: political theory, public policy, national politics,
international relations, human rights, environment politics and comparative politics.

Origin
The antecedents of Western politics can trace their roots back to Greek thinkers Socrates, Plato (427–347
BC) and Aristotle (384–322 BC). The studies were philosophy oriented. Plato wrote The Republic and
Aristotle wrote the Politics. Aristotle is known as the Father of Political Science. He is famous for his
statement “Man is a political animal”. The word ‘politics’ is derived from the Greek word ‘polis’, which
means a city-state.

During the height of the Roman Empire, famous historians documented the rise of the Roman Republic, and
the organization and histories of other nations, while statesmen like Julius Caesar, Cicero and others
provided us with examples of the politics of the republic and Rome's empire and wars. The study of politics
during this age was oriented toward understanding history, understanding methods of governing, and
describing the operation of governments.
During the Middle Ages, the study of politics was widespread in the churches and courts. Saint Thomas
Aquinas was an important political thinker of this period.

During the Italian Renaissance, Niccolò Machiavelli established the emphasis of modern political science
on direct empirical observation of political institutions and actors. His famous book, ‘The Prince’ is a guide
to modern realist politics. Other famous men of this period were Thomas Hobbes, John Locke & Rousseau
(Social contract theory). Important figures in American politics of this period were Alexander Hamilton,
Benjamin Franklin and Thomas Jefferson.

1
For Private Circulation Only HPNLU Shimla Page 1
In ancient India, the antecedents of politics can be traced back to the Rig-Veda, Samhitas, Brahmanas, the
Mahabharata and Buddhist Pali Canon. Chanakya (c. 350-275 BC) was a political thinker in Takshashila.
He wrote the Arthashastra, a treatise on political thought, economics and social order, which can be
considered a precursor to Machiavelli's The Prince. It discusses monetary and fiscal policies, welfare,
international relations, and war strategies in detail, among other topics. Manusmriti, dated to about two
centuries after the time of Chanakya is another important political treatise of ancient India.
Stages of Evolution
(1) philosophical: concerned with ends and purposes
(2) institutional: concerned with political organization
(3) behavioural: concerned with motivations and mechanism of human behavior
(4) pluralistic: concerned with the interaction among groups and organizations
(5) structural: concerned with the connection between the individual and the community
(6) developmental: concerned with the process of growth, industrialization and change and the impact on
government forms and policies.

Importance of the study of political science (Scope)

The study of politics is both humanistic and scientific, and is centuries old. Aristotle called it the "queen of
the sciences". Today’s political research involves highly scientific and rigorous attempts to understand
human behavior and world events. Political scientists provide the frameworks from which journalists,
special interest groups, politicians, and the electorate analyze issues.

Political science as a discipline deals with various aspects like:

a. Study of state and government- it deals with the nature and formation of the State and tries to understand
various forms and functions of the government.

b. Study of associations and institutions- in organized way the fundamental problems of political science
include, first, an investigation of the origin and the nature of the state, second an inquiry into the nature,
history and forms of political institutions and third, deduction, therefore, so far as possible, of laws of
political growth and development.

c. Study of national and international problems- modern demands of defense of territory, representative
government and national unity have made political science not only the science of political independence
but that of state sovereignty also.

d. Study of political behavior of man- it may be said that the character of political science in all its parts is
determined by its basic pre-supposition regarding man.

e. Study of the past, present and future of development- political science attempts to explain the meaning
and the essential nature of the state and deals with the laws of its progress and development within itself and
in relation to international organizations and other states.

f. Study of the concepts of power, authority & influence- with the behavioural revolution the central topic
for study has become the study of power. Consequently the scope has widened to include new aspects like
political socialization, political culture, political development and informal structures like interest and
pressure groups.

2
For Private Circulation Only HPNLU Shimla Page 2
 Definitions
1. From the traditional point of view we may define political science as “the study of the state and
government in all their manifestations, aspects and relationships”. In this sense, politics can be domestic,
national, federal, municipal or international.

These early definitions of political science dealt generally with state and government.
a. J.W. Garner: “Political Science begins and ends with the state”;”Politics is the study of State &
Government”.
b. R.G. Gettel: “Political Science is the historical investigation of what the state has been, an analytical study
of what the state is and a political, ethical discussion of what the state ought to be”.
c. Leacock: “Political science deals with government only”.
d. Paul Janet: “Political science is that part of the social science which treats the foundations of the state and
the principles of government”.

2. In the beginning of the 20th century there developed a new way of looking at political science. This
new approach is known as behavioural approach. The main thrust of the new view is the treatment of
politics as an activity and a process.

In this context, new definitions emerged.

e. Harold Laswell: “Politics is the study of influence and the influential” or “the study of the shaping and
sharing of power”
f. David Easton: “Politics is the authoritative allocation of values.”
g. Catlin: “Political Science is the study of the act of human and social control”.
h. Andrew Heywood: “Politics can be defined as an activity through which people make, preserve and amend
the general rules under which they live.”

Modern political scientists consider politics as a process centering around power and influence. They are
concerned with not just the state and the government, but also the study and evaluation of political activities,
political power, processes and non-governmental institutions.

Perspectives on politics

Politics as a human (social) activity: Simple things like our opinions, perceptions of rights & wrongs,
competing needs, conflicting interests ultimately leads to a system of rules for conflict resolution and
cooperation. The inescapable presence of diversity and scarcity ensures that politics is an inevitable feature
of human condition. Adrian Leftwich (What is Politics?) finds politics is the heart of all collective social
activity, formal and informal, public and private, in all human groups, institutions and societies.

Andrew Heywood (Politics 2007) sees Politics as follows:

(1) Politics as art of government: Here politics is the classic activity of making and enforcement of
collective decisions. The state as the central concept of politics has a long history. The state has several
specialized structures, institutions, officer and roles. It has the monopoly of coercive power. In these
3
For Private Circulation Only HPNLU Shimla Page 3
circumstances, it was natural to understand politics as the study of the state. Until the Second World War,
the state served as the chief organizing idea of politics.

(2) Politics as public affairs: The meaning of politics can be stretched beyond the narrow realm of
government to a broader conception of ‘public life’ or ‘public affairs’, because of its ‘public’ character.
Aristotle said ‘man is a political animal’. Rousseau and JS mill supported this outlook.

(3) Politics as compromise & consensus (study of interaction among interest groups): According to this,
politics has a wider scope. Politics is seen as an act of conflict and cooperation among individuals and
various groups in the society to secure values like liberty, equality, justice, welfare etc., and to organize and
use a public power for this purpose (Bernard Crick). Politics is thus an interaction between man & society
resolving conflicts through conciliation and negotiation instead of violence. Both the liberal and Marxist
views of politics study it as a part of this social process. As a result of this, non-formal institutions like
pressure groups, public opinion, interest groups, political parties etc. became the subjects of politics.

Thus, within its fold, there are discussions on theories of state origin, functions, sovereignty, liberty, rights
forms and organs of government, representation, political parties, pressure groups, public opinion,
ideologies, and international relations and institutions.

(4) Politics as the study of power: After rejecting politics as the study of state as insufficient, modern
thinkers tried to find the axis of politics and they found it in the concept of power. The new understanding
of politics was that it is a struggle to share or influence the distribution of power, whether between states or
among the groups within the state. There are two advantages to study politics from the point of view of
power- firstly, it focuses attention on process rather than on legal abstractions of the state. Secondly, this
approach pays greater attention to man as the basic unit of analysis. Politics became directly concerned with
the needs, interests and goals of men that give rise to power-relationship among them and ultimately lead to
a public policy.

In short there are three forms of power: political, economic and ideological. Political power s concerned
with the maintenance of law and order and dispensing justice through reward and punishment.

Politics as the study of power (in detail)

Though identifiable with terms like influence, coercion, force, domination, authority, control and the like,
the term ‘power’ has its own meaning. Power is a relation. While power is coercive, influence is persuasive
authority is the legitimate aspect or power and force is manifested power.

Power is “the ability to determine the behaviour of others in accord with one’s own wishes”. The power
theory of politics is as old as the Greeks, though it has assumed much importance in recent times. Power
consists fundamentally of relationships, of subordination, of dominance and submission, of the governors
and the governed and the study of politics involves the study of these relationships.

In other words, the study of politics is concerned with the description and analysis of the manner in which
power is obtained, exercised and controlled, and the purpose for which it is used, the manner in which

4
For Private Circulation Only HPNLU Shimla Page 4
decisions are made, the factors which influence the making of these decisions and the context in which these
decisions are made.

Power can be exhibited in three dimensions: political, economic and ideological.

Political power: it belongs to the state and is manifested through the organs of the government like
legislature, executive, military, judiciary, police, bureaucracy etc. Power is shared by political parties,
pressure groups, elites, factions, leaders etc. Power exists in all political processes, however democratic they
may be.

Liberals say that power is dispersed in society and that it changes hands often. Marxists hold a different
viewpoint. According to them power is concentrated in a class and only revolution can make it to change
hands.

Economic power: finds its place in the form of ownership and control of national wealth, as well as means
of production and distribution. Economic power and political power are mutually complementary.

Liberals say that it is diffused and hard work determines the degree of economic power one can gain.
Marxists again hold the view that economic power is also concentrated in the hands of a few and they
manipulate it to gain political power.

Ideological power: resides in the prevailing ideas acceptable to the people. Ideology literally means a set of
ideas in which people have unquestionable faith and they also strive to put them into action. The dominant
class will also try to propagate and implement ideas that are congenial to their interests, whether economic
or political. They may use all available media, elites, intellectuals, religious institutions, educational
systems, associations and institutions to achieve this while oppressing counter ideologies.

Authority: Power with legitimacy. Max Weber classifies it into three: traditional, charismatic & legal-
rational or bureaucratic.

5
For Private Circulation Only HPNLU Shimla Page 5
 MAJOR APPROACHES TO THE STUDY OF POLITICAL SCIENCE

In simple terms, an approach may be defined as a way of looking at and then explaining particular
phenomena. Approaches and methods to the study of politics are many and most of them seem to overlap
each other in varying measures. From Plato and Aristotle in the remote past to Laski and Laswell in the
present we have a very large number of great thinkers, theorists and analysts who have made an attempt to
understand and explain political reality in their own ways, with their own approaches.

I. THE TRADITIONAL APPROACH

The sum total of approaches and methods employed in political enquiry by thinkers from Plato to the 20 th
century constitute the traditional approach. It consists of a collection of approaches used in the classical and
institutional periods. These approaches include the idealistic, philosophical, ethical, normative as well as
historical legal-institutional, comparative and analytical.

During the classical period the ethical basis and moral purpose of the political community was described,
discussed and emphasized in logical, consistent and convincing ways. The problems of ends and means, the
ideal and desirable loomed large. During the institutional period a historical, analytical and comparative
accounts of the various constitutional and governmental systems were made.

Characteristics:
a. emphasis on the study of formal institutions to the neglect of political processes
b. focused on the Western European political system
c. adopts a country-by-country approach with little attempt to identify similarities between countries
d. little attention given to the analysis and development of systematic generalizations about the political
phenomena
e. lack of concern for the development of theories through collection and analysis of data
f. neglect of the findings of other social sciences and non-political determinants of political behaviour
g. holds value judgments on what ought to be the nature of political structures and institutions

Philosophical approach- The oldest approach to the study of politics. Here the study of the state,
government, power and man as a political animal is linked with the pursuit of certain goals, morals and
truths (standards of rights & wrongs). Hence the thinkers of this age move closer to ethics and try to advice
the rulers. Plato, Aristotle, Rousseau, Kant, Hegel and others belong to this frame of reference.-speculative
& not objective.

Historical approach- The feature of this approach is to throw focus on the past or on a selected period of
time as well as on a sequence of events to explain the origin and growth of any political institution. If
political theory has a universal and respectable character, its reason should be traced in the affirmation that
it is rooted in historical traditions.

6
For Private Circulation Only HPNLU Shimla Page 6
 Legal approach- Here the study of politics is linked with the study of legal or juridical processes
(constitutions) and institutions created by the state for maintaining political organization. In this connection,
we may refer to the works of Bodin, Grotius, Hobbes and Dicey. They imply that the state as an organism of
growth and development cannot be understood without a consideration of those forces and factors that
constitute the domain of law and justice.

Institutional approach- Here the study lays stress on the formal structures of a political organization like
legislature, executive and judiciary. (impartial account of political reality). Since the emphasis is on the
superstructure and the infrastructure of political system, this approach is also known as ‘structural
approach’. This approach neglects individual behavior, role of power, violence, political movements, wars
& revolution in politics. Ignores the role of informal groups & processes in shaping politics.

Criticisms:
a. the historical approach ignores the study of contemporary society
b. the philosophical approach is speculative and abstract and ignores the actual political phenomena
c. the institutional approach ignores the political behaviour of the individuals and sociological environment
d. ignores the international problems
e. legal approach covers only one aspect of the people’s life

II. THE BEHAVIOURAL APPROACH

It is a post- second world war development evolved by the American Scholars (American Political Science
Association & Chicago School). By the close of the 19th century political thinkers understood that they had
neglected and paid little attention to understand and analyse the actual working of governments and political
institutions.
Factors that contributed to development of behaviouralism:
a. They felt dissatisfied with the achievements of conventional political science.
b. The failure of the discipline to predict both the World Wars and the associated socio-political changes
including revolutions in Russia and China and the independence movements in many colonies.
c. To contain the spread of communism.
d. Financial assistance from organizations like Ford Foundation.
e. Growth of new social science research methods.

The scope of political science now widened to include the organizational structure, the process, decision
making and action, the politics of control, the policies and actions, electoral process, patterns of political
interaction etc. Graham Wallas tried to interpret political phenomena in terms of psychological forces rather
than form and structure. Catlin emphasized on an interdisciplinary approach. Charles Merriam, who
initiated the Chicago School of behavioural revolution, can be truly regarded as the intellectual godfather of
this approach.

Emphasised on:
a. individual behaviour instead of political institution as the basic unit of analysis
b. scientific outlook and objectivity (observation, classification and measurement of data)
c. methodological revolution: use of scientific methods (survey, case study, interviews,socio-psycho analysis
etc)
7
For Private Circulation Only HPNLU Shimla Page 7
d. interdisciplinary approach
e. its commitment to the formulation of empirical theory.

Sociological approach- this approach emphasizes that social context is necessary for the understanding and
explanation of political behaviour of the members of the community. Terms like political socialization,
political culture, and political sociology are the contributions of this approach. Harold Lasswell, AF Bently.

Psychological approach- a study of politics is made by writers like Graham Wallas, Charles Merriam,
Robert Dahl etc in a way so as to deal with the role of emotions, habits, sentiments, instincts, go etc that
constitute essential elements of human personality. Psycho-analysis of political leaders reveals significant
knowledge about politics.

Economic approach- matters relating to the production and distribution of goods have an economic
character. But as their regulation is done by the state, they are very much involved in the process of politics.
Te prominent schools of liberalism, socialism and communism emerged because of the divergent
interpretations of the role of the state in regulating economic matters.

David Easton’s Assumptions and Objectives of Behaviouralism

(Right Fold Path) (Intellectual Foundation Stones):
1. Regularities- there are certain uniformities in political behaviour which can be generalized in terms of
theories explaining and predicting political phenomena
2. Verification- knowledge in order to be valid should include only those things which have been empirically
tested
3. Technique- researcher should be conscious about his methodology
4. Quantification- imprecise qualitative judgments have no place in political science.
5. Values- value and facts are two separate categories and should be kept analytically distinct. Scientific study
should be value neutral.
6. Systematisation- theory and research should be closely interrelated
7. Pure Science- the theoretical understanding of the political phenomena may lead to an application of this
knowledge to the political activity and thus will become a pure science
8. Integration- interdisciplinary approach

Contributions: a.structural-functional analysis, b.input-output analysis, c.decision making approach, d.

communication framework model

Criticism: It is true that as a result of the utilization of the behavioural approach the scope of political
science has widened and the nature of the discipline improved in understanding and explaining the political
reality. In limited and specialized fields, the behavioural movement achieved significant results. But with
its over emphasis on quantification of data the movement suffered from sterility and irrelevance. It evaded
problems of large scale change.
-------------------------------------------------------------------------------------------------------------------------

III. POST-BEHAVIOURAL APPROACH

8
For Private Circulation Only HPNLU Shimla Page 8
 Towards the end of the 1960s a powerful attack was made on the behaviouralist position by David Easton
out of deep dissatisfaction with its findings. Behaviouralism was eager to develop new research methods
and techniques about political phenomena so that in political science also theories may be developed like
natural sciences but in the effort they divorced political science form philosophy, history, law etc. In a world
of crisis, doubts were raised about the adequacy or relevance of the modern research methodology of
political science, especially when the political scientist was unable to cope with contemporary social and
political problem. Behaviouralism failed to solve any problem of the world such as threat of nuclear war,
hunger, poverty, disease, cold war, arms race etc.

Post behaviouralism is both a movement and intellectual tendency. Post-behaviouralism is future-oriented.

This new development is then a genuine revolution, not a reaction, not preservation, a reform not a counter-
revolution. It is just a continuation of the former, ie., behaviouralism taking it to a higher stage.

Post-behaviouralism should not be taken as traditionalism. Both are highly critical of behaviouralism. The
difference between the approaches lies in the fact that traditionalism discounted the validity of behavioural
approach and sought to revive the classical tradition of political science. In contrast, the post-behaviourlists
accepted the achievements of the behavioural era, but at the same time sought to propel political science
towards new areas. An important feature of the post-behavioural trend should be traced in taking political
science towards, what is called, ‘policy science’.

Post behaviouralists argued that political scientists should be more concerned with values, with issues of
justice, freedom, equality and with political activity. It is not appropriate to take a value-free, academic
detachment from public policy and political reform.

The two main demands of post-behaviouralism are ‘relevance’ and ‘action’. David Easton who had at one
stage enumerated eight main characteristics of behaviouralism, now came out with seven major traits of
post-behaviouralism as the ‘credo of relevance’. They can be summarised as the following:

a. Substance must have precedence over technique- it may be good to have sophisticated tools of investigation
but the most important point was the purpose to which these tools were applied. Unless the scientific
research was relevant and meaningful for contemporary urgent social problems, it was not worth being
undertaken.
b. Emphasis should be on social change and not social preservation- the behaviouralists had confined
themselves exclusively to the description and analysis of facts, without taking sufficient care to understand
these facts in their broad social context.
c. Political science should not lose touch with brute realities of politics- the behaviouralists concentrated their
efforts on abstraction and analysis. Then the vital question arose if political scientists did not find the
solution of the ills of society and needs of mankind, then what was the use of the research?
d. Political science should not be value-free- there is no denying the fact that the values played a significant
role in political research and the values were the propelling force behind knowledge. The post-
behaviouralists firmly hold the view that if knowledge was to be used for right goals, value also had to be
restored to their proper place.
e. Political scientists must protect humane values of civilization
f. Post-behaviouralism emphasizes action in place of contemplative science- according to David Easton, “to
know is to bear the responsibility for acting and to act is to engage in reshaping society”.
9
For Private Circulation Only HPNLU Shimla Page 9
g. Urgent need to politicize the profession- once it is admitted that the political scientists and intellectuals have
a positive role to play in the society, then n order to achieve that goal it becomes inevitable that all the
professional associations as well as the universities must be politicized.
h. Mad craze for scientism should be discarded
i. The study should not only be related to the past and present, it should also be future-oriented

Traditional Behavioural Post-behavioural

Inter-relates facts and values Separates facts and values Facts and values tied to action
and relevance
Prescriptive and normative Non-prescriptive, objective and Humanistically problem-
empirical oriented
Qualitative Quantitative Quantitative and qualitative
Concerned with irregularities Concerned with uniformities Concerned with regularities and
and regularities and regularities irregularities
Focus on European countries Focus on Anglo-American Focus on third world countries
countries

IV. MARXIST APPROACH

The Marxist approach to political analysis is primarily associated with the contributions of Karl Marx. The
significance of the Marxist approach is due to its emphasis on production and distribution of goods in
assessing social changes and political revolutions. This is quite different from traditionalism and
behaviouralism. Marx said, “the mode of production of the material means of existence condition the whole
process of social, political and intellectual life”.

The three primary aspects of Marxism are:

a. Dialectical and materialistic concept of history
b. Critique of capitalism (base & superstructure, surplus value &class struggle)
c. Advocacy of proletarian revolution

Using these three concepts, Marxism treats State as an instrument of exploitation and oppression by one
class over the other. Also struggle for power constituting the base of politics should be studied in the context
of the conflict between two opposing classes.

While Karl Marx and Frederich Engels opened up a new approach to study the State, Marxist thought was
developed into a major concern by later Marxist scholars in Europe and USA. Marxian approach gained
prominence after the Second World War when it took up the study of the politics of underdeveloped and
developing areas in the context of imperialistic exploitation. Neo-Marxism led by the Frankfurt School and
western thinkers like Georg Lukacs (History & Class Consciousness), Antonio Gramsci (Prison Diary),
Louis Althusser (Reading Capital) etc have greatly contributed to the development of this Marxist social
theory.

The significance of the Marxist approach is in the fact that it calls for a deeper scrutiny of the meaning and
nature of politics. It not only emphasizes the relevance of class contradictions in the functioning of the State

10
For Private Circulation Only HPNLU Shimla Page 10
but also provides Socialism-Communism as the solution to the problems. Therefore, this approach not only
lays out the problems but also delivers the solution. This deterministic character is unique to Marxist
approach.
Today the Marxist approach has established a parallel stream of theories and definitions to all basic political
concepts like origin of State, rights, development, feminism, identity politics, concepts of liberty, equality &
property etc.

11
For Private Circulation Only HPNLU Shimla Page 11
 Relationship Bewtween Political Science and Law

Law is one of the central products of politics and the prize over which many political struggles are
waged. The early American jurist James Wilson observed that law is the “great sinew of government”
(Wilson 1896, 1, 314). It is the principal instrument by which the government exerts its will on society,
and as such it might be thought to lie (at least indirectly) close to the heart of the study of politics. But
law is also the means by which the government organizes itself. It is law in this second mode, sometimes
called public law, that has attracted independent attention. Here law is not only the product of politics but
also constitutive of politics.
The study of law and politics is a varied and multidisciplinary enterprise. From its starting point in
political science of studying constitutional and administrative law, the field soon added courts, lawyers,
and related legal actors to its purview. And the substantive scope of the field is broader now than it has
ever been. Although the US Supreme Court has always been the center of gravity within the field in
American political science, the politics of law and courts in the international arena (p. 242) and in other
countries is receiving growing attention, and thriving communities of scholars continue to explore other
aspects of law and courts beyond constitutional courts and peak appellate tribunals. The interdisciplinary
connections of the study of law and politics have varied over time; but, like the discipline of political
science, the field of law and courts has readily borrowed concepts and methods from other disciplines.
Active scholarly communities concerned with various aspects of law and politics in various disciplines
make this a particularly good time for cross-disciplinary conversations among those in political science,
and those in the humanities, the other social sciences, and the law schools.
With increasing diversity comes specialization, and there is always the danger that specialist scholars
who are broadly concerned with law and politics will nonetheless find themselves sitting at Gabriel
Almond’s (1990) “separate tables,” having separate conversations and missing some of the productive
cross-fertilization that can take place across the field as a whole. The range of scholars working in the
field do not always talk effectively to one another. The field is fragmented along various cross-cutting
fissures, including substantive area of interest, particular research question, and favored methodology.
Too often, we have forgone productive exchanges across those boundaries as scholars focused on their
own close-knit intellectual communities and ignored, or viewed with wary skepticism, the efforts of those
working on related issues but on the other side of one of these divides.
Our starting point, however, is with the study of law and politics, or the political analysis of law and
courts. Law, as an autonomous field of study as taught in schools of law, is centrally concerned with the
substance of law and the practices of legal professionals. For the professional craft of law, the politics of
law can often be bracketed. For scholars concerned with law and politics, it is the professional craft of
law that is bracketed. We need not deny that legal reasoning and skill are real and matter in the
determination and application of the law and in the actions of legal institutions. But the starting point for
the study of law and politics is that politics is also important and that considerable analytical and
empirical leverage over our understanding of law and legal institutions can be gained by placing politics
in the foreground.

12
For Private Circulation Only HPNLU Shimla Page 12
1 The Development of the Study of Law and Politics
The study of law and politics held a prominent place within the discipline of political science as academic
disciplines and departments developed in the late nineteenth century. It was the narrow professionalism
of the law school that spurred Columbia University in 1880 to create a separate School of Political
Science, the progenitor of (p. 243) the discipline, under John Burgess. The school was to develop and
teach a “science of jurisprudence” that would provide better preparation for the new federal civil service.
Within the school, a distinct Department of Public Law and Jurisprudence quickly emerged and was only
decades later renamed the Department of Political Science. The first dissertations in political science,
reflecting the strength of its faculty and the fact that most of its students had first passed through the law
school, were dominated by constitutional and legal history (Hoxie et al. 1955; Somit and Tanenhaus
1967).
As the discipline developed internally, the study of law and politics, although prominent, became a
distinct specialty within political science. The 1915 report of an American Political Science Association
(APSA) committee on college instruction was chaired by Charles Grove Haines (1915, 356–7), one of the
leading constitutional scholars of the period, and five of its twelve recommended core courses were on
legal subjects (with a sixth dedicated to judicial administration and organization). Despite this
endorsement, recommended courses such as commercial law and Roman law did not survive long in
political science departments; and international law was soon crowded out by international relations, just
as administrative law already had been by public administration. Constitutional law and jurisprudence
became the core of the study of law and politics in political science, with legislation, administrative
reports, and other legal materials the raw material of political science generally and other substantive
areas of law being either absorbed into broader fields within the discipline or left entirely to the law
schools.
The leading public law scholars prior to the Second World War were primarily constitutional scholars,
often with an emphasis on history. With law schools by and large continuing to leave constitutional law
in relative neglect, Edward Corwin, Charles Grove Haines, Thomas Reed Powell, and Robert E.
Cushman were the leading constitutional scholars of their day, as well as leaders within the discipline
(each served as president of the APSA). From 1917 to 1961, the association’s flagship journal, the
American Political Science Review (APSR), published an annual overview of the constitutional decisions
of the US Supreme Court, written by Cushman during much of that period, often supplemented with a
separate review of state constitutional law decisions.
Their constitutional scholarship and teaching was simultaneously realist and normative in its sensibilities.
As Corwin (1929, 592) understood it, the purpose of political science was to cultivate an understanding of
“the true ends of the state and how best they may be achieved.” A 1922 APSR article on constitutional
law teaching reported that law school classes in constitutional law were generally regarded as too
technical and too focused on litigation to be suitable to the training of graduate students, who required a
better grasp of the “historical, philosophical, and comparative aspects of the subject” and how
“fundamental principles” of American constitutionalism evolved over time. The undergraduate classes in
constitutional law brought political action and behavior to the political science curriculum. The formal
and descriptive character of courses in American and comparative government might be the starting point
for understanding American politics, but constitutional law was the class in (p. 244) which students could
13
For Private Circulation Only HPNLU Shimla Page 13
see how principles, beliefs, actors, and social conditions interacted and developed; and a “problem
method” of instruction could teach students the valuable skill of how to draft legislation that could
address a given social problem while adhering to constitutional limitations (Hall 1922). In the context of
a formal, “old institutionalist” curriculum and scholarship that characterized the discipline, constitutional
law introduced realism and action.
Constitutional scholarship of this sort continued in political science after the Second World War, but
under increasing competitive pressure. A new generation of constitutional lawyers in the law schools was
more prominent and more sophisticated than their predecessors. The Harvard Law Review began to
provide an annual review of the Supreme Court’s decisions, with a focus on constitutional law. The
foreword to that issue became a prominent platform for constitutional law professors to speak to the
Court, as well as to the legal profession and academia. The University of Chicago Law School created its
own annual Supreme Court Review, featuring constitutional law professors. The summary offered by the
American Political Science Review had long lost its preeminence before it was dropped from the journal.
Political scientists such as Carl Swisher, Alpheus Mason, David Fellman, and John Roche continued this
humanistic tradition of constitutional studies well into the 1960s, but their successors were fewer and
increasingly marginal to the discipline.1 Others such as Martin Diamond, Herbert Storing, Walter Berns,
and again Alpheus Mason drifted further into political theory and American political thought. It is telling
that in a 1958 volume on the state of the discipline, two prominent constitutional scholars, Robert
McCloskey (1958) and Carl Friedrich (1958), were invited to discuss “political theory” rather than public
law.2
Within the discipline, the study of law and politics was generally shifting away from constitutional law
and thought and toward judicial politics. Although there were some tentative earlier efforts to pursue
quantitative studies of judicial behavior and to consider the political and social influences on judicial
decision-making, C. Herman Pritchett (1948; 1954) pushed the field in a significant new direction with
his statistical studies of voting behavior on the Supreme Court in the 1930s and 1940s (Murphy and
Tanenhaus 1972, 17–20). Pritchett’s studies reflected a new methodological and analytical sensibility
within the discipline, but they also reflected a new reality on the Supreme Court. Counting votes both
became analytically meaningful and took on a new urgency as a political puzzle in the 1930s and 1940s
when dissenting and concurring opinions first became routine. But statistical analyses of voting behavior
did not wholly define the new movement within the field. With a different methodological and conceptual
approach, Jack Peltason (1955; 1961) likewise sought to open the field up by looking beyond
constitutional decisions and the Supreme Court and (p. 245) focusing more broadly on the judicial process
as it related the courts as policy-makers and administrators to one another, the broader political system,
and the relevant political environment. These emerging works in judicial politics had in common a single-
minded focus on the political behavior of judges and those with whom they interacted, analyzed as other
political actors might be analyzed and largely stripped of substantive legal content, historical
development, or philosophical implication. For Corwin, Haines, and their humanistic successors, the
study of law and politics was concerned with marrying an understanding and appreciation of the
substance of the law with an understanding of the process by which law developed over time. For the
behavioralists who emerged in the postwar period, developing an understanding of the process by which
law was created and implemented was a sufficient scholarly task.

14
For Private Circulation Only HPNLU Shimla Page 14
Works on the political behavior of judges and associated actors proliferated in the 1960s and soon
dominated the field (Pritchett 1968; Schubert 1966). Among others, Pritchett and Walter Murphy gave
close study to the rising hostility in Congress to the federal judiciary and its decisions. David Danelski,
Sheldon Goldman, and Joel Grossman unpacked the judicial recruitment and selection process. Martin
Shapiro resuscitated administrative law and the policy-making role of the courts outside of constitutional
law. Walter Murphy, Alpheus Mason, and J. Woodward Howard uncovered the internal operations of the
courts. Clement Vose focused attention on litigants and the relevance of interest groups to the judiciary.
In-depth studies of the implementation of and compliance with judicial decisions were undertaken.
Glendon Schubert, Harold Spaeth, Sidney Ulmer, and a host of others followed directly on Pritchett and
built sophisticated statistical analyses of judicial voting behavior. Several scholars made tentative efforts
at public opinion research and comparative analysis. Although the use of statistical techniques received
the most attention and was the most controversial—sparking debates between its practitioners and some
humanists over whether “jurimetrics” provided valuable new insights into how the Court worked—the
methodologies employed were varied and included archival research, judicial biographies, field studies,
game theory, and more. This new wave of research ushered in a range of new methodological approaches
that had not been common in the earlier scholarship, but what were equally notable were the types of
focused questions being asked about many aspects of the judicial process. Broader syntheses that may
have taken note of judicial selection or interest groups when examining an area of law gave way to
detailed studies examining how those particular aspects of the judicial process worked and what
consequences they might have.
Subsequent movements have deepened and broadened these currents in the study of law and politics in
political science. The interdisciplinary law-and-society movement reinforced the behavioralist turn in
political science but added a greater interest in the operation of law and courts closest to the ground—
criminal justice, the operation of the trial courts, juries, dispute resolution, the behavior of lawyers, the
informal penetration of law into the social, economic, and cultural spheres—and fostered new
conversations about law and politics across (p. 246) the social sciences. In focusing on law as it is
embedded in society, sociolegal scholars have attacked such problems as the nature of disputing,
including how individuals recognize that they have a legal claim, decide whether to pursue that claim,
and achieve success in addressing their injuries or changing policy (Mather 2008).
The empirical study of tribunals and law in the international arena and outside the United States has
grown rapidly in recent years, fostering connections between the study of law and courts and the study of
comparative politics and international relations. Law and courts have assumed new importance in both
areas. International law and courts have gained increased prominence in recent decades, leading scholars
to examine the forces that drive such institutions and the impact that they have on national and private
actors. Courts have also become increasingly important in a large number of established and newly
emergent democracies, and even in some non-democratic regimes. Many of these cases raise similar
questions to those that can and have been explored in the American context. Perhaps more interesting,
however, is the fact that many of these cases raise new puzzles about how law and courts fit into their
political and social environments that either do not exist in the American context or cannot be readily
examined in the American case. The struggle to establish independent judiciaries and the rule of law in
countries undergoing democratization and economic development pose unique challenges and suggest a

15
For Private Circulation Only HPNLU Shimla Page 15
range of distinctive research questions and evidence to be examined (Chavez 2008; Ginsburg 2008;
Vanberg 2008).
Historical institutionalist studies have recovered an interest in constitutional ideas and historical
development and wedded it to the post-behavioralist concern with political action and the broader
political system. Scholars working in this vein have been particularly interested in patterns and
mechanisms of continuity and change in the American legal and constitutional systems. This work takes
seriously the possibility that ideas matter within law and politics and that the ideational context within
which judges and political actors operate is itself of interest and worthy of study. At the same time,
historical institutionalist studies have examined how a range of political and judicial actors have sought to
advance their perceived interests and commitments through legal and judicial means, respond to exercises
of judicial power, and adjust to conflicting visions of legal and constitutional requirements (Smith 2008).
Game theoretic accounts of political strategy have come forth and provided new perspectives on judicial
behavior and new approaches to linking courts with other political institutions. Such work has tended to
emphasize the ways in which judges interact with various other actors in the political system, from
legislators to litigators to other judges, and to detail the logic of those interactions. Although it is being
increasingly integrated into all aspects of law and politics work, it has also brought an interdisciplinary
component to the field and focused attention on questions relating to the development of doctrine and
administrative law that had otherwise been overshadowed (Spiller and Gely 2008; Kornhauser 2008).

2 The Structure of the Field

There is no single best way to divide up the field of law and politics. Literatures overlap, and it is possible
to view those literatures at different levels of aggregation or with different points of emphasis so as to
highlight commonalities or differences. Indeed, the prior discussion suggests a basic bifurcation in the
field, between constitutional law and jurisprudence on the one side and judicial process and politics on
the other. But this basic bifurcation better reflects the historical evolution of the field than it does the
current structure of the study of law and politics. We offer below one map of the field.

2.1 Jurisprudence and the Philosophy of Law

Jurisprudence and the philosophy of the law is the oldest aspect of the study of law and politics and
stands conceptually at its foundation. Particularly as it emerged from the continuing debates over the
work of H. L. A. Hart (1994), jurisprudence is concerned with the basic nature of law. It has sought to
identify the essential elements of law, distinguishing the realm of law from other aspects of the social
order and other forms of social control. In an older tradition, jurisprudence hoped to systematize legal
knowledge, extracting and refining the central principles of the law and the logical coherence of the legal
system as a whole. In this mode, jurisprudence was to be an essential tool of the legal teacher, scholar,
and practitioner and the starting point of a legal science. When wedded to normative commitments and
theories, jurisprudence was also a tool of legal reform, identifying where the law needed to be worked
pure and how best to do so.
A primary task of jurisprudence is to answer the question: What is law? It seeks to identify the common
features of a legal system and clarify the logical structure of law. To do so requires distinguishing law
from other normative systems of social ordering, such as custom and religion. Basic to this enquiry has

16
For Private Circulation Only HPNLU Shimla Page 16
been the effort to identify the conditions that would render a norm legally valid. Two well-established
schools of thought have developed around these questions, with natural lawyers contending that the legal
validity of a rule depends in part on its substantive morality and legal positivists arguing that legal
validity is potentially independent of morality and solely a function of social convention. Related to this
issue are such concerns as clarifying the nature of legal concepts such as rights and duties, identifying the
kinds of reasons by which legal authority is established and legal obligations are created, and explicating
the process of legal reasoning. Supplementing analytical approaches to these issues are distinctively
normative jurisprudential theories, which are concerned with which legal rights and obligations are most
justified, how best to reason about the law, and the like.
These predominant branches of jurisprudence have been periodically challenged by self-consciously
realist theories of law that attempt to ground the basic features (p. 248) of law in social conditions. From
Roscoe Pound’s sociological jurisprudence at the turn of the twentieth century (which urged judges to
take greater account of the social conditions in which the law operated) onward, realist theorists have
questioned whether law can be profitably analyzed in the abstract, apart from its relationship with
external conditions, whether economic relations, human behavior, or something else. The linkage of legal
theory with such empirical concerns has supported both critical theories aimed at subverting dominant
jurisprudential models and more positive theories concerned with developing their own understandings of
the law.

2.2 Constitutional Law, Politics, and Theory

Constitutional law is often paired with jurisprudence. The subfields share interests in the substance of law
and ideas surrounding law. They also share an interest in normative aspects of law. But where
jurisprudence is concerned with the conceptual underpinnings of law writ large, constitutional law is
concerned with the legal and theoretical foundations of a particular, and a particular kind of, political
order.
The subfield has long been concerned with constitutional law itself. In this vein, political scientists have,
along with legal scholars, explored the doctrinal developments in particular areas of law. In addition,
however, political scientists have been somewhat more likely to examine the intellectual history of
constitutional concepts and modes of thought, the normative underpinnings of constitutional principles,
the constitutional philosophies of individual justices or historical eras, and the relationship between
constitutional law and broader political and social currents. Political scientists have been attracted to
constitutional law as intellectual historians, normative political theorists, and social theorists, as well as
legal doctrinalists.
In recent years, the study of constitutional law per se has been submerged within the broader subject of
constitutional politics. Although there have been notable exceptions, constitutional law has traditionally
been the particular subject area within which political scientists have explored the origin, development,
and application of legal principles and the interaction of courts and judges with other institutions and
actors on the political stage. Whether taking the form of individual case histories or broader analyses, the
making of constitutional law can be studied like the making of other forms of public policy.
Constitutional politics highlights the ways in which the creation of constitutional law is situated within a
broader political, institutional, and intellectual context and the significance of actors other than judges in
contributing to constitutional policy-making and implementing constitutional norms. More broadly still,
17
For Private Circulation Only HPNLU Shimla Page 17
understanding the design, founding, maintenance, and failure of constitutional systems requires looking
far beyond courts and constitutional law.

2.3 Judicial Politics

The field within political science that studies law and politics was once widely known as “public law.”
For many, it is now known as “judicial politics.” The behavioral (p. 249) revolution of the 1960s shifted
the disciplinary center of gravity from the study of constitutional law and doctrine to the study of courts,
judges, and company. The political process by which courts are constituted and legal decisions are made
and implemented is central to the empirical research in the field (Segal 2008).
Originally, the study of the voting behavior of individual judges, in particular the justices on the Supreme
Court, formed the core of the study of judicial politics: Why do judges vote as they do, as opposed to the
how and the why of the reasons they give in opinions? What do the patterns of votes within the Court and
other collegial courts tell us about these institutions as political actors? Now, judicial voting is but a part,
albeit an important part, of the study of judicial politics. Scholars increasingly are taking a broader view,
and are attempting to study the behavior of judges and courts in the political process, as just one more
group or political actor among many others, including other courts and judges, executives, legislatures,
interest groups, lawyers, and ordinary citizens.
An array of research questions has occupied scholarly attention within this rubric over time. Particularly
prominent have been variations on the question of whether, to what degree, or how “law” matters to
judicial decision-making. A particularly strong version of the political perspective would assert that
judges are simply policy-makers, and, if sufficiently insulated from review or reprisal, will enact their
policy preferences if given the opportunity. If so, we might expect that traditional “legal” factors such as
textual language, established precedents, or judicial philosophies should have little independent
significance in shaping judicial decisions, at least on courts such as the US Supreme Court. If such factors
do matter, we would want to know how, under what circumstances, and with what significance. But
scholars have also given attention to other concerns, including the internal decision-making processes
within and between courts and the effects that various external factors such as the composition of the
elected branches, the activities of interest groups, or public opinion might have on judicial decisions.

2.4 Law and Society

Law and society is not a subfield within political science, but rather an interdisciplinary enterprise that
has long invited political scientists to explore a broader range of legal phenomena and to employ a
broader range of methodologies. Law and society scholarship explores the reciprocal impact of law on
society and of society on law—with some scholars focusing on the role of law as an instrument of social
change or social control and others focusing on how social mobilization, culture, and legal consciousness
determine the actual impact of law. With its roots in the legal realism scholarship of the 1950s, law and
society scholarship proliferated in the 1960s with the founding of the Law and Society Association in the
United States. Today the field of law and society includes a vibrant mix of scholars from political
science, sociology, anthropology, history, and law who draw on a variety of methods and epistemological
premisses.
(p. 250) Law and society scholarship has served as an important antidote to the tendency of most political
scientists interested in law and courts to focus almost exclusively on the upper echelons of the judicial
18
For Private Circulation Only HPNLU Shimla Page 18
hierarchy and the storied battles between high courts and other branches of government. The law and
society perspective has encouraged many political scientists to turn their gaze to the local level, to
explore how law is mobilized, how it is experienced, and what impact it has across society in fields as
diverse as criminal law, civil rights, and business regulation. Such contributions are perhaps most obvious
in studies of legal mobilization and the impact of law, where law and society scholarship has shed light
on the conditions under which social movements mobilize law in pursuit of their aims and the
consequences of legal actions for those who are subject to the law. Such scholarship famously includes
so-called “gap” studies, which frequently document the gap between “law on the books” and “law on the
ground” and the inadequate or incomplete implementation of or compliance with court decisions or legal
regulations. Law and society has also encouraged a comparative perspective, with the field shifting from
its roots in studies of the American legal system to embrace an increasingly wide range of scholarship on
comparative and transnational sociolegal issues. Some scholars (Provine 2007) suggest a growing rift
between much of political science and the field of law and society, as the latter shifts away from an
interest in formal institutions of law and government and from positivist social science. Given the fruitful
engagement of political science and law and society over the past half-century, the growth of any such rift
would be unfortunate.

2.5 Comparative and International Law and Courts

Until recently, the subfield of comparative politics largely ignored law and politics while the subfield of
law and politics largely ignored law and courts outside the USA. Today change is coming from both
directions. Comparatists are taking greater interest in the politics of law and courts, and scholars in the
law and politics sub-field are increasingly doing comparative work. Current scholarship builds on the
work of such pioneers as Murphy and Tanenhaus (1972), Schubert and Danelski (1969), Shapiro (1981),
Kommers (1989), Stone (1992), and Volcansek (1992), who set out a research agenda, calling on others
to examine and compare the influence of courts on politics and the influence of politics on courts across
democracies. Although most of the early work focused exclusively on the politics of constitutional courts
in established democracies, more recent work has expanded in two directions. First, the transitions to
democracy in the 1980s and 1990s gave birth to a host of new constitutional courts in Latin America,
Eastern Europe, and Asia which have spawned a new wave of scholarly research. Second, in studying the
widespread “judicialization” of politics, comparatists have moved beyond an exclusive focus on
constitutional courts to examine the role of the full range of administrative and civil courts in policy-
making and implementation.
(p. 251) In the study of international law, the growing dialogue between legal scholars and political
scientists has generated a rich literature. The institutionalist turn in international relations theory and the
proliferation of international courts and law-based regimes have drawn more and more political scientists
to the study of international law and legal institutions. Meanwhile, recognizing the limits of a strictly
legal analysis, legal scholars have turned to international relations theory to help explain the design,
operation, and impact of international rules and legal institutions. Finally, research on themes such as the
globalization of law and European legal integration tie together comparative and international
approaches, examining how international institutions and networks may spread legal norms and practices
across jurisdictions.

19
For Private Circulation Only HPNLU Shimla Page 19
The study of law and politics is as wide-ranging and diverse as it has ever been. Scholars in the field are
exploring a greater number of research questions with a wider range of methods and across a wider array
of subjects related to law and courts than has ever been the case. In doing so, they have built bridges
between political science and other disciplines and between the particular study of law and politics and
other subfields within political science. The field has long run the risk of internal balkanization, but the
opportunities for dialogue and synthesis are particularly high at this point in the development of the field.

References
Almond, G. A. 1990. A Discipline Divided: Schools and Sects in Political Science. Newbury Park, Calif.:
Sage.Find this resource:
Chavez, R. B. 2008. The rule of law and courts in democratizing regimes. In Oxford Handbook of Law
and Politics, ed. K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. New York: Oxford University
Press.Find this resource:
Corwin, E. S. 1929. The democratic dogma and the future of political science. American Political Science
Review, 23: 569–92.Find this resource:
Friedrich, C. J. 1958. Political philosophy and the science of politics. In Approaches to the Study of
Politics, ed. R. Young. Evanston, Ill.: Northwestern University Press.Find this resource:
Ginsburg, T. 2008. The global spread of constitutional review. In Oxford Handbook of Law and Politics,
ed. K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. New York: Oxford University Press.Find this
resource:
Haines, C. G. 1915. Report of the Committee of Seven on Instruction in Colleges and Universities.
American Political Science Review, 9: 351–74.Find this resource:
Hall, A. B. 1922. The teaching of constitutional law. American Political Science Review, 16:486–96.Find
this resource:
Hart, H. L. A. 1994. The Concept of Law, 2nd edn. New York: Oxford University Press.Find this
resource:
Hoxie, R. G., et al. 1955. A History of the Faculty of Political Science, Columbia University. New York:
Columbia University Press.Find this resource:
Kommers, D. 1989. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham, NC:
Duke University Press.Find this resource:
Kornhauser, L. A. 2008. The analysis of courts in the economic analysis of law. In Oxford Handbook of
Law and Politics, ed. K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. New York: Oxford
University Press.Find this resource:

(p. 252) McCloskey, R. G. 1958. American political thought and the study of politics. In Approaches to
the Study of Politics, ed. R. Young. Evanston, Ill.: Northwestern University Press.Find this resource:

Mather, L. 2008. Law and society. In Oxford Handbook of Law and Politics, ed. K. E. Whitting-ton, R.
D. Kelemen, and G. A. Caldeira. New York: Oxford University Press.Find this resource:

20
For Private Circulation Only HPNLU Shimla Page 20
Murphy, W. F. and Tanenhaus, J. 1972. The Study of Public Law. New York: Random House.Find this
resource:

Peltason, J. W. 1955. Federal Courts in the Political Process. New York: Random House.Find this
resource:

——1961. Fifty-Eight Lonely Men. New York: Harcourt, Brace and World.Find this resource:

Pritchett, C. H. 1948. The Roosevelt Court. New York: Macmillan.Find this resource:

——1954. Civil Liberties and the Vinson Court. Chicago: University of Chicago Press.Find this resource:

——1968. Public law and judicial behavior. Journal of Politics, 30: 480–509.Find this resource:

Provine, D. M. 2007. Law & society symposium: on separate paths. Law and Courts, Newsletter of the
Law and Courts Section of the American Political Science Association, 17: 6–8.Find this resource:

Schubert, G. A. 1966. The future of public law. George Washington Law Review, 34: 591–614.Find this
resource:

——and Danelski, D. J. (eds.) 1969. Comparative Judicial Behavior: Cross-Cultural Studies of Political
Decision Making in East and West. New York: Oxford University Press.Find this resource:

Segal, J. A. 2008. Judicial behavior. In Oxford Handbook of Law and Politics, ed. K. E. Whit-tington, R.
D. Kelemen, and G. A. Caldeira. New York: Oxford University Press.Find this resource:

Shapiro, M. 1981. Courts: A Comparative and Political Analysis. Chicago: University of Chicago
Press.Find this resource:

Smith, R. M. 2008. Historical institutionalism and the study of law. In Oxford Handbook of Law and
Politics, ed. K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. New York: Oxford University
Press.Find this resource:

Somit, A. and Tanenhaus, J. 1967. The Development of Political Science: From Burgess to
Behavioralism. Boston: Allyn and Bacon.Find this resource:

Spiller, P. T. and Gely, R. 2008. Strategic judicial decision-making. In Oxford Handbook of Law and
Politics, ed. K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. New York: Oxford University
Press.Find this resource:

Stone, A. 1992. The Birth of Judicial Politics in France. New York: Oxford University Press.Find this
resource:

Vanberg, G. 2008. Establishing and maintaining judicial independence. In Oxford Handbook of Law and
Politics, ed. K. E. Whittington, R. D. Kelemen, and G. A. Caldeira. New York: Oxford University
Press.Find this resource:

Volcansek, M. 1992. Judicial Politics and Policy-Making in Western Europe. London: Cass.Find this
resource:

21
For Private Circulation Only HPNLU Shimla Page 21
Wilson, J. 1896. The Works of James Wilson, ed. J. D. Andrews, 2 vols. Chicago: Callaghan.Find this
resource:

22
For Private Circulation Only HPNLU Shimla Page 22
 ORIGIN, NATURE &
FUNCTIONS OF THE STATE

Module II

For Private Circulation Only HPNLU Shimla Page 23

 STATE

 Greeks used term : Polis

 Romans : Civitas & Republica

 Medieval period : Christian Common wealth

 16th (Century)Machiavelli : Stato

For Private Circulation Only HPNLU Shimla Page 24

DEFINITION OF ‘STATE’

 As a community of persons, permanently

occupying a definite territory, legally

independent of external control, and possessing a

organized government which create &

administrates law over all persons and groups

within its jurisdiction is ‘State”.

For Private Circulation Only HPNLU Shimla Page 25

ELEMENTS OF THE STATE

(1) Population

(2) Territory

(3) Government

(4) Sovereignty

For Private Circulation Only HPNLU Shimla Page 26

ELEMENTS OF THE STATE
 Population : A considerable group of human beings;

 Territory : A definite area of earth’s surface upon which

the population permanently resides

 Government: A political organization through which the

will or law of the state is expressed and administrated.

 Sovereignty : the supremacy of the state over all

individuals and associations within it and the independence

of the state from external control.

For Private Circulation Only HPNLU Shimla Page 27
THEORIES OF THE STATE
 Various attempts to explain state;
 Various philosophers explain different ways;

(1) Force Theory

(2) The Divine Theory
(3) The Social-Contract Theory

For Private Circulation Only HPNLU Shimla Page 28

THE FORCE THEORY
 The state came into existence as a result of the
forced subjection of the weak to the strong.
 Two arguments in force theory

(1) One group of thinkers used this theory to

justify the state on the ground that the state is
power, that might makes right and that the
essence of the state is a sovereign will.
(2) Second group, to attack the state because of its
injustice and urge individual freedom and
limited state action
For Private Circulation Only HPNLU Shimla Page 29
THE FORCE THEORY
 In middle ages theologians argued that, the state
was based upon force and injustice and decried
the origin of earthly sovereignty in order to
subordinate temporal to spiritual power.
 Individualist & anarchist believe that the State
is an evil because of their desire for individual
freedom.
 Socialist believe that , the state resulted from the
aggression and exploitation of laborers by
capitalist and attack, not the idea of the state
itself.

For Private Circulation Only HPNLU Shimla Page 30

THE DIVINE THEORY
 During the large part of human history the state
was viewed as direct divine creation.
 Early oriental empires rulers claimed a divine
tight to control the affairs of their subjects and
this right was seldome questioned.
 The Hebrews believed – divine origin

 Spat between State Concept & Christianity Pope

For Private Circulation Only HPNLU Shimla Page 31

SOCIAL CONTRACT THEORY
 In moral and political philosophy, the social
contract is a theory or model, originating during
the age of enlightenment, that typically addresses
the questions of the origin of society and the legitimacy
of the authority of the state over the individual.
 Social contract arguments typically hypothesize that,
individuals have consented, either openly or tacitly, to
surrender some of their freedoms and submit to the
authority of the ruler or magistrate, in exchange for
protection of their remaining rights.
 The question of the relation between natural and legal
rights, therefore, is often an aspect of social contract
theory.
For Private Circulation Only HPNLU Shimla Page 32
SOCIAL CONTRACT THEORY
 Thomas Hobbes ( 1588-1679) : Leviathan (1651)
 John Locke ( 1632-1704) : Second Treatise of
Government (1689)
 Rousseau ( 1712-1778)
 Social Contract Theory: starts with the
assumption that, man lived originally in a ‘state of
nature’, antecedents (background) to the formation of
political organization. In this condition he was
subject only to such rules of natural law as are
prescribed by nature itself, and was the possessor
(holder) of natural rights.

For Private Circulation Only HPNLU Shimla Page 33

SOCIAL CONTRACT THEORY
 Hobbes ;
It was a state of war, a savage state, men were
selfish and aggressive brutes. Every men was the
enemy of every other man . To avoid fear and danger
of this terrible situation, men agreed to setup an
authority.
 John Locke;

Life in the state of nature was one of the peace and

ease. Freedom and tranquility (harmony) prevailed.
Men were bound by the law of nature and possessed
certain natural rights, but there was the absence of
an agency to interpret and implement the law of
nature, so men agreed to create a common authority.
For Private Circulation Only HPNLU Shimla Page 34
 SOCIAL CONTRACT

 Rousseau

People led to a ideal life and enjoyed ‘idyllic

happiness’ in the state of the nature. But the rise

of property produced evils. To escape from them

men set up authority by contract.

For Private Circulation Only HPNLU Shimla Page 35

EVOLUTIONARY THEORY/ STATE

Forces in state building

 (1) Kinship

 (2) Religion

 (3) Industry

 (4) War

For Private Circulation Only HPNLU Shimla Page 36

NATURE & ROLE OF THE STATE

 State has always been central to the political

analysis, to such an extent that politics is often
understood as the study of the state.

 Two key debates on State

 The first : focus the need for the state and the
basis of political obligations
 Second : concerns the nature of the state power

For Private Circulation Only HPNLU Shimla Page 37

NATURE & ROLE OF THE STATE

1. Idealist theory of state

2. Marxist theory of state

3. Liberal theory of state

For Private Circulation Only HPNLU Shimla Page 38

IDEALIST THEORY OF POLITICS
 Plato & Aristotle are considered to be founders of the
idealist theory.
 They started the premise that man is by nature a
social and political animal.
 It is only by living in society that man can develop
his personality and realize all that is best in him.
They never differentiated society with the state.
 They regarded the state as a self-sufficing entity
identical with the whole of society, existing for itself
and by itself.

For Private Circulation Only HPNLU Shimla Page 39

MAJOR EXPONENTS

 Immanuel Kant (1724-1804) is regarded as father

of idealistic theory. He gives expression to this
doctrine in his famous book "metaphysical first
principles of theory and law" in 1796. Kant major
focus of analyzing is put of different aspect of state
and its relation with other element existing within
state.
 Hegel, His philosophy had made state to rise to
mystical heights and held that German people have
divine mission to fulfill in their relation to rest of
the world. .

For Private Circulation Only HPNLU Shimla Page 40

IDEALIST STATE
 The state is the ethical institution and therefore a
end itself.
 Hegal (1770-1831): founder of modern idealism,
conceived as the state as an ethical community.
 The modern idealist developed a philosophy which
magnified the state into a self-sufficing entity.
 They regarded state as an organic unity and held it
as the highest expression of social morality.
 State as the moral organism individual is an
inseparable part of it and he depends for his
existence upon it.
 State exist to create and maintain those conditions
in which free and moral life is possible.
For Private Circulation Only HPNLU Shimla Page 41
FEATURES OF IDEALISM
 State is an ethical institution-state is an ethical
institution. Though there are many ethical institutions
in a society like Church, family etc but State is most
important among them
 State is man's best friend-State is man's best
friend. All the welfare of an individual is done by the
activities of state, it provides all basic necessity to an
individual growth and development within the state.
State activities is always focused towards individuals
welfare.
 State has got its independent will and
personality-The state is not the sum-total of the
individuals. But it has its own independent personality
and will. The basis of the state is will and not the force
For Private Circulation Only HPNLU Shimla Page 42
FEATURES
 state is creator and protector of the rights of
the individuals- State is considered as guardian
and protector of the rights of an individual. State is
considered as source of all freedom and rights
provided to any individual.
 Man is a social animal- Idealism begins with
Aristotle's view that man is a social animal. This
social animal development is enriched under the
proper guidance of state. State is indispensable to
effective organization and realization of moral ends.

For Private Circulation Only HPNLU Shimla Page 43

MARXIST THEORY OF THE STATE
 The early Marxist thinkers considered , the state
as an instrument of exploitation in the hands of
the dominant class.
 The state does not stand for the good of all,
rather it protects and promotes the interest of the
few at the cost of many.
 The state is an agency of class coercion in the
hands of the dominant economic class.
 The state maintain its exploitative class
character right from its origin through various
phases in developments.

For Private Circulation Only HPNLU Shimla Page 44

MARXIST/ STATE
1. State is an instrument of class domination

2. State comes into existence for the protection of

private property

3. State is a symbol of injustice

For Private Circulation Only HPNLU Shimla Page 45

NEO-MARXIST THEORIES OF STATE
 Max Webber rejected Marx’s class theory
 And stressed on the autonomy of state power .

 According to Webber, the state has its own

powerful resources, it enjoys executive control
over legitimate use of force in society which is not
accessible to private interests.
 It maintain a strong organization in the form of
bureaucracy which can formulate, implement and
monitor the policies of the state. The state power
could not be reduced to an instrument of class
interests.

For Private Circulation Only HPNLU Shimla Page 46

NEO-MARXIST/ STATE

 Antonio Gramsci (1891-1937)

 Neo-marxism seeks to analyze the subtle aspects of

the phenomena of dominance, and dependence,

distortion in contemporary civilization and the

possible ways to human emancipation.

For Private Circulation Only HPNLU Shimla Page 47

NEO-MARXIST/ STATE

 According to Gamsci, a web of beliefs and

institutional as well as social relations in the society

such as family, school, church, and other primary

groups play a leading role in the creating consent

which he describes as hegemony that keeps the

capital system going on. Use of force is restored to

only when the instruments of consents fail to work.

For Private Circulation Only HPNLU Shimla Page 48
LIBERAL THEORY OF STATE
 A liberal state adopt a liberal attitude towards the
rights & privileges of the citizens.
 The restrictions of any type adopted by the
government will curb the liberty and spontaneity of
the individuals. It will slow down the growth of
mans personality and inherent qualities.
 So liberal state donates a limited government or
limited state.
 A state is liberal when it acknowledges the opinions,
attitudes and behaviors of individual and does not
think these as a threat to existence and
administration of state.
For Private Circulation Only HPNLU Shimla Page 49
FEATURES OF THE LIBERAL STATE
 The liberal state embraces multiplicity if ideas,
views and existence of numerous groups and
parties.
 The liberal state maintains absolute neutrality
towards all groups. Since multiplicity of groups and
organizations and coexistence among them are the
characteristic features of a liberal state, clash of
interest can be seen as an inevitable consequence.
 It is accountable to the citizenry for all its activities,
decisions, and policies. The consent and account
ability are the twin ideas associated with the liberal
state.
For Private Circulation Only HPNLU Shimla Page 50
QUESTIONS
 What are the elements of the state?.
 Population

 territory

 government

 sovereignty

 What are the major theories of the origin of the state

o The force theory

o the divine theory

o the social contract theory

o Hobbes views on social contract ?

o John Locke Views on social contract ?

For Private Circulation Only HPNLU Shimla Page 51

o Rousseau views on social contract.?

QUESTIONS
 What are the evolutionary theory of the
state?.
 Kinship
 Religion
 industry
 war
 What are the nature and role of the state
(major theories )
 Idealist theory of state

 Marxist theory of state

 liberal theory of state

For Private Circulation Only HPNLU Shimla Page 52
 SOVEREIGNTY

 The state come into being when an independent group

of people are organized by means of a government
which creates and enforces laws.
 Within this group there must be supremacy and will
and power.
 It must contain some person or body of persons whose
commands receive obedience who can, if necessary,
execute those commands by means of force.
 Such person or body of person exercise sovereignty
and such commands are called laws.
 Evidently there can no limit to sovereignty.

 The state is legal sovereign, there can be no legal limit

to lawmaking power of the supreme law making
associations.
For Private Circulation Only HPNLU Shimla Page 53
 CHARACTERISTICS OF SOVEREIGNTY
(1) Absoluteness: there can be no legal power within
the state superior to it, and there can be no legal
limit to the supreme law-making power of state.
(2) Universality: the sovereignty of the state extends
over every person and every association of persons in
the state.
(3) Permanence: the sovereignty of the state continues
as long as the state itself exists. Only by the
destruction of the state sovereignty be destroyed.
(4) Indivisibility: there can be one sovereignty in the
state. To divide sovereignty is to destroy it. The
exercise of its power may be distributed among
various governmental organs but the sovereignty is a
For Private Circulation Only HPNLU Shimla Page 54

unit, just as the state is a unit.

 State

Meaning and Elements of State

The state is the most powerful of all social institutions. It has become one of the important

factors in our social life today. When we take birth in our family, the government takes notice of

our birth and registers it. State has framed regulations regarding health and sanitation in order to

save us during childhood. It has made arrangement for our education. Some portion of our

income is paid in form of taxes to the state through the government. It is the state which controls

the prices of different commodities. It protects us from our enemies. It provides us medical

facilities. It takes care of the old and invalid. If the state is in danger we fight for it. Not only our

birth but also our death get registered with the state or the government. In case we are unable to

afford money for our burial it is the state which bury us. Thus, from the moment of our birth till

our death we come in contact with the state directly or indirectly in every day life.

Meaning or Definition of State:

The term state may means condition of health or economic condition. The term is sometimes

loosely used by people to mean states of India, or “the United States of America”. Sometimes it

mean ‘nation’ or ‘society’ or ‘government’ or ‘country’. These uses of the term are not correct at

all from the scientific point, of view. It has in fact, a specific meaning which is completely

different from its various uses noted above

Different scholars have defined state diffidently according to their individual view point. Some

of the important definitions of the state are mentioned below.

For Private Circulation Only HPNLU Shimla Page 55

Woodrow Wilson defines “state as a group of people organized for law within a definite

ternary.” Burgess defines state as “a particular portion of mankind viewed as organized unity.”

Bluntschil says that; “the state is a combination or association of men in the form of Government

and governed, on a definite territory, united together into a moral organized masculine

personality, more shortly person of definite territory.”

Prof. Laski defines state as “a territorial society divided into Government and subjects claiming

with its allotted physical area of supremacy over all other institutions

J.W. Garner gives a very comprehensive definition of the state. He holds the view that the state

as a concept of political science and public law, is a community of persons, more or less

numerous, permanently occupying a definite portion of territory, independent, or nearly so, of

external control and possessing an organized government to which the great body of inhabitants

render habitual obedience.” It-is considered to be the best definition of the state. It ran be

summed up as “the state is a collection of human beings occupying a definite territory under an

organized government and is subject to no outside control.”

The above mentioned definitions of a state reveal four characteristics or elements. They are- (a)

population, (b) territory, (c) organization or government and (d) sovereignty. A state cannot be

formed at all in the absence to any one of these characteristics.

Elements

(1) Population

For Private Circulation Only HPNLU Shimla Page 56

The most basic characteristic of the state is population. As a human organization the state cannot

be formed without some people. A desert in which human beings do not live cannot be regarded

as a state. However, there is no limit prescribed as to the size of population.

For an ideal state, it should be 5,000 and, Aristotle thinks that it should be 10,000 minimum and

100,000 maximum. In modern times, the maximum and minimum size of population has not

been prescribed. It means that there is no hard and fast rule about the size of the population of the

state. In fact, population varies from few thousands as in case of Monacol, Guatemala and Leech

Tenstein to the millions as in China and India. Although the modern tendency is in favor of large

population of state, it is unwise to have, a very large population when its resources are scarce.

(2) Territory

The second characteristic of the state is territory or a fixed geographical area on the earth. In the

absence of a fixed territory, a state cannot be constituted. As for example, the nomadic tribes like

Gipsies and others cannot form a state of their own owing to the absence of a fixed territory, to

reside in.

Similarly, the Jews did not from a state till, they definitely settled down in Israel in 1948. Like

population, there is no limit set for the territory of a state. It may vary from a few square miles as

in the case of Monacol and few million square miles as in the Soviet Union and the United

States. In the modern world today, small states as well as big states exist. From the

administrative, point of view small states are always better than big states but from the point of

view of defense, they are not good all

(3) Government

For Private Circulation Only HPNLU Shimla Page 57

The state must possess an organized Government. It is the machinery through which the state

must exercise its supreme power. It constitutes the brain of the state. A state cannot be thought of

without some sort of Government. The state performs its various functions through the

Government. J.W. Gamer says, Government is the agency or machinery through which common

policies are determined and by which common affairs are regulated and common interests are

promoted.”

(4) Sovereignty

The fourth and the most important element, or characteristic of the state is sovereignty.

Sovereignty means supreme power or ultimate authority against which there can be no appeal.

Externally, the state claims final and absolute authority. It is independent of any foreign control.

Internally, the state is supreme over all of its citizens and associations within its jurisdiction. All

the individual within the state must submit to its will obediently.

1. Divine Origin Theory:

The Genesis of Divine Origin Theory:
The oldest theory about the origin of the state is the divine origin theory. It is also known as the
theory of divine right of Kings.

The exponents of this theory believe that the state did not come into being by any effort of man.
It is created by God.

The King who rules over the state is an agent of God on earth.

The King derives his authority from God and for all his actions he is responsible to God alone.
Obedience to the King is ordained to God and violation of it will be a sin. The King is above law
and no subject has any right to question his authority or his action. The King is responsible of
God alone.

History of Divine Theory:

For Private Circulation Only HPNLU Shimla Page 58

The conception of the divine creation of the state may be traced back to remote antiquity. It was
universal belief with the ancient people that the King is the representative of God on earth and
the state is a bliss of God. Thus the King had both political and religious entity. In the religious
books also the state is said to be created by God. In some religions this conception is explicit, but
in others it is implicit.

The divine origin of the state is gleaned first the Old Testament of the Bible. There we find St.
Paul saying- “Let every soul be subject unto the higher powers; for there is no power but of
God; the powers that be, are ordained by God. Whosoever resist the power, resisted the
ordinance of God and they that resist shall receive to themselves damnation.”
In 1680 Sir Robert Filmer wrote a book entitled The Law of the Free Monarchies, where it is
stated the Adam was the First King on earth and the Kings subsequent to him are the descendants
of Adam. In the Manusmriti it is said that when the world was thick in anarchy, the people
prayed to God to remedy the condition. God was pleased to appoint Manu to rule over the earth.

This theory prevailed in the old age when religion and politics were combined in the person of
the King. In ancient India the Kings ruled over the people according to the injunction of the
Dharma, which stood for both religion and politics. Laws fay deep in the profusion of the
Sastras.

In the medieval period the Christians held the Pope in semi-God status. In the Muslim world the
Caliph was the Priest-King. The Dalai Lama was the head of the Theocratic state of Tibet. He
was considered there as the incarnation of the Buddhist god Avalokitesvara.

Both the church and the state in their mutual rivalry used the theory of the divine origin in the
medieval age. The church asserted the supremacy of the church over the state. On the other hand,
the state because of its divine nature emphasised on its supremacy over the church.

The Stuart King James I claimed that he derived his authority directly from God. According to
him, the King is wise and intelligent, but his subjects are wicked.

Even if the King is bad, the people have no right to rebel against him. Even in the nineteenth
century the Kings of Austria, Prussia and Russia formed the Holy Alliance under the notion that
they were appointed by God to rule over their people. Anyway, the European Kings took shelter
under the divine origin theory in order to justify their dictatorships.

Be that as it may, during a large part of human history the state was viewed as direct divine
creation and theocratic in nature. The theory was in currency so long as religion was considered
to be the chief motive force of all human activities.

For Private Circulation Only HPNLU Shimla Page 59

In the twentieth century this, theory came under criticism being an incorrect explanation of the
origin of the state. With the growth of scientific outlook this theory faded into oblivion. Today’s
trend is that the state is a historical growth. We shall now discuss the causes of the decline of the
theory.

Causes of the Decline of the Divine Theory:

In the first place, when a more acceptable theory like the social contract theory came out, the
divine theory was dashed to the ground. The new theory suggested that the state is a handiwork
of men, not a grace of God.

In the second place, the Reformation that separated the church from the state debased the coin of
the divine theory. The post-Reformation period is a period of non-religious politics. Thus the
secular outlook made the divine theory totally unacceptable.

In the third place, the emergence of democracy was a big blow for the autocratic dogma of
mixing religion with politics and thereby it blunted the edge of identifying God with the King.
Democracy not only glorified the individual but shattered the divine halo around the origin of the
slate.

Last but not the least was the growth of scientific enquiry and materialistic view of the political
mechanism. The result was that the erstwhile blind faith and superstition was no longer
acceptable. The people began to accept only those things that stood the test of logic and
reasoning.

Criticism of the Divine Theory:

There are seven lines of argument in the hands of R. N. Gilchrist levelled against the divine
theory:
The first line of argument of Gilchrist is that the state is a human institution organised in an
association through human agency. Modern political thinkers cannot accept the view that God
has anything to do with the creation of the state. It does not stand the commonsense of the
moderns that God selects anybody to rule over the state.

The second line of argument is that the divine theory is fraught with dangerous consequences,
because a semi-divine King is bound to rule arbitrarily as he is responsible only to God and not
bound to heed public opinion. Such a theory will make the ruler despotic and autocratic.

The third line of argument is that the divine theory is unrealistic because a bad ruler will
continue to rule under the divine shield. There were some bad rulers like James II of England and
Louis XVI of France, who were replaced by the people. This could not happen if the divine
theory was to be accepted.

For Private Circulation Only HPNLU Shimla Page 60

The fourth line of argument is that the New Testament of the Bible reversed the divine
conception of the state as ingrained in the Old Testament. It is emphatically stated in the New
Testament- “Render unto Caesar the things that are Caesar’s and unto God the things that
are God’s”, which gives the state a human character as against the divine coating.
The fifth line of argument is that the divine theory is unscientific. The anthropologists and
sociologists after careful scientific analysis have discarded the theory as totally untenable as an
explanation of the origin of the slate.

The sixth line of argument is that the divine theory runs counter to the universally accepted
conception that the state is the result of a historical evolution. The generally accepted theory of
the origin of the state is that various factors like religion, family, force and political
consciousness were behind the growth of the state.

The seventh line of argument is that the divine theory is undemocratic. The inevitable
implication of the theory in content and tone will make the King absolute and his government
never democratic. So the theme of the theory is against the spirit of democracy.

Value of the Divine Theory:

Although the divine theory is totally discredited as an origin of the state, there are some good
things in it. The summum bonum of the theory is that it stimulated discipline and law-
abidingness among the subjects at a time when these were the needs of the hour in those
anarchical conditions. This theory also created the moral responsibility of the rulers, because
they were cast with a divine injunction to rule to the perfect satisfaction of the heaven.

Decline of the Divine Right Theory:

As an origin of the state, the divine right theory is no longer alive. It is a defunct dogma. The
emergence of the social contract theory which held the wishes of the people in high halo dwarfed
the godly wishes in the creation of the state. When human activities were considered the motive
force of the state, the divine one receded to the background and finally vanished away.

The important role assigned to the man in the creation of the state by the social contract theory
shattered all hopes for the divine right theory. The second factor in the decline of the divine right
theory was the Reformation Movement in the sixteenth century Europe, which curbed the
authority of the Pope and the Church and at the same time brought the monarch and the people in
the limelight.

The scientific and logical thinking associated with the Renaissance and the Reformation enabled
men to look into the theory of the origin of the state as something which must be created by non-
church and non-god bodies. With the decline of the authority of religion declined the divine
authority.

For Private Circulation Only HPNLU Shimla Page 61

The final nail of the coffin of the divine right theory was the modern theory of Thomas Hill
Green that democracy, i.e., will of the people was the basis of the state.

2. The Patriarchal Theory as the Origin of the State:

The principal exponent of this theory is Sir Henry Maine.

According to him, the city is a conglomeration of several families which developed under the
control and authority of the eldest male member of the family.

The head or father of the patriarchal family wielded great power and influence upon the other
members of the family.

His writ was carried out in the household. This patriarchal family was the most ancient organised
social institution in the primitive society.

Through the process of marriage the families began to expand and they gave birth to gen which
stands for a household. Several gens made one clan. A group of clans constituted a tribe. A
confederation of various tribes based on blood relations for the purpose of defending themselves
against the aggressors formed one commonwealth which is called the state.

Sir Henry Maine’s analysis of the growth of the state is- “The elementary group is the family
connected by the common subjection to the highest male ascendant. The aggregation of
families forms the gens or the houses. The aggregation of houses makes the tribe. The
aggregation of the tribes constitutes the commonwealth.”
Edward Jenks who is the other advocate of the patriarchal theory is of the view that the
foundation of the state was caused by three factors, namely male kinship, permanent marriages
and paternal authority. Thus, the salient feature of the patriarchal theory is that the families grew
through the descendants of the father, not the mother.

The male child carried on the population though marriages with one or several women, because
both monogamy and polygamy were the order of the day. The eldest male child had a prominent
role in the house.

Another important supporter of this theory was Aristotle. According to him- “Just as men and
women unite to form families, so many families unite to form villages and the union of
many villages forms the state which is a self-supporting unit”.
As for documentary evidence in support of this theory, there were twelve tribes who formed the
Jewish nation as we gather from the Bible. In Rome, we are told that the patriarch of three
families that made one unit exercised unlimited authority over the other members.

Criticism of the Theory:

For Private Circulation Only HPNLU Shimla Page 62

The patriarchal theory as the origin of the state is subjected to the following criticisms:
In the first place, the origin of the state is due to several factors like family, religion, force,
political necessity, etc. So by identifying the origin of the state with family, one makes the same
fallacy as taking one cause instead of several causes. To say in the words of J. C. Frazer-
“Human society is built up by a complexity of causes.”
In the second place, the theory is incorrect, because in the opinion of several critics the primary
social unit was a matriarchal family rather than a patriarchal family. According to Meclennan,
Morgan and Edward Jenks who are staunch supporters of the theory, the matriarchal family and
polyandry were the basis of the state.

The kinship through the female line in primitive society was responsible for the growth of the
state. The process was that polyandry resulted into matriarchal society and the matriarchal
society led to the state.

In the third place, the patriarchal theory is built on the wrong premise that the patriarchal family
was the origin of the state. Edward Jenks suggested the correct theory that tribe rather than
family was the beginning of the state, on the basis of his studies in Australia and Malaya
Archipelago.

In the fourth place, Sir Henry Maine over simplified the origin of the state by attribution it to the
family alone. It is because of this over simplicity that the theory has to be rejected as untenable.
The authority of the father over the children is only temporary, because his authority ends when
the children grow in age. But the authority of the state over the population is perpetual.

3. The Matriarchal Theory as the Origin of the State:

The chief exponents of the matriarchal theory are Morgan, Meclennan and Edward Jenks.
According to them, there was never any patriarchal family in the primitive society and that the
patriarchal family came into existence only when the institution of permanent marriage was in
vogue.

But among the primitive society, instead of permanent marriage there was a sort of sex anarchy.
Under that condition, the mother rather than the father was the head of the family. The kinship
was established through the mother.

Edward Jenks who made a thorough study of the tribes of Australia came to the conclusion that
the Australian tribes were organised in some sort of tribes known as totem groups. Their affinity
was not on the basis of blood relationship but through some symbols like tree or animal. One
totem group men were to marry all the women of another totem group. This would lead to
polyandry and polygamy also.

For Private Circulation Only HPNLU Shimla Page 63

This matriarchal system continued until the advent of the pastoral age when the permanent
marriage was introduce. We find the existence of the Queen ruling over in Malabar and the
princesses ruling over the Maratha countries. These are examples of the matriarchal systems of
life.

Criticism of the Theory:

The matriarchal theory is attacked on the following grounds:
First, the state was created by several factors, of which the family was one. So this theory makes
only a partial study of the origin of the state. Force, religion, politics, family and contract were
all there to contribute to the growth of the state.

Secondly, like the patriarchal theory, this theory also mistakenly analyses the origin of the family
as the origin of the slate. The state is something more than an expanded family. They are quite
different in essence, organisation, functions and purposes.

Thirdly, the theory is historically false. It is not a fact of history that the matriarchal system was
the only system at a particular time. As a matter of fact, both patriarchal system and matriarchal
system prevailed side-by-side. There was a parallel development of both the systems. We may
conclude with the words of Stephen Leacock- “Here it may be a patriarchal family; there it
may be a matriarchal family, but there is no denying the fact that family is at the basis of
the state”.

4. Force Theory of Origin of the State:

Another early theory of the origin of the state is the theory of force.

The exponents of this theory hold that wars and aggressions by some powerful tribe were the
principal factors in the creation of the state.

They rely on the oft-quoted saying “war begot the King” as the historical explanation of the
origin of the state.
The force or might prevailed over the right in the primitive society. A man physically stronger
established his authority over the less strong persons. The strongest person in a tribe is, therefore,
made the chief or leader of that tribe.

After establishing the state by subjugating the other people in that place the chief used his
authority in maintaining law and order and defending the state from the aggression from outside.
Thus force was responsible not only for the origin of the state but for development of the state
also.

History supports the force theory as the origin of the state.

10

For Private Circulation Only HPNLU Shimla Page 64

According to Edward Jenks:
“Historically speaking, there is not the slightest difficulty in proving that all political
communities of the modern type owe their existence to successful warfare.”

As the state increased in population and size there was a concomitant improvement in the art of
warfare. The small states fought among themselves and the successful ones made big states.

The kingdoms of Norway, Sweden and Denmark arc historical examples of the creation of states
by the use of force. In the same process, Spain emerged as a new state in the sixth century A.D.
In the ninth century A.D. the Normans conquered and established the state of Russia.

The same people established the kingdom of England by defeating the local people there in
the eleventh century A.D. Stephen Butler Leachock sums up the founding of states by the
use of force in these words:
“The beginnings of the state are to be sought in the capture and enslavement of man-by-man, in
the conquest and subjugation acquired by superior physical force. The progressive growth from
tribe to kingdom and from kingdom to empire is but a continuation from the same process.”

History of the Theory:

This theory is based on the well-accepted maxim of survival of the fittest. There is always a
natural struggle for existence by fighting all adversaries among the animal world. This analogy
may be stretched to cover the human beings.

Secondly, by emphasising the spiritual aspect of the church the clergymen condemned the
authority of the state as one of brute force. This indirectly lends credence to the theory of force
as the original factor in the creation of the state.

Thirdly, the socialists also, by condemning the coercive power of the state as one bent upon
curbing and exploiting the workers, admit of force as the basis of the state.

Lastly, the theory of force is supported by the German philosophers like Friedrich Hegel,
Immanuel Kant, John Bernhardi and Triestchki. They maintain that war and force are the
deciding factors in the creation of the state. Today in the words of Triestchki – “State is power; it
is a sin for a state to be weak. That state is the public power of offence and defence. The
grandeur of history lies in the perpetual conflict of nations and the appeal to arms will be valid
until the end of history.”

According to Bernhardi-“Might is the supreme right, and the dispute as to what is right is
decided by the arbitrement of war. War gives a biologically just decision since its decision
rest on the very nature of things.”
Criticisms of the Theory:

11

For Private Circulation Only HPNLU Shimla Page 65

Following criticisms are levelled against the theory of force. In the first place, the element of
force is not the only factor in the origin of the state; religion, politics, family and process of
evolution are behind the foundation of the state. Thus to say that force is the origin of the state is
to commit the same fallacy that one of the causes is responsible for a thing while all the causes
were at work for it.

This has been rightly pointed out by Stephen Butler Leacock- “The theory errs in magnifying
what has been only one factor in the evolution of society into the sole controlling force.” A state
may be created by force temporarily. But to perpetuate it something more is essential.

In the second place, the theory of force runs counter to the universally accepted maxim of
Thomas Hill Green- “Will, not force, is the basis of the state.” No state can be permanent by
bayonets and daggers. It must have the general voluntary acceptance by the people.

In the third place, the theory of force is inconsistent with individual liberty. The moment one
accepts that the basis of a state is force, how can one expect liberty there? The theory of force
may be temporarily the order of the day in despotism as against democracy.

In the fourth place, the doctrine of survival of the fittest which is relied upon by the champions
of the force theory has erroneously applied a system that is applicable to the animal world to
human world. If force was the determining factor, how could Mahatma Gandhi’s non-violence
triumph over the brute force of the British Imperialists?

Lastly, the force theory is to be discarded because political consciousness rather than force is the
origin of the state. Without political consciousness of the people the state cannot be created. This
is so because man is by nature a political animal. It is that political conscience that lay deep in
the foundation of the state.

We may conclude with the words of R. N. Gilchrist- “The state, government and indeed all
institutions are the result of man’s consciousness, the creation of which have arisen from
his appreciation of a moral end.”
Merits of the Theory:
The theory of force, though untenable as an explanation of the origin of the state, has some
redeeming features:
First, the theory contains the truth that some states at certain points of time were definitely
created by force or brought to existence by the show of force. When the Aryans came to India
they carried with them weapons of all kinds and horses to use in the war against the non-Aryans
and by defeating the non-Aryans they carved out a kingdom in India.

Later on, the Aryans sprawled their kingdoms and broad-based their government and ruled with
the backing of the people.

12

For Private Circulation Only HPNLU Shimla Page 66

Secondly, the other silver lining of the theory is that it made the slates conscious of building
adequate defence and army to protect the territorial integrity of the state. That is why we find
commanders of war or Senapati as an important post in the ancient kingdoms.

In the modern state, we find a substantial amount of money used on defence budget. Every state
in the modern world has got a defence minister which unmistakably recognises the use of force
in modern statecraft too.

5. The Social Contract Theory:

Genesis of the Theory:
The most famous theory with regard to the origin of the state is the social contract theory. The
theory goes to tell that the stale came into existence out of a contract between the people and the
sovereign at some point of time.

According to this theory, there were two divisions in human history – one period is prior to the
establishment of the state called the “state of nature” and the other period is one subsequent to
the foundation of the state called the “civil society”. The state of nature was bereft of society,
government and political authority. There was no law to regulate the relations of the people in
the state of nature.
There were three exponents of this theory. They were Thomas Hobbes, John Locke and Jean-
Jacques Rousseau who differed about the life in the slate of nature, reason for converting the
state of nature to civil society and the terms of the contract. They all, however, agreed that a
stage came in the history of man when the state of nature was exchanged with civil society to
lead a regulated life under a political authority.

The net result of this changeover was that the people gained security of life and property and
social security, but lost the natural liberty which they had been enjoying in the state of nature.

The crux of the social contract theory is that men create government for the purpose of securing
their pre-existing natural rights – that the right come first, that the government is created to
protect these rights. These ideas were based on the concepts of a state of nature, natural law and
natural rights.

According to John Locke, prior to the establishment of society, men lived in a “state of nature”.
Thomas Hobbes, an anti-democratic philosopher, emphasised, that in the state of nature there
was no government to make and enforce laws, men made war on each other and life was
“solitary, poor, nasty, brutish and short”.

But Locke argued that even in a state of nature there was a law governing conduct-there was the
“natural law”, comprising universal unvarying principle of right and wrong and known to men
through the use of reason. Thus Locke would have us believe that if an Englishman was to meet

13

For Private Circulation Only HPNLU Shimla Page 67

a Frenchman on an uninhabited and ungoverned island, he would not be free to deprive the
Frenchman of his life, liberty or property. Otherwise, he would violate the natural law and hence
was liable to punishment.

Thus according to Locke, the state of nature was not a lawless condition, but was an
inconvenient condition. Each man had to protect his own right and there was no agreed-upon
judge to settle disputes about the application of the natural law to particular controversies.
Realising this, men decided to make a “compact” with one another in which each would give to
the community the right to create a government equipped to enforce the natural law.

In this way, every man agreed to abide by the decisions made by the majority and to comply with
the laws enacted by the people’s representative, provided they did not encroach upon his
fundamental rights. In this way, the power of the ruler was curtailed.

Background of Social Contract:

The doctrine of social contract is faintly mentioned in the ancient period by both the western and
Indian philosophers. Plato was the first among the western thinkers to use the term. It is also
referred to in the Arthasastra of Kautilya.

The ideas of the contractual obligations were mouthed by the anti-monarchical writers like
Richard Hooker, Hugo Grotius, John Milton, Sir William Blackstone, Immanuel Kant, Johann G.
Fichte and Edmund Burke.

It is admitted at all hands that the two English political thinkers, namely Thomas Hobbes and
John Locke as well as the French political thinker Jean-Jacques Rousseau, gave the concrete
shape to this theory. This trio is considered as the godfathers of the social contract theory.

The theories of foundation of the state were laid down in the great works on social contract,
particularly those of the English philosophers Thomas Hobbes and John Locke in the
seventeenth century and the French philosopher Jean-Jacques Rousseau in the eighteenth
century. The back ground of their theories ‘was the aftermath of the Protestant Reformation
which had shaken the fundamental constitution of European Christendom and had broken up the
divinely sanctioned contractual relation. Another significant thing was that the Holy Roman
Empire was torn apart by the wars of the Reformation.

In England King Henry VIII made the Church of England independent of Rome. Under these
circumstances, there was a need to search for a new basis of order and stability, loyalty and
obedience. In such search, the political theorists, and especially the Protestants among them,
turned to the old concept in the Bible about a covenant or contract such as the one between God
and Abraham and the Israelites of the Old Testament. This gave the presumption that God had
created the political unit by choosing his partners in an eternal covenant.

14

For Private Circulation Only HPNLU Shimla Page 68

The result was that the secular theorists of the social contract reversed the process of choice.
They discarded the old idea that God chose his subjects. The new theory was that it was the
people who, through their representatives, succeeded in choosing their rulers and the method of
governance by means of a social contract or construction. The social contract theorists suggested
that the political unit was established by means of promise or promises in the Biblical fashion.

Nature of Social Contract Theory:

According to the social contract theory the state was the creation of the people living in a state of
nature which was a lawless and order-less system. The slate of nature was controlled by
unwritten laws prescribed not by men but by nature. The exponents of the theory gave
conflicting views about the nature of the state of nature. Some considered it gloomy, while others
painted it as bright like paradise.

For some reasons the people did not like the system and terminated it by an agreement to save
one man from the rapacity of the other. The nature-made laws were replaced by man-made laws.
The originally independent people subordinated themselves to the will of either the whole
community or a particular person or a group of persons. The three proponents of the theory
interpreted the theory in their own way.

Thomas Hobbes Theory of the Social Contract:

Thomas Hobbes in his book Leviathan delineates very precisely and straightforwardly the
creation of the state by an agreement. To begin with, before the state was created, there was a
state of nature in which a war was raging. There was no law or justice. Human life was marked
by force and deceit. Might was right in that situation. Hobbes gave a gloomy picture of the state
of nature in his oft-quoted words “Solitary, poor-nasty, brutish, short”.

The people became fed up with the state of nature. In order to get rid of the unbearable condition
they entered into an agreement by which they established a government or authority to which
they surrendered all their rights. The surrender was unconditional and irrevocable. The authority
was a single person or a group of persons endowed with unlimited power. The authority to rule
was the result of the contract.

Since he was not a party to the contract, he was not bound by the terms of the agreement. The
people had no right to depose the ruler or to agitate against the ruler. If the people revolted
against the authority they would be guilty of violation of the contract and would face the
consequence of going back to die state of nature. This theory of Hobbes supported the despotism
of the Stuarts in England.

In Hobbes’ view there was one single contract in the creation of the state and the establishment
of the government. From that it would follow that if the state was gone, with it would go the
government. It is apparent that Hobbes was supporting legal sovereignty and had no quarter for

15

For Private Circulation Only HPNLU Shimla Page 69

political sovereignty. Disgusted with the useless dispute between the monarchy and parliament in
England, he supported despotism, keeping chaos as its only alternative. So he gave all powers to
the sovereign.

Thomas Hobbes called his state Leviathan which came into existence when its individual
members renounced their power to exercise the laws of nature which was one of “each for
himself” and at the same time promised to turn these powers over to the sovereign who was
created as a result of his promise and also to obey thenceforth the laws made by this sovereign.

These laws stood on a better footing since they enjoyed authority because the individual
members of the society were, as a matter of fact, the co-authors of these laws.

Locke’s Theory of Social Contract:

In his book Treatise on Civil Government John Locke, justifying the limited monarchy of
English type, drew his own state of nature. He did not agree that the state of nature was a gloomy
and dismal one as painted by Thomas Hobbes. In contrast, Locke’s state of nature was one of
peace, reason and goodwill. Yet this semi-paradise could not satisfy the people because they
were pining for law and impartial authority.

So they abandoned the state of nature though for a different reason. So in replacing the state of
nature the people created the civil society by a contract. That done, they made another contract
by which the government in the person of the King was set up. Here the ruler was a party to the
contract. The people would obey him so long he would protect their life and property. So in
Locke’s theory there were two contracts, one for the creation of the civil society and the other for
establishment of the government.

The people’s surrender of rights was partial and conditional. If the people would violate the
contract, the people would be entitled to depose the worthless King. Thus Locke supported the
Glorious Revolution of 1688. His sovereign was political rather than legal as propounded by
Hobbes. He was clear in distinguishing the government from the state, which Hobbes failed to
do. While Hobbes destroyed individual liberty, Locke destroyed the authority of the state.

When Hobbes took brief for royal absolutism, England was getting disgusted with the
meaningless fights between the King and the parliament during the Stuart period. Lock’s timing
was related to the period when the King was maintaining a low profile and the parliament was in
the ascendance. This would culminate in the Glorious Revolution of 1688.

John Locke’s view was that the individuals promised to accept the judgements of a common
judge (i.e., the legislature) when they agreed to the accord, which established civil society.
According to Locke, another set of promises was made between the members of the civil society
on the one hand and the government on the other.

16

For Private Circulation Only HPNLU Shimla Page 70

The government, in its turn, promised to execute its trust faithfully. It was agreed that in case the
government broke the terms of the pact or in other words if it violated the constitution, the
people would have the right to rebel.

The subsequent generations by acceding to the terms of the compact accepted the inheritance of
private property which was created and guaranteed by the compact. If any individual would
disobey the constitution, he must leave the territory of political unit and go in vacuis locis, i.e.,
empty places.

The indication was that the disloyal people might take shelter in America which was an empty
place at that time. In his book Letters on Toleration, Locke excluded the atheists from religious
toleration since they were not likely to be bound by the original contractual oath or to abide by
the divine sanctions invoked for its violation.

Rousseau’s Theory of Social Contract:

Jean-Jacques Rousseau, the third player of the game of social contract theory, struck a middle
course between the two English counterparts. His book Social Contract published in 1762
reconciles the authority of the state and liberty of the individual. His state of nature had an
overflow of idyllic felicity.

There human lives were free, healthy, honest and happy. But there was debasement and
degradation with the increase of population and with the progress of civilization particularly with
the emergence of private property in land which destroyed the natural equality among men.

To get out of this menacing position, men entered into an agreement with the pledges- “Each of
us puts his own person and all his powers in common under the supreme direction of the
General Will, and in our corporate capacity, we receive each member as an indivisible part
of the whole.” Unlike Hobbes and Locke, the authority created was not given to the ruler, but
was retained by the whole community.
As a matter of fact, the whole community expressed the General Will in a public meeting.
Subsequently, the government was created by a legislative measure. The people delegated power
to the government. Rousseau’s theory’s hallmark is the General Will.

Rousseau’s General Will:

Jean-Jacques Rousseau stood for the Popular Sovereignty as against Legal Sovereignty of
Thomas Hobbes and Political Sovereignty of John Locke. In his concept, political authority,
arrived at after the Social Contract, was not the King, absolute or delegated, but the people
themselves. Rousseau called his sovereign General Will. What was that General Will? It is as
monstrous a concept as Leviathan of Hobbes.

17

For Private Circulation Only HPNLU Shimla Page 71

The kingpin of the General Will is the people. Does it mean the whole population of the state?
The answer must be an emphatic “No”, because Rousseau himself used two terms General Will
and Will of All. The general will is the best in the will of all. So the general will must be the
filtered cream of the will of all.

Thus common interest or welfare interest of the people is the general will. We may say with
certainty that the enlightened public opinion of a state is the general will of Rousseau. He called
it “will for the general good”. In practice, however, it may mean the majority opinion of the
people.

As we read Hobbes, Locke and Rousseau we find three interpretations of the social contract
theory. Hobbes’ contract is one in which the people unconditionally surrender their rights to the
monarch who is bound to become a despot. In Locke’s case, the people conditionally delegate
their power to the King and make the ruler accountable to them. Thus Locke supports the limited
monarchy in England. Rousseau is most radical in enthroning the people and making the people
themselves the rulers. Hobbes stands for legal sovereignty, Locke supports political sovereignty
and Roussean, popular sovereignty.

According to Rousseau also, the essential ingredient of social contract was the “general will”, to
which the individuals agreed to subject themselves. The popular sovereign was the embodiment
of the general will. The experience of his native place Geneva in Switzerland might have
influenced Rousseau in taking this position. In Germany the Swiss confederation is still officially
referred to as Eidgenossenscaft which means “fellowship of the oath”.

Hobbes on Sovereignty:
Thomas Hobbes’ radical rationalism was his main contribution to constitutionalism. Hobbes took
the position that individuals came close to each other out of the evils of the state of nature which
was plagued by disorder and war. In such a condition their reason convinced them that they
could best ensure their self-preservation by giving all powers to a sovereign. That sovereign
might be a single person or an assembly of the whole body of citizens.

Whatever may be their forms and variations, the authority to be called sovereign must have all
powers concentrated and combined in it. Hobbes called the state the commonwealth. Any
decision of that power would destroy the sovereignty and put back the members of the
commonwealth to the state of nature where life was “solitary, poor, nasty, brutish and short”.

For Hobbes, a sovereign in the form of an individual, i.e., the King was preferable to sovereignty
in the form of an assembly or the whole body of citizenry, because a singular sovereign was less
likely to be internally or functionally divided. All powers of war and peace, taxation and the
judiciary would be concentrated on the sovereign.

18

For Private Circulation Only HPNLU Shimla Page 72

The individuals would retain their natural rights which they cannot surrender to the common
pool of sovereign powers. These natural rights are comprised of the rights against self-
incrimination, right to purchase a substitute for compulsory military service and the right to act
freely in all cases where the law is silent.

Locke on Individual’s Natural Right:

John Locke firmly gave assurance of individual’s natural rights by providing separate but
cooperative powers to the King and the parliament and by reserving the right to the individuals to
resist an unconstitutionally oppressive government. Locke did not use the word sovereignty. In
the characteristic English tradition he prevented the concentration of all powers in a single organ
of government.

Rousseau’s Theory of General Will:

While Thomas Hobbes established his unitary sovereign through the mechanism of individual
and unilateral promises and while John Locke eschewed the excessive concentration of power by
requiring the conditions of the different organs of government to fulfill different objectives, Jean-
Jacques Rousseau threw all individual citizens into an all-powerful sovereign with the primary
purpose of general will.

The expression “general will” cannot be vague or mistaken because when something contrary to
the general will is expressed or done, it may at the most be called “will of all”, since it does not
emanate from the sovereign, i.e., the general will.

With a view to safeguarding the legitimacy of the government and law, Rousseau had no
objection for universal participation in legislation because this alone would “force men to be
free”, as he paradoxically phrased it Like his two English predecessors, Rousseau insisted on the
consent of all to the general social contract.

He was in favour of smaller majorities for the adoption of laws of lesser significance compared
with the importance attached to the constitution. Whereas Hobbes’ and Locke’s main concern
was to provide constitutional stability through consent, Rousseau was more concerned to provide
for legitimacy through universal participation in legislation. The result was that Rousseau’s
thought was apparently more democratic than Hobbes’ and Locke’s.

It is for this reason that Rousseau is often accused of laying the foundation of the theory of
“totalitarian democracy.” This gains credence from the fact that he described in The Social
Contract that the sudden changes or even transformations of the constitution of the state would
be subject to the universal and unanimous sovereign.

Criticism of Theory:

19

For Private Circulation Only HPNLU Shimla Page 73

The social contract theory is strongly denounced on the following grounds. In the first place, the
theory is not borne out by any historical record. It is not known to history that any such contract
was made. The only historical instance of contractual obligation is said to be the foundation of a
state by the early settlers in America by the May Flower Contract of 11 November 1620 and the
deposition of King Philip II in 1581 by the Netherlander where the people said- “The King has
broken his contract and the King therefore is dismissed like any other unfaithful servant.”
But in both the cases the state existed there before it was said to be created or at least the people
had some knowledge of the state and the government before these were created, or the contract
was made. These examples do not establish that the primitive people who had no knowledge of
the state could establish a state by a contract. Similarly, a state of nature antedating a real state is
a fiction and has no historical basis.

In the second place, Sir Henry Maine attacked the theory as one of putting the cart before the
horse, because contract is not the beginning of the society, but the end of it. The universally
accepted view is that the society has moved from status to contract and not vice versa. With the
growth of age, status lost its rigour of fixity and its place was taken by contractual obligations.

The other serious fault with the theory is that it presupposes political consciousness in the state
of nature even prior to the establishment of the state. How can one have the idea of the good of a
state when he has no experience of the state?

In the third place, there cannot be any right even if it is a natural right without the state. Right
follows from the womb of the state. Without an established civil society there cannot be any
right. It does not follow from logic that the people had a bundle of rights even before the creation
of the state.

In the fourth place, it is a fact in history that the state came into existence as a result of a long
process of growth and development. The sociologists have established that the state is created by
a long term process of social development. Kinship, force, divine sanction, family and various
other known and unknown factors are there behind the growth of the state.

Modern social scientists and historians are of the view that men are by nature social animals and
they never lived in a pre-social and pre-governmental state of nature. The state is never a
consciously created institution but is a development like the family.

So Edmund Burke rightly observed- “The state should not be reduced to the position of a
partnership agreement in a trade of pepper and coffee, calico or tobacco or some such low
concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the
parties. It is to be looked upon with reverence. It is a partnership in all science; a partnership in
all art; a partnership between those who are living and those who are yet to be born.”

20

For Private Circulation Only HPNLU Shimla Page 74

In the fifth place, the theory is dangerously wrong by certifying the state to be a handiwork of
human beings. The error is that the state is never a creation of man but it is an independent social
institution. The theory carries with it the portent of revolution by giving too much importance to
men as even the creators of the state. The truth is that the government, not the state, is the
creation of man.

Modern political scientists have rejected the contract theory as unacceptable. J. K. Bluntschli
condemned it as highly dangerous, Jeremy Bentham called it a rattle. Fredrick Pollock discarded
it as “fatal of political impostures”. According to Sir Henry Maine, there was nothing more
worthless than the social contract theory as an explanation of the origin of the state.

Value of the Theory:

Although as an explanation of the origin of the state the social contract theory is unacceptable, it
has some merits or values. First, the theory dashed to the ground the more worthless theory that
the state was the creation of God. There might not be any social contract anywhere in history but
it carried the message of the supremacy of the people in the statecraft and gave encouragement to
the growth of democracy and gave a deterrent to the arbitrariness of any government.

Immanuel Kant Rightly Observed:

“The contract is not to be assumed as historical fact for as such it is not possible; but it is a
rational idea which has its practical reality in that the legislator may so order his laws as if they
were the outcome of a social contract.”

The second merit of the theory is that it helped the growth of the modern concept of sovereignty.
It is, therefore, said that John Austin’s concept of legal sovereignty is a direct outcome of
Thomas Hobbes’ concept of the Leviathan.

The third benefit of this theory is that John Locke answered some of the most critical questions
by clearly distinguishing the state from the government.

The fourth fruit from the social contract theory is the concept of popular sovereignty as
propounded by Jean-Jacques Rousseau so much so that Rousseau’s social contract inspired
several peoples in the world to overthrow their despised rulers.

Thus the contractual theory of the government may be historically gleaned for the first time in
1581 in the Netherlands, where the people dismissed the lawful King Philip II. “The King”, the
people said, “has broken his contract and the King, therefore, is dismissed like any other
unfaithful servant”.

We have a good example of an agreement between the ruler and the people in Indian history. On
the death of Iltutmish, the Sultan of the Slave Dynasty in 1236 A.D. the throne passed on to

21

For Private Circulation Only HPNLU Shimla Page 75

Ruknuddin Firoz Shah, who proved to be a worthless fellow. There was chaos and unrest all over
the country.

At this stage, on a Friday, Iltutmish’s daughter Raziya came out to the public in red clothes and
gave the undertaking that he could deliver the goods to the country if she was made the Sultan
and she gave the undertaking that if the proved unequal to the task, the people would have
freedom to depose her.

A fifth boon of this theory of consent was constitutional experiments in several countries. In the
next two centuries this theory ignited three mighty world revolutions, first in 1688 in England
called the Glorious Revolution, the second in 1776 in America called the War of American
Independence and the third in 1789 in France called the French Revolution.

The English Revolution of 1688 proclaimed that the government is accountable to the people and
if the government goes astray the people can overthrow it and establish a new one. The
Declaration of Independence on 4 July 1776 announced- “That to secure these rights,
governments are instituted among men, deriving their just powers from the consent of the
governed.”

The diction used in the Declaration of the Rights of Man and the Citizen during the French
Revolution is- “The end of all political associations is the preservation of the natural and
imprescriptible rights of man; and these rights are liberty, property, security and resistance of
oppression.” Thus all these three big political experiments emphasised on the element of the
consent of the people as a factor to be reckoned with in the governance of the country.

In the political thought of Hobbes, Locke and Rousseau may be found theoretical considerations
of the practical issues that were to confront the authors of the American and French constitutions.
The influence of theories of social contract, especially as they relate to the issue of natural rights
and the proper functions of government, effected the constitution-making of the revolutionary
era that began with the War of American Independence and was indeed enshrined in the great
political manifestos of the time, namely the Declaration of American Independence, the Bill of
Rights and the French Declaration of the Rights of man and citizen.

The constitutional experience of these countries had great influence on the liberal thoughts in
Europe and other parts of the world during the nineteenth century and these found expression in
the constitutions that were demanded from the European Kings.

The extent to which the ideal of constitutional democracy has become entwined with the practice
of constitutional government is the main features of the constitutions of the countries of Europe,
Asia and Africa in addition to the USA.

22

For Private Circulation Only HPNLU Shimla Page 76

6. Marxician Theory of Origin of the State:
The Marxists are of the view that the state is a creation by the class-struggle with the help of
force.

So it is altogether a different theory of origin of state with the recognition of force which we
have studied as a theory of origin of state.

The Marxists began with the primitive society where there was no surplus wealth to quarrel with
and so there was no state.

With the passing of time, society was getting split over hostile classes with conflicting interests.
This class antagonism was the root cause of the state. When agriculture was learnt as an art of
culture there was ample food which resulted in private property. The insoluble contra-dictions as
a result of division of labour became so acute that it was not possible for any class to keep
reconciled in the state or to keep the quarrelling classes under control.

The most dominant class that controlled the mode of production came to establish the state to
ensure its dominance over the other classes who did not own the modes of production. The state
thus became an instrument of domination and oppression of one class over the other classes.

Thus the state came in to ensure the right of the dominant class to exploit the other classes. As
the dominant classes kept on changing hands so also changed the character of the state. So V. G.
Afanasyev in his book Marxist Philosophy maintained that the state was not imposed from
outside, but it was a product of society’s internal development at a certain stage of development.
With the break-up of the social order ensued class-conflict which the society became powerless
to dispel.

Emphasising the economic factor as the key element in the class struggle, Fredrich Engels
observed- “But in order that these antagonisms, classes with conflicting economic interests,
might not consume themselves and society in sterile struggle, a power seemingly standing
above society became necessary for the purpose of moderating the conflict, of keeping it
within the bounds of ‘order’ and this power, arisen out of society, but placing itself above it
and increasingly alienating itself from it is the state.”
The state was the medium of the economically dominant classes. V.I. Lenin developed on the
above thesis by bringing the communist party as the dominant class, namely the proletariat and
his state, namely the USSR where the proletariat was the dominant class which was to exploit the
other classes. Lenin also emphasised on the element of force to be resorted to by the proletariat
against the bourgeois. Thus Lenin incorporated the element of force too in the creation of the
state.

23

For Private Circulation Only HPNLU Shimla Page 77

The Italian Marxist, Antonio Gramsci made a little departure from the Marxist tenet by stating
that a state is the creation of the political party that holds on power. According to him, the
political party is the “modern prince”, evidently using the expression of N. Machiavelli. He
went to the extent of asserting that the party represents the national popular collective will and
aims at the realisation of a higher and total form of modern civilisation. Here we find that the
author is more in agreement with the German idealist Hegel than the Marxists.
This is in broad analysis of the Marxist views as culled from the writings and opinions of Engels,
Lenin and Gramsci. Now we shall draw up the criticism of it.

Criticism of Marxist Theory of Origin of State:

The Marxist theory of origin of state as based on class struggle is subjected to the following
fierce criticism:
In the first place, it is nowhere stated in history that state in its origin is linked with the class
struggle.

In the second place, there might be different class interests, but it is difficult to say that these
classes were at arms as the Marxists have us to believe. The classes, on the other hand,
cooperated with each other and contributed in their way in the composite development of the
state.

In the third place, the Marxist theory is not original, but secondary because it carries the old wine
of the force theory in a new Marxist bottle. Force has been discarded as unsatisfactory theory in
the creation of the state.

In the fourth place, Lenin and Gramsci, by identifying the state with the political party, have
erred by generalising the communist state as an example for all other states. The communist state
in Russia and China might have originated with the communist party. Russia and China were
already there in the map of the world. They were not created with the communist party. Today
communist party is over in Russia. Does it deny the statehood to Russia?

In the fifth place, Marxism, by identifying the state with the party, encourages the totalitarianism
of the worst type like Fascism and Nazism. So the theory is a dangerous one.

Lastly, the Marxist dogma that the state is a creation of the class and it will die with the death of
class is false and misleading. The states are permanent and no state withered away for want of a
class to back it.

So we fail to accept the Marxist theory as a suitable answer to the, origin of the state

Characteristics and Functions of the State"

Characteristics of the State

24

For Private Circulation Only HPNLU Shimla Page 78

A state is an organized political community acting under a government. States differ in
sovereignty, governance, geography, and interests.
Learning Objective
 Discuss the central characteristics that define the state.
Key Points

 Federated states differ from sovereign states in that they have transferred a portion of
their sovereign powers to a federal government.
 Under the rule of law, no one person can rule and even top government officials are
bound by the law.
 A nation refers to a large geographical area and the people living there who perceive
themselves as having a common identity.
 A nation state is a state that self-identifies as deriving its political legitimacy from
serving as a sovereign entity for a nation as a sovereign territorial unit.
 Civil society is the arena outside of the family, the state, and the market where people
associate to advance common interests.
Terms

 Nation State: A political entity (state) associated with a particular cultural entity
(nation).
 Civil Society: A community of citizens that is linked together by shared interests and
collective activity, including institutions, corporate bodies, and voluntary organizations.
 Sovereign State: A political organization with a centralized government that has
supreme independent authority over a geographic area.
Example

 To understand the differences between a state and a nation, consider the example of
Poland. While the Polish people formed a nation many centuries ago, with a shared
language and culture, outside neighboring countries have frequently invaded its political
borders. The areas that are adjacent to these actual borders have changed government
hands many times throughout history (including partitions by Austria, Germany, Prussia,
and Russia). Today, Poland's boundaries are roughly aligned with the geographical area

25

For Private Circulation Only HPNLU Shimla Page 79

 where the people of the Polish nation live. Consequently, we think of Poland a nation
state.
We classify states as sovereign if they are not dependent on, or subject to, another power or
state. States are subject to external sovereignty or hegemony, when ultimate sovereignty lies in
another state.
A federated state is a territorial and constitutional community that is part of a federation. These
states differ from sovereign states, because they have transferred a portion of their sovereign
powers to a federal government.
The concept of the state is different from a government. A government describes the group of
people who control the state apparatus at a given time. In other words, state power is employed
through the government, such as when they apply the rule of law.
The rule of law is a legal maxim in which government decisions are enforced through the
application of legal principles. In a democratic republic, no one person creates, rules, or enforces
the rule of law, such as in an absolute monarchy. Even top government officials must respect and
abide by the rule of law.
The concept of a state also differs from a nation. A state is a political and geopolitical entity,
whereas a nation refers to a cultural or ethnic group that lives in a large geographical area where
the inhabitants share a common identity.
A nation state combines both concepts and implies the nation and a state coincide in a
geographic region. The state self-identifies and derives its political legitimacy from serving as a
sovereign entity for a nation, and as a sovereign territorial unit.
In classical thought, the state was identified with political society and civil society as a form of
political community. In contrast, modern thought distinguishes the nation state as a political
society from civil society as a form of economic society. Civil society is the arena outside of the
family, the state, and the market where people associate to advance common interests. It is
sometimes considered to include the family and the private sphere and then referred to as the
third sector of society, distinct from government and business.
In the United States, the state is governed by a government headed by an elected president.
Pictured here are, from left to right, Presidents George H.W. Bush, Barack Obama, George W.
Bush, Bill Clinton, and Jimmy Carter.
Functions of the State

26

For Private Circulation Only HPNLU Shimla Page 80

Classify the different political theories concerning the function of the state in society
Key Points

 Liberal and conservative theories of the state tend to believe the state is a neutral entity,
separated from society and the economy. These theories assume a capitalist economic
system exists.
 Marxist theorists believe the state is a partisan instrument that primarily serves the
interests of the upper class. Marxists see a close relationship between political and
economic power.
 Anarchists would like to completely dismantle the state apparatus and replace it with an
alternative set of social relations that are not based on state power.
 Pluralists view the state as a neutral body that simply enacts the will of the groups who
dominate the electoral process.
 A polyarchy, a concept Robert Dahl developed, refers to the idea that the modern
democratic state acts in response to the pressures a variety of organized interests apply.
Terms

 Anarchist: a person who believes in and advocates for the absence of hierarchy and
authority in most forms (compare anarchism).
 Pluralist: a person who believes many different groups or sources of authority control
government.
 Polyarchy: a government by many people, who can come from several different orders
and economic classes.
Examples

 Many people consider the United States to be a pluralist state. Even the currency includes
the Latin phrase, "epluribus unum," which means, out of many, one. Accordingly,
different electoral or special interest groups compete to encourage policymakers and
legislators to pass legislation that supports their given agenda. For example, interest
groups or lobbyists come from specific companies (a pharmaceutical, chemical, or
natural gas company), represent industries (relators, doctors, or legal attorneys), or
promote various non-profit causes (education, libraries, or retired persons).

27

For Private Circulation Only HPNLU Shimla Page 81

  Marxists believe the state only acts in ways that benefit the ruling economic classes, at
the expense of the working class. Politicians make laws to benefit the wealthier classes
and is not afraid of using government force, including the police or national guard, to
restrict members of the working class and labor unions who may want to mobilize a
strike to obtain higher wages for their workers.
The State
A state is an organized political community that has a government. States are classified as
sovereign if they are not dependent on, or subject to, any other power or state. States are
considered to be subject to external sovereignty, or hegemony, if their ultimate sovereignty lies
in another state. A federated state is a territorial, constitutional community that forms part of a
federation. Such states differ from sovereign states, in that they have transferred a portion of
their sovereign powers to a federal government. Americans live in a federal system of 50 states
that, together, make up the United Sates of America.
Theories of the State
Most political theories of the state can roughly be classified into two categories. The first, which
includes liberal or conservative theories, treats capitalism as a given, and concentrates on the
function of states in a capitalist society. Theories of this variety view the state as a neutral entity
distinct from both society and the economy.
Marxist Theory
Marxist theory, on the other hand, sees politics as intimately intermingled with economic
relations, and emphasizes the relationship between economic power and political power.
Marxists view the state as a partisan instrument that primarily serves the interests of the upper
classes. Marx and Engels were clear that communism's goal was a classless society, in which the
state will have "withered away. " For Marxist theorists, the role of the non-socialist state is
determined by its function in the global capitalist order. Marx's early writings portrayed the state
as "parasitic," built upon the superstructure of the economy and working against the public
interest. He believed the state mirrored societal class relations, that it regulated and repressed
class struggle, and that was a tool of political power and domination for the ruling class.
Anarchism
Anarchism is a political philosophy that considers states immoral and instead promotes a
stateless society, anarchy. Anarchists believe that the state is inherently an instrument of

28

For Private Circulation Only HPNLU Shimla Page 82

domination and repression, no matter who is in control of it. Anarchists believe that the state
apparatus should be completely dismantled and an alternative set of social relations created,
which would be unrelated to state power.
Pluralism
Pluralists view society as a collection of individuals and groups competing for political power.
They then view the state as a neutral body that simply enacts the will of whichever group
dominates the electoral process. Within the pluralist tradition, Robert Dahl developed the theory
of the state as a neutral arena for contending interests. He also viewed governmental agencies as
simply another set of competing interest groups. The pluralist approach suggests that the modern
democratic state acts in response to pressures that are applied by a variety of organized interests.
Dahl called this kind of state a polyarchy.

29

For Private Circulation Only HPNLU Shimla Page 83

 Theories of the state activity: Liberal state

A state is a planned political structure that operate under a government. States may be
categorized as independent if they are not dependent on, or subject to, any other power or state.
States are considered to be subject to external dominion, or hegemony, if their ultimate
sovereignty lies in another state. An amalgamated state is a territorial, constitutional community
that forms part of a federation. Such states differ from sovereign states, in that they have
transferred a portion of their sovereign powers to a federal government.

Most political theories of the state can approximately be grouped into two categories. The first,
which includes liberal or conservative theories, treats capitalism as a given, and concentrates on
the function of states in a capitalist society. Theories of this variety view the state as a neutral
entity distinct from both society and the economy.

Liberalism is a phrase used in several ways in political thought and social science. Liberalism is
best characterized as many arguments that have been classified as liberal, and recognized as such
by other self-proclaimed liberals, over time and space.

The indispensable characteristic of the liberal theory of the state is the dogma of jurisdiction.
That is, the idea that there is such a thing as a limited area of power and authority for the state, a
delimitation of its proper sphere, beyond which, it is inadequate for the state to trespass. This
principle is essentially the sole preserve of liberals. Only liberals seriously think about it.
Revolutionaries discard the state altogether. Socialists are simply not concerned about limits of
state power. Modern socialist governments may introduce market based transformations. The
stirring factor is that of economic efficiency and not appreciation of the importance of individual
liberty and limited government.

The first principle of the liberal theory of the state is that the state is not superior to other
institutions. However, the state will generally be substandard to other institutions in the
respective fields of special competence of those other institutions. The state is inferior to the
church for elaborating moral values or the conduct of ecclesiastical government. The state is
simply one social institution amongst many. Each has its proper sphere. The state has its proper
sphere. It should not appropriate the spheres of other institutions. This might be described as a
rule of internal management: a presumption that each institution is the appropriate authority for
the management of those matters which pertain to it.

For Private Circulation Only HPNLU Shimla Page 84

The second principle of the liberal theory of the state is that the state ought to respect the fault
principle. The state ought not to punish or impose any detriment upon any man except on the
basis of his fault, strict liability being applicable in exceptional circumstances. The state ought
not to recompense those who are responsible for their blameworthiness. The state ought not
otherwise promote guilty conduct or attach disincentives to virtuous conduct in any way. If these
principles were observed within the welfare sector, that sector would be structured very
differently. Welfare would be restricted to the genuinely needy.

The third principle of the liberal theory of the state is the sovereignty of law and adherence to
established, proper procedures.

The fourth principle of the liberal theory of the state represent that the power of the state ought to
be split and distributed amongst many centers. This principle is founded on the observation
expressed in Lord Acton's aphorism that "Power corrupts: absolute power corrupts absolutely". It
is by minimizing the concentration of power in any one center and by setting up many
alternative, counterbalancing centers of power, that the standard of "everything open and above
board" is more nearly attained and opportunities for corruption are minimized.

The positive liberal theory of the state emerged from the problem of the protection of liberty.
Liberalism avoids the absolute state, confirming the superior value of individual liberty but it
also recognizes the dangers of chaos in the context of a human race which is polluted with evil.
The declaration that the human race is fouled with evil, is intended to communicate the
awareness that there exist standards of virtue and perfection and the human race as a whole fail
on these standards. The liberal philosophy is skeptical of every claim that humanity or human
nature can be made to be righteous. It is the very suspicion of evil, and the belief in the
unreliability of those who claim to be both virtuous and all-knowing which directly drives
liberalism to support the limitation and decentralization of power. Lord Acton's aphorism bears
repetition ("Power corrupts: absolute power corrupts absolutely"). Liberalism confirms moral
values and opposes relativism. It does not capitulate to the false doctrine of moral neutrality.

The modern state greatly surpasses the liberal model of limited government.

Whether the theory is liberal or conservative that is not major concern. Main concern is that if
the state is liberal to what extent and in which style the state adopts liberal methods and
processes for the administration and representation of laws. Liberalism means to avoid
conservativeness or avoid restrictions in policy making, enactment and administration of state.

It has been presumed that the restrictions or any type of conservativeness adopted by the
government will control the liberty and, simultaneously, the spontaneity of the individuals

For Private Circulation Only HPNLU Shimla Page 85

leading to the slow-down of development of man's personality individuality and intrinsic
qualities.

Therefore, a liberal state signifies a limited government or limited state. It can also be called a
theory of limited state presented by a number of philosophers. The term limited state may be
confusing. It exactly means limited functions and role of the state or non-intervention of state.

The notion of liberal state can also be elucidated from another perspective. It has been
maintained by a recent opponent that all elements of liberal era converse certain rights and
privileges upon persons and these must be protected at any cost. So a liberal state is one which
gives importance to the cause of the individuals. In the controversy 'individual vs state' liberal
state always favours the interest/cause of individuals.

The liberal state is contradictory to conservative, authoritarian and totalitarian state. The meaning
of liberal is respectful and accepting of behaviour or opinions, different from others. A state is
liberal when it recognises the opinions, attitudes and behaviour of individuals and does not think
these as a hazard to the existence and administration of state.

There are differences among the political theorists and political scientists as to the functions of
liberal state, but there is a common element among them all and it is that individuals must have
maximum liberty so that their free development does not receive any hindrance due to state
policy or action.
Features of the Liberal State:

A liberal state can easily be identified from an authoritarian or totalitarian state and this is
because of certain exclusive features of such a state are as under:

1. A liberal state always accepts a liberal approach towards the rights of citizens. The most vital
precondition of individual's development is granting of rights and privileges to all individuals
justifiably. If any inequality or discrimination is to be followed that must be for the general
interest of the body politic and to the least disadvantage of anybody. By resorting to this system,
the authority of the liberal state will be in a position to ensure the progress of the individuals. In
defined term, liberalism implies what is granted in the forms of rights and privileges to one shall
also be granted to others.

2. Liberal state presumes the existence of many groups and organisations and the typical feature
of a liberal state is that they are involved in cooperation and conflict among themselves. These
groups are termed in various ways such as "power elite" "ruling elite" etc. There are also many
interest groups.

For Private Circulation Only HPNLU Shimla Page 86

Under normal and nonviolent conditions, liberal state does not normally intend to impose
restrictions upon their activities. In an authoritarian state, the predominance of such a situation
cannot be imagined. Plurality of ideas and organisations is a prohibited fruit in such a state.

3. The liberal state upholds a neutrality among all these groups. Since diversity of groups and
organisations and cohabitation among them are the distinguishing features of a liberal state, any
conflict of interests can also be regarded as foreseeable consequence. The liberal state maintains
utmost neutrality. This is the claim of the votaries of a liberal state. The liberal state generally
does not favour any particular class or elite group in the case of conflict. Though the state
maintains neutrality the state is quite aware of clash of interests between classes and groups. As a
provider of check and stability in the political system, the state espouses reforms so that
disruption cannot occur. A liberal state can sensibly be called a reformist state. Through frequent
reforms a liberal state brings about changes in the political system. In fact, liberalism or liberal
state is strongly related with reforms and in that sense, it is based on reformism. It accepts liberal
attitude to improvements.

4. Vital feature of a liberal state is that it is accountable to the people which means that all its
activities, decisions and policies are to be accepted by the body politic. The consent and
accountability is the matching ideas related with the liberal state. It means that the decision of the
state is not final even though it is for the general welfare of the community. It is because what is
welfare and what is not, is to be decided for whom it is meant. There is no scope of imposing
anything upon the individuals against their will.

5. Liberal state is never a one-idea state. It embraces diversity of ideas, views and existence of
numerous groups and parties. This finally indicates a competition among them. Competition
involved seizure of political power through constitutional means, legal procedure and democratic
ways, competition in views and philosophies. It is believed that the truth will emerge only from
this struggle of words and ideas. That is why, in a liberal state, such a competition is always
encouraged. J. S. Mill strongly supported for the competition among the different shades of
views and ideas.

6. A liberal state always have numerous political parties. In any liberal state, there are number of
philosophies of political parties and they struggle to capture power. Here lies a major difference
between a liberal state and authoritarian state. A liberal state is occasionally called a pluralist
state because of the plurality of ideas and organisations.

A competitive party system is a very important aspect of a liberal state. One party captures
power, while the other party or parties sit in the opposition and in this way, the change in power

For Private Circulation Only HPNLU Shimla Page 87

takes place which does not normally occur in dictatorial state. It has been upheld by a critic that
modern parties are mass organisations with extra-parliamentary structure.

7. Separation of power is major feature of liberal state. A liberal state means limited state and it
again infers the three organs of the state, will discharge this function keeping themselves within
the confinement decided by law and constitution. When this is applied, no organ of the
government will interfere with the functions and jurisdiction of another organ. But the separation
of powers need not be the only requirement of being liberal. For example, Britain is a liberal
state but the separation of powers has been unsuccessful to be an integral part of state
mechanism. But some forms of separation of power must exist in all liberal states.

8. A liberal state does not sanction the supremacy of a particular philosophy, various opinions or
ideologies work and exist side by side. It is a state of multiple ideas, ideals ideologies and views
and all of them use opportunities and atmosphere for work. In a non-liberal state, such a situation
is unimaginable. In authoritarian governments, the state-sponsored dogma dominates over all
other philosophies. Both fascism and communism fall in this category. The citizens are free to
select any one idea or ideology and application of force is non-existent.

9. In all liberal states, there are mainly two centres of power, one is economic and the other is
political. But economic power-centre controls the political power. Marx highlights this aspect of
liberal state. After appraising history, he understood that the owners of the sources of production
and the controllers of distribution in all possible means control the political power for the
continuance of the interest of the capitalist class. They control parties, pressure groups, send their
own persons to represent people, the legislatures enact laws to protect the interests of the
dominant class.

10. There is no fixed form of liberal state.

Development of Liberal State:
Hobbes:

The notion of liberal state is an ancient. The exact advent of a liberal state cannot be determined
which can satisfy one and all. However, many scholars had suggested about the liberal state. This
ideology can be found in the literatures of social contract theoretician Thomas Hobbes (1588-
1679). In his two noted works, De due (1642) and Leviathan (1651), he made definite statements
and comments which lay the foundation of liberal thought or about the liberal state. The basis of
the state or civil society is the individuals who are free and equal. It suggests that these free and
equal individuals without being induced or forced by external authority or power decided to
build up a civil society.

For Private Circulation Only HPNLU Shimla Page 88

The state envisaged by Hobbes is liberal because it is based on the agreement of all the
individuals. Hobbes's individuals lived in an imaginary place called state of nature which was
considered by insecurity and in order to get rid of it, they laid the foundation of state.

Hobbes also regarded a state which would be based on rules and law. His state is a legitimate
one. Today, when people talk of a liberal state, legitimation always occupies a major portion in
human mind. Though, Hobbes is normally portrayed as an illiberal intellectual who wanted an
authoritarian government, his writings foreshadow a limited government. He said that though the
dominance is absolute, he cannot prevent a person from taking food, medicine and take action
against any attack.

Sovereign has no power to impose any injury upon any individual. It cannot prevent anybody
from practising religious acts and following particular faiths. In simple language, Hobbes
thought of a limited state which is a liberal state. His concepts about liberal state or liberalism are
different from the present day thinkers.
Locke and Liberal State:

John Locke (1632-1704) is another philosopher who developed theoretical framework for liberal
state. In fact, his entire Second Treatise (1690) is full of numerous statements and comments
which displayed that he was a great advocate of liberal state.
Important traits of Lock's doctrine:

1. The civil society or body politic is the product of the contract which is based on the consent of
all men. The consent is a basic element of any liberal state.

2. The state/body politic/civil society would be administered on the principle of majority opinion
and this principle is followed very strictly in any modern liberal state.

3. The councils of the body politic must follow the terms and conditions laid down in the body of
the contract and any failure will be followed by the removal of the governors from the authority
and this would be done by people.

4. It is the main function of the state to take required action for the protection of life, liberty and
property. Today these rights are basic and no responsible government can evade the
responsibility.

The defence of these basic rights enforces restrictions upon the governors of state. Locke
concluded that people of the state of nature because of the non-existence of proper authority and
clear law, could not enjoy the right to life, liberty and property and this stimulated them to form a
state.

For Private Circulation Only HPNLU Shimla Page 89

5. Significant element of liberal state is constitutionalism. It has been demanded by protagonists
of liberalism that Locke is the ancestor of constitutionalism. He passionately claimed that the
authority of the civil society must discharge its responsibility strictly in agreement with the
constitution of law. It is the most influential limitation on state.

6. Locke greatly supported the revolution, bill of right and settlement of 1688. The purpose of all
these was to impose constitutional limitations upon the authority of the Crown in England. He
sturdily opposed the concept of Leviathan devised by Hobbes. Locke's idea about revolution is
different from today's thought. People will revolt if authority fails to act in accordance with, the
terms of contract.

7. Locke's state is a fiduciary trust and the core idea of trust is its powers are which very limited
by the terms contained in the trust. The persons in charge of the trust have no power to disrupt
the rules. It can be said that a liberal state is to some extent a trust which performs certain duties.
The state cannot do anything beyond what it has been asked to do. This point has been explained
by J. C. McClelland in his History of Western Political Thought.

8. Key component of liberal state is the concept of society vs the state. Locke regarded of a
society which was pre-political but not pre-social. Locke's society had no political colours or
political function but it possessed all the social features. Some philosophers have concluded that
Locke gave priority to society than the state.

Society was prior to state. Society was more important than the state. In such a situation, the state
cannot be permitted to supersede the society. Today, all the protectors of liberal state think in
such manner. It can be said that Locke offered coherent defence of liberal state (Ruth W. Grant,
2010).
Liberal State and Utilitarian Philosophers:

Utilitarian intellectuals such as Jeremy Bentham (1748-1832), James Mill (1773-1836) and J.S.
Mill (1806-1873) considered a state whose main function would be to defend the democratic
rights of the citizens and guarantee, through the adoption of measures, the free functioning of
democracy. It is the function of the state to protect the citizens from all sorts of harassment.

From the functions of different states, it is found that the citizens are subject to different forms of
coercion, and tyrannical measures and it is the responsibility of the state to provide maximum
protection to all of them. David Held in his noted work Models of Democracy has drawn our
attention to this aspect of democracy. A liberal state cannot perform all types of functions; its
main duty is to protect the democratic rights.

For Private Circulation Only HPNLU Shimla Page 90

The utilitarian thinkers persuasively debated that the individual is the ultimate determiner of the
policy and decisions of the government. This he will do on the basis of utility which he expects
to receive from the policy adopted by the state. The utilitarian theorists stated that all types of
law or decision must be judged by its capacity to provide satisfaction. That is, to what extent the
law is capable of fulfilling the demand of the citizens. The implication is very simple.

The state authority is underprivileged of the power to do anything or implement any policy. The
utility is a criterion which imposes restrictions upon the functions of the state. The utilitarian
theorists had no faith on social contract, natural rights and natural law. It is because all these do
not deal with the utility or necessity of the individuals.

Bentham, James Mill and John Stuart Mill jointly have provided the basis of liberal democratic
state which will create amiable atmosphere to implement democratic rights and liberties and the
individuals will have abundant scope to follow their own interests effectively. The utilitarian
theorists did not anticipate of separation of powers as per Montesquieu (1689-1755) but they felt
that concentration of powers under single person or branch is damaging for the realisation of
democratic principle.

In order to establish people's right and the expansion of the scope of participation of all of them
vehemently advocated for periodic elections, granting liberty to press and other media,
importance of public opinion. Not only the rights and interests of the individuals are to be
protected but also the interests of the community in general are to be sustained. Both Bentham
and J. S. Mill supposed that the representative form of government could be solution to all
problems from which democracy/liberal state suffered. It is observed that liberal state was
always active in the minds of the utilitarian thinkers.
Minimum State vs. Limited State:

Most liberals, and all the classical liberals, recognise that the liberal state may have array of
service functions, going beyond rights. Protection and the maintenance of justice, and for this
reason are not advocates of the minimum state but rather of limited government. Many
supporters of liberal state do not argue for the minimal state. The role of the state shifted in the
eighties of the nineteenth century. In spite of this J. S. Mill is regarded as the principal advocate
of liberal state because he was in favour of limiting the powers of state.

The role or the functions of the liberal state changed drastically. The changes were perceptible
during the eighties and nineties of the nineteenth century.
There are several causes to these changes:

For Private Circulation Only HPNLU Shimla Page 91

1. Due to the industrial revolution that occurred in the second half of the eighteenth century
unparalleled growth took place in various sectors, some of which were setting up of new
industries, amount of commodities produced, development in the transport sector, foreign trade
etc. Manufacturers garnered profit which was unconceivable in earlier periods.

2. Workers migrated from village homes and to crowded cities for jobs and all of a sudden the
supply market of the workers increased significantly.

3. The demand for the employees at the initial stages of industrial development was upward
moving and there was no problem of joblessness. But later on the demand for labour declined
causing the fall in wage rate.

4. Huge gap between demand and supply was fully exploited by the capitalists. They paid less
wages to the employees and the latter were forced to accept the terms and conditions set by the
capitalists. The scope of employment decreased enormously. The capitalists had already
established their stronghold in various sectors of government.

The greater part of the population was effectively underprivileged of benefits and was subject to
abject poverty, diseases etc. All the industrialised countries of Europe were the victims of
industrial revolution. But the greatest victim perhaps was London. The industrial revolution in
Europe seemed as a curse and this brought about a gloom in the minds of many people and
particularly the idealist thinkers.

The Role of the State was reassessed during that time. Green and many theorists started to think
over the issue seriously. They wanted to save the "underfed denizen of a London Yard" and to
take measures against moral deprivation. They thought that stern steps would be taken to solve
the issues of poverty, miseries, and diseases, and to check the downward movement of ethics.
Without moral development, society cannot develop. Green believed that all these could be done
through the bold leadership of the state.

Sabine stated that "Accordingly for Green, politics was essentially an agency for creating social
conditions that make moral development possible". Green asserted that the state has a positive
role to play in the development of society and the term development includes both moral and
physical conditions. The state can never be a stranded onlooker of all incidents that were
happening in its presence. If the state fails to do it, it will lose its reliability as a state. T. H.
Green restructured the role of the state and also the concept of liberalism.

In the end of the nineteenth century, the liberal state was challenged with crisis of existence and
crisis of trustworthiness. Different external and internal forces in Europe were about to challenge

For Private Circulation Only HPNLU Shimla Page 92

the very foundation of several liberal states of Europe. Predominantly, Marxism challenged the
policies of liberal state.

The European states were involved among themselves in continuous wars or armed struggle
which posed menace to the liberal state. Under such circumstances, the passionate protectors of
liberal state were keen to effect a compromise between liberal and "anti-liberal" forces. Anti-
liberal in the sense that there arose a strong urge to give more power to the state so that it can
fight poverty, inequalities and diseases. But most of the liberal theorists where unwilling to make
the state leviathan. This quandary between liberalism and the arguments against it demanded a
compromise between the two. It was impossible for many to think of abandoning the liberal
philosophy and the same persons thought that the state should do something. This finally resulted
in a reformulation of liberal state.

Sabine has observed that the state should perform numerous functions concurrently. These are as
follows:

1. - It will have to do those functions which could help to maintain free society.

2. - It must see that rights and liberties are properly protected.

3. - It must encourage the moral development.

4. - Basic requirements of the citizens are met.

5. - The state should launch welfare schemes.

6. - Coercion should be reduced to the minimum.

These functions emphasise that in order to prove its worthiness the state must do all these
functions. These will protect the freedom of the individual which is the core concept of
liberalism.
Mode of Function:

It is a very significant characteristic of liberal state which can be stated in the following way.
There are two ways to do the works. One is democratic or constitutional means such as legal
ways, reforms approved by those for whom the reforms are made, and to do everything
according to the wishes of the people. Another method is called coercive method. In the case of
any slightest reluctance the state, authority will proceed to apply coercive measures. Coercion
forces the citizens to do work reluctantly. Coercion is the sine qua non of the government/state.
In this respect, a liberal state can reasonably be distinguished from an authoritarian state.

For Private Circulation Only HPNLU Shimla Page 93

The liberal state always makes sincere attempts to limit the application of forcible measures.
Unavoidable circumstances generally include when the state is aggressed upon by an external
power or when the political stability is threatened by terrorist forces. In all political systems,
there are many classes and liberal state is not an exception. But the authority of a liberal state has
taken the existence of classes and the relations among them as the normal manifestation.

Conflict and cooperation among the classes are the usual traits of any class society. A liberal
state does not view the class relation in an antagonistic way. Obviously, a liberal state does not
think of class struggle or revolution as a means of eliminating the class structure.

A liberal state always emboldens people's participation in the affairs of the state. Only through
participation, people can think of transforming their political dreams into a viable reality. In such
a state, participation is never limited. For participation the existence of parties, groups and
organisations is essential and a liberal state has been found to take care of it. In a real liberal
state, there are multiple parties, groups and organisations and the government guarantee their
free movement. The institutions, organisations and parties of a liberal state are not isolated
islands. All are interdependent and strictly connected with each other. "The political and
economic, instead of being distinct areas, are interlaced institutions which are certainly not
independent of one another and which ought ideally both to contribute to the ethical purposes of
liberal society". It is understandable that a liberal state is not a non-functioning state or an over
enthusiastic state in all affairs of the individual. While accomplishing its responsibilities, the
liberal state must understand that the spontaneity of the individuals gets reinforcement, morality
is improved, rights and liberties are protected, and freedom of the society remains untouched.
Conversely, welfare is fully realised, progress is not badly affected. It is the duty of the state to
finance compulsory education, health care programmes. The liberal state must indorse law for
the better management and greater common good of society.

To summarize, Liberalism highlights that the strong bonds among states have both made it
difficult to define national interest and decreased the usefulness of military power. Studies have
demonstrated that liberalism developed in the 1970s as some researchers began arguing that
realism was obsolete. Liberal state rest on the construction of human beings that exalts their
autonomy and aspirations coupled to the assumption that a polity confabulated from such atoms
can maximize their economic welfare and secure their freedom (Leonard V. Kaplan, 2010). The
heart of liberal theorizing concerns the definition of individual rights and state's role in
protecting those rights, analysing such issues depends not only on how one views the source of
individual rights but also on how one conceives the state itself.

For Private Circulation Only HPNLU Shimla Page 94

 Functions of Welfare State: Compulsory and Optional
Functions
Some of the most important functions of a welfare state are as follows:
(1) Compulsory functions (2) Optional functions.
1. Compulsory Functions of Welfare State:
This compulsory function of the State includes the following:
(1) Protection from external aggressions and war. For this purpose the state organises and
maintains armed forces—Army, Air force and Navy.
(2) Protection from internal disturbances, disorders and civil wars. For this purpose the state
maintains police and law and order machinery.
(3) Protection of life, liberty and rights of the people.
(4) Maintenance of peace, law and order in society.
(5) Controlling crimes, anti-social elements, and malpractices.
(6) Protection against terrorism has now come to be its essential function
(7) Protection of public and private property.
(8) Settlement of disputes among the people and their associations.
(9) Dispensation of justice. For this purpose the state organises and Z maintains a network of
courts in all parts of the state.
(10) Issuing and regulating national currency and coinage.
(11) Controlling weights and measures
(12) Preservation, protection and systematic exploitation of the natural resources of the country.
(13) Making and implementation of necessary policies, laws and programmes for environmental
protection
(14) Conduct of relations with other states, and discharging of international obligations as a
member of the international community.
(15) Protection of Human Rights of all the people of the world.
All modern states perform all these functions. These are basically compulsory and protection
function of the Welfare State.
2. Optional or Other Functions of Welfare State:

For Private Circulation Only HPNLU Shimla Page 95

Welfare State performs several socio-economic development functions for securing the interests,
needs and welfare of all its people. We can describe these functions in two parts: Social
functions and Economic functions.
2. (i) Social Functions of Welfare State:
Welfare State acts as a very important agency of social transformation. It creates and maintains
all essential conditions for securing socio-economic reconstruction and development of all its
people.
1. Securing of Social Equality:
The state works for creating social equality among the people belonging to all sections of
society. It grants equal rights and freedoms to them. It maintains the rule of law. It ensures equal
opportunities for development to all its people. It does not discriminate between citizens on the
basis of religion, caste, colour, sex, race, wealth and place of birth. It tries to secure gender
equality.
2. Securing of Social Justice:
The State tries to secure social justice. It works for establishing such a social order as is proper
and just for all sections of society. For this purpose, all the people are asked to contribute for
general welfare. The state gives special facilities and opportunities to the poorer and Dalit
sections of society.
It tries to reduce the gap between the rich and poor by checking socio-economic inequalities. It
enacts laws for this purpose. For example, untouchability used to be prominently prevalent in
India. It was against the concept of social justice and equality. The Indian State has made the
practice of untouchability a crime punishable under law.
In order to secure social justice in India, special facilities have been provided to scheduled
castes, scheduled tribes and other backward classes. State has given special protection to
minorities, children and women. Currently, India has been trying to give reservation benefits to
the women.
3. Social Security Functions:
The welfare state provides social security to the people. Social security means giving state aid to
the old, crippled, sick disabled and unemployed. It tries to provide additional protection to the
weaker sections of society. In a welfare state, social security is provided on an extensive scale.

For Private Circulation Only HPNLU Shimla Page 96

The state formulates and implements schemes, plans and programmes for controlling
unemployment and for helping the disabled. In case of old age sickness, accident, physical
disability and old age, the state arranges for health care, life insurance, provident fund, pension
and medical assistance. The state provides gratuity and pension to the employees on retirement.
4. To Control Social Evils:
Progress and prosperity of society needs eradication of social evils. Earlier this work used to be
performed only by private social and religious organisations. Mow, the state has taken upon itself
the task of removing social evils. Through legislation, the state tries to remove these. In India,
the state has made laws to eradicate sati, human sacrifice, child-marriage, dowry, child labour,
bonded labour, prostitution, untouchability and other such evils.
5. Rendering Social Utility Services:
The State arranges social utility services for the benefit of its people. It includes arrangement for
the supply of electricity, water, roads, transport services, post, telegraph and telephone services,
Radio and T.V. The state spends crores of rupees for providing these amenities to its people.
6. Spread of Education:
Education occupies an important place in our social life. A man becomes a good man and good
citizen only through education. Without education, no man can develop himself, nor can be
become capable of discharging his responsibilities in society. Modern state regards it an
important duty to spread education among its people.
Some states go to the extent of providing minimum compulsory and free education to its citizens.
Indian State has granted the right to education to the children between the ages of 6-14 years.
State gives financial assistants to educational institutions. It maintains public libraries and
reading rooms. Meritorious and poor students are given state stipends and scholarships.
7. Protection of Public Health:
Welfare State looks after the health of the public. Healthy citizens alone can build a healthy and
stable nation. The state spends crores of rupees on public health and sanitation and for checking
the spread of diseases and epidemics. It establishes hospitals, dispensaries, maternity homes,
child health care centres and other such institutions. It provides free medical aid to the poor old
and disabled.
8. Family Welfare Functions:

For Private Circulation Only HPNLU Shimla Page 97

These days increasing population has come to be a big challenge in societies like ours. The state
takes steps to control this problem. The Indian State has been running a national programme for
family planning and welfare. People are encouraged to adopt family welfare measures. They are
even given free medical aid and other incentives for this purpose.
In fact, taking steps for providing social security and equality, and prevention of any type of
discrimination on the basis of caste, colour, creed, sex, religion, or place of birth is a major
function of the Welfare State.
2. (ii) Economic Functions of Welfare State:
1. Improving the Economic Health of the People:
The State acts as an important agency for raising the standard of living of its citizens. The state
supervises arrangements for the provision of food, clothing, housing, education and health
amenities to its people. These are the basic necessities of life. All citizens must have adequate
means of livelihood and good wages for their work. The state draws up schemes for solving the
problems of poverty and unemployment.
2. Planning Functions:
The State formulates and implements plans for a balanced economic growth of the country.
Through these plans, the natural and human resources of the State are sought to be utilised in
such a way as can lead to maximum benefits for the common people. Since 1950, India has been
making and implementing five year plans for rapid socio-economic development of the country.
3. Development of Agriculture:
In a developing country, like India, agriculture is the main occupation of the people and hence, it
is a major sector of national economy. Indian State has been making all-out efforts for improving
agriculture and making it highly productive. It provides latest scientific know-how to the
farmers. It provides them with the best seeds, good irrigation facilities, fertilizers, implements,
machines, tractors and some other items at subsidised rates.
The State has built up dams and canals, ponds and tube wells for meeting irrigation needs of the
agriculture sector. The State also fixes prices of various agricultural produces and at times even
enters the market itself to save the farmers from panic selling. The state provides subsidies to the
farmers.
4. Development of Industries:

For Private Circulation Only HPNLU Shimla Page 98

Along with the development of agriculture, the State tries to boost industrial development. The
state often provides facilities like cheap loans to entrepreneurs, facilities for the import of
machinery from other countries, and even gives tax rebates. The State formulates and
implements national industrial and economic policies.
5. Regulation of Trade and Commerce:
In order to bring about an economic change, the State regulates trade and commerce. It
formulates and implements the import-export policy for promoting foreign trade. It fixes custom
duties. The state also regulates internal trade. For this purpose, State regulates currency,
circulation of currency, banks, insurance and all financial institutions. The state determines and
controls weights and measures. It works for protecting the interests of the consumers as well as
for controlling inflation and economic recession.
6. Equitable Distribution of Wealth:
The State tries to secure an equitable distribution of wealth in the society. It manages the national
economy in such a way as can ensure that the wealth of the country does not get accumulated
into a few hands. The state brings about all kinds of changes in the tax-structure so that the tax
burden may fall on those who are fit to bear it.
The money obtained from taxation is spent on those programmes of economic and social
development which go to benefit the common people. It eliminates the economic exploitation of
the poor and workers.
7. Help to Workers and Weaker Sections of Society:
In order to bring about a desired economic change and welfare, the State protects the interests of
workers and the weaker sections of society. It fixes working hours, minimum wages, and proper
working environment, leaves benefits and also provides for insurance covers, provident fund
facility and other such necessities… For improving the conditions of weaker sections of society
the state gives to them special economic help.
Even in the contemporary era of globalisation, liberalisation, free trade, open competition and
privatisation, the Welfare State works for preventing monopolies in wealth, widespread
economic inequalities and exploitation of workers. The state continues to discharge its
responsibility of securing socio-economic development of all the people. It continues to work for
securing social justice, spread of education and health- care facilities for all its people.

For Private Circulation Only HPNLU Shimla Page 99

 Sovereignty: Meaning and Characteristics of
Sovereignty
Meaning:
The term “Sovereignty” has been derived from the Latin word “Superanus” which means
supreme or paramount. Although the term “Sovereignty” is modern yet the idea of “Sovereignty”
goes back to Aristotle who spoke of the “supreme power of the state”. Throughout the middle
Ages the Roman jurists and the civilians kept this idea in their mind and frequently employed the
terms “Summa” potestas and “Plenitudo potestatis” to designate the supreme power of the state.

The terms “Sovereign” and “Sovereignty” were first used by the French jurists in the fifteenth
century and later they found their way into English, Italian and German political literature. The
use of the term “Sovereignty” in Political Science dates back to the publication of Bodin’s “The
Republic” in 1576.

“The word sovereign”, says J.S. Roucek and others, “entered the vocabulary of political theory
from the feudal order, wherein it designated a relationship between persons. The term sovereign
had been applicable to any feudal overlord with authority over subjects in his own dominions”.

Two Aspects of Sovereignty:

There are two aspects of sovereignty: internal sovereignty and external sovereignty. Internal
Sovereignty means some persons, assembly of group of persons in every independent state have
the final legal authority to command and enforce obedience.

This sovereignty exercises its absolute authority over all individuals or associations of the
individuals within the state. Professor Harold Laski has very aptly remarked in this connection:
“It issues orders to all men and all associations within that area; it receives orders from none of
them. It will is subject to no legal limitation of any kind. What it proposes is right by mere
announcement of intention”.

We mean, by External Sovereignty, that the State is subject to no other authority and is
independent of any compulsion on the part of other States. Every independent state reserves the
authority to renounce trade treaties and to enter into military agreements. Each estate is
independent of other states.

Every independent State is at liberty to determine its foreign policy and to join any bloc of power
it likes. Any other state does not reserve any right to interfere with the external matter of an

For Private Circulation Only HPNLU Shimla Page 100

independent state. Thus, by external sovereignty we mean that every state is independent of other
states.

In other words, External Sovereignty means national freedom. Professor Laski has very correctly
observed in this regard, “The modern state is a sovereign state. It is, therefore, independent in the
face of other communities

It may infuse its will towards them with a substance which need not be affected by the will of
any external power”. This statement of Professor Laski makes it very clear that the State
possesses both external and internal sovereignty.

Definitions of Sovereignty:
(1) “That characteristic of the state by virtue of which it cannot be legally bound except by its
own or limited by any power other than itself. -Jellineck

(2) “Sovereignty is the sovereign political power vested in him whose acts are not subject to any
other and whose will cannot be over-ridden”. -Grotius

(3) “Sovereignty is the supreme power of the State over citizens and subjects unrestrained by
law”. -Bodin

(4) Sovereignty is “the common power of the state, it is the will of the nation organised in the
state, it is right to give unconditional orders to all individuals in the territory of state”. -Duguit
(Droit Constitutional Vol. 1, page 113)

(5) Burgess characterised sovereign is the “Original, absolute, unlimited power over the
individual subjects and over all associations of subjects”.

(6) “Sovereignty is that power which is neither temporary nor delegated, nor subject to particular
rules which it cannot alter, not answerable to any other power over earth”. -Pollock

(7) “Sovereignty is the supreme will of the state”. -Willoughby

(8) “Sovereignty is the daily operative power of framing and giving efficacy to the laws”. -
Woodrow Wilson

(9) Sovereignty is “the supreme, irresistible, absolute, uncontrolled authority in which the ‘jurist
summi imperi’ reside”. -Blackstone

For Private Circulation Only HPNLU Shimla Page 101

(10) The sovereignty is “legally supreme over an individual or group, says Laski, he possesses
“supreme coercive power”.

After closely studying and carefully examining the definitions of sovereignty, given above, we
arrive at the conclusion that sovereignty is the supreme political power of the state. It has two
aspects: internal and external. Sovereignty is an unlimited power and it is not subject to any other
authority.

Characteristics or Attributes of Sovereignty:

According to Dr. Garner, following are the characteristics or attributes of Sovereignty:
(1) Permanence.

(2) Exclusiveness.

(3) All-Comprehensiveness.

(4) Inalienability.

(5) Unity.

(6) Imprescriptibility.

(7) Indivisibility.

(8) Absoluteness or illimitability.

(9) Originality.

(1) Permanence:
Permanence is the chief characteristics of sovereignty. Sovereignty lasts as long as an
independent state lasts. The death of the king, the overthrow of the government and the addiction
of power does not lead to the destruction of sovereignty.

We should keep in mind the basic fact that the king or the ruler exercises sovereign power on
behalf of the state and, therefore, sovereignty lasts as long as the state lasts. The death of the king
or the overthrow of the government does not affect sovereignty. This is the reason why people in
England used to say “The King is dead, long live the King”.

For Private Circulation Only HPNLU Shimla Page 102

Dr. Garner has beautifully summed up this idea in the following manner:
“Sovereignty does not cease with the death or temporary dispossession of a particular bearer or
the re-organisation of the state but shifts immediately to a new bearer, as the centre of gravity
shifts from one part of physical body to another when it undergoes external change”.

(2) Exclusiveness:
By exclusiveness we mean that there can be two sovereigns, in one independent state and if the
two sovereigns exist in a state, the unity of that state will be destroyed. There cannot exist
another sovereign slate within the existing sovereign state.

(3) All Comprehensiveness:

The State is all comprehensive and the sovereign power is universally applicable. Every
individual and every association of individual is subject to the sovereignty of the state. No
association or group of individuals, however, rich or powerful it may be, can resist or disobey the
sovereign authority.

Sovereignty makes no exception and grants no exemption to anyone. It grants exemptions only
in the case of foreign embassies and diplomatic representatives of foreign countries on the
reciprocal basis. This does not in any way restrict the sovereignty of the state in the legal sense.
The state can abolish and withdraw the diplomatic privileges granted to foreigners.

(4) Inalienability:
Inalienability is another characteristic of sovereignty. Sovereignty is inalienable. By
inalienability we mean that the State cannot part with its sovereignty. In other words, we can say
that the sovereign does not remain the sovereign or the sovereign state, if he or the state transfers
his or its sovereignty to any other person or any other state.

Sovereignty is the life and soul of the state and it cannot be alienated without destroying the state
itself. Lieber has very aptly remarked in this connection: “Sovereignty can no more be alienated
than a tree can alienate its right to sprout or a man can transfer his life or personality to another
without self-destruction”.

(5) Unity:
Unity is the very spirit of Sovereignty. The sovereign state is united just as we are united.

For Private Circulation Only HPNLU Shimla Page 103

(6) Imperscriptibility:
By imprescriptibility, we mean that if the sovereign does not exercise his sovereignty for a
certain period of time, it does not lead to the destruction of sovereignty. It lasts as long as the
state lasts.

(7) Indivisibility:
Indivisibility is the life-blood of sovereignty. Sovereignty cannot be divided state, American
statesman Calhoun has declared, “Sovereignty is an entire thing; to divide it is to destroy it. It is
the supreme power in a state and we might just well divide it is to destroy it.

It is the supreme power in a state and we might just well speak of half square or half a triangle as
half a sovereignty”. Gettell, has also very aptly remarked in this regard, “If sovereignty is not
absolute, no state exists. If sovereignty is divided, more than one state exists”.

(8) Absoluteness:
Sovereignty is absolute and unlimited. The sovereign is entitled to do whatsoever he likes.
Sovereignty is subject to none.

(9) Originality:
By originality we mean that the sovereign wields power by virtue of his own right and not by
virtue of anybody’s mercy

For Private Circulation Only HPNLU Shimla Page 104

 Justice: Definition, Problems and Nature
Definition of the Concept:
The concept of justice is as old as the political science or political theory is and at the same time
it is a vexed and controversial topic of political science. The political philosophers beginning
from Plato (427 BC-347 BC) right up to the twenty-first century, the theory has been defined in
various ways.

The dictionary meanings or definitions are the following: Justice means just behaviour or
treatment or the administration of law or authority in maintaining this. But this laconic definition
fails to clarify the exact idea it carries. Oxford Concise Dictionary of Politics defines justice as
the existence of a proper balance. Even this definition is still unsatisfactory. Proper balance
between what elements or what sectors?

An acceptable definition we find in Norman Barry’s An Introduction to Modern Political Theory.

Barry observes: In ordinary speech generally we talk of justice and injustice where the words do
not refer to the desirability or otherwise of the state of affairs or particular income and wealth
distributions but to the rules and procedures that characterise social practices and which are
applied to the action of individuals who participate in those practices.

In this conception justice is normally seen to be a property of individuals. Barry’s definition,

strictly speaking, is not a definition it is an explanation of the concept. He is of opinion that it is a
property of the individuals. But we hold the view that it is not simply the property of individuals
but also a property of state or society. It is because very often justice is regarded as the symbol of
state and it is the primary responsibility of state to ensure justice. F

So in commonsense the term denotes appropriateness or fairness or proper balance.

Opportunities and rewards or privileges will be distributed in such manner as will not give rise to
any controversy or dissatisfaction. Everyone will accept the arrangement or rearrangement as
just or proper or appropriate or fair. We here use a cluster of words simply to signify that the
concept is variously used.

In another definition we find the following:

“Justice is the morally justifiable apportionment of rewards or punishments, each person being
given what he or she is due.” Here the concept has been used in moral sense. That is justice is a
moral idea or concept.

For Private Circulation Only HPNLU Shimla Page 105

It is also associated with another meaning. Justice means to pay a man his due share. Though the
word due is quite significant, it is full of ambiguities. What is due for one, the same may not be
so to other. He may think that it is less than due and in this way the word due is bound to create
controversy

Justice implies, not to deprive an individual of his legitimate share of anything which may be
wealth income privileges, opportunities etc. When deprivation occurs he may object and say that
injustice has been meted out to him. The Greek philosopher Plato meant the term in this sense.
He believed that in his ideal state none will feel any sort of deprivation everyone will be paid his
due share.

If any type of deprivation happens to occur the state cannot be ideal. Hence we can say that
according to Plato one of the important elements of ideal state is justice and the philosopher king
must strive to realise justice.

Problems of Justice:
The concept of justice is not only controversial but also number of problems is associated with it.
It may justifiably be observed that justice is to some extent the will-o-the wisp. It is something
which cannot be achieved very comfortably but at the same time the attempts to achieve it cannot
be abandoned.

1. Some people argue that redistribution of income and wealth is a grand way to achieve justice.
But what are the criteria which will decide the redistribution of income and wealth? There are
many problems which have intrigued this issue.

2. Again the very concept of justice is highly problematic because it is individualistic in nature.
What a man calls just another man may call the something unjust and both may have arguments
with certain amount of validity.

3. In recent year’s large number of people are obsessed with the concept of social justice
Particularly after the Second World War people are thinking seriously about the attainment of
social justice because it is the only way of ensuring justice in all the spheres of society. Problem
is how it is to be realised? Some people think that the redistribution of income and wealth is the
best way to achieve social justice. But we have already noted that this redistribution is not an
easy task.

For Private Circulation Only HPNLU Shimla Page 106

4. A good number of academics have argued that while considering or planning the redistribution
of income or wealth, desert, merit and need are to be selected as criteria. But analyses of these
criteria are again not above criticism. An evaluation about all these criteria varies from person to
person and it is very difficult to arrive at a conclusion.

5. To remove injustice through the redistribution of income and wealth it is necessary that the
state should play a dominating as well as positive role. But the interference of state in the arena
of attainment of social justice inflames heated controversy. Particularly the protagonists of
liberalism are not prepared to give their approval in favour of state interference. They argue that
it will definitely encroach upon the freedom of individuals.

6. Some people are habituated to think of justice and equality within the same bracket. In other
words, they feel that without equality there cannot exist justice. But the idea of equality is again
a complex notion and .its association with justice has complicated both the concepts.

7. It has been asserted by many that through the implementation of a policy to punish the vice
and reward the virtue a just society can be established. Here again the problem is who will
determine what is vice and what is virtue? There are no universal criteria to determine vice and
virtue.

It has been apprehended that tor the realisation of this it is essential that the state should convert
itself into a police state. This is not appreciated by many. So what remains is that though justice
is a highly desirable concept, it is still the will-o-the wisp.

Finally, we hold the view that not-with standing the fact that justice is a highly appreciated and
covetable concept, and attempts are constantly being made to achieve justice, no society
whatever may its stage of civilisation and development be, can claim that it has succeeded in
establishing justice.

Nature of Justice:
1. It is not an easy task to present a brief exposition of the features of justice and in spite of this
problem; we make an humble attempt to point out nature of justice. Since the days of Aristotle it
has been held that the most rudimentary feature of justice is equals will be treated equally and
un-equals will be unequally treated. Between these two groups there shall exist proportion.

Equals and un-equals should be grouped separately. It has been asserted that the un-equals and
equals should not be grouped in the same bracket. If we do so we shall do in justice to both

For Private Circulation Only HPNLU Shimla Page 107

equals and un-equals. Less qualified and less, eligible persons cannot claim same benefits with
eligible and qualified persons. If this system prevails in any society justice can never be its
feature.

2. Behind the announcement’ of the above principle there exits the idea of rationality. It is
generally irrational to give due share to a person who is not eligible. The theory of rationality and
theory of justice are closely linked with each other. In practice the rationality and justice cannot
be exclusively differentiated.

Though justice, according to Ernest Barker, is a social reality, its link with political science and
to some extent philosophy cannot be denied. Political scientists are however mainly concerned
with justice because of the reason that realisation of justice is possible through the machinery of
state and this happens to be of the subject of political scientists.

3. We have pointed out in this section that differences are to be considered duly and actively
while persons are brought under consideration for awarding privileges and opportunities. But the
problem is on what counts differences are to be considered? There are differences among men
regarding race, sex, religion. But the differences on these counts are not to be thought and they
are not relevant for granting civil and political rights.

4. Some theorists have attempted to find out the relation between justice and equality. It has been
claimed that for the sake of justice authority must make serious efforts to establish equality and
when it will be possible justice comes to be a reality. But Norman Barry argues that the
relationship between justice and equality is a hotly disputed matter.

The relationship between justices has been elaborately analysed by many and among them the
prominent figure is Rawls. His main thesis of justice is primarily concerned with how equality
and inequality can be elements of justice.

5. Though there is a controversy between justice and equality it is undeniable that the
relationship exists. Equality and preferential treatment are not consistent. That is if some persons
receive better treatment because of superiority in wealth and income or any other ground that
violates the basic norm of equality. However, it is also against the basic norm of justice.

6. So far as the distribution of opportunities and at the same time attainment of justice are
concerned two criteria desert and need appear. Norman Barry defines desert in this way. “The
concept of desert refers to those properties of a man’s actions that are worthy of special

For Private Circulation Only HPNLU Shimla Page 108

treatment”. The actions of a man are not only different from the action of other men they require
special treatment. That is actions are to be rewarded. If this is not done injustice will be done to
the persons concerned.

Thus desert will be a criterion of special treatment but this cannot violate the principle of
equality. We can easily find out a relationship between justice and desert and recognition of
desert. Along with desert there is a criterion which is known as need. One can easily distinguish
between desert and need.

One is to be awarded for special activities or contributions. In absence of this there arises no
question of awarding anybody. On the other hand, need-based governmental actions have no
connection with actions. The government adopts the policy of providing old age benefits or
giving monetary help to weaker sections of the body politic or any other scheme. All these may
be termed as welfare schemes.

7. While the authority is going to award a person for his special activities, it must also be
considered that the actions must make some positive contribution to the progress of the society.
More actions (whatever may the nature of actions be) do not call for reward or special treatment.

8. Both desert and need as criteria of governmental action must be kept outside the area of
politics and emotion. Impartiality must play the dominant role. Otherwise both these criteria will
lose their importance

10

For Private Circulation Only HPNLU Shimla Page 109

 Liberty

Meaning and Definitions of Liberty:

The word liberty is derived from liber. The root of liberty is another two words libertas and
liberte. Liber means “free”. Many people are accustomed to use freedom. But both the words
mean same thing and they are used interchangeably. In strict sense there is a difference. We call
“freedom movement”, “freedom fighter” etc. but not liberty movement. Liberty is generally used
in the case of individual and freedom refers to greater entity such as freedom of a country.

But this distinction does not always hold good. For example, we call national liberation
movement of Africa or Latin America. Here liberation is used to denote freedom or liberty. In
political science, however, the interchangeable use is the general practice.

The term liberty is associated with two other words—toleration and liberation. Toleration means
to allow other men to do their duties and even if that creates disadvantage to some that should be
tolerated. It is because the liberty of one is restriction to others, and vice versa. Naturally if one
does not tolerate others’ actions, the people cannot have liberty. So we can say that liberty cannot
be separated from toleration.

Similarly, in recent years we witness the emergence of another word which is a variation of
liberty—it is liberation. Today the words ‘liberation movement’ are very often used. When a
nation is under foreign domination it cannot be called a free nation so also the citizens (it is used
in general sense) are not free.

There is large number of definitions of liberty or freedom. In our day-to-day speech or

conversations we use the term to mean absence of constraints or limitations or obstacles. When
we find that an individual is free to do as he likes it will be assumed that he is free, that is, he has
liberty. Prof. Harold Laski’s definition is well-known and oft-quoted. “By liberty I mean the
eager maintenance of that atmosphere in which men have the opportunity to be their best selves”.

Heywood says that philosophers and political scientists do not use the term in identical sense.
The philosophers use it as a property of the will. It is primarily a matter of mind and psychology.
By contrast, the political scientists use the term in different senses. It is connected with values,
development of mind and inherent qualities of individuals. It also denotes a congenial
atmosphere in which men will be able to flourish their good qualities.

11

For Private Circulation Only HPNLU Shimla Page 110

Freedom also means the scope to select the required alternative from a number of alternatives. If
this scope or opportunity is not available to the individual that will mean the absence of freedom.
Hence liberty is an atmosphere where individuals will face a number of choices and they will
pick up one or more according to their requirement. D. D. Raphael views freedom in this sense.
He further maintains that freedom is the absence of restraints. Raphael further says that freedom
means to carry out what one has chosen to do. This sense is generally used in political science.

Nature of Liberty:
After thorough study the political scientists have found out several features of liberty or freedom

We note few of them:

1. Freedom to do means the freedom to choose among the alternatives which again means the
freedom of conscience. This is an important characteristic of liberty. Whenever an individual
intends to do something he is supposed to be guided by his conscience. The conscience is the
force that guides the individual. But Raphael says that conscience is not always the force that
guides the individual for action. There may be other forces.

2. Laski calls liberty an atmosphere. In the atmosphere, the individual will be permitted to
perform such activities that will facilitate the development of the best qualities a man possesses.
We can say that freedom is a material condition of social life.

3. Freedom is understood as voluntary and un-coerced action. Behind every action there shall
exist spontaneity. When man is forced to do a work that will lead to the loss of liberty. We can
say liberty and coercion are antithetical terms. This, however, is not always correct. Sometimes a
man is forced to act accordingly to make way for the exercise of freedom to others. If a person
creates obstacles, authority removes them by force.

4. Norman Barry pointed out another feature of liberty. He suggests to draw distinction between
“feeling free” and “being free”. According to Barry the following is the distinction. Feeling free
is a state of contentment and “being free” is a state in which major impediments to making
choices have been removed. In his opinion liberty (Barry uses both liberty and freedom
interchangeably) includes both meanings.

The distinction may be illustrated in the following way. A convict may commit a crime
deliberately in order to go to prison for security reasons. Here the condition of “feeling free”
appears, but not the “being free”. He says that “being free” and “being able” are two terms
different from each other. When there are no physical impediments a man may undertake any

12

For Private Circulation Only HPNLU Shimla Page 111

work but his ability does not allow him to shoulder the burden of doing the work. So here we
find that a person is free to do the work but he is not able to do it, and mainly for that reason his
ability and freedom stand apart.

Explaining freedom we must take note of this distinction. It can further be illustrated by another
example. A man has the freedom to go to any expensive restaurant and take choicest dish. But
his fund or health condition do not allow him. Or it may be that doctor has advised him not to
take food outside. In our analysis of the nature of freedom we must consider these subtitles.

5. A plausible distinction can be drawn between political liberty and other types of liberty. In a
democratic state political liberty is especially stressed. Participation in all affairs of the state is
encouraged. But the same individuals are confronted with dissimilar situation in social and
cultural fields. In less advanced societies (these may be or are democratic) numerous
superstitions inhibit the free lives of the individuals.

They are not always free to select their religious ways or to practice any belief or faith: on the
contrary, in many autocratic states political liberty is very limited but religious or other liberties
do exist- Our viewpoint is that for a proper analysis of the concept of freedom all forms of liberty
are not to be mixed or confused. In other words various types of liberty shall carry their our
identity.

6. Liberty is a very comprehensive idea and it changes with the change of time and other things
such as outlook, physical conditions, attitude etc. By liberty one need not mean only political or
any other’ particular type of liberty. The objective of liberty is quite ambitious—to make feasible
the development of good qualities of man and for that purpose all types of liberty may be
required and in this sense it is comprehensive in nature.

Liberty is, again, a dynamic concept. If attitude and outlook of individuals are changed the
sphere or extent of liberty must also change. For example, women of today’s society are
claiming more jobs or employment opportunities and they deem it as their right and they claim
that they must have the liberty to do job.

Women are also demanding to do job with men in night shift and with full protection. In Western
countries women work in night shifts and India is proceeding to that. The age of Information and
Technology has enhanced freedom.

Liberty is Conditional, Not Absolute:

13

For Private Circulation Only HPNLU Shimla Page 112

Prof. Ernest Barker, in his noted work, talks about legal liberty and this type of liberty is never
absolute but always conditional. He says: “legal liberty, just because it is legal, is not an absolute
or unconditional liberty. The need of liberty for each is necessarily qualified and conditioned by
the need of liberty for all”. Let us see what Barker wants to say.

It is a mistaken idea that liberty need not be restricted to limited number of persons. When liberty
is legal, everybody has an access to it. But in many societies only a handful of persons have the
opportunity to enjoy liberty and on the opinion of Barker this is to be done away with. How is it
to be done? His suggestion is by legal way the state shall impose restrictions upon the individuals
in regard to have access to liberty.

The state will enact laws as to the enjoyment of liberty. Everyone in the society has an identity
and in that background he can claim liberty, Barker beautifully observes: [Liberty] is not the
indefinite liberty of an undefined individual, it is the definite liberty of a defined personality”.

Liberty in the state, that is legal liberty, is always relative and regulated. When liberty is
regulated, its amount is much greater than the absolute liberty. This is due to the reason that
absolute liberty is the liberty of only few persons but the relative or regulated liberty is meant for
all men. Even men whose liberty is controlled can enjoy liberty.

Conflicts among Liberties:

Barker has drawn our attention to a very interesting aspect of liberty. He says that in any modern
society there are three forms of liberty. These are civil liberty, political liberty and economic
liberty. These three types of liberties may come into conflict. How does this happen? His
analysis runs in the following manner: By virtue of civil liberty an individual has the freedom to
express his opinion through book, article or any other means. But the parliamentarians by virtue
of their political liberty can impose restriction upon the freedom of expression or speech. Here
civil and political liberties clash with each other and this frequently happens in any society.

Conflict is often found between civil and economic liberties. A worker can claim higher wages
or less working hour and this falls within his economic freedom. On the other hand the employer
has the civil liberty to enter into contract with the workers dictating the terms of wages, working
hours etc. In this way different forms of liberty create conflict among the citizens and Barker
believes that this is inevitable.

Everyone is eager to enjoy liberty to which he is entitled. There is no way of getting out of this
dilemma and remembering this (perhaps) Barker has said that liberty is really a complex notion,

14

For Private Circulation Only HPNLU Shimla Page 113

it has the capacity to unite men and, at the same time, it divides or disunites them—clash of
interest is the cause of disunity.

Law and Liberty:

We shall now turn to a very vexed issue—the relationship between law and liberty. There is a
misconception that liberty is antithetical to law, or vice versa. Those who think in this line
believe in the negative character of liberty, which implies that liberty is the absence of restraints.
Law means restraints or regulations. Naturally, more laws will lead to the curtailment of liberty.

This idea about the relation between the two is erroneous. Liberty is out and out a positive idea.
If liberty is to be made a meaningful concept, regulations are essential. Unrestricted liberty may
cause enhancement of liberty for few persons, but it will result in the reduction of liberty of the
majority. This makes liberty conditional. Liberty, to be proper, must come under the restrictions
of law.

This is the exact relation between law and liberty. But the relationship between law and liberty
must be judged in the proper perspective. Law will not be permitted to interfere with the freedom
of individuals. The purpose of law, in regard to liberty, must be to protect liberty for all. Mention
may be made in this connection that though law makes the enjoyment of liberty more liberal,
blind obedience to law does not do that.

Obedience to law must be based on reason and rationality. Again, a law must be based on the
approval of citizens. This does not, of course, mean that a law is to be approved by all, only
majority support behind a law is enough. A law shall not be used to harass citizens.

Berlin’s Theory of Liberty:

Introduction:
Isaiah Berlin’s (1909-1997) theory of liberty is a highly acclaimed and widely criticised theory.
His Four Essays on Liberty (1969) contains the following essays, Political Ideas in the Twentieth
Century, Historical Inevitability, Two Concepts of Liberty and J. S. Mill and the Ends of Life.
We are here concerned chiefly with the third essay—Two Concepts of Liberty. Berlin was born
in Latvia and received partial education in St. Petersberg.

He went to Britain at the beginning of the 1920s and the rest of his education and service were in
Britain. Berlin was a strong believer of liberal pluralism. In his Two Concepts of Liberty Berlin
has carefully and pedantically analysed various aspects of liberty. Of the two types of liberty—
positive and negative—his preference for the latter is quite clear. He believed in the existence of

15

For Private Circulation Only HPNLU Shimla Page 114

innumerable values and ideas and the conflict among them. In such a situation the positive
liberty is likely to do more harm and may lead to totalitarian situation. His penchant for liberal
pluralism encouraged him to lend support for negative liberty.

In the opening para of the Two Concepts of Liberty he has said that there is disagreement in
every sphere of human society—political problems arise from and thrive on this disagreement.
He further observes that people may arrive at agreement on the ends of society or functions of
government but, at the same time, they will disagree on the means to achieve the ends.

Positive versus Negative Liberty:

In his analysis of positive and negative liberties Berlin wants to raise the following
questions:
(a) Whether the difference he has drawn between positive and negative liberty is specious or too
sharp,

(b) Whether the term liberty can be extended widely. But while doing so care shall be taken
about the retention of significance. In other words, the extension of the meaning of liberty cannot
curb the significance of the concept,

(c) Why political liberty is considered important. Berlin claims that he has slightly amended his
earlier version of the concept of negative and positive liberty. This, however, does not change the
core idea of liberty.

Berlin has discussed some of the definitions given by leading political scientists of his time. He,
in the following way, defines liberty, “The freedom of which I speak is opportunity for action,
rather than action itself. If, although I enjoy the right to walk through open doors, I prefer not to
do so, but to sit still and vegetate. I am not thereby rendered less free. “Freedom is the
opportunity to act, not action itself, the possibility of action, not necessarily that dynamic
realisation of it”. Berlin refers to a very interesting aspect of liberty.

Normally we say that freedom means when man satisfies his wants. But if he cannot satisfy his
wants he must learn the way as to how and in what way he can meet his wants. And, by adopting
this method, he can contribute to his happiness. In this case the individuals will have to devise
ways of meeting demands.

Negative Concept of Liberty:

16

For Private Circulation Only HPNLU Shimla Page 115

Definition:
A man is said to be free to the extent that his actions and movements (and even views) are not
controlled by other men or body of men. That is almost everything of a man remains beyond all
sorts of control. Berlin defines it in the following language: “Political liberty is simply the area
within which a man can act unobstructed by others”. In this definition the important word is
unobstructed. To speak the truth this is the core word or idea of Berlin’s definition of negative
liberty.

Liberty will be called negative when an individual’s activities remain unobstructed by others.
When the activities of a man are interfered by others or when he is coerced by someone he will
reasonably be called un-free. So inability caused by coercion is another name of “Un-freedom”.
Coercion means deliberate intervention by others and thus freedom and coercion do not coexist.

But, on the contrary, if the inabilities are the consequences of other causes then that cannot be
called loss or absence of liberty. A man may be excessively extravagant —naturally he will
suffer from poverty and will not be able to meet all the necessary requirements. He will not have
the freedom to consult a specialist or make trip round the world or to visit a good eating house.
“This inability would not be described as lack of freedom, least of all political freedom”. Berlin
says that the inability caused by particular factors is special case.

Negative Liberty and Non-interference:

In the opinion of Berlin freedom in its negative meaning is equivalent to noninterference and he
has given special stress on it. A man is free in the sense that he is not interfered with by others. A
man will have the scope to do his work without any interference. In the support of his contention
Berlin remembers Hobbes.

Talking about freedom Hobbes said “A free man is not hindered to do what he hath the will to
do? No obstruction will stand on the way of doing anything which a man intends. He further
observes that the law is the most powerful “fetter”. So, according to Hobbes, law is the killer of
human freedom.

But a question here arises. What would exactly be the area of non-interference? Should it be
limited or unlimited? Berlin, drawing examples from the writings of traditional political
philosophers, has maintained that the area of non-interference must not be unlimited or wide.

If everyone wants to have unlimited or very wide area of non-interference, then a situation would
arise when everybody will try to interfere with others’ liberty. “The classical English political

17

For Private Circulation Only HPNLU Shimla Page 116

philosophers disagreed about how wide the area should or could be. They supposed that it could
not be unlimited! Because if it were it would entail a state in which all men could boundlessly
interfere with all other men, and this kind of “natural” freedom would lead to social chaos”.

Negative Liberty and Interference:

We have just now noticed that negative liberty is not equivalent to complete noninterference.
Such a situation will be another name of anarchy and anarchy is not freedom. That is why Berlin
suggests that since the interests and aims of different individuals are incompatible a process to
harmonise among them shall there be and this is to be done by law. Law will harmonise different
objectives of men.

In the absence of law or any type of restriction the creation of a political organisation will be
meaningless. Not only this, even if an association were set up its credibility will be at the lowest
level. Here again a problem arises. What would be the extent of interference? We feel that it is
necessary to arrive at a compromise.

This can be better stated in the words of Berlin. “But equally it is assumed, especially by such
libertarians as Locke and Mill in England, and Constant and de Tocqueville in France, that there
ought to exist a certain minimum area of personal freedom which must on no account be
violated”.

Absolute non-interference is practically an impossibility. Keeping aside all considerations and

issues we assertively say that men are by nature and due to circumstances are interdependent and
if that be so there cannot be anything like absolute privacy. Interference, therefore, must occur
and it will be taken as fait accompli.

Minimum Freedom:
Berlin has drawn our attention to a real situation. It is admitted on all hands that everyone shall
have the opportunity to enjoy freedom and necessary steps to that extent are to be taken. But here
arises a crucial problem. When in a society large number of men are underfed, naked, suffer
from various diseases, they are deprived of basic education, is it not a political claptrap to allow
them enjoy freedom?

Freedom is essential for all residents of a society. But which one is to be given priority-
medicine, education, clothing or freedom? A peasant or an ordinary man must have the minimum
freedom to have food, clothes, medicine and when this minimum freedom is achieved, he can

18

For Private Circulation Only HPNLU Shimla Page 117

claim larger amount of liberty which includes political liberty. But neglecting minimum liberty
and thinking about larger amount of liberty is nothing but a mockery.

Liberty is a goal and indeed a very coveted goal but it cannot be treated in isolation. A society
must make all sorts of efforts to reach the goal of minimum liberty and after that there shall be
arrangements for ensuring greater liberty. Once Prof. Laski said that everyone had the right (or
liberty) to take minimum food and when this liberty is attained some may claim to have cake.
The satisfaction of minimum needs is the primary condition for granting better and higher
privileges. J. S. Mill also said that all are entitled to minimum freedom.

Berlin and Mill:

In the course of his detailed analysis of negative notion of liberty Berlin refers to another famous
thinker—J. S. Mill. Mill is also a protagonist of liberty and this is termed by many as negative
liberty. Mill in his On Liberty had forcefully argued for unobstructed liberty. He said, “The only
freedom which deserves the name is that of pursuing our own good in our own way”.

It may be stated here that this is the gist of Mill’s theory of liberty. Though Mill did not
categorically mention the removal of limitation he, in his mind, had that idea. To him freedom
was equivalent to pursuance of one’s own good and any obstruction could be regarded as
inimical to liberty.

Why did Mill give so much importance to liberty? If we cursorily go through his On Liberty, we
shall find that without adequate liberty civilisation could not progress. That is why he gave
maximum importance to liberty. Mill believed that the progress of human civilisation was far
more important than throttling the voice of some persons in the name of expanding freedom.

Berlin discovers few discrepancies in Mill’s analysis of liberty. One is that according to Mill all
coercion is bad. But when coercion is applied to combat greater evil this should also be bad—
Mill does not say. Another inconsistency, according to Berlin is, men should strive to find out
the truth and that truth is to be found only in freedom. Though these two are liberal assumptions
“they are not identical”. Berlin nevertheless, agrees with Mill’s views of liberty because it is
modern.

Negative Liberty and Privacy:

When liberty is viewed in negative terms, the absence of external interference, it is closely linked
with privacy. Because the external interference encroaches upon the exclusively private affairs of
individuals and in Western society it is always given priority. Privacy is different from public

19

For Private Circulation Only HPNLU Shimla Page 118

realm and privacy conscious individuals do not intend any violation. Not only this, it is believed
that a major part of the affairs, of the men of Western society comprises private affairs.

They also treat private affairs as sacrosanct. It has also been asserted that all the private affairs
shall be within the management and control of individuals and the state authority has nothing to
do with these affairs. So far as the private realm is concerned the individuals should be left alone.

“Any intrusion to the privacy of persons is, in this sense, an infringement of their liberty. To
prize negative freedom is clearly to prefer the private to the public, and to wish to enlarge the
scope of the former at the expense of the latter”. It is still believed in the Western countries that
education, health, to pursue arts etc. are all subjects of private realm and the state has nothing to
do with all these.

These should be left entirely at the hands or discretion of the individuals. Even the state
interference in economic field is uncalled for. A large section of modem liberal thinkers
forcefully argue that the state should refrain from interfering in the economic activities because
these are private affairs and the individuals understand these far better than the state.

Negative Liberty and Rationality:

Unlimited faith on the rationality and individuality of person is treated as a potential cause of the
popularity of negative freedom. It is believed that the individuals are more or less rational and
behind their activities there is proof of rationality. Though this has not been clearly stated by the
advocates of negative freedom, it is surmised that each person understands his own interests and
knows how to protect them. If the individuals are left alone they are capable of protecting their
interests properly and efficiently.

On the other hand, if the state interferes and coercion is frequently applied in the name of general
interests that will frustrate the spontaneity of the individuals. So, for the sake of proper
development of rationality and furtherance of spontaneity it is essential that the state interference
should be reduced to the lowest level. Modern thinkers have called the state interference as a
type of paternalism and all forms of paternalism, however, well-intentioned, is enough to dwarf
the responsibility and spontaneity of individuals.

Naturally any type of paternalism or attempt of paternalism must be nipped in the bud. It has
been argued that if the individuals are left to themselves they will commit mistakes and that may
inflict temporary loss to the economy or interests of the society. But the other side, and it is the
bright side, of the picture is they will learn the right lesson from their mistakes and this is very

20

For Private Circulation Only HPNLU Shimla Page 119

important. State interference sometimes can guide the individuals but that can never be the
permanent feature of state.

Positive Freedom:
Definition:
The positive meaning of liberty may be defined in the following words: It means that the
individual is his own master. The life and decisions of one will depend on the individuals
themselves. The individual is the instrument of his own affairs. The positive sense of freedom is
concerned with the question “By whom am I governed?” rather than “How much am I
governed?” “I wish to be a subject, not an object, to be moved by reasons, by conscious purposes
which are my own, not by causes which affect me. I wish to be somebody, not nobody, a doer
deciding not being decided for, self directed and not acted upon by external nature or by other
men as if I were a thing, an animal or a slave incapable of playing a human role”.

The positive sense of freedom wants to emphasise the following:

“The freedom which consists in being one’s own master and the freedom which consists in not
being prevented from choosing as I do by other men”. The paradox of positive freedom has been
explained beautifully by Heywood, “Indeed a demos that imposes many restrictive laws on itself
may be positively free but negatively quite un-free.

In its other sense, positive freedom relates to the ideas of self-realisation and personal
development”. “I feel free to the degree that I believe this is true, and enslaved to the degree that
I am made to realise that it is not”.

Positive Freedom and Self-realisation:

Berlin has assertively said that there is a close relationship between positive liberty and self-
realisation. The best way of attaining self-realisation (realisation of the best self which a man
possesses) is the positive form of freedom. Every individual has his own motive, mission and
vision; he wants to act to fulfill that mission or vision. He decides his own method and makes
plan. All these he will do as a free man. It means the person will have freedom. Freedom as he
understands. He will utilise the freedom in his own way.

But the realisation of self will never be possible if congenial atmosphere is not available. It
means that the individual will not feel any obstruction which stands on the way of self-
realisation. Berlin says that self-realisation cannot thrive in vacuum or in an atmosphere free
from all sorts of obstructions.

21

For Private Circulation Only HPNLU Shimla Page 120

Berlin maintains, “The notion of liberty is not the negative conception of a field without
obstacles a vacuum in which nothing obstructs me but the notion of self-direction or self-
control”. What a man wants to do, he will have the opportunity and freedom to do. Berlin says
that there is the necessity of obstruction for the realisation of self.

The aim of the restriction imposed by the state of society will be to help the furtherance of self-
realisation. It has been assumed that obstructions are not always harmful. They have good effects
and here lies the fundamental difference between negative freedom and positive freedom.

Relationship between Two Freedoms:

We have discussed two types of liberty and now we like to throw light, on the probable
relationship between these two. The word probable is used here to mean that the purest form of
negative or positive liberty is not found in real society. No liberty is absolutely negative or
positive. Nevertheless there is a relationship between them. Berlin had earlier raised the issue
which we have already noted. He asked whether the difference between negative and positive
liberty is specious.

He proceeds to analyse the relation in this way. Berlin says that the two questions- How much
am I governed? and by whom am I governed?—are not quite identical. But this is not to say that
the distinction between these two questions is unimportant. Let us see what Berlin exactly says,
“I confess that I cannot see either that the two questions are identical, or that the difference is
unimportant”. He admits that two types of liberty are different but the relation between them
cannot be ignored and Berlin has emphasised this.

In his analysis we find that there are many obstacles which the man cannot remove or ignore, and
if these are not removed the development of personality or freedom will receive serious setback.
For the removal of these obstacles the interference of an authority is indispensable.

This proves that freedom cannot be the absence of restraints. Berlin concludes “despite the
heroic efforts to transcend or dissolve the conflicts and resistance to others, if I do not wish to be
deceived, I shall recognise the fact that total harmony with others is incompatible with self-
identity”. What he wants to say is that there cannot be compatibility among the interests of
different men. If so, outside interference is a must. But that does not mean that persons will not
have an area which can be called exclusive.

The two concepts of liberty—negative and positive—have very often been separately treated by
their advocates. But a close scrutiny between them reveals that in ultimate analysis there is no

22

For Private Circulation Only HPNLU Shimla Page 121

important difference. The aims of both liberties are almost same. Both want the development of
the qualities of men. Some people think that the removal of all hindrances can help the
attainment of the objectives.

On the contrary, others are of opinion that some sorts of outside interference are necessary. This
is chiefly due to the reason that there are incompatibilities in interests and aims of differences
and for their removal force or coercion is essential. Here the coercion should not be treated as
abductor but liberator.

Coercion liberates individuals from enslavement. Since there is no fixed area of positive and
negative liberties there is every possibility of overlapping. In society this overlapping frequently
occurs. The distinction between the two is pedantic and psychological. It is the personal
preference of the thinker.

Curtailment of Liberty:
Some critics have pertinently asked—Can the number of liberty be expanded and significance of
liberty be kept intact? It is a very complex question and cannot be answered directly.
Enhancement of the number of liberty is absolutely desirable. But there is a lot of difference
between to desire liberty and the translation of desire into reality.

How much liberty a citizen can enjoy depends on the social, economic and political structure of
society and, simultaneously, on the persons themselves. The citizens may cherish in mind to
enjoy liberty but many hindrances stand on their way and this results in curtailment of liberty.

If we go through the history of Western political thought we shall find that from the middle Ages
people are experiencing the curtailment of liberty. In the middle Ages individuals had very little
religious freedom. In the sixteenth and seventeenth centuries the rise of absolute monarchy
drastically curbed freedom of general public. There were agitations no doubt but the situation did
not improve considerably.

The Industrial Revolution of the second-half of the eighteenth century turned the situation to a
different direction. The fabulous amount of wealth generated by Industrial Revolution was
practically captured by a handful of capitalists leading to the gross inequalities of wealth and
income. The number of have-nots began to increase astronomically. The have-nots were
deprived of basic requirements of life.

23

For Private Circulation Only HPNLU Shimla Page 122

In other words, the economic liberty was enjoyed by few persons and the majority was deprived
of it. It is a tragedy that the stalwart liberals stridently advocated for liberty but their arguments
were confined within the academic analysis. The result was that there was hardly any perceptible
improvement in the condition of liberty.

Two opposite tendencies have developed in nineteenth and twentieth centuries. One is there has
arisen an increasing claim for more and more liberty and, on the other hand, different techniques
are being devised to corner the future prospects of liberty, specially in its positive sense.

The dominant class and elite groups are active and in various ways— they have established their
full control over different branches of state authority. This has mutilated the basic norms of
democracy based on liberty. So while we are talking about more and more liberty the tendency is
developing in opposite direction. We wish to conclude this point by quoting large passage from
Berlin’s book:

“Nor do I wish to deny that the new ways in which liberty, both in its positive and negative
sense, can be and has been, curtailed have arisen since the nineteenth century. In an age of
expanding economic productivity there exist ways of curtailing both types of liberty—for
example—by permitting or promoting a situation in which entire groups and nations are
progressively shut off from benefits which have been allowed to accumulate exclusively in the
hands of other groups and nations, the rich and strong—a situation which, in turn, has produced
… social arrangements that have caused walls to arise around men and doors to be shut to the
development of individuals and classes”.

Importance of Political Liberty:

To the bourgeois theoreticians and politicians political liberty is of prime importance. It is
because the political liberty means people’s right to pursue their own aims and interests in
political field without any apprehension of state interference. The liberalisation of political
liberty or its expansion beyond the narrow limits prescribed by some will undoubtedly enable the
citizens to pursue their own objectives which will ultimately accelerate the development of
society.

It has also been argued that freedom in the political sphere will have a positive impact on the
economic sphere. People will get enough opportunities as well as freedom to proceed with their
economic functions without any hindrance. The laissez faire doctrine, though primarily based on
economic freedom, it does not ignore the political freedom because liberty in political fields will
encourage citizens to start new schemes in other fields.
24

For Private Circulation Only HPNLU Shimla Page 123

This can be illustrated by the functioning of democracy. Modern political scientists think in these
terms. The New Right concept developed in the seventies and eighties of the last century wanted
a general shift from the state oriented organisation to market- oriented organisation and this was
implemented by Reagan in USA and Margaret Thatcher in Britain.

Robert Nozick also propounded a theory of minimal state. All these reveal that political liberty is
to be given maximum importance. Of course arguments against this approach are huge in
number. However, the fact is that the forward march of market economy has accompanied with it
the political liberty.

Marxist Theory of Liberty:

Part of his Political Philosophy:
Neither Marx nor Engels did build up a separate theory of liberty. Their main interests lay in
analysing the capitalist system and for unraveling its true nature they studied history. In the
course of discussion they studied the nature of state, functioning of bourgeois democracy,
condition of rights and freedoms of common people etc.

Their study of history is based on the materialist outlook and because of this Marx’s analysis is
called materialist interpretation of history. Both Marx and Engels made strenuous efforts to show
that in capitalist society the entire state structure is controlled by the bourgeois class for its own
benefit. All the privileges and wealth are captured by the capitalist.

The capitalist class enjoys all sorts of rights and liberties and the machinery of the state are used
by them to safeguard the interests of the ruling class. Naturally what is generally regarded as
political concept or theory is merely the products of bourgeois brain. Political theory or any part
of it can never be a variant of general capitalist political theory.

Whatever Marx and Engels had said about political theory in general was their reflection about
capitalist society in general and political theory of capitalist state in particular. Political theory of
capitalist state means political scientists and scholars discussed political concepts in support of
capitalism. They have made suggestion, in overt manner, to strengthen the foundation of
capitalism.

Marx on Human Nature and Society:

Marx and his followers believed that the aptitudes and attitudes of man are the products of
society or social atmosphere, they are not hereditary. The material conditions of society

25

For Private Circulation Only HPNLU Shimla Page 124

determine the human character and if so if we want to change or remodel the human character,
attitudes, aptitudes etc., it is first of all necessary to change the material conditions of society.

The capitalists have built up the structure of society in such a manner that common people or the
working class have no scope to enjoy liberty or to exercise rights. Qualities of human beings are
not innate and in order to remodel or build them up the whole social structure is to be rebuilt.

In the analysis of a Marxist we find the following observation: “The individual is the social
being. His life, even if it may not appear in the direct form of a communal life carried out
together with others—is therefore an expression and confirmation of social life”.

The term ‘individual is the social being’ means that he is an integral part of whole society and his
identity cannot be separated from society. The individual develops his personality with the help
of opportunities which are opened to him by the society. So if he fails to develop the qualities, it
is not his fault, or he is not wholly responsible for it, the structure of the society is to be blamed.
It is the society that determines how much liberty individual will enjoy.

Marxist Theory of Liberty is Positive:

The standard definition of negative liberty is its absence of restraints. Hence proper liberty must
be free from coercion. But to Marx and many others liberty must be thought not in the negative
sense. The Marxist concept of freedom, in larger sense, is heir to wider and richer view
stemming from such philosophers as Spinoza (1632-1677).

Rousseau (1712-1778), Kant (1724-1804) and Hegel (1770-1831). All of them held the view that
freedom is a way of self determination and development of mental qualities. Marx by freedom
did not mean that it was the absence of restrictions. Its main focus is not what the state cannot
do, but what it can do and what it must do for the all-round development of human personality.

The Marxists have never propagated the minimal state theory or the less done the better idea. It is
the duty of state to do whatever is necessary. The objective of the state functioning should be to
raise the development of man to the highest level.

We have already noted that aptitude and other qualities are the products of social system or
structure and it is the primary function of state/authority to remodel that structure to the tune of
human progress. In this notion of Marx and his followers there is practically no touch of negative
outlook towards state. In other words the state must play constructive role in the arena of human
development.

26

For Private Circulation Only HPNLU Shimla Page 125

The bourgeois thinkers stressed the negative sense of freedom because they believed that too
much restrictions would chain the freedom of capitalists and due to that they would not be in a
position to exploit and control the society according to their wishes. If the activities of state were
not kept at minimum level domination of the bourgeoisie would be drastically curtailed.

The capitalists never thought of liberty for all sections of society but only for the limited few and
that is why they linked liberty with the imposition of restrictions. The capitalists also did not
support the imposition of restriction still on another ground. They argued that the restrictions
were very powerful to curb liberty of individuals. Spontaneity is crushed under the wheels of
restrictions. So it is the best way to refrain from imposing restrictions.

It was also the belief that individual is the best judge of his own well-being and development
because he is rational. But Marxists do not subscribe to this conception. Some individuals may
be quite rational and intelligent but not all. For the upliftment of all individuals it is necessary
that the state should play an important role and this approach lays the foundation of positive
liberty which has received maximum support from Marx and his followers. So we conclude that
in the conception of positive freedom Marx saw a constructive role of state.

Removal of Obstacles and Liberty:

A major part of Marx’s literature deals with the exploitation of working class and emancipation
from all sorts of exploitation and in Marxism emancipation is treated as freedom. How could this
emancipation be made possible? Marxism believes that only through the removal of obstacles to
emancipation attainment of liberty is possible.

Let us see what is stated in the book just referred to: “Marxism involves wider notions of the
relevant restrictions and options and of human agency. More specifically Marx and later
Marxists tend to see freedom in terms of the removal of obstacles to human emancipation that is
to the manifold development of human powers and bringing into being of a form of association
worthy of human nature”. Mere realisation of emancipation of human being is not freedom
because at any time it may be lost.

The counter-revolutionaries and reactionaries will try to destroy the socialist system and by
doing that capitalist system will be able to establish its own hegemony. So to Marxism true
liberty means the removal of obstacles to emancipation and only the socialist state can do this.
The socialist state will have to play a constructive role.

27

For Private Circulation Only HPNLU Shimla Page 126

So in Marxist theory of liberty we find two vital things. One is the issues or problems that
jeopardise the emancipation must be mercilessly destroyed or defeated. Secondly, the state along
with human agencies and institutions must try to remove them. The obstacles and their removal
have been viewed differently in Marxism.

Marxist Freedom is Collective:

The Marxists never consider society as consisting of disparate individuals. All the members of
the society are intrinsically related with each other and every society is characterised by
interdependence. This is the collective nature of society and, if so, freedom is also collective in
nature because the freedom of one individual depends on another individual.

In The German Ideology Marx and Engels have said: “The conditions of their life and labour
(life of proletarians) and therewith all the conditions of existence of modern society have become
… something over which no social organisation can give them control”.

The physical conditions of society created by the bourgeois class are such that it is not possible
for the labouring class to overcome them individually. Only collective action on the part of the
proletarians can bring about emancipation. “Overcoming such obstacles is a collective enterprise
and freedom as self-determination is collective in the sense that it consists in the socially
cooperative and organised imposition of human control over both nature and the social
conditions of production”.

Freedom as the product of collective efforts asserts that only collective efforts can remove the
impediments to liberty or what Marxists call emancipation. Again, for the development and
enjoyment of freedom, cooperation among all the individuals is essential. Here lies the basic
difference between capitalist notion of freedom and Marxist notion of freedom.

Marxist Freedom is Economic:

Mention has been made that the bourgeois theoreticians had excessively stressed the political
freedom because the realisation of such freedom would materialise the social progress as well as
the balanced progress by individual qualities. But coming to Marx we find a different notion.

To the Marxists economic freedom is far more important than political freedom and without the
former the latter has practically very little significance. The economic structure of society is to be
so constructed as to satisfy the economic and other needs of the people. So long the economic
needs remain unfulfilled the political freedom is bound to be nothing. Marx and Engels drew this
conclusion on the basis of the knowledge they derived from the thorough study of history.

28

For Private Circulation Only HPNLU Shimla Page 127

They have also learnt that the economically powerful class, in manifold ways, controls almost all
the agencies of state administration and utilises it for its own benefit! Though the neutrality of
the state in between the different conflicting classes has been questioned by many it is a fact that
the state generally acts as an instrument of exploitation and sometimes it poses as a neutral
political organisation.

Since the capitalist class controls both the production and distribution the working class is
deprived of economic benefits from production. This makes the proletarians subservient to the
powerful class. Thus, in a political system where both production and distribution are controlled
by capitalists, political freedom of the deprived class is a mockery.

Condition for Freedom:

Marx and Engels were of opinion that without socialisation of production and distribution
freedom could not be achieved. But in capitalist system the socialisation of production could not
be done. The capitalist would resist it. The socialisation of production and distribution means the
dethronement of capitalists from power and authority. In such a situation the only alternative left
before the proletarians is to seize political power through revolution.

In this way the capitalist class would be suppressed and that would make way for the Working
class to capture power. This is the new society in place of the old bourgeois society. Marx and
Engels have stated the matter in The German Ideology. “It is the association of individuals
(assuming the advanced stage of modern productive of forces) which puts the conditions of the
free development and movement of individuals under their control—the conditions which were
previously left to the chance and had acquired an independent existence over against the separate
individuals”.

In such an association or community each individual will have the means of cultivating his gifts
in all directions. All the members of the community will have abundant opportunities to develop
their gifts or inherent qualities. This is the central idea of Marxist concept of liberty. What Marx
and Engels have said in the above-noted passage is that for reaching the coveted goal of freedom
a new community is essential and the proletarians will build it up by means of revolution.

Assessment:
Marx’s critical analysis of liberty bears the hallmark of capitalist society. He is correct when he
says that bourgeois concept of liberty is partial in character. Only a microscopic fraction of
capitalist society has the opportunity to enjoy liberty fully. It is also correct that without
economic liberty political liberty has no real value.
29

For Private Circulation Only HPNLU Shimla Page 128

But unfortunately the bourgeois philosophers have always been found to pay excessive
importance to political freedom. This is the most unfortunate aspect of bourgeois theory of
liberty. Most of the bourgeois thinkers see justice and worth is the negative freedom. But we,
from our practical experience, can say that absence or restraints cannot constitute liberty in real
sense. Even Berlin has admitted it in his book Four Essays on Liberty.

The exponents of liberty in the latter decades of the twentieth century find enough reason in the
Marxist analysis of freedom. Some of them are Heywood, David Held etc. They believe that both
political and economic liberties are required for the proper development of the individual’s
inherent qualities. Prof. Laski threw light on this aspect in his many writings in the thirties and
forties of the last century.

But Marx’s view on freedom is not above criticism. For the realisation of true freedom Marx
suggested (particularly in The German Ideology, it is a joint product of Marx and Engels) that
the creation of a new community/association (Marx and Engels have used alternatively) was
essential and only proletarian revolution could do it.

We, in this respect, simply hold the view that it is sheer Utopian thought. During the last one
century and half nowhere in the globe socalism has been established. Naturally Marxist freedom
still remains far and far away.

During the last five or six decades capitalism has undergone sea changes and one such change is
it has amended itself remarkably to make it suitable for new society, attitudes and outlooks. We
can call it the credit of capitalism. This change has enabled it to meet some of the genuine
demands of the working class for which Marx and Engels thought a lot and shed huge tears.

Many of the workers, due to change in policy have raised themselves to the status of white collar
employees. Our point is all of them are enjoying sufficient freedom and this they are doing
without forming a new association. Marx believed that freedom could be achieved, not in a
capitalist society but in a socialist society.

We however, do not agree. It depends, to a large extent, upon the individuals themselves—we
cannot say that Englishmen are enjoying less freedom. Who will say that the quantum of liberty
enjoyed by Soviet people during the Soviet regime was much larger than the freedom enjoyed by
the members of capitalist society?

30

For Private Circulation Only HPNLU Shimla Page 129

 Equality

Meaning and Definition:

Equality originates from aequalis, aequus and aequalitas. These are all old French or Latin
words. These French/Latin words mean even, level and equal. Thus the meaning of the word
equality used in political science corresponds to the meaning from which it originates.

The term equality used in political science differs from uniformity, identity and sameness. Some
people, of course, want to use it to denote uniformity. But this does not convey the meaning
when it is used by political scientists. Equality does not mean obliteration of diversity.

Number of political scientists has defined the concept and Prof. Laski is one of them. We shall
mention his definition because of its special approach. According to Laski equality means
“coherence of ideas”.

In the treatment meted out to different individuals there shall persist coherence. While privileges
are distributed among the individuals justice and reason must be maintained so that no individual
can think that he is neglected or is deprived of his due share. In the distribution of privileges
attention shall be paid to the development of personality.

This definition leads us to find out another meaning (definition) of equality. It means the absence
of special privileges. Individual’s claim for the privileges rests on the ground that without it he
cannot develop his personality and because of this reason an individual’s claim for something is
logical and legitimate.

In that case, if some individuals are deliberately made to suffer that will be a gross violation of
equality. Of course, the deprived person must prove that others have been given more than what
is reasonably his due.

Mere providing privileges or opportunities is not all. This does not bear the complete meaning of
equality. Laski further says that privileges provided by the authority must be adequate.
Individuals, with the help of inadequate opportunities, cannot develop personality. It is difficult
to ascertain what is exactly meant by the term adequate. What is adequate to one may be
inadequate to other and we all admit this.

31

For Private Circulation Only HPNLU Shimla Page 130

Still we hold the view that adequacy will be determined by the person claiming opportunities.
And at the same time that state must have the capability to provide opportunities. It may not be
possible for the government of a poor country to provide all the requirements for the research of
atomic energy. Again, providing privileges depends upon the mentality of the party in power.

All these factors enter into the consideration while analysing the term adequate. But this
controversy need not be an obstacle for the authority in charge of distributing opportunities (we
use opportunities and privileges alternatively though there is a very subtle difference).

We collect three different meanings of equality from D. D. Raphael’s analysis:

The first is equal consideration. There is a second meaning and it is equal opportunities. Finally,
equal satisfaction of basic needs. The term equal considerations is not satisfactory because it may
not always be justified. Equal opportunities, in the opinion of Raphael, are an acceptable term
but it is cautioned here that it should not lead one to conclude that it is identical opportunity.

Basic needs are a good term and everybody wants its fulfillment. Here the problem is what is
actually basic needs differs from person to person. The criterion of basic needs is to be
determined at first. The different senses of equality designated by Raphael, though controversial,
are meaningful and many subscribe to these meanings.

Instead of attributing any clear meaning to the concept of equality Dorothy Pickles (Introduction
to Politics) draws our attention to the fact that it is used in most of the cases ambiguously. To the
French revolutionaries it was meant equality before law. Irrespective of any differences all
classes and groups of persons are to be treated equally by law. Nobody is above law and outside
the purview of law.

Equality has another meaning and this is everybody can claim equal protection of law. Law will
protect all persons equally and it will make no discrimination. Some people still hold the view
that equality denotes equal economic opportunities. There is still another meaning of equality
which means property should be distributed equally among all persons. These are the different
connotations attributed to the concept of equality.

Analysis of Equality:
We now turn to a detailed analysis of the various aspects of equality:
1. Everybody admits that equality is a very complex notion; there is no single meaning and no
single notion about equality. We here note some well-known meanings or notions such as
political equality, economic equality, social equality, racial equality and sexual equality or

32

For Private Circulation Only HPNLU Shimla Page 131

equality in respect of gender. All these forms are important and they have relevance in the social
and political structures.

2. Benn and Peters have said that the concept is more often prescriptive than descriptive. The
exponents of the doctrine, through the idea of equality, want to prescribe some norms or ideals.
For example, they want to say that there shall be political or racial or economic equality or it is
suggested that both women and men shall be on equal footing. While prescribing something in
the form of equality it is generally addressed to the persons in power, policy-makers and general
public that the principle of equality should be strictly adhered to.

3. In the analysis of equality we very often refer to egalitarianism, and in political theory both
equality and egalitarianism are profusely used. Egalitarianism refers to the belief in the principle
that all men are equal because they are created by God equal and, therefore, they deserve equal
rights and opportunities. No discrimination is allowed. Particularly Christianity worked behind
the propagation of this concept.

It is also defined as a theory or practice based on the desire to promote equality or the belief that
establishment of equality is the primary objective of any society, Egalitarianism, we can say,
aims at extreme or strict equality. It says that in all spheres of social, political cultural, economic
and other fields there shall exist equality.

It thinks of no concession or relaxation of equality principle—viewed thus, equality, at least in

some respects, differs from egalitarianism. It believes that all men are created equal. But that
does not mean that the differences in intelligence, ability etc. cannot be recognised. It is believed
by some that the maximisation of equality will result in egalitarianism. Egalitarianism has for
long canvassed in favour of equalities in income, wealth, opportunities etc. It has been asserted
that without all these equalities the inherent qualities of men cannot thrive at all.

4. The progress towards attainment of equality has not been uniform in all states. For example, in
the USA the legislature and the judiciary have been found very active in the fields of social and
political equality; it has been less active in economic equality. Not only the USA, in other liberal
democracies more stress is given to political equality and less to economic equality. Whereas in
socialist countries much importance is paid to economic equality. But egalitarianism calls it a
violation that all types of equality are to be treated adequately.

Formal Equality:

33

For Private Circulation Only HPNLU Shimla Page 132

Nowadays a term is frequently used and it is formal equality. The political scientists do not
especially use this term but it is manifest from their analysis that the idea of formal equality is
quite fresh in their minds. It is believed that formal equality is legal equality. The inner idea is
that every citizen is a legal member of the state which is a legal association.

As a legal member of the legal association every person has certain claims to equality. There are
two very important forms of legal or formal equality. One is equality before law and equal
protection of law. We have already mentioned these two. What is to be noted here is that the
legal member of the legal association (Barker calls a state a legal association) can legitimately
claim that all the citizens (including him) must be treated equally by law and no discrimination is
to be allowed. In the British system of administration and politics this was especially emphasised
and Dicey spoke a lot about it. Violation of this principle will be treated as violation of equality.

There is another type of formal equality and it is equal protection of law. It is the primary
function of law to give protection to all citizens and while doing this it makes no distinction
between rank, position and wealth. Legal or formal equality, to speak the truth, constitutes the
very core of rule of law. In this sense the formal equality comes to be associated with equality.

It has been pointed out by Heywood that the formal equality is basically negative because the
state authority takes special care in regard to the distribution of opportunities. The objective shall
always be not to allow awarding special privileges to few persons.

Naturally to attain this goal the state must impose restriction in one form or other upon the
distributing machinery or the state must take policy to that extent. We have already noted that
Laski has observed that equality means the absence of ‘special privileges.

Formal or legal equality has received almost universal approval from conservatives, liberals and
even socialists. It is absolutely irrational, unjustified and even bigotry to deprive some persons of
their legitimate share in wealth, income and manifold privileges on the ground of accidental birth
in poor families or in so called neglected religious groups.

The white rulers of South Africa adopted a policy of segregation or apartheid for the black
people who were the original inhabitants of the land. Even in the USA the Negroes were not
allowed to sit with the white students in public schools or to dine in the famous restaurants.

The blacks were not even allowed to enjoy other privileges which the white people had the right
to enjoy. This type of discrimination was irrational and against equality, liberty and justice. It is

34

For Private Circulation Only HPNLU Shimla Page 133

ridiculous to think of the rule of law in a society which gleefully practices all forms of
discriminations.

Equality and Justice:

Equality is the Principle of Justice:
In our analysis of Rawls’ theory of justice we have noted that he treats attainment of equality in
the distribution of rights as a basic principle of justice. He writes “Each person is to have an
equal right to the most extensive scheme of equal basic liberties compatible with a similar
scheme of liberties of others”.

Every individual has the right to claim equal liberties with others and when the state authority
can ensure this, it will be assumed that justice will no longer be far away. The state must see that
in regard to the allotment of rights and liberties the principle of equality has been most
scrupulously observed. If equality is violated justice will not be achieved. Justice is always hand
in glove with equality.

Rawls further maintains that for the sake of justice inequalities may be allowed to reign in
society. Rawls writes, “Social and economic inequalities are to be arranged so that they are both
reasonably expected to be to everyone’s advantage”. In a state all the opportunities and position
shall be opened to all. There shall be no place of discrimination. Rawls also says that even the
inequalities shall create no disadvantage to anybody.

In this way Rawls has suggested that equalities and inequalities will build up a foundation for
justice. Distribution of all values, rights and liberties will be based on the above principles and
all institutions shall be modelled on the same principles.

Liberal Equality, Democratic Equality and Justice:

Liberal equality, democratic equality and justice all are closely linked. Rawls says formal
equality, through the distribution of all opportunities to all eligible persons, shall be ascertained.
Rawls admits that in almost all societies there are misdistribution of opportunities and
advantages at the initial stages and that must be rectified through deliberate efforts.

This should be done in such a manner as it will enable to flourish and utilise their talents
properly. But Rawls points out a condition. Formal declaration of policies or processes is not
sufficient; care should be taken as to the fact that all are capable of attaining the opportunities. If
necessary the structural changes of the society are to be effected. “Free market arrangements
must be set within a framework of political and legal institution”.

35

For Private Circulation Only HPNLU Shimla Page 134

Rawls suggests that democratic equality is achieved by combining the means of the principle of
fair equality of opportunity with the difference principle. Let us explain it. We have already
noted that whatever opportunities are available, that must be fairly distributed among the
legitimate claimants.

In the process of distribution, if necessary, difference is to be accepted. That is, unequal

distribution of opportunities is to be admitted. He says that behind this policy there shall be
consent of the society and it shall aim at the advantage or benefit or welfare of all. Even the
expectations of the least advantaged shall find realisation.

Basis of Equality and Justice:

How justice is related to equality or vice versa will be explained in the following way: Rawls
says that the relation between these two concepts can be explained from various standpoints. In
the first place, the administration of public institutions is to be so arranged as to ensure both
equality and justice. All the rules of the society are to be applied impartially and the rule of law
shall prevail in every sphere of human life and society.

The rights of persons are to be protected by the rule of law. The citizens will be able to realise
that rule of law is not violated. The rule of law and equality travel side by side and both help the
realisation of justice. We here find that Rawls was immensely influenced by the British systems
of rule of law and he considered it as the basis of justice and equality.

Rawls mentions about the ”substantive structure” of institutions. He repeatedly emphasises the
restructuring of institutions because of the fact that, in democracy people’s rights, liberties and
equalities are realised mainly through these institutions. These are not generally controlled by the
state. But mere non-interference with the functioning of institutions is not enough.

The structure must be helpful for equality and justice. The structures of institutions will have no
function for discriminating among the citizens and thereby devaluing justice. It is the duty of
institutions to impart justice and ensure equality. Thus, Rawls concludes that justice and equality
are not separate concepts.

Marxist Theory of Equality:

Part of Marx’s Political Philosophy:
Like his other political concepts, equality is also a part of his entire .political philosophy which is
primarily linked with the unmasking the real nature of capitalist system, its abolition and

36

For Private Circulation Only HPNLU Shimla Page 135

emancipation of working class. From the study of various aspects of society Marx concluded that
there were number of inequalities in capitalist system.

For example, social, political, economic etc.; and these were due to the bourgeois structure. In
any capitalist state there were inequalities between men and women, rich and poor, there were
discriminations among various religious groups.

Even the inequalities were institutionalised by the capitalists. Theoretically the bourgeois
scholars and political scientists propagate for equality and strongly argue for formal or legal
equality. Even the bourgeois constitutions (constitutions framed by the bourgeois scholars to
meet the needs of a particular class) pontifically announce the inclusions of rights, liberties and
equalities as parts of the constitution and also make provision for their protection.

But in actual situation most of the rights, liberties and equalities remain unfulfilled. Marxists
claim that all “these allegations against the bourgeois society are not based on any concoction or
emotion. It is their claim that Marx and Engels studied the capitalist society from a very close
distance.” In the second half of the nineteenth century the capitalist systems of Britain, Germany
and France were matured.

How to Achieve Equality?

On the Jewish Question Marx dealt with several issues and one of these is equality. He had said
that it was mere farce to think of emancipation of all exploited people through the declaration of
equal civil rights and liberties. To Marx such declaration amounted to political emancipation.

But people’s equal rights and privileges could never be obtained through the announcement of
political emancipation. According to Marx it was merely partial emancipation. For achievement
of all forms of equality (also of rights and liberties) human emancipation was necessary. By
human emancipation he meant emancipation of all men and women from every type of bondage
created and imposed by the capitalists. Emancipation only of the Jews could not achieve that
ambitious objective.

So Marx on the Jewish Question ridiculed the emancipation only of the Jews. Marx believed that
the institution of private property was the chief evil and it always acted for the creation of
inequalities and differences among people. For this reason he recommended the abolition of
private property through the seizure of political power. Prevalence of market economy was
another factor for the growing menace of inequality and exploitation.

37

For Private Circulation Only HPNLU Shimla Page 136

The weaker sections of the body politic were gradually being eliminated from the market
because of money power exercised by the capitalists. Therefore, the abolition of capitalism was
the first precondition for the attainment of universal political values such as equality, right and
liberty, also justice.

Two Principles of Equality:

A serious analysis of Marxist thought reveals that Marx had two types of equality in his mind
though an unambiguous conclusion cannot be drawn. The writer of the essay published in
Dictionary of Marxist Thought has said that the two principles of equality are—”From each
according to his abilities, to each according to the amount of work performed”.

There is another principle: “Each according to his abilities, to each according to his needs”. This
principle indicates that each person in the society will perform his duties as far as his abilities
permit him to do. That is, none will be asked to do any work beyond his capacity.

On the basis of these two criteria the remuneration will be decided. It is believed by the Marxists
that if this criterion is strictly adhered to that will lay the foundation of equality because none
will be deprived of his due share of wealth. But the Marxists believe that only in a post-
revolutionary society such an aim can be realised.

In the first stage of the post-revolutionary society, Marx claimed, this objective or principle
could be achieved. Marxists did not treat this stage as the stage of just equality. It was
apprehended that due to differences in ability and talent there might appear differences among
men in many respects. Nevertheless, this principle might be regarded as the stepping stone to
equality.

There is another principle delineated by Marxists: “From each according to his abilities, to each
according to his needs”. Marxists (including Lenin) stressed this principle and held that only in a
communist society this principle could be achieved. Explaining this principle the author of the
above-noted article has said, “This principle corresponds with the higher communist phase of
post-revolutionary society. Under communism will there be equal treatment of unequal human
beings with all their necessarily unequal needs”.

A musician needs musical instruments for the performance of music. A physicist requires huge
amount of money to purchase sophisticated instruments for his research. All these are not always
for the large scale public benefit. However, these expenditures are to be met. Some people call it

38

For Private Circulation Only HPNLU Shimla Page 137

Utopian approach to the concept of equality because all the legitimate and rational requirements
cannot be met by the society. Naturally the system of private property is essential.

But the Marxists do not share this view. They are of opinion that when everybody in the society
is assured of satisfactory activities and requirements there shall not arise the urge for private
property. This will clear the way for the emergence of equality. A good social relation will
develop among all persons in the body-politic. Marxists have further said that, in communism,
when such a situation will arise, nobody will try to acquire private property because that will
appear to them a useless venture

39

For Private Circulation Only HPNLU Shimla Page 138

 Democracy
Democracy has directly originated from the French democratic, but its real
origin is Greek. In Greek there are two words—demos and kratos. The
former means people while the latter rule and what we mean by democracy in
English is rule of the people.

David Held, a renowned authority on the concept, defines the term as

“Democracy means a form of government in which, in contradistinction
monarchies and aristocracies, the people rule. Democracy entails a political
community in which there is some form of political equality among the
people”. Precisely stated, democracy is the rule by the people. Of all the
definitions of democracy perhaps the best and most popular definition is the
following: It is called “the government of the people, by the people and for
the people”.

The former U.S. President Abraham Lincoln (1809-1865) is the author of this
definition. Lincoln uttered this definition in his Gettysburg Address delivered
in 1864. The sixties of the nineteenth century witnessed the height of the
American Civil War between the Northern and Southern states. Even today
Lincoln’s definition is treated by many as a classical one and any discussion
of democracy cannot skip this.

Explanation of the Definition:

We have stated only two definitions because all the definitions sketch the
same thing so it is not necessary.

However, all the definitions have been found to contain the following
Elements:
1. Democracy is a form of government in which people’s participation is of
primary importance.

2. People may participate either directly or indirectly.

3. It is a form of government in which people have equal opportunity and this

type of government is based on individual merit and no place of hereditary
privilege is to be found in democracy.

40

For Private Circulation Only HPNLU Shimla Page 139

4. Distribution of opportunities is adopted for reduction or removal of
inequalities.

5. Democracy recognises that all the sections of the community will receive
their due shares.

6. Interests of the minorities will be duly protected and state makes

arrangements for that.

7. All the public offices and opportunities are opened to everyone and to fill
the posts public examinations are held. There is also open competition on in
which every eligible citizen has the right to participate.

8. It is a system of government which does not make any discrimination on

the basis of caste, religion, sex, birth etc.

9. In democracy all must have the scope to govern or to be a member of

government.

10. Rulers are to be accountable to the ruled and forms of accountability are
many.

11. Rules are to be chosen by the ruled.

12. People shall have the right to decide who would rule them.

Who are the People?

The most important element of democracy is self-rule, equally distributed
among the people. The term self-rule may be interpreted as political power.
The term equally distributed means as evenly as possible. It is impossible that
in a democracy all will have equal power. There may be variation in the
distribution of power.

For example, the members of the government enjoy more powers.

Nevertheless, the most important part of the definition is people. Who are the
people?

41

For Private Circulation Only HPNLU Shimla Page 140

The meanings of the two terms of the people and for the people are clear. The
members of the government must come from the general public that is
people. The functions of the government must aim at the general welfare or
upliftment of the people. But question arises about the by the people.

In no system of government (including the democratic government) all the

categories of men are permitted to participate in the affairs of government
such as formation of government, formulation of policy and making of
decisions. In ancient Greek city states only the citizens (excluding women)
above the age of twenty had the opportunity to participate in the functions of
state. Until 1928 the British women had not the scope to elect representative
that is right to vote.

In the early 1960s the Negroes of the Southern states of USA got the right to
vote. In 1971 Swiss women were enfranchised. In many countries people
below the age of 18 have no right to vote. Hence the term people have
restricted use.

People’s Participation: Fact or Fiction?

As noted above people’s participation is the most vital part of democracy. In
our analysis of people we have seen that the word people, everywhere, are
restricted. Even in the so-called flourished or matured democracies people do
not include all types of persons.

It has been assumed by the policy-makers or politicians that (in most of the
countries of course) men below certain age are not politically conscious and
are not capable of taking judicious decision and for that reason they are
debarred from participating in political affairs. But this age bar is
hypothetical and many people do not believe that this age bar has any
scientific basis. In spite of that, it is scrupulously adhered to.

Apparently people’s participation is very sacred and politically important.

But a close scrutiny reveals that as a democratic principle it is very fragile.
How many people consciously participate in political affairs? And of those
participating how many are able to take judicious decisions? It may appear
that all these are bizarre questions but from the functioning of the democratic

42

For Private Circulation Only HPNLU Shimla Page 141

regimes we have come to know the functioning of American democracy
which shows that about half of the electorate do not participate in the
presidential elections.

Before 1971 the Swiss women had no right to franchise. Only direct
democracy of the Greek city-states type or Rousseauian type can assure of a
real type of participation. In the light of above analysis we can conclude that
though there is a controversy as to the exact implication of the word
participation, in practice in nowhere of the world hundred percent people
cannot participate in the affairs of state and inspite of this we use the word.

43

For Private Circulation Only HPNLU Shimla Page 142

Forms Of Government

Presidential Form Of Government

The presidential system is a form of government in which the president is the chief executive
and is elected directly by the people. In this system all three branches – executive, legislative,
and judiciary – are constitutionally independent of each other, and no branch can dismiss or
dissolve any other. The president is responsible for enforcing laws, the legislature for making
them, and the courts for judging. Each is given specific powers to check and balance the others.
This system was invented by America’s founders to provide an alternative to the parliamentary
form of government. It became known as ‘presidential’ because a directly elected president was
its most salient difference. This doesn’t mean that the president holds supremacy like the prime
minister or parliament. In fact, power in the presidential system is divided among many, so no
individual or institution can ever become supreme.
This rejection of legislative supremacy is not the only fundamental difference. Since the
presidential system was designed for a full republic, not a constitutional monarchy, it doesn’t
have a head of state. The government is not just an executive committee called the Cabinet, it’s
all three branches. The President, Congress (with two chambers: House of Representatives and
Senate) and Supreme Court, work together to constitute a government, and all report directly to
the people. Elections are therefore held more frequently than the parliamentary system; every
two years for the legislature, and every four for the presidency. The president and legislators are
elected for fixed terms. The judges are appointed for life, jointly by the president, who
nominates, and the Senate, which approves.
Total executive responsibility is assigned to the president as an individual, not collectively to a
council of ministers, as in the parliamentary system. The president’s cabinet is not made of
legislators but of any individuals considered able by the president and approved by the Senate.
In fact, legislators are barred from holding executive offices, and vice versa. Conversely, the
president cannot make laws. He can veto, but the legislature can override if there is broad
consensus.
Another big difference is with respect to state governments. The presidential system is designed
for a federation, not for running states from the center. Accordingly, its state governments are
independent, cannot be dissolved, and are required to be self sufficient. Federal and state
governments are granted separate and specific powers; residual powers are left with the states.
The Americans invented the presidential system in 1787 to replace their decade-old fraying
structure. After gaining independence, the 13 American colonies lived under the Articles of
Confederation. But that provided a weak central government and lacked a fair system for inter-
state cooperation. The union began to fall apart. The founders knew they had to come up with a

For Private Circulation Only HPNLU Shimla Page 143

better system. Having lived under the British Constitution all their lives, they knew the
parliamentary form of government was not the answer.
They devised a revolutionary new system of strong but non-oppressive governments. The
presidential system grants limited powers, empowers state governments, separates the three
branches into different institutions, enables the minority to make laws, grants judiciary the power
of review, and above all, gives the people a direct say. Direct elections at all levels of
government – federal, state, and local – is this system’s best known feature.
Many nations have a so-called presidential system, but America is the model to study. In almost
all other countries the powers are not as well balanced. The American system is not difficult to
understand or replicate, however it cannot be implemented piecemeal. Since it relies on
institutions and their checks on each other, the structure of every institution is equally important.
The American presidential system is not authoritarian. The general depiction of America’s
president as “the most powerful man on the planet” has created an erroneous impression of
autocracy. But nothing could be farther from the truth. In 225 years, no American president has
even been accused of autocratic behavior. Power in this system cannot find a focal point. This
system makes it structurally impossible, due to its powerful state governments, division of
spending and taxing authorities, and separation of the powers of sword and purse.
Features of Presidential Form of Government
The presidential form of government is that in which the executive is not responsible to the
legislature. An example of such a system of Government is the United States of America (U.S.A)
Essential features
1. The president is the real executive. There is no nominal or ceremonial executive. All the
powers are vested in the hands of the president.
2. The powers of the three organs namely, legislature, executive and judiciary are separated
and vested in different persons.
3. Though the three organs of the government are kept apart, they are also connected by the
system of checks and balances. Each organ of government exercises checks on the other
two organs so that a sort of balance is established.
4. The tenure of the president is fixed. The tenure of office cannot be lessened or increased
under any circumstances. President can be removed by the legislature only by a process of
impeachment.

Merits of a Presidential Form of Government

1. A stable government is possible.

For Private Circulation Only HPNLU Shimla Page 144

 2. Under a presidential form of government, experts are appointed as heads of the
departments without consideration of their party affiliations. The president may appoint
persons who belong to the opposition parties.
3. There is continuous and consistent policy.
4. Highly suitable during the period of national crisis.
5. There is no chance for concentration of powers.
Demerits of the Presidential Form of Government
1. The executive is not responsible to the legislature and can do whatever it pleases.
2. There is always the possibility of deadlocks between the legislature and the executive.
3. It is not a flexible form of government.
4. The Presidential executive finds it difficult to follow a vigorous foreign policy, as there is
no harmonious relationship between the executive and the legislature. The executive may
follow a policy which may not be acceptable to the legislature.

The Presidential and Parliamentary Governance Forms

A government is the organization, machinery, or agency, through which a political unit exercises
its authority, controls and administers public policy, and directs and controls the actions of its
members or subjects. The government makes laws, regulate economies, conduct relations with
other countries, provide infrastructure and services, and maintain an army and a police force
amongst others on behalf of the people of the country.
Democracy is any system of government in which the people have the rule. The ancient Greeks
used the word democracy to mean government by the many in contrast to government by the
few. They key of democracy is that the people hold ultimate power. Abraham Lincoln best
captured this spirit by describing democracy as a government of the people, by the people, for
the people. Democratic government is opposed to an authoritative government, where the
participation of its citizenry is limited or prohibited, and a state of anarchy where no form of
government exists.
Over the years there has been a dramatic growth in the number of political regimes that meet
basic standards of procedural democracy. Such procedures include freedom of association and
expression, competitive elections that determines who holds political power, and systematic
constraints on the exercise of authority.
The establishment of democracy in countries with no prior democratic experience, its re-
establishment in countries that had experienced periods of authoritarian rule, and the expansion
in the number of independent states following the demise of European and Soviet communism
led to the adoption of democracy in most countries. As a result of these changes, attention has

For Private Circulation Only HPNLU Shimla Page 145

been focused on constitutional rules that guide competition for and the exercise of political
authority under democracy.
Democratic governments are those that permit the nation’s citizens to manage their government
either directly or through elected representatives. This is opposed to authoritarian governments
that limit or prohibit the direct participation of its citizens. One of the fundamental aspects of
constitutional design is the choice between presidential government, parliamentary government
and a hybrid system that combines some aspects of these two. A main difference between the
presidential and the parliamentary systems of governance is as a result of how that states
executive, legislative and judiciary organs are organized.
The United States (US) has a presidential system, as do countries it has influenced regionally,
culturally or militarily. With the exception of the US, presidential systems in the past have often
been associated with politically unstable and authoritarian regimes. Countries that have adopted
a form of the parliamentarianism include the United Kingdom (UK), much of continental
Europe, Israel, Japan, many of the former British colonies in Africa and Asia, and most
Caribbean countries. The French hybrid system has provided a model for a number of countries.
Countries that have adopted the French model in West Africa include Cote D’Ivoire, Gabon,
Mali and Senegal. A few states, such as Ghana, Poland, Bulgaria and Portugal also have a hybrid
system, with similar elements as the French model.
The purpose of this paper is to discuss some of the differences between the presidential and
parliamentary systems of governance with a view to recommending a system for Ghana. The
paper has been structured to focus on the separation of powers, the procedure of removal from
office and the functions of legislative. The Party discipline and the current system of governance
in Ghana have also been discussed. The paper assumes that democracy is the best form of
governance for Ghana.
SEPARATION OF POWERS
Key differences among the three systems (presidential, parliamentary and hybrid) include the
extent to which the powers of government are separated functionally between branches, and in
the powers one branch does or does not have over another. These include the extent, to which the
executive can control the legislative branch, or the extent to which the legislature can control the
executive (oversight), and the extent to which the legislative branch controls the capacity to
legislate. One important area of control and competition is the capacity to introduce and approve
legislation, and these vary considerably among the three systems.
In a presidential system, political and administrative powers are divided between the executive,
legislative and judicial branches. Officials in these branches serve different terms of office and
different constituencies. In a parliamentary system, Parliament is sovereign and executive
authority (exercised by the Prime Minister and Cabinet) is derived from the legislature. In a
hybrid system, executive power is shared between a separately elected President and a Prime
Minister.

For Private Circulation Only HPNLU Shimla Page 146

Presidential Government
In a presidential system, the President (who is the chief executive as well as the symbolic head of
government) is chosen by a separate election from that of the legislature. The President is elected
directly by the people and is answerable to the voters. The President then appoints his or her
cabinet of ministers (or “secretaries” in US parlance). Ministers/Secretaries usually are not
simultaneously members of the legislature, although their appointment may require the advice
and consent of the legislative branch. Because the senior officials of the executive branch are
separately elected or appointed, the presidential political system is characterised by a separation
of powers, wherein the executive and legislative branches are independent of one another.
Presidents have great control over their cabinet appointees who serve at the President’s pleasure,
and who are usually selected for reasons other than the extent of their congressional support (as
in parliamentary systems). In contrast, the British Prime Minister is more constrained to
represent his/her parliamentary party in the Cabinet.
The US represents the strongest form of presidentialism, in the sense that the powers of the
executive and legislative branches are separate, and legislatures often have significant powers.
Parliamentary Government
Parliamentary systems, unlike presidential systems, are typified by a fusion of powers between
the legislative and executive branches. The Prime Minister (who is the chief executive) may be
elected to the legislature in the same way that all other members are elected. The Prime Minister
is the leader of the party that wins the majority of votes to the legislature (either de facto, or in
some cases through an election held by the legislature). The Prime Minister is a member of
Parliament and is directly responsible to that body. The Prime Minister appoints Cabinet
Ministers. However, unlike in the presidential systems, these members are typically themselves
legislative members from the ruling party or ruling coalition. Thus, in a parliamentary system,
the constituency of the executive and legislature are the same. If the ruling party is voted out of
the legislature, the executive also changes. Continued co-operation between the executive and
legislature is required for the government to survive and to be effective in carrying out its
programs. In a parliamentary system, the legislature holds supreme power.
Parliamentary systems are characterized by no clear-cut separation of powers between the
executive and legislative branches, leading to a different set of checks and balances compared to
those found in presidential systems. Parliamentary systems usually have a clear differentiation
between the head of government and the head of state, with the head of government being the
prime minister or premier, and the head of state often being a figurehead, often either a president
(elected either popularly or by the parliament) or a hereditary monarch (often in a constitutional
monarchy).
LEGISLATIVE – EXECUTIVE TERMS AND REMOVAL FROM OFFICE
A key difference between presidential and parliamentary systems lies in the power to remove a
chief executive or to dissolve the legislature. In parliamentary systems, the chief executive’s

For Private Circulation Only HPNLU Shimla Page 147

term of office is directly linked to that of the legislature, while in presidential systems the terms
are not linked.
Presidential Government
In a presidential system, in line with the notion of a separation of powers, presidents and
members of the legislature are separately elected for a given length of time. Presidents have no
authority to remove members of the legislature. Premature removal of either legislative members
or the President can only be initiated by a vote in the lower legislative chamber and under
particular conditions. Thus, under normal circumstances, even if the political party that the
President represents becomes a minority in either or both houses of the legislature, the President
will remain in his position for the full term for which he was elected.
A number of Latin American presidential systems have provided an additional constitutional
check on the power of the President in this regard, likely due to a history of authoritarian
executive rule. For example, in Honduras, Mexico, Nicaragua, Panama and Paraguay, a President
is not allowed to serve more than one elected term. In other countries, including Ecuador, El
Salvador, Guatemala and the US, the President is not allowed to serve for more than two
consecutive terms.
Parliamentary Government
In a parliamentary system, the Prime Minister can be removed from office in two ways. The first
is through a ‘no-confidence’ motion, which is typically filed by the opposition or a coalition of
opposition parties. The no confidence motion calls for a vote in the legislature to demonstrate
that the legislature no longer has confidence in the Prime Minister (the Chief Executive) and his
cabinet of Ministers. If the vote passes by a majority, the Executive, including the Prime
Minister, is forced to step down. Since the Prime Minister and his cabinet of ministers are
members of the legislature, this brings about new legislative elections. The term of the Prime
Minister, therefore, is generally linked to that of the rest of the legislature.
Secondly, the Prime Minister can be removed by his/her own party members, in a setting outside
of the legislature. For example, Prime Minister Margaret Thatcher was removed by party vote
and replaced by John Major during the Conservative Party caucus [5] . Such a removal, whereby
the party decides to change its leader, does not force legislative elections.
LEGISLATIVE FUNCTION
In parliamentary, presidential and hybrid systems, the legislative body discusses political,
economic and social issues and is required to legitimize new laws. One of the major differences
of these systems lies in the legislature’s power (or lack thereof) to formulate and initiate
legislation.
Presidential Government
In a presidential system, the legislature formulates its own agenda and passes its own bills. The
legislature typically formulates and introduces legislation. The legislature can and often work

For Private Circulation Only HPNLU Shimla Page 148

closely with the executive branch in formulating legislation, particularly when the same party is
in power in both branches. The executive can draft laws, but members of the legislature must
introduce them on the floor. Some presidential systems, however, limit the legislature’s power to
amend the proposed executive budget, and a president may force the legislature to act on
legislation within a certain period. Some characteristics of a legislative function in a presidential
system or governance are as follows:
The legislature tends to have broad powers to amend any legislation. However, lack of resources
and other factors may act to blunt this power. In some countries, like Mexico during the period
of one-party domination, the President effectively controlled the Congress’ lawmaking function.
The potential for legislative assertiveness is greater in presidential systems, but the actual
realization depends on the presence of other conditions.
Legislatures in presidential systems are more likely to have specialized and permanent standing
committees and subcommittees with a number of professional staff to help draft, review and
amend legislation. Large congressional staffs in the United States came about in the post World
War II (WWII) years, with the greatest growth in the sixties and seventies. Staff and other
resources are typically much greater in the U.S. presidential system than in the Latin American
or other presidential models.
Via the committee system, the legislature has extensive powers to call expert witnesses,
members of the cabinet, presidential advisors, etc. for public or private hearings before the
legislature.
The President can veto legislation, which can only be overridden by a two-third vote in the
legislature.
Parliamentary Government
In parliamentary systems, the executive (meaning the Prime Minister, cabinet and bureaucracy)
controls the legislative agenda, and individual legislators have little political power to introduce
their own legislative initiatives. Characteristics of a legislative function in a parliamentary
system are as follows:
The chief executive and his/her cabinet initiate any piece of legislation affecting the budget or
revenue. In the UK and other similar models, legislatures can only amend legislation on narrow,
technical terms.
There are significantly fewer permanent or standing committees with relatively few professional
staff to help draft and review legislation. (There are exceptions – Germany’s semi-parliamentary
system has relatively strong committees where legislation can be initiated, reviewed and
amended by individual members. Australia has a larger staff system than does the UK).
Important policy decisions can and often are made at party caucuses rather than within
committees.

For Private Circulation Only HPNLU Shimla Page 149

PARTY DISCIPLINE
Party discipline, refers to the practice where legislators vote with their parties. Party discipline is
typically stronger in parliamentary systems than in presidential. This is because the “executive”
government requires majority party cohesiveness for its own survival. In countries that are
transitioning to a two or multiparty system whether presidential, hybrid or parliamentary, party
discipline may be generally weak owing to the fact that parties may be newer, lack a strong
internal structure and constituent base and/or lack experience in operating in a multiparty
legislature.
Presidential Government
Parties in presidential systems tend to be less structured than parties in parliamentary systems.
Failure to vote with one’s party does not threaten to bring the government down. Therefore,
members of the legislature are freer to identify with regional, ethnic, economic or other divisions
when considering policy issues. Because they are usually directly elected and identifiable with
particular districts or regions, many members see a duty to their constituents (in a district or
state) as the first priority, with allegiance to a party and its platform as secondary. While the
legislators are under some pressure to vote with their party, particularly on important votes, the
consequences of not doing so are not as serious to the individual legislator and to the system.
Legislatures and executives are elected separately and often for different terms, it is therefore not
uncommon for them to be controlled by different parties.
Parliamentary Government
Parliamentary systems in developed countries are characterized by parties that are highly
structured and tend toward unified action, block voting and distinct party platforms. This party
discipline is required in parliamentary systems primarily because deviation from the party line
could result in bringing down the government. Parliamentary systems require that the
“executive” and legislative members come to agreement upon issues, lest it forces the dissolution
of the government. In addition, majority parties in parliamentary systems are perceived by voters
to have a mandate to run the country. Therefore, each party may develop a system of
punishments and rewards. Individual members of the legislature who deviate from a party vote
may be punished by exclusion from their party within parliament or may not be nominated by the
party in the subsequent election.
Similarly, opposition parties theoretically want to maximize their power in a system dominated
by the majority by voting as a block and squelching internal dissent. Opposition party discipline
is more likely if the party or parties perceive that they can eventually gain the majority.
Consequently, for both majority and minority parties in parliament, important policy decisions
are made within party structures, such as party caucuses, rather than within the legislature itself.
Obviously, it is not possible for the legislature and executive to be controlled by different parties
in a parliamentary system.
The following are common attributes of the two systems based on party discipline:

For Private Circulation Only HPNLU Shimla Page 150

Advantages of weaker party discipline in presidential systems:
Relations between individual members and constituents tend to be stronger.
The President and individual members are directly accountable to the voters.
In deeply divided societies, some theorists argue that the parliamentary system can lead to one
party controlling the state and locking other ethnic or regional groups out of power.
Advantages of stronger party discipline in parliamentary systems:
Parties and stable party coalitions within parliament can be held accountable to the public based
on their promotion of the party platform.
The chief executive can be made accountable to his/her party and the parliament as a whole by a
vote of no confidence at any time.
Highly organized parties can act as a link between party leaders and constituents at local levels.
Evolution of the Hybrid System of Governance in Ghana
Ghana, from Independence to date, has evolved through the presidential system of governance,
the parliamentary system and currently is practising a hybrid system of governance.
In 1957, the Independence Constitution introduced a parliamentary system under which the
Prime Minister and all Ministers of State were Members of Parliament. The Members of
Parliament were elected on party lines. This system was practiced between 1957 and 1960 (first
Republic) and again between 1969 and 1972 (second Republic).
In the 1960 Republican Constitution, an Executive President and a Parliament consisting of a
President and National Assembly were introduced. The Executive President was not a Member
of Parliament but Ministers of State were appointed from among the MPs. The Ministers had to
sit in Parliament while at the same time deal with matters that fell under their portfolios.
The 1979 Constitution (third Republic) provided for a presidential system of government where
the President, Vice-President, Ministers of State and their Deputies were not Members of
Parliament. This system followed the US system, but had a single chamber legislature.
The Parliaments of all three Republics had their own weaknesses. In the first Republic, this
included the concentration of power in the executive which led to a one party state, the lack of an
effective committee system and the high passage of bills which denied the public any direct
participation. In the second Republic this included an ethically unbalanced cabinet as the Party of
the day lost all his potential Ministers in one of Ghana’s largest ethnic groupings (the Volta
Region). The third Republic saw a strict separation of powers, however, the President appointed
several able Ministers from Members of Parliament thus depriving Parliament of some of its best
legislators. As such the minority side with several Members having previous experience in
Parliament exploited procedures and defeated Government in a number of national issues. In a
parliamentary system the defeat of Government would have brought the Government down but
this was not so under the presidential system.
9

For Private Circulation Only HPNLU Shimla Page 151

The framers of the 1992 constitution were clearly influenced by such factors as political
instability that had occurred in the past in the form of coercion and armed rebellion. The hybrid
system was thus designed to ensure that both the executive and parliament work along the same
lines.
The following Articles in the 1992 Constitution are indications that the current system of
governance in Ghana is a hybrid system:
Article 63(2) provides that the president shall be elected on the terms of universal adult suffrage
(Indication of a presidential system);
Article 76(1) of the constitution states that the cabinet shall consist of the president, the vice and
not less than 10 and not more than 19 ministers of state (Indication of a presidential system);
Article 78(2) empowers the president to appoint all the ministers of state (Indication of a
presidential system);
Article 78(1) provides that the president with the prior approval of parliament shall appoint the
majority of Ministers of State from among Members of Parliament (parliamentary system);
Article 79(2) provides that Deputy Ministers shall be appointed from among Members of
Parliament (parliamentary system).
The hybrid system as embedded in the 1992 constitution of Ghana has constraints on both
Parliament and its committees. Some of the constraints of Parliament are the lack of their
oversight responsibility o the Executive and inability to appropriate money unless it is proposed
by the Executive. Article 78(1) which requires the President to appoint majority of Ministers
from among Members of Parliament undermines Parliaments oversight function. This difficulties
among others in the 1992 Constitution has necessitated its review by the current administration.
Conclusion
The system of governance in countries differs depending on whether a country has a presidential,
parliamentary or hybrid political system. Though each country has its own variance based on
political structure, the characteristics of each of these systems and their relationship to political
conflict, executive and legislative power differ. In view of the inconsistencies in the hybrid
system of Ghana, I advocate for the adoption of the presidential system of governance for Ghana
based on the following:
Direct mandate — in a presidential system, the president is often elected directly by the people.
This makes the president’s power more legitimate than that of a leader appointed indirectly.
Separation of Powers — a presidential system establishes the presidency and the legislature as
two parallel structures. This arrangement allows each structure to serve as check and balances
thus, preventing abuses.
Speed and Decisiveness — the president has stronger powers and can usually enact changes
quickly.

10

For Private Circulation Only HPNLU Shimla Page 152

Stability — A president, by virtue of a fixed term, may provide more stability than a prime
minister who can be dismissed at any time.

11

For Private Circulation Only HPNLU Shimla Page 153

Unitory Form Of Government

A unitary state, or unitary government, is a governing system in which a single central

government has total power over all of its other political subdivisions. A unitary state is the
opposite of a federation, where governmental powers and responsibilities are divided. In a
unitary state, the political subdivisions must carry out the directives of the central government
but have no power to act on their own.

Key Takeaways: Unitary State

 In a unitary state, the national government has total authority over all of the country’s
other political subdivisions (e.g. states).
 Unitary states are the opposite of federations, in which governing power is shared by a
national government and its subdivisions.
 The unitary state is the most common form of government in the world.

In a unitary state, the central government may grant some powers to its local governments
through a legislative process called “devolution.” However, the central government reserves
supreme power and can revoke the powers it devolves to the local governments or invalidate
their actions.

Examples of Unitary States

Of the 193 member countries of the United Nations, 165 are unitary states. The United Kingdom
and France are two well-recognized examples.

United Kingdom

The United Kingdom (UK) is composed of the countries of England, Scotland, Wales and
Northern Ireland. While technically a constitutional monarchy, the UK functions as a unitary
state, with total political power held by Parliament (the national legislature located in London,
England). While the other countries within the UK each have their own governments, they
cannot enact laws that affect any other part of the UK, nor can they refuse to enforce a law
enacted by Parliament.

France

In the Republic of France, the central government exercises total control over the country’s
nearly 1,000 local political subdivisions, which are called “departments.” Each department is
headed by an administrative prefect appointed by the French central government. While they are
technically governments, France’s regional departments exist only to implement the directives
issued by the central government.

Some other notable unitary states include Italy, Japan, the People’s Republic of China, and the
Philippines.

12

For Private Circulation Only HPNLU Shimla Page 154

Unitary States vs. Federations

The opposite of a unitary state is a federation. A federation is a constitutionally organized union

or alliance of partially self-governing states or other regions under a central federal government.
Unlike the largely powerless local governments in a unitary state, the states of a federation enjoy
some degree of independence in their internal affairs.

The US government structure is a good example of a federation. The U.S. Constitution

establishes a system of federalism under which powers are shared between the central
government in Washington, D.C., and the governments of the 50 individual states. The power-
sharing system of federalism is defined in the 10th Amendment to the Constitution: “The powers
not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”

While the U.S. Constitution specifically reserves some powers for the federal government, other
powers are granted to the collective states, and others are shared by both. While the states have
the power to enact their own laws, the laws must comply with the U.S. Constitution. Lastly, the
states have the power to collectively amend the U.S. Constitution, provided that two-thirds of
state governments vote to demand it.

Even in federations, the distribution of power is often a source of controversy. In the United
States, for example, disputes over states’ rights—the constitutional division of power between
the federal and state governments—is a common subject of rulings issued by the U.S. Supreme
Court under its original jurisdiction.

Unitary States vs. Authoritarian States

Unitary states should not be confused with authoritarian states. In an authoritarian state, all
governing and political power is vested in a single individual leader or small, elite group of
individuals. The leader or leaders of an authoritarian state are not chosen by the people, nor are
they constitutionally responsible to the people. Authoritarian states rarely allow freedom of
speech, freedom of the press, or freedom to practice non-state approved religions. In addition,
there are no provisions for protecting the rights of minorities. Nazi Germany under Adolf Hitler
is typically cited as the prototypical authoritarian state; modern examples include Cuba, North
Korea, and Iran.

Pros and Cons

The unitary state is the most common form of government in the world. This system of
government has its benefits, but as with all schemes of dividing power between government and
the people, it also has drawbacks.

13

For Private Circulation Only HPNLU Shimla Page 155

Advantages of a Unitary State

Can act quickly: Because decisions are made by a single governing body, the unitary
government is able to respond more quickly to unexpected situations, whether they are domestic
or foreign.

Can be less costly: Without the multiple levels of government bureaucracy common to
federations, unitary states are able to operate more efficiently, thus potentially reducing their tax
burden on the population.

Can be smaller: The unitary state can govern the entire country from a single location with a
minimal number or elected officials. The smaller structure of a unitary state allows it to meet the
needs of the people without involving a massive workforce.

Disadvantages of Unitary States

Can lack infrastructure: Although they may be able to make decisions quickly, unitary
governments sometimes lack the physical infrastructure needed to implement their decisions. In
national emergencies, like natural disasters, the absence of infrastructure can endanger the
people.

Can ignore local needs: Because they can be slow to develop the resources needed to respond to
arising situations, unitary governments tend to focus on foreign affairs while keeping domestic
needs on the back burner.

Can encourage abuse of power: In unitary states, a single person or legislative body holds
most, if not all, governmental power. History has shown that power, when placed in too few
hands, is easily abused.

14

For Private Circulation Only HPNLU Shimla Page 156

Federal form Of Government

Federalism is a type of government in which the power is divided between the national
government and other governmental units. It contrasts with a unitary government, in which a
central authority holds the power, and a confederation, in which states, for example, are clearly
dominant.

While the Constitution addressed only the relationship between the federal government and the
states, the American people are under multiple jurisdictions. A person not only pays his or her
federal income tax but also may pay state and city income taxes as well. Property taxes are
collected by counties and are used to provide law enforcement, build new schools, and maintain
local roads.

Throughout the 20th century, the power of the federal government expanded considerably
through legislation and court decisions. While much recent political debate has centered on
returning power to the states, the relationship between the federal government and the states has
been argued over for most of the history of the United States.

The constitutional framework

Although the Constitution sets up a federal system, nowhere does it define what federalism is.
However, the framers of the Constitution were determined to create a strong national government
and address the shortcomings of the Articles of Confederation, which allowed the states too
much power. In terms of the balance of power between the federal government and the states, the
Constitution clearly favors the federal government.

The powers specifically given to the federal government are not as relevant to the expansion of
its authority as the Constitution's more general provisions; that is, Congress is to provide for the
general welfare (preamble) and ". . . make all laws which shall be necessary and proper . . ."
(Article I, Section 8). In the Constitution as ratified, there is no similar broad grant of powers to
the states. It emphasized what states cannot do (Article I, Section 10) and gave them authority in
just a few areas — namely, establishing voter qualifications and setting up the mechanics of
congressional elections. This reduction in power was corrected through the Tenth Amendment,
which reserved to the states or the people all powers either not specifically delegated to the
national government or specifically denied to the states. The language in the general welfare and
elastic clauses and the Tenth Amendment is vague enough to allow widely different
interpretations. Because both federal and state governments can turn to the Constitution for
support, it is not surprising that different concepts of federalism have emerged.

Dual federalism
Dual federalism looks at the federal system as a sort of "layer cake," with each layer of
government performing the tasks that make the most sense for that level.

The initial framing and ratification of the Constitution reflected this theory. Even those people
supporting a stronger national government proposed that powers in the federal government be
distinct and limited, with certain tasks enumerated for the national government in the

15

For Private Circulation Only HPNLU Shimla Page 157

Constitution and the remaining tasks left to the state governments. Because this theory leaves
each government supreme within its own sphere of operations, it is also sometimes called dual
sovereignty.

One more-extreme outgrowth of this theory is the idea of states' rights, which holds that,
because the national government is not allowed to infringe on spheres left to state government,
doing so violates the states' constitutional rights (especially the Tenth Amendment, which
specifically reserves undelegated powers for the states). Federal government action in those
spheres represents an unlawful seizure of power by one level of government at the expense of
another. This view has historically been popular in the South, where it was viewed as preventing
national government interference in the region's race relations, but it has been invoked elsewhere
as well.

The problem with taking dual federalism this far is figuring out who defines where one layer
ends and the next layer starts. Before the Civil War, some voices said that, to protect their rights,
states could secede from the Union or declare national laws that affect them null and void — but
those arguments are no longer taken seriously. Instead, the U.S. Supreme Court resolves disputes
within the federal structure, and because the Court is a national institution, it rarely favors the
states.

Cooperative federalism
The theory of cooperative federalism emerged during the New Deal, when the power of the
federal government grew in response to the Great Depression. It does not recognize a clear
distinction between the functions of the states and Washington, and it emphasizes that there are
many areas in which their responsibilities overlap. For example, drug enforcement involves
federal agents, state troopers, and local police. The federal government supplies funds for
education, but the state and local school boards choose curriculum and set qualifications for
teachers. (Interestingly, attempts to set national standards for students in certain subjects have
raised concerns of federal intrusion.) The notion of overlapping jurisdictions is expressed by the
term marble-cake federalism.

Cooperative federalism takes a very loose view of the elastic clause that allows power to flow
through federal government. It is a more accurate model of how the federal system has worked
over much of U.S. history.

16

For Private Circulation Only HPNLU Shimla Page 158

Organs Of Government

A Constitution establishes the regulatory framework for political activity and the governance
process in a country. One of the things it does it to establish organs of government, define their
functions and specify their powers for the discharge of these functions.

Experience from all over the world, and from time immemorial has taught that three particular
organs of government are the most basic. These are: the Executive; (b) the Legislature; and (c)
the Judiciary. These organs correspond to the vital and most basic governance functions, namely
(and respectively), (i) the conduct of policy and administration; (ii) the making or repealing or
amendment of the governing laws; and (iii) the adjudication of conflicts that arise while the laws
of the land are being implemented through executive and administrative decision-making or
action.

Although all Constitutions will provide for the three organs, their functions and powers, the
Constitutions of different countries thereafter take different approaches, as some may go further
and provide for additional governance -related organs. For example, the Ugandan Constitution
provides for a further constitutional organ, known as the Inspector-General of Government, as
does that of Tanzania , which provides for the Permanent Commission of Inquiry - both being
nomenclature describing the Ombudsman institution.

The current Constitution limits itself to the three basic organs of government. In this paper we
consider the broad outlines of these organs of government.

2. The Executive Organ

The Executive under the Kenya Constitution started off with a dual character, under the
Independence Constitution in 1963. The day-to-day operation of government was conducted
under the direction of a Prime Minister, who was the leader in Parliament of the political party
with the largest number of seats in the house. The more occasional, symbolic and constitutional
acts of government, such as formally naming the Prime Minister, proroguing or dissolving
Parliament, were conducted by the Governor-General, representing the Queen of England, who
operated in the capacity of Head of State.

The Executive organ was a diverse entity with a clear scope for checks-and-balances. This
feature, however, was taken away with the inauguration of Republican status on December 12,
1964. The advent of the Presidency severed the political link between Kenya and Her Majesty
the Queen's Government in the United Kingdom. Henceforth, the Executive of the Kenyan State
consisted solely in the President, who was his own Prime Minister while in his other capacity, he
was the Head of State and Commander-in-

Chief of the Armed Forces. An unqualified monolithic structure was thus installed upon the
constitutional system.

17

For Private Circulation Only HPNLU Shimla Page 159

If this monolithicism was at first essentially instrumental, it was to be confirmed in place, firstly
by the changed politics that brought the single party system, and then by a series of amendments
that enhanced and consolidated the executive powers of the President and gave him the upper
hand in his interplays with the Legislature. In the few years following the establishment of
Republican status, all the main elements of diversity in the constitutional system, such as the
semi-federalist structure and the bicameral Parliamentary system, were removed and the
outstanding and greatly empowered profile of the President, became the main landmark of the
constitutional order.

Those who have paid keen attention to the more recent political changes in Kenya will readily
recognize that, it is precisely the monolithicism of the immediate post-independence years that
prompted the public to initiate clamours for change, leading to the re-introduction of the multi-
party system and a re-dedication to the principle of pluralism.

Against this experience, it may now be regarded as a basically valid proposition that the people
of Kenya are likely to support enlargement of the number of participating agencies in the stall of
the Executive.

However, the present Constitution of Kenya retains the limited - scope Executive; and this will
necessarily be a subject in respect of which the Constitution of Kenya Review Commission
should receive the opinions of the members of the public.

Issues pertaining to the ideal characteristics of the Executive must also address its interplays with
Parliament. The term Parliament means all the elected and nominated members of Parliament,
taken together with the President as Head of State; for it is only this whole institutional chain that
can make and compete the law-making process. But the person who is President, by virtue of
being an ordinary Member of the National Assembly as well as the Head of Government, also
belongs to the National Assembly qua member and qua Head of a government (in effect, a Prime
Minister) who is accountable on the floor of the National Assembly. The effect is that Kenya has
a Presidency that is inseparably fused with the National Assembly. This is a classic example of
the absence of separation of powers.

The Executive's intimate fusion with the National Assembly may be said to be normal in a
parliamentary tradition of government. However, there is the significant difference that the
President has, besides, been directly elected by the people, and often feels himself more
accountable to the people (at election time, once in five years) more than to anyone else. This
produces a duplicity in lines of responsibility, and considerably weakens the National
Assembly's scope for exercising control over executive powers. It is desirable that this duplicity
be removed, in a quest for governmental accountability, transparency and constitutionalism. The
Commission needs to address this question and if need be, make appropriate consultations with
the people.

3. The Legislature

In the rapid constitutional amendment process of the 1960s, the preoccupation with the
enhancement of the power of the Executive not only achieved that goal, but also entailed the

18

For Private Circulation Only HPNLU Shimla Page 160

reduction in the size and strength of the legislative body. Under the Independence Constitution
there had existed a House of Representatives and a Senate, the latter forming part of the package
of institutions attached to the semi-federal constitution. Now the Executive in the first place did
not allow funds to be disbursed for the running of the semi-federal (Regional) agencies; and then
the Executive secured the abolition of semi-federalism through a constitutional amendment.
Soon thereafter the Senate was itself abolished, again through a constitutional amendment. No
check-and-balance institution was left to limit the free reign of the Executive, which became still
more powerful, in particular, owing to the removal of 1969 of the political context of pluralism,
by abolishing the Opposition Kenya People's Union. Kenya thereafter remained a one-party State
{defacto, 1969-1982; dejure/ 1982-1992). This condition greatly weakened the strength of the
National Assembly which now, in the totality of its membership, had always to take the line of
the single party, KANU and, therefore, had no capacity to assert any real control on the
Executive.

As the strength, and check-and-balance capacity of the Kenyan parliament rests on the scope for
the existence of differing opinions and the free play of voting alliances on the floor of the House,
it follows that the National Assembly was no longer able to serve as an effective power-control
institution.

The Commission should share thoughts with the people on the suitability of the parliamentary
system for Kenya. If it is agreed that this constitutional system is an essential part of the
country's constitutional heritage, or that it is intrinsically good for Kenya, then a further question
to be asked is whether it is agreed that Kenya must remain committed to multi-partyism and to
political pluralism. If the people consider that a strong parliamentary institution is desirable in
Kenya's quest for constitutionalism and the rule of law, then there will be a duty to put in place a
Constitution in the liberal tradition associated with the older members of the Commonwealth.
Such a Constitution would provide for the freedoms of assembly and association, for the
recognition and acceptance of multi-partyism, for the full accountability of the Executive to
Parliament, and for some of the usual conventions of the Parliamentary system, such as the
censure or no-confidence vote in Parliament leading to the fall of the government; the practice of
ministerial responsibility; etc.

The Commission may indeed want to elicit the people's opinions on the best ways of
strengthening Parliament, e.g. by abolishing the nomination of a section of the MPs; by
enhancing the controls by Parliament in respect of matters such as public finance; etc.

4. The Judiciary:

The Kenyan Judiciary, in its essential character, has three tiers: the magistracy at the bottom
level; the High Court in the middle; and the Court of Appeal at the top.

There has been some debate on the possibility of establishing a Supreme Court. The Commission
could put this before the people for an opinion. If a Supreme Court were put in place, how would
it relate to the Court of Appeal? What specific functions would be entrusted to the Supreme
Court? What would be the size of this court? What would be its primary functions.

19

For Private Circulation Only HPNLU Shimla Page 161

It would be necessary to resolve the question as to the role of the Supreme Court in constitutional
interpretation. Today, it is the High Court that is regarded as the Constitutional Court. So, what is
the position of the Court of Appeal in relation to constitutional matters? Ought the Supreme
Court not to be the ultimate Constitutional Court?

The Commission may wish to take up with the people the question as to what should be the role
of the Executive in the affairs of the other organs of government, in particular the Judiciary. Is
the current procedure of appointment of judges acceptable? What of the procedure for removing
them? What role should the Executive play in the appointment or dismissal of judicial staff?
What are the best ways of assuring the independence of the Judiciary? Should Parliament be
given a place in the appointment process for judges? How should competence and impartiality be
assessed in the Judiciary? In what ways can the Judicial process be made more accessible to the
people? Ought there not to be a clear Constitutional recognition of legal aid, as an empowering
scheme for allowing the people greater access to the Judicial process?

5. New Organs of Government

Since the Commission has a mandate to seek greater constitutionalism in Kenya's governance
system, it will need to submit to the people the question whether more organs of government
should be established. In particular, the Commission should canvass the people's views on the
institution of Ombudsman. This organ, by whatever name called, serves as the poor person's
lawyer and protector, by ensuring this person does not suffer harm at the hands of administration
officials. The Ombudsman ensures that mal-administration (incompetence, delay, corruption,
rudeness, discourtesy, high-handedness, abusiveness) is kept to a minimum, and that the ordinary
citizen who requires assistance from government, is accorded that assistance.

The Commission should also address issues relating to Alternative Dispute Resolution, as a
further avenue for giving the people more access to the conflict resolution facility.

Separation of powers between various organs

The separation of powers, sometimes vaguely used interchangeably with the ‘Trias
politica’ principle is a model for the governance of a state. It is established in
documents that dogma of separation of powers considers the idea that the
governmental functions must be based on a tripartite division of legislature, executive
and judiciary. The three organs should be separate, distinct and independent in its own
sphere so that one does not intrude the territory of the other. Previous literature
denoted that Aristotle who first perceived and saw that there is a specialization of
function in each Constitution developed this doctrine. Later many theorists such as
Montesquieu, John Locke and James Harrington described these functions as
legislative, executive and judicial. All the theories originated by these political
thinkers in relation to the principle of separation of powers were on a basic
presumption that the liberties of the people should be protected from the tyrannical

20

For Private Circulation Only HPNLU Shimla Page 162

and despotic rulers when all the powers are vested and exercised by the very same
persons (Vishnoo Bhagwan, 2010).
The model was first developed in ancient Greece. Under this model, the state is
divided into branches, each with separate and independent powers and areas of
responsibility so that the powers of one branch are not in conflict with the powers
associated with the other branches. The typical division of branches is into a
legislature, an executive, and a judiciary. It can be differentiated with the merging of
powers in a parliamentary system where the executive and legislature are unified.
Theory of Separation of Powers is based on the concept and based on the the idea that
for the sake of individual freedom. Cooley emphasizes the prominence of the doctrine
of separation of powers as “This arrangement gives each department a certain
independence, which operates as a restraint upon such action of others as might
encroach on the rights and liberties of the people, and makes it possible to establish
and enforce guarantees against attempts at tyranny.
The modern design of the principle of separation of powers was elaborated in
constitutional theory of John Locke (1632-1704). He wrote in his second treaties of
Civil Government as follows: ‘It may be too great a temptation for the humane frailty,
apt to grasp at powers, for the same persons who have power of making laws, to have
also in their hands the power to execute them, whereby they may exempt themselves
from the law, both in its making and execution to their own private advantage'.
Major objectives of the doctrine of separation of powers:
The main objective of the doctrine is to prevent the abuse of power within different
spheres of government. In our constitutional democracy public power is subject to
constitutional control. Different spheres of government should act within their
boundaries. The courts are the ultimate guardian of our constitution, they are duty
bound to protect it whenever it is violated. Moseneke CJ also stated that the courts are
more likely to confront the question of whether to venture into the domain of other
branches of government while performing their functions as entrusted by the
constitution. Within the context of the doctrine of separation of powers the courts are
duty bound to ensure that the exercise of power by other branches of government
occurs within the constitutional context. The courts must also observe the limit of
their own power.

21

For Private Circulation Only HPNLU Shimla Page 163

Different researchers also rebounded their views on the purpose of the doctrine.
Montesquieu stated that ‘When the legislative and executive powers are united in the
same person, or in the same body of magistrates there can be no liberty; because
apprehensions may arise, lest the same monarch or senate should enact tyrannical
laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial
power be not separated from the legislative and executive. Were it joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control; for
the judge would be then the legislator. Were joined to the executive power, the judge
might behave with violence and oppression'.
According to Dicey, the doctrine rests on ‘the necessity of preventing the government,
the legislature and the courts from encroaching upon one another’s province’. Only
few countries are attempting to implement the doctrine of separation of powers.
Elements of separation of powers:
It is generally acknowledged that there are three main categories of governmental
functions-

1. Legislative
2. Executive
3. Judicial

Likewise, there are three main organs of the Government in a State-

o Legislature
o Executive
o Judiciary.

The theory of Separation of Powers confers all the three organs of the government
should be separated from each other. Each department should be assigned to a
different set of persons limited to its own sphere of activities having independent
jurisdictions from, the other. No organ of the government should release any functions
which it is not obliged to do. The theory signified that, each branch of the
Government must be confined to the exercise of its own function and not allowed to
interrupt upon the functions of other branches. In this way each branch will be a check

22

For Private Circulation Only HPNLU Shimla Page 164

to others and so single group of people will be able to control the machinery of the
state.
The theory of separation of the powers signifies the following three different things:
That the same person should not form part of more than one of the three organs of the
government.
That one organ of the government should not interfere with any other organ of the
government.
That one organ of the government should not exercise the functions assigned to any
other organ. This is traditional concept of theory of separation of power, which is
dissimilar from modern conception. New concept of separation of power has arisen
because in those days when these researchers and theorists explained their ideas as the
economy was very simple. Furthermore, in earlier period, areas of governmental
activities were not broad. Social problems were not very complex and national and
international situations were not that tricky.

23

For Private Circulation Only HPNLU Shimla Page 165

Major grounds for revival of separation of powers are as under:
The modern state has been forced to increase its activities in the economic field. This
has become, unescapable due to technical and industrial re-orientation. Presently,
every state particularly developing nations, have realized that planning both at
regional and national levels, is unavoidable. It is debated that an economy as intricate
as that of a modern State cannot be controlled effectively by a government, based on
the theory of separation of powers. In a modern state, it is necessary to combine
efficiency with freedom.
Other reason is that throughout the 18th century, it was assumed that the government
was a necessary malicious and as such it was most essential that its activities should
be checked. Currently, whole concept has transformed. It is now believed that for
wealth of the nation, it was most unavoidable that government should be made to
function effectively.
The principle of separation of powers is an inseparable fragment of the development
of democracy. Democracy edicts a system in which every inhabitant can, without fear
of revenge, breathe, express himself, and follow his or her interests. It allows him to
live a life of his choice to the extent he does not impinge upon the rights of the other
people. It can be presupposed that a system of balances and counter balances exists
among the three organs of the government to guarantee a strong nurtured democratic
system. The Legislature, the Judiciary and the Executive are the supports of
democracy. No democracy indeed anticipates conferment of absolute power in any
single authority. According to Lord Acton: “Power corrupts and absolute power tends
to corrupt absolutely"
Therefore, the system of checks and balances is one of the most striking aspects of
Indian constitutional scheme. The three organs can practically not be segregated into
three incontrovertible compartments due to their interdependence on each other to
ensure effective governance. They have to work in harmony and in consonance to
attain a meaningful sustenance and purposeful progress of inhabitants. Though,
minimum infringement is always desirable. Hon’ble Chief Justice Balakrishnan stated
that, "the Constitution lays down the structure and defines the limits and demarcates
the role and function of every organ of the State including the judiciary and
establishes norms for their inter relationships, checks and balances.” Therefore, all the

24

For Private Circulation Only HPNLU Shimla Page 166

three organs are expected to work in concord instead of giving importance to only one
of the organs.
Checks and balances on the principle of separation of powers:
The aim of checks and balances is to safeguard that different branches of government
control each other internally (checks) and serve as counter weights to the power
possessed by the other branches (balances). In simple form, the objective of separation
of functions and employees is to limit the power; to make the branches of government
accountable to each other. The most noticeable example of a check is the power of the
judiciary to appraise executive conduct and ordinary laws for the compliance with the
Constitution and the Bill of Rights. Judicial review in this case constitutes neither
executive nor judicial function, it is a mere check on the exercise of executive and
legislative power. It is a power exercised by the judiciary to guarantee constitutional
compliance and not to exercise the power of another specialist.

Separation of power: Check and balance

25

For Private Circulation Only HPNLU Shimla Page 167

The Legislature:
The Legislature has been considered as high-esteem in the Indian Constitution. It is
mainly associated with enactment of general rules of law that are relevant to all
aspects of the conduct of its inhabitants and institutions. The Parliament is the Union
Legislature of India consists of two bodies such as Lok Sabha and the Rajya Sabha. It
passes laws, impose taxes, authorizes borrowing, and prepares and implements the
budget, has sole power to declare war, can start investigations, especially against the
executive branch, appoints the heads of the executive branch and sometimes appoints
judges as well as it has the power to ratify treaties. As it is presenters for the will of
the people by safeguarding a true and complete democracy, it can be supposed that it
cannot be done all by the Legislature itself. It is an impending threat to democracy if
an absolute power is given to the nation’s purse holder. By making the executive
responsible to the popular house, the Constitution safeguards a proper mechanism of
checks and balances to the dogma of separation of powers. The entire system has
other facades which can help achieve the same. Therefore, this brings the role of the
other two pillars: the judiciary and the Executive.
The Judiciary:
Indian constitution is drafted so precisely that it provides for an independent and
unprejudiced Judiciary as the interpreter of the Constitution and as custodian of the
rights of the populations through the process of judicial review. This mandates the
judiciary to interpret the laws but not to make them. They are not to lay down the
general norms of behaviour for the government. Judiciary is an important organ of the
government (Harihar Bhattacharyya, 2015). The Supreme Court of India is one of the
very powerful courts in the world. Since 1950, the judiciary has played vital role in
interpreting and in protecting the Constitution.
The higher judiciary in India, especially the honourable Supreme Court has become
an epicenter of debate over its role in entertaining and deciding public-interest-
petitions. In deciding these petitions, the judiciary issues many directions to the
Government which includes framing of legislation in many areas. The role of the
judiciary should only be limited to inspecting the constitutionality of the legislation
and not directing the government to enact legislation. The scope of judicial review
does not extend beyond enquiring whether a questioned legislation or an executive
action falls within the competence of the Legislature or of the executive authority or is

26

For Private Circulation Only HPNLU Shimla Page 168

consistent with the Fundamental Rights guaranteed by the Constitution or with its
other mandatory provisions.
Independence of Judiciary means that:

i. The other organs of the government like the executive and legislature must not
restrain the functioning of the judiciary in such a way that it is unable to do
justice.
ii. The other organs of the government should not interfere with the decision of
the judiciary.
iii. Judges must be able to perform their functions without fear or favour.

Structure of the judiciary:

The Constitution of India provides for a single assimilated judicial system. This
means that India does not have separate State courts. The structure of the judiciary in
India is pyramidal with the Supreme Court at the top, High Courts below them and
district and subordinate courts at the lowest level.

27

For Private Circulation Only HPNLU Shimla Page 169

The Supreme Court of India is most powerful courts anywhere in the world. However,
it functions within the limitations imposed by the Constitution. The functions and
responsibilities of the Supreme Court are defined by the Constitution. The Supreme
Court has specific jurisdiction or scope of powers. It has been recognized that the
judiciary is trusted with the job of protecting rights of individuals. The Constitution
provides two ways in which the Supreme Court can remedy the violation of rights.
First, it can restore fundamental rights by issuing writs of Habeas Corpus; mandamus
etc. (article 32). The High Courts also have the power to issue such writs (article 226).
Secondly, the Supreme Court can declare the concerned law as unconstitutional and
therefore non-operational (article 13). It can be said that the role of the judiciary in
modern society is to assist in delivering justice. The major role of the judiciary is to
28

For Private Circulation Only HPNLU Shimla Page 170

apply the law to factual situations and provide a just resolution for the parties as well
as for society.
The three organs have to perform their functions keeping in mind certain
constitutionally assigned impingements. Therefore, if any of the three organs attempts
to expand its jurisdiction, it would follow an inevitable conflict and affect the
harmonious effectiveness of the tripartite system of government. No organ has to
supervise over the exercise of powers and functions of another, unless the
Constitution strictly so mandates. The Honourable Supreme Court has itself
interpreted that the concept of Separation of powers is a “basic feature” of the
Constitution. So if one encroaches the territory of the other it would be a clear
violation of the basic structure of the Constitution and judiciary is not an exception to
the same.
Executive:
The Executive can refuse laws, can command of the military, makes verdicts or
declarations and disseminate lawful regulations and executive orders, can reject to
spend money allocated for certain purposes, can appoints judges, and has the power to
grant pardons to convicted criminals. The Executive is strong support of democracy
and equally expected to be free of intrusions from the other two organs of
constitution. It is established that Executive is independent of the two but the
incongruity persists. It is completely eroded in actual practice. The reason is that each
time the executive is questioned for its actions by the judiciary and the Legislature.
This weakens the independence of the Executive to the maximum. It is not that the
question of responsibility pops up only in the case of executive. The judiciary and
legislature are equally answerable but in their cases, a built-in system from within
would be available for discharging those functions. This is the real state of affairs,
which exists in practice.
Though the Indian Constitution allocates executive powers to the President and
Governors (Article 53 (1) and Article 154 (1), they are authorised with certain
legislative powers (Articles 123, 213 and 356) and certain judicial powers (Articles
103 and 192). Likewise, the legislature exercises certain judicial functions (Articles
105 and 194) and judiciary exercises few legislative and executive functions (Articles
145, 146, 227 and 229). However, the judiciary is made separate from the executive in

29

For Private Circulation Only HPNLU Shimla Page 171

the public services of the State (Article 50). In some states, complete separation of
judiciary from executive has been accomplished through legislation.
According to Article 52 and 53 of Indian constitution:
52. The President of India - There shall be a President of India.
53. Executive power of the Union. - (1) The executive power of the Union shall be
vested in the President and shall be exercised by him either directly or through
officers subordinate to him in accordance with this Constitution.
(3) Nothing in this article shall-(a) be deemed to transfer to the President any
functions conferred by any existing law on the Government of any State or other
authority; or (b) prevent Parliament from conferring by law functions on authorities
other than the President.
Executive powers: All the executive actions of the Union government are taken in his
name. He assigns officials of the Union Government, Prime Minister, and Council of
ministers at the advice of the Prime Minister, Chief Justice and judges of Supreme
Court and High Court at the advice of the Chief Justice of India. He appoints the
chairman of UPSC, Comptroller and Auditor general of India, Attorney General of
India, Chief Election Commissioner and other Election Commissioners, Governor of
the states, members of Finance Commission and ambassadors.
Judicial powers:
The President appoints the Chief Justice of the Supreme Court and other judges on the
advice of the Chief Justice. The President enjoys legal protection. He can grant
pardon, reprieve, and respite or remise punishment. The President can terminate the
judges by two-thirds majority of the members present in two houses. If they consider
a question of law or a matter of public importance which has arisen, they can ask for
the advisory opinion of the Supreme Court. However, they may or may not accept that
opinion.
Legislative powers:
The President summons both houses of the Parliament and prorogues the session of
the two houses and can dissolve the Lok Sabha but uses these powers according to the
advice of the Council of Ministers headed by the Minister. The introductory speech of
the Parliament at the beginning of the first session each year is delivered by him
where he outlines the new policies of the government. A bill that the Parliament has

30

For Private Circulation Only HPNLU Shimla Page 172

passed can become a law only after the President gives their agreement to it. He can
return a bill to the Parliament for reconsideration but this is not so in case of money
bill. But in case the Parliament sends it back for the second time, the President is
obliged to sign it. The President can promulgate ordinances when the Parliament is
not in session but must get it approved within six weeks. Furthermore, this is so only
in case of the Union and Concurrent list.
Separation of Powers: Each branch of the federal government (legislative, executive
and judicial) operates independently of the other branches.

Legislative Executive Judicial

The main duties

of the legislature
branch are to The
executive
write, debate, and branch
pass bills that are enforces the The Judicial branch is led by the Supreme court.
then passed up to laws of the
country
the President for
approval

It is important to uphold the separation of powers between the executive and the
legislature is where the legislators exercise executive powers. Legislators exercise
their check over the executive many a times through their power to head executive
boards and agencies of various descriptions, the capacity to contribute in executive
committees which award contracts or select beneficiaries of various welfare schemes.
Furthermore, the grant of an annual fund to the legislators to carry out activities in
their constituency gives them executive powers in disguise which leads to corruption
over a period of time. Article 74(1) make it clear that the executive head has to act in
accordance with the aid and advice given by the cabinet. Certain constitutional
provisions also provide for Powers, Privileges and Immunities to the MPs, Immunity
from judicial scrutiny into the proceedings of the house, etc. Such provisions are
thereby making legislature independent.
The executive and the judiciary in the Indian constitution:

31

For Private Circulation Only HPNLU Shimla Page 173

The rapport between the judiciary and the executive has always been sensitive. A
society governed by Rule of law always demands for separation of the judiciary from
the executive. The rule of law is always exposed to the risk of being intruded by the
executive. Therefore, proper functioning of a democracy requires a clear separation of
the two. The primary function of the judiciary is the administration of justice and
justice can never be rightly administered without the fear or favour unless there is a
separation of the judiciary from the executive. Article 50 of the Constitution provides
that “The State shall take steps to separate the judiciary from the executive in the
public services of the State.” The intention of the developers of the Constitution was
to bring about changes wherever possible and shall be done immediately, without any
delay, and where immediate operation of this principle is not possible, it shall
however be accepted as an imperative responsibility.
The judiciary and the legislature under the Indian constitution:
According to Article 122 of the Indian Constitution, the Court shall not call validity of
any proceedings in Parliament in question on the basis of any alleged irregularity of
procedure. And Article 212 provides that the Court should not investigate into the
proceedings of the Legislature. But certain judicial irregularity has been felt in the
recent past. The most noticeable and popular Jagdambika Pal case of 1998 involving
the Uttar Pradesh Assembly and the Jharkhand Assembly case of 2005. The Interim
Order of the Supreme Court in both the cases is a clear violation of the principle of
separation of powers between the Judiciary and the Legislature. The judiciary blames
Legislature for not doing anything worthwhile over the past three decades, whereas
Legislature accuses Judiciary of doing the job of the legislature. At a glance, the
doctrine of Separation of Powers is accepted in India.
In I.C.Golak Nath v. State of Punjab, it was perceived: “The Constitution brings into
existence different constitutional entities, namely, the Union, the States and the Union
Territories. It creates three major instruments of power, namely, the Legislature, the
Executive and the Judiciary. It demarcates their jurisdiction minutely and expects
them to exercise their respective powers without overstepping their limits. They
should function within the spheres allotted to them."
Studying the constitutional provisions carefully, it is evident that the policy of
Separation of Powers has not been recognised in India in strict manner. In India, not
only there is functional overlying but there is personnel overlapping also. The

32

For Private Circulation Only HPNLU Shimla Page 174

Supreme Court has power to declare annulled the laws passed by the legislature and
the actions taken by the executive if they violate any provision of the Constitution or
the law passed by the legislature in case of executive actions. The executive can affect
the functioning of the judiciary by making appointments to the office of Chief Justice
and other judges. One can go on listing such examples yet the list would not be
exhaustive.
In Indira Nehru Gandhi v. Raj Narain, it was perceived: “That in the Indian
Constitution there is separation of powers in a broad sense only. A rigid separation of
powers as under the American Constitution or under the Australian Constitution does
not apply to India. Chandrachud J. also observed that the political usefulness of
doctrine of Separation of Power is not widely recognized. No constitution can survive
without a conscious adherence to its fine check and balance. The principle of
Separation of Power is a principle of restraint which has in it the precept, innate in the
prudence of self-preservation, that discretion is the better part of valour."
It can be said with the observation of Mukherjee, J. in Ram Jawaya v. State of Punjab:
“The Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or branches of
the Government have been sufficiently differentiated and consequently it can very
well be said that our Constitution does not contemplate assumption, by one organ or
part of the State, of functions that essentially belong to another."
It can be concluded that the conception of Separation of Powers is a model for the
authority of independent states. The three branches of the government that include the
legislative, the executive and the judiciary are the three separate activities in every
government through which the will of the people are communicated. The legislature
devises laws, the executive applies them and the judiciary applies them to the specific
cases arising out of the breach of law. Therefore, it has become a model for the
governance of democratic States. This model is also called as Trias Politica, which in
the non-political context means ‘separation of duties’. Advocates of the separation of
powers believe that it shields democracy and forestalls tyranny. Whereas, the others
say that there occurs considerable overlap of powers in parliamentary democracies.

33

For Private Circulation Only HPNLU Shimla Page 175

Introduction to Political Party

A political party basically, is a group of people. These people come together to contest elections in
order to hold power in the government. It is a way to mobilize voters to support common sets of
interests, concerns, and goals. The primary role of the political party is to fix the political agenda
and policies. So, each party tries to persuade people by claiming their policies are better than those
of other parties.

In a broader perspective, a political party is a means via which the people can speak to the
government and have a say in the governance of any country. So, every political party must have
three key components:

 Leaders

 Active Members

 Followers

Functions of a Political Party

Every political party has a number of functions to perform. Here we have listed some of them.

 A political party contests elections by putting up candidates.

 In countries like the USA, the candidates are selected by members and supporters of a
party.

 On the other hand, in countries like India, the candidates are chosen by top party leaders.

 Every party has different policies and programmes. Voters make a choice in accordance
with the policies and programmes liked by them.

34

For Private Circulation Only HPNLU Shimla Page 176

  In a democratic country, a large group of people that has certain similar opinions group
together and form a party. Then then, give a direction to the policies adopted by the
government.

 Those parties which lose elections form the opposition. They voice different views and
criticise the government for their failures and mobilize opposition to the government.

 Political parties shape public opinion. With the help of the pressure groups, the
parties launch movements for solving problems faced by the people.

 Parties even offer access to government machinery and welfare schemes. The local
party leader serves as a link between the citizen and the government officer.

Importance of Political Parties

A democracy cannot exist without the presence of a political party. This is clear from the function
performed by the political parties. In case, there are no political parties then:

 Every candidate in the election would be an independent candidate. Any individual

candidate does not have the efficiency to promise any major policy change to the people. In
such a scenario, no one will be responsible for how the country is run.

 In the long run, only a representative democracy can survive. Political parties are the
agencies that gather different views on various issues and present them to the government.

Party System

There are three types of party systems:

 One-Party System

 Two-Party System

 Multi-Party System
One-Party System

In a one-party system, there is no competition in this system. Here, the lone party nominates the
candidates and the voters have only two choices i.e.

 Not to vote at all or

 write ‘yes’ or ‘no’ against the name of the candidates nominated by the party

35

For Private Circulation Only HPNLU Shimla Page 177

Such a political system has been prominent in authoritarian regimes and communist countries such
as China, North Korea, and Cuba. Before the collapse of communism, this system was also
prevalent in USSR.

Two-Party System

In a two-party system, the power shifts between two major, dominant parties. So, for winning the
elections, the winner will have to get the maximum number of votes. However, please know that
maximum number of votes is not equivalent to a majority of votes.

So, the smaller parties tend to merge with the bigger parties or they drop out of elections. Such
a parliamentary system prevails in Canada and Great Britain, in which there are two parties holding
the maximum numbers of seats.

Multi-Party System

The third and the most common form of government is the multi-party system. In such a system,
there are three or more parties which have the capacity to gain control of the government
separately or in a coalition.

In case, no party achieves a clear majority of the legislative seats, then several parties join forces
and form a coalition government. Countries like India, follow a multi-party system. Some people
are of the view, that a multi-party system often leads to political instability in a country.

36

For Private Circulation Only HPNLU Shimla Page 178

 Public Opinion
Defining Public Opinion
Public opinion or political opinion is the aggregate of individual attitudes or beliefs held by the
adult population.
Key Points
 Public opinion as a concept gained credence with the rise of “public” in the eighteenth
century.
 Since the 1950s, television has been the main medium for molding public opinion.
 Public opinion is discussed as a form of collective behavior, which is made up of those
who are discussing a given public issue at any one time. Given this definition, there are
many publics; each of them comes into being when an issue arises and ceases to exist
when the issue is resolved.
 Public opinion plays an important role in the political sphere. Cutting across all aspects
of relationship between government and public opinion are studies of voting behavior.
Key Terms
 aggregate: A mass, assemblage, or sum of particulars; something consisting of
elements but considered as a whole.
 Jeremy Bentham: Jeremy Bentham was an English philosopher, jurist and social
reformer. He is regarded as the founder of modern utilitarianism.
 public opinion: The opinion of the public, the popular view.
Public opinion or Political opinion is the aggregate of individual attitudes or beliefs held by the
adult population. Public opinion can also be defined as the complex collection of opinions of
many different people and the sum of all their views.
Since the 1950s, television has been the main medium for molding public opinion. Public
opinion as a concept gained credence with the rise of “public” in the eighteenth century. The
English term “public opinion” dates back to the eighteenth century and has derived from the
French “l’opinion”, which was first used in 1588 by Montaigne. This concept came about
through the process of urbanization and other political and social forces. For the first time, it
became important what people thought, as forms of political contention changed.
Adam Smith (1723-1790), one of the earliest classical economists, refers to public opinion in his
Theory of Moral Sentiments. But it was Jeremy Bentham (1748-1832), the famous utilitarian
Philosopher, who fully developed theories of public opinion. He opined that public opinion had
the power to ensure that rulers would rule for the greatest happiness of the greater number. He
brought in Utilitarian philosophy in order to define theories of public opinion. The German

37

For Private Circulation Only HPNLU Shimla Page 179

sociologist Ferdinand Tönnies, by using the conceptional tools of his theory of Gemeinschaft and
Gesellschaft, argued (1922, “Kritik der öffentlichen Meinung”), that ‘public opinion’ has the
equivalent social function in societies (Gesellschaften) which religion has in communities
(Gemeinschaften) – election of opinions of many different people and the sum of all their views.
German social theorist, Jürgen Habermas (born in 1929), contributed the idea of “Public Sphere”
to the discussion of public opinion. The Public Sphere, or bourgeois public is, according to
Habermas, where “something approaching public opinion can be formed” (2004, p. 351).
Habermas claimed that the Public Sphere featured universal access, rational debate, and
disregard for rank. However, he believes that these three features for how public opinion are best
formed are no longer in place in western liberal democratic countries. Public opinion, in western
democracy, is highly susceptible to elite manipulation.
The American sociologist Herbert Blumer (1900 – 1987) has proposed an altogether different
conception of the “public. ” According to Blumer, public opinion is discussed as a form of
collective behavior (another specialized term) which is made up of those who are discussing a
given public issue at any one time. Given this definition, there are many publics; each of them
comes into being when an issue arises and ceases to exist when the issue is resolved. Blumer
claims that people participate in public in different capacities and to different degrees. So, public
opinion polling cannot measure the public. An educated individual’s participation is more
important than that of a drunk. The “mass,” in which people independently make decisions
about, for example, which brand of toothpaste to buy, is a form of collective behavior different
from the public.
Public opinion plays an important role in the political sphere. Cutting across all aspects of
relationship between government and public opinion are studies of voting behavior. These have
registered the distribution of opinions on a wide variety of issues, have explored the impact of
special interest groups on election outcomes and have contributed to our knowledge about the
effects of government propaganda and policy. More often than not, leaders use public opinion to
weight their options when instituting new policies, since public opinion represents the popular
views of citizens on the proper role of government. However, public opinion can be subject to
elite manipulation. Thus, public opinion cannot be the sole determinant factors for informing the
people on important issues of the day.
The rapid spread of public opinion measurement around the world is a reflection of the number
of uses to which it can be put. Public opinion can be accurately obtained through a random
sample survey, if done correctly. Governments have increasingly found surveys to be useful
tools for guiding their public policies through voter polls as seen in. The US Department of
Agriculture was one of the first government agencies to sponsor systematic and large scale
surveys. It was followed by many other federal bodies, including the US information agency
which has conducted opinion research in all parts of the world. Public opinion can be influenced
by public relations and the political media. Additionally, mass media utilizes a wide variety of
advertising techniques to get their message out and change the minds of people.The tide of

38

For Private Circulation Only HPNLU Shimla Page 180

public opinion becomes more and more crucial during political elections, most importantly
elections determining the national executive.

Political Values
Political cultures have values that are largely shared by their members; these are called political
values.
Key Points
 The values of a society can often be identified by noting which people receive honor or
respect.
 Values generate behavior and help solve common human problems for survival by
comparative rankings of value, the results of which provide answers to questions of
why people do what they do and in what order they choose to do them.
 Over time the public expression of personal values, that groups of people find
important in their day-to-day lives, lay the foundations of law, custom and tradition.
Key Terms
 Cultural Value: Cultures have values that are largely shared by their members.
 Personal Value: Personal Values provide an internal reference for what is good,
beneficial, important, useful, beautiful, desirable, constructive, etc. Values generate
behaviour and help solve common human problems for survival by comparative
rankings of value, the results of which provide answers to questions of why people do
what they do and in what order they choose to do them.
 value system: A hierarchy of values that all moral agents possess, demonstrated by
their choices. Most people’s value systems differ, making the imposition of a singular
value system by the state a source of constant social warfare. This is an individualistic
concept. One’s value system is molded by one’s virtues or vices.
Value Theory
Value theory encompasses a range of approaches to understanding how, why and to what degree
people value things, whether the thing is a person, idea, object, or anything else. This
investigation began in ancient philosophy, where it is called axiology or ethics. Early
philosophical investigations sought to understand good and evil and the concept of “the good”.
Today much of value theory is scientifically empirical, recording what people do value and
attempting to understand why they value these things in the context of psychology, sociology,
and economics.
A personal or cultural value is an extremely absolute or relative ethical value, the assumption of
which can be the basis for ethical action. A value system is a set of consistent values and

39

For Private Circulation Only HPNLU Shimla Page 181

measures. A principle value is a foundation upon which other values and measures of integrity
are based. Those values which are not physiologically determined and normally considered
objective, such as a desire to avoid physical pain, seek pleasure, etc., are considered subjective.
This means they vary across individuals and cultures and are in many ways aligned with belief
and belief systems. Types of values include ethical/moral values, doctrinal/ideological (religious,
political) values, social values, and aesthetic values. It is debated whether some values which are
not clearly physiologically determined, such as altruism, are intrinsic, and whether others, such
as acquisitiveness, should be valued as vices or virtues. Values can be defined as broad
preferences concerning appropriate courses of action or outcomes. As such, values reflect a
person’s sense of right and wrong or what “ought” to be. “Equal rights for all”, “Excellence
deserves admiration”, and “People should be treated with respect and dignity” are representative
of values.
Personal values
Personal Values provide an internal reference for what is good, beneficial, important, useful,
beautiful, desirable, constructive, etc. Values generate behavior and help solve common human
problems for survival by comparative rankings of value, the results of which provide answers to
questions of why people do what they do and in what order they choose to do them. Over time
the public expression of personal values, that groups of people find important in their day-to-day
lives, lay the foundations of law, custom and tradition. Personal Values in this way exist in
relation to cultural values, either in agreement with or divergent from prevailing norms. A
culture is a social system that shares a set of common values, in which such values permit social
expectations and collective understandings of the good, beautiful, constructive, etc. Without
normative personal values, there would be no cultural reference against which to measure the
virtue of individual values and so culture identity would disintegrate.
Cultural Values
The Inglehart-Welzel Cultural Map of the World, created by sociopolitical scientists, Ronald
Inglehart and Christian Welzel, is based on the World Values Survey. Cultures have values that
are largely shared by their members. The values of a society can often be identified by noting
which people receive honor or respect. In the US, for example, professional athletes at the top
levels in some sports are honored (in the form of monetary payment) more than college
professors. Surveys show that voters in the United States would be reluctant to elect an atheist as
a president, suggesting that belief in God is a value. Values are related to the norms of a culture,
but they are more global and abstract than norms. Norms are rules for behavior in specific
situations, while values identify what should be judged as good or evil. Flying the national flag
on a holiday is a norm, but it reflects the value of patriotism. Wearing dark clothing and
appearing solemn are normative behaviors at a funeral. In certain cultures they reflect the values
of respect and support of friends and family. Different cultures reflect different values.
“Over the last three decades, traditional-age college students have shown an increased interest in
personal well-being and a decreased interest in the welfare of others. ” Values seemed to have

40

For Private Circulation Only HPNLU Shimla Page 182

changed, affecting the beliefs, and attitudes of college students. Members take part in a culture
even if each member’s personal values do not entirely agree with some of the normative values
sanctioned in the culture. This reflects an individual’s ability to synthesize and extract aspects
valuable to them from the multiple subcultures they belong to. If a group member expresses a
value that is in serious conflict with the group’s norms, the group’s authority may carry out
various ways of encouraging conformity or stigmatizing the non-conforming behavior of its
members
.
Forms of Disagreement
Political dissent refers to any expression designed to convey dissatisfaction with or opposition to
the policies of a governing body.
Key Points
 Such expression may take forms from vocal disagreement to civil disobedience to the
use of violence.
 Historically, repressive governments have sought to punish political dissent.
 The protection of freedoms that facilitate peaceful dissent has become a hallmark of
free and open societies.
Key Terms
 political dissent: Political dissent refers to any expression designed to convey
dissatisfaction with or opposition to the policies of a governing body.
 civil disobedience: A form of social protest, involving the active but non-violent
refusal to obey certain laws, demands, or commands of an established authority,
because they are considered to be morally wrong or detrimental.
Political dissent refers to any expression designed to convey dissatisfaction with or opposition to
the policies of a governing body. Such expression may take forms from vocal disagreement to
civil disobedience to the use of violence. Historically, repressive governments have sought to
punish political dissent. The protection of freedoms that facilitate peaceful dissent has become a
hallmark of free and open societies.
One form of political dissent is civil disobedience. Civil disobedience is the active, professed
refusal to obey certain laws, demands, and commands of a government, or of an occupying
international power. Civil disobedience is commonly, though not always, defined as being
nonviolent resistance. It is one form of civil resistance. In one view (in India, known as ahimsa
or satyagraha) it could be said that it is compassion in the form of respectful disagreement.
Civil disobedience can often take the form of direct action, which occurs when a group of people
take an action which is intended to reveal an existing problem, highlight an alternative, or
demonstrate a possible solution to a social issue. This can include nonviolent and less often
41

For Private Circulation Only HPNLU Shimla Page 183

violent activities which target persons, groups, or property deemed offensive to the direct action
participants. Examples of direct action can include strikes, workplace occupations, sit-ins, tax
resistance, graffiti, sabotage, hacktivism, property destruction, blockades, and other forms of
community resistance.

Direct action stands in opposition to a number of other forms of disagreement, like electoral
politics, diplomacy, negotiation, and arbitration, which are not usually described as direct action,
as they are politically mediated. Non-violent actions are sometimes a form of civil disobedience,
and may involve a degree of intentional law-breaking where persons place themselves in
arrestable situations in order to make a political statement, but other actions (such as strikes) may
not violate criminal law. The aim is to either obstruct another political agent or political
organization from performing some practice to which the activists object; or to solve perceived
problems which traditional societal institutions (governments, powerful churches or
establishment trade unions) are not addressing to the satisfaction of the direct action participants.
A common form of political dissent in terms of military service is conscientious objection. A
conscientious objector (CO) is an “individual who has claimed the right to refuse to perform
military service” on the grounds of freedom of thought, conscience, and/or religion. In general,
conscientious objector status is only considered in the context of military conscription and is not
applicable to volunteer military forces.

42

For Private Circulation Only HPNLU Shimla Page 184

 Pressure Groups: Meaning, Characteristics and Techniques

Meaning of Pressure Groups:

Today there is no country in the world which is free from pressure groups. These groups try to
influence and pressurise every political institution to serve their own interests and to ensure that
at least in no case their interests suffer, if at all these are not promoted.
Prof. S. Finer has characterised these groups as ‘anonymous empire’ whereas Richard D.
Lambert is of the view that these are unofficial government, which implies that no government
can run without taking their view point into consideration.
These groups influence both public policy as well as administration and go a long way in
determining political structure of the society and the form of government. In India Prof. Rajni
Kothari has made a significant study of working and organisation of these groups.
Pressure groups are concerned primarily with certain issues and thus may not field their
candidates at the time of elections. But those who have some common interest come together and
try to change the course of public affairs.
If taken in this sense any social group which seeks to influence the behaviour of any political
officer, both administrative as well as legislative, without attempting to gain formal control of
the government can be called a pressure group.
It exerts persuasive powers to get certain political decisions in its favour. These groups have no
public but only private interests and also these are organised groups of people who have some
common interests for solving their own problems.
Characteristics of Pressure Groups:
Pressure groups everywhere have certain characteristics. Each group organises itself keeping in
view certain interests and thus tries to adopt to the structure of power in the political system. But
in every government and political party there are clashing interest groups and as such not only
that they wish to dominate the political structure, but also try to brush aside those groups which
are opposed to their interests.
Thus, each political system and party which is either in or out of office is pressurised by certain
interest groups, which many a time inter-act, counter-act and react to each other. In India there is
multi-party political system and in each party there are several pressure groups. In the unification
and bifurcation of these parties, these groups go a long way i.e., play a considerable role.

43

For Private Circulation Only HPNLU Shimla Page 185

Then another feature of the pressure groups is that these very quickly change political allegiance,
as that suits to their conditions and protects their interests. The groups being both big or small,
appear as well as disappear depending on the situations and the then prevailing conditions.
Accordingly difficult to catalogue these groups either on the basis of their size, or duration, or
political allegiance or even the purpose for which these are organised.
Then another characteristic or feature of these pressure groups is that these try to follow modem
means of exerting pressure, without boldly renouncing old methods. But their sole purpose of
adopting old and modem methods is to promote as well as protect their own interests.
They adopt techniques like financing of political parties, sponsoring such candidates at the times
of elections which are their close associates and who can be depended upon and to ensure that
such persons hold executive jobs in the government who look after their interests.
These groups also keep bureaucracy and top high officials in good humour and pay them for the
services which they get either from the political bosses or permanent executive. The pressure
groups, in order to protest their interests, also employ traditional means of exploiting caste, creed
and religion and in their name try to win their co-operation.
They finance caste and religious organisations, bodies and donate money at public meetings to
become popular with them. While doing so they forget national interests or the cause of national
integration. They keep their group interests above national interests.
Pressure groups have no political commitments. These try to side with the government of the
day. These guess with which party to side, which can in the long run be to its advantage. Thus
for this no norms can be laid down.
If any pressure group has any permanent political affiliation that can be only due to compelling
circumstances. Not only this, but pressure groups will try to have their lobbies in every wing of
the political hierarchy.
Still another feature of pressure groups is that these always try to see that there is no political
stability and perfect law and order situation does not prevail in the country. In case that happens
then both political bosses and bureaucracy will be in complete grip of the situation and the
groups will have to play to their tune.
On the other hand, if there is instability and lack of law and order, then role of pressure groups
will be more dominant These will then have upper hand in every walk of life.

44

For Private Circulation Only HPNLU Shimla Page 186

These groups, in order to have an upper hand, create a situation of uncertainty, help creating
explosive situations where violence becomes unavoidable or encourage strikes, etc. and in order
to embarrass political bosses see that the people demonstrate, observe fasts and hartals and so on.
Salient Features of Pressure Groups in India:
In India pressure groups though comparatively of recent origin have so organised themselves that
they neither openly support nor oppose any political party. Each such group tries to thrive on the
support of some political party or power. These have a sort of fear psychology.
These always try to remain neutral in politics. In fact, in India political parties try to have
pressure groups with them and wish to win their co-operation. One finds that at the time of
elections political parties approach religious and trade union leaders for their active support.
The bigger the political party, more it shall be able to absorb and adjust pressure groups. In a
weak political system pressure groups try to become equal partner with political bosses.
Pressure groups in India are required to work in multi-party system and thus they are forced to
keep shifting their loyalties. They do not work independently but each one functions under the
patronage of some political party. These pressure groups are forced to pay consideration to
region, religion and caste rather ideology and national integrity and even political honesty.
They feel interested in creating a situation of disorder and lawlessness for having group
advantage out of political instability. They use both modern and old techniques of putting
pressures on the powers that be and thus they do not adhere to anyone method. No group has
political commitment and thus many groups become anomic organisations.
In the words of Kochanak, “As the Indian case reveals, the political system itself sets the
parameters for group activities and groups can be understood as part of a larger and more
complex set of relationships which composes the larger political system.” Quite often in
India pressure groups are over weighed by religion, caste and language rather than ideological
considerations.
In India, however, pressure groups have made slow progress. Firstly, because Congress party
though a political party, has been an important link between local groups and state governments.
Then another reason for slow growth of these groups is that bureaucracy has seen these groups
with distrust and thus never encouraged group people to come near it.
But in spite of this pressure groups in India have started playing important role. Hardgrave has
said, “Interest groups not only are agents of interest articulation but they also increase political

45

For Private Circulation Only HPNLU Shimla Page 187

consciousness…. In addition, interest groups may be reservoirs of political leadership; this has
been particularly true for trade unions of India.”
Techniques of Pressure Groups:
Pressure groups are very keen that their objectives should be achieved and for this they adopt
various techniques in India. They try to go near those who can help them in achieving their
objectives may he be an administrator or a politician. They, however, prefer the former over the
latter.
They use caste, creed, religion, relationship and above all money power to go near the power that
be Such an approach is made usually indirectly because under code of conduct public servants
wish that their identity should not disclosed while because of party discipline, ordinary members
of a House of a legislature cannot support a particular cause, against the established policy of the
party.
The pressure groups try to have their representatives in various committees which are set up by
the government from time to time, particularly when their interests are involved. They approach
the experts to convince them of their view point and even establish their contacts with public
servants at the low level.
They attach special importance who are either decision makers or can articulate effectively their
view point. They provide funds to political parties at the time of election or when otherwise
needed by them and for them that is an investment. Trade unions adopt the methods of strikes,
demonstrations, gheraos, etc., for getting their demands met. Sometimes these even resort to
violence.
Thus, in India pressure groups use different types of techniques but on the whole these are weak
and at the developing stage.
Critical Evaluation of Pressure Groups in India:
Pressure groups in India, by and large, have no political commitment. They are weak and do not
openly extent their support to the political party other than the one which is in power. They
hesitate to displease authorities and government. It is hoped that these groups will always be
non-violent and follow secular policies.
These groups try to strengthen only such parties, which they feel are likely to come to power, if
already not in authority. For them their own interests are supreme and paramount and when they

46

For Private Circulation Only HPNLU Shimla Page 188

feel that these clash with those of the others, in order to preserve their interests, they go to the
other extreme end.
Pressure groups in India have not been much success because of several reasons. The main
reason for this is that they have failed to organise themselves as a second body. They have no
well developed infrastructure which can help in regularly and vigorously pursuing their interests.
Single party dominant system at the centre is also considerably responsible for their slow growth.
Political parties do not wish that any serious challenge be thrown to their authority even by
powerful pressure group. Not only this, but even pressure groups have tried to develop under the
patronage of political parties.
The funds are provided to them in a bid to go near them and directions are received from
political bosses. Even political parties try to divide each pressure group and to have strong hold
over one such group at least. Then by and large they follow negative method for getting their
work done. As is well known such a method is negative rather than being the positive one.
Then another cause of their slow growth is that in India individual legislators have not been
found very effective by the pressure groups. Each such group realises that because of party
discipline and with the operation of Anti-Defection Act, each legislator must vote on party lines.
Thus, contacts should be developed with the party and not with any individual legislator.
The pressure groups also realise that in India bureaucracy is very strong and can help them a lot.
But somehow so far these groups, by and large, have failed to corrupt bureaucracy. There is also
no unity in pressure groups. In fact, there is no group which is not a house bitterly divided in
several factions and sub-groups one speaking openly against the other. In several cases there is
also lack of good leader.
In several cases pressure group leaders try to become political leaders. Their political ambitions
frustrate the basic character of the pressure group. Most of the pressure groups like trade unions,
student organisations, etc., are not financially very sound and without finances these cannot
function effectively.
Thus, on the whole, in India so far the impact of pressure groups on politics has not been felt and
is also not going to be much deep rooted unless things radically change to their advantage. It is,
however, being noticed that pressure groups are trying to get roots as in advanced western
societies, though still these are in the initial stages

47