Theories of Sovereignty

Devanshu Bhadauria
Hidayatullah National Law University, Raipur

ABSTRACT:
Sovereignty has affected us a lot its existence is felt everywhere from our government to everyday for example, when we
demand some favour from the authorities and the authorities refuse to grant us the same, we protest. The concept of
sovereignty has been controversial in academic discourse. Men obey because they agree that it is pleasing to do so. In
tyrannical states, men obey through apprehension, while in democratic states the common men obey through blessing.
Force is only required for the few who refuse to obey. It is this possession of force to support its commands and to compel
obedience that distinguishes the state from all other associations and that makes it sovereign. The meaning of sovereignty
has undergone change across history. We all know what power is, in a broader sense. Although we see it everywhere in
our lives, it is hard to define. While doing social and political theory, we try, however, to make the concepts of
Sovereignty more precise and clear. Despite the many meanings of the concept, sovereignty has a core meaning. Concept
of understanding Theories of Sovereignty is very much relevant in 21 st century. In this article we will discuss about the
nature of Sovereignty, understand the meaning as well as new challenges of Sovereignty in the contemporary situation.

KEYWORDS: Power, Authority, Sovereignty, Theories, New Challenges of Sovereignty

INTRODUCTION:
Sovereignty is a regarded as one of the important ingredient of State which distinguishes the state from other political
associations within a society. Sovereignty is the quality of having supreme, independent authority over a territory. It is also
normally understood to be a state which is neither dependent on nor subject to any other power nor state. It can be found in
a power to rule and make law that rests on a political fact for which no purely legal clarification can be provided. A
sovereign is a supreme parliamentary authority. This authority is absolute both in internally as well as externally in all
matters. Sovereign not only act as a negotiator but also performs for the individual’s interest in order to give justice fair
and reasonable. It moderates and harmonizes the conflicting claims of different individuals, groups and institutions. In the
external sphere the state is subject to no other authority and is independent of any eternal compulsion or interference.
Concept of sovereignty seems to be very simple, but we have to accept the fact that it is one of the most complicated
notions in Political Science and elementary perceptive has no meaning for the reason that state power is not something
which is theoretical and confined to books. While historians, international lawyers and political theorists tend to operate
with the notion of authority and right, political economists, and political sociologists tend to employ the notion of power
and capability. Therefore, there is a need to go into details to study the concept of sovereignty very clearly and precisely;
for after all it is with this and other basic concepts and definitions that are explained in the further course of article

What is Sovereignty?
Notion of sovereignty can also be explained as to be the power of one particular class of society over another class 1.
Derived from the Latin term Superanus, which means supreme, sovereignty denotes the supreme power of the state to
extract obedience from the people who inhabit it. It means that the power of the state is unquestionable and the state has a
right to demand allegiance from its citizens. Disobedience of set of laws and supremacy of state will led to sanction of
punishment. There are two types of Sovereignty internal Sovereignty and external Sovereignty, where the state is supreme
to any individual or organisation, living or functioning, within its boundaries, and they have to function under the laws and
command of the state. The power of the state over them is original, total, indefinite and all inclusive. External Sovereignty
means that in the comity of states, every state is supreme and is free to cast its destiny. No other state or any international
organisation can claim dominance to a state. The state may be subjected to certain treaties or other obligations, but they
are self-imposed obligations on the part of the state. None can compel or enforce any obligation on the state, which it is
not willing to accept. Thus, the state is equipped with internal and external sovereignty that gives it over-riding powers
over individuals, groups and organisations and makes it absolute.

Definitions of Sovereignty -
The concept of sovereignty is one of the most complex, with many definitions, some totally contradictory. Usually,
sovereignty is defined in one of two ways. The first definition applies to supreme public power, which has the right and, in
theory, the capacity to impose its authority in the last instance. The second definition refers to the holder of legitimate
power, who is recognized to have authority. When national sovereignty is discussed, the first definition applies, and it
refers in particular to independence, understood as the freedom of a collective entity to act. When popular sovereignty is
discussed, the second definition applies, and sovereignty is associated with power and legitimacy. 2 There are various
definition of Sovereignty which has been defined by academicians and philosophers they are as follows:

In political science, sovereignty is usually defined as the most essential attribute of the state in the form of its complete
self-sufficiency in the frames of a certain territory that is its supremacy in the domestic policy and independence in the
foreign one.3

Lassa Oppenheim defines Sovereignty as “There exists perhaps no conception the meaning of which is more controversial
than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into
political science until the present day, has never had a meaning which was universally agreed upon. 4

John Bodin defines sovereignty “The supreme power over citizens and subjects, unrestrained by law." 5
Grotius defines sovereignty as “The supreme political power vested in him whose acts are not subject to any other and
whose will cannot be overridden”
Also definition of Sovereignty by Soltau is “Final legal coercive power by the state."

Therefore Essentials of Sovereignty can be summarized as well as understood from the above mentioned definitions of
sovereignty through following points:
1. An element of the state.
2. Ultimate will of the state.
3. Authorized coercive power of the state.
4. Absolute laws.
5. It lies within a individuals
6. Absolute and unlimited authority

Types of Sovereignty:
The word sovereignty has been used in many ways in Political Science that makes its understanding very difficult.
Therefore, it is necessary to understand its varied uses. There are many types of sovereignty which can be explained as
follows:-

Legal Sovereignty: Legal sovereignty represents sovereignty as the supreme law making power; that is, to issue the
highest orders. It is bound neither by moral nor by natural laws. Laws made by the sovereign are to be obeyed by all
compulsorily. Thus, in real political life, legal sovereignty, as undisputed supreme power to make any law, is not generally
seen. According to Garner, "The legal sovereign, therefore, is that determinate authority which is able to express in a legal
form the highest commands of the state that power which can override the prescriptions of the divine law, the principles of
morality, the mandates of public opinion, etc." The concept of legal sovereignty found the most comprehensive treatment
in Austin's theory of sovereignty known as Monism.

Political Sovereignty: History has shown several instances of this revolutionary political sovereignty destroying the legal
sovereign It is defined by Dicey that "Behind the sovereign which the lawyer recognises there is another sovereign to
whom the legal sovereign must bow That body is politically sovereign, the will of which is ultimately obeyed by the
citizens of the state". If legal sovereignty has to survive, then it must work in close cooperation with political sovereignty.

Popular Sovereignty: Modern democracy is based on the concept of popular sovereignty which means that the source of
all authority is the people. J.J. Rousseau is credited with espousing it in modern times. But earlier also, the concept of
popular sovereignty was not unknown. Popular Sovereignty can merely be understood as ‘people’s affairs’ 6 it means that
people have supreme power and ultimate authority rests with them. Rousseau calls it as “general will". The concept of
popular sovereignty was accepted as the basic principle of governance in the American and French revolutions.

The concept of popular sovereignty is very attractive. But it is shrouded with vagueness. It is very difficult to explain it in
practical terms. It is good to say that people are the basis of any political system and their will must be reflected in the
governance.
National Sovereignty: The principle of national sovereignty was first formulated by the French revolutionists in their
Declaration of the Rights of Man. It means that sovereignty resides essentially in the nation, conceived as a collective
body of all the people enjoying independence from external control.

Real and Titular Sovereignty: Real and Titular Sovereignty both are interrelated terms. Titular Sovereignty can be
defined as sovereignty power acceded by the Monarch. As the constitutional or ceremonial head of the state he is called a
titular sovereign. The monarchy in England still exists and all the powers are exercised in the name of the king or the
queen but the real sovereign is the Crown. But comparing it with India, where the president is the titular head while the
real sovereign is the prime minister and his cabinet.

De Jure and De Facto Sovereignty: This aspect of sovereignty has been established by international law. Whenever there
is a political upheaval or a civil war in a country or a similar situation, we have two types of government- the legal
government, which has been uprooted and the new government which though not legal, holds actual power. In such a
situation, the question of recognition of (which) power arises. De jure sovereignty is one, which is legally competent to
issue the highest command of the state. It has the legal right to exercise sovereign power and has the obedience of the
masses. A de facto(factual) sovereign is the one who has got actual power and who has real command to go with it. His
authority rests on his physical force and control. He may be a Usurping king, a dictator, a priest, a prophet, or a
charismatic leader. In any of these instances, his power rests not on law, but on physical force and actual control. De jure
means “having a right or existence as stated by law”7

It is the sovereignty which according to legal right is entitled to the obedience of the people. Whereas De Facto means
legal or accepted therefore it is the actual sovereign which exercises control over the people and enjoys their real
obedience to its commands. But here one thing must be understood, viz., that the distinction between de facto and de jure
sovereignty is with regard to the exercise of sovereign power. It is mainly important from the viewpoint of international
law and diplomacy. This question becomes important only in the case of a revolution, a coup, a civil war, etc., in a state
because in such cases there exist too many political claims to sovereignty. 8

Theories of Sovereignty:
There are two diametrically opposite views relating to state sovereignty. The first view known as "monism" is a classical
defence of the determinate, absolute and indivisible character of state sovereignty while the second known as "pluralism"
is an eloquent protest against the first and stresses the limited nature of state sovereignty which must be shared between
the state and a host of other associations which are as natural and indispensable as the state.

Monistic Theory of Sovereignty:

Austin was the most important contributor to legal theory or Monistic theory of Sovereignty 9. The first theory which
exerted wide influence was that of Jean Bodin. In his view sovereignty was the highest power in a state which is subject to
no laws but is itself the maker and master of them. It may reside in either one person or in a number of persons, but in
either case it is above law, incapable of any limitation and having an absolute claim to the obedience of all. He admitted
that in some way the sovereign is subject to Law of God and laws of nature, and is therefore he is bound to respect the
rights of property and personal freedom. Nearly a century later a similar theory was put forward by Thomas Hobbes. He
based his sovereignty on a covenant of each member of a community with another member to surrender all their rights and
powers into the hands of one person or body who thereby becomes the sovereign. Since the sovereign is not himself a
party to the contract it cannot be annulled by those who made it. The authority of the sovereign is therefore permanent and
unlimited. Jermy Benthem revived Hobbes theory of absolute sovereign and justified it. Thus we see that much before
Austin, there were other great philosophers who had defined sovereignty.

Austin's legal view of sovereignty carries with it a certain scientific precision and finality which is highly impressive. His
analytical view of sovereignty and law has some implications:
1. As Laski says, the state for Austin is a legal order in which there is a determinate authority acting as the ultimate
source of' power. Hence, neither the people, which is indeterminate, nor the general will (Rousseau's conception), which is
impersonal and abstract, can be designated as sovereign.
Its authority is absolute and incapable of limitation. The sovereign receives habitual obedience from the people but not in
the habit of obedience to a like superior.

2. Whatever the sovereign commands is law, and without him there can be no law. Law is a command of the state
obliging the subject to do, or to refrain from doing, certain acts, failure to obey being visited by punishment.
3. Sovereignty is indivisible. To divide sovereignty between two or more persons or bodies of persons is to limit it,
while sovereign power s by definition incapable of limitation.
Monistic Theory of Sovereignty: A Critique:
1. The authority of the sovereign is absolute and unlimited has been contested on several grounds. It conflicts with the
basic ideas of democracy, Austin talks in terms of a hierarchical order characterized by superior-subordinate relationship
while democracy is a society of equals. Austin's idea is inconsistent with a democratic polity based on popular
sovereignty.

2. The Pluralists argue that the state is but one association among several and, therefore, it cannot be invested with the
unique sovereign power of the community. They urge that associations grow naturally, that they have a will of their own
and that the life lived in the group is an important part in the life of the individual. They contend that the voluntary
associations should not be dictated to by the state.

3. Austin's third proposition is that the, sovereign in the sense of a "determinate human superior" is the supreme law-
maker. Whatever he commands is law. This view has been criticised by the historical jurists on the ground that it ignores
the great body of customary law which has grown up through usage and interpretation and which never had its source in
the will of a determinate superior.

4. The last proposition of Austin is that sovereignty is indivisible. From one point of view, as Lord Points out, this is an
untenable proposition. In every state there is a division of function though not of will and without such- division no
government can be run effectively. It is argued that sovereignty is shared between the legislative, executive and judicial
branches and between the national and state governments in a federation. The distinction between legal and political
sovereignty also has at times been interpreted as the divisibility of sovereignty.

Value of Monistic Sovereignty:-

Austin’s Legal theory of sovereignty is to be found in his well knows lectures on The Province of Jurisprudence Defined.
It carries with it “a certain scientific precision and finality which is highly impressive”. Its peculiar features can be
summed up as follows:-
1. As legal notions, it proclaimed the monopoly of the state Public policy and declaring the law that binds all the
citizens’ unequivocal terms.
2. The logic of the legal character of sovereignty postulates that it has to be absolute, permanent, universal, and
inalienable.
3. It is definitely organized, precise and recognized as the source of law. It represents the will of the state and its
commands are legally binding. Its disobedience is visited by penalties.
4. The organs of state which exercise supreme power law making, law enforcement and adjudication, draw their
legitimacy from the general will of the people.
5. It regards people themselves, in their corporate capacity, as the embodiment of reason, the best judges of right and
wrong, and hence the real source of supreme authority.

Pluralistic Theory:-
Due to growth of various associations, discharging functions, in modern times provoked a revolt against the monistic
theory led to the rise of pluralistic theory. The pluralists declare that if a political theory is to be “philosophically true,
scientifically sound, morally righteous, legally implicit in codes and decision and practically convenient,” it must
recognise the personality of a corporation as a real and spontaneous entity, with an inherent life and activity of its own.
The pluralism undertakes to transform the state. It criticises and “discredits” the State as it is, and seeks to reduce it from
its place of “honour to servitude.” 10

Laski, who was the most vehement critic of the monistic theory, said, “It is impossible to make legal theory of sovereignty
valid for political philosophy.”11 Pluralists view modern society as a web of associations. These associations which emerge
naturally to fulfil the diverse needs and aspirations of the members of a society must have functional freedom and the state
which is but one among numerous associations must not claim monopoly over sovereignty. Thus in contrast to the features
of monistic theory of sovereignty, pluralistic theory advocates division or sharing of sovereignty on group basis, and
limited sphere of state action.

The central idea of Plurism has been summed by Gettell. He says, “The Pluralists deny that the state is a unique
organization; they hold other associations are equally important and natural; they argue that such association for their
purpose as a sovereign as the state is for its purpose. They emphasize the inability of the State to enforce its will in
practice against the opposition of certain groups within it. They deny that the possession of force by the State gives it any
superior right. They insist on the equal rights of all groups that command the allegiance their member and that perform
valuable functions in society. Hence sovereignty is possessed by many associations. It is not an indivisible unit; the state is
not supreme or unlimited.” all this may be reduced to the following bare analysis:-
1. The parts of the State are as real as the whole. The State is, therefore, distributive, not collective.
2. The distinction between the State and government is not real. Both are the same.
3. The State is one among other groups which man needs to fulfil the purpose of his life. His allegiance is, accordingly,
not unified. It is divided and diffused. His allegiance to the state may conflict with his allegiance to other associations, and
may even take priority over his loyalty to the State.
4. The State is not in any way a mysterious formation with supernatural or metaphysical characteristics. Omnipotent
sovereignty is not true to facts. It is not unitary, but federal.
5. The state can serve its purpose by and through goodwill alone. It cannot destroy associations and groups, as it cannot
create them. Nor can it enforce its will against the opposition of associations and groups within it, it “does not enjoy any
necessary pre-eminence for its demands, “as Laski puts it.

Pluralistic View of Sovereignty-A Critique:

We may conclude that sprit of their convincing arguments; the pluralists fail to “expunge” the notion of sovereignty from
political theory as they claim. Pluralists fail to go clear over to their goal of a non-sovereign state. Notwithstanding their
desire to establish a position of equality for all essential associations, the logic of the situation compels them to give a
supreme place to the state. "Virtually all the great driving forces in modern society combine in a centralist direction". The
social, economic and political forces in the contemporary society has, as Lipson observes, "Aggrandized the state and
made the twentieth a century of monism" The objections of pluralists to Austinian concept of law tends to confuse the
substance with the form of law. It is true that the substance of law is derived from usages, practices and needs of a
community. Austin's chief interest is in the form of law -its legal source. No law, however good substantially, is valid
unless it is formally recognized by the state. The terms 'social solidarity' and 'sense of right' do not have the precision
conveyed by the term 'legal sovereignty'. These terms are incapable of giving us specific laws which can be interpreted
and enforced by the courts of law.

Value of the Theory:-

The Pluralist theory is a protest against the elevation of the state to mystical to mystical heights. They attempt to abolish
sovereignty, but inertness sovereignty, but are finally compelled to restore it. Hegel viewed it as “God on Earth” and
invested it with not only supreme legal, but also supreme moral authority. Pluralism demarcates and limits the functions of
the state and defines its authority. It accepts the state at par with other associations and demolishes the edifice of its
glorification which Hegel built. Miss Follett in her book, The New State, sums up the merits of pluralism as follows:
1. The Pluralists “prick the bubble of present State‘s right to supremacy. They see that the State which has been slowly
forming since the middle Ages with its pretences and unfulfilled claims has not won either our regard or respect.”
2. “They recognize the value of the group and they see that the variety of our group life today has a significance which
must be immediately reckoned with in political life.” They also repudiate the notion that the groups are given authority by
the state.
3. “They plead for a revivification of a local life.” The pluralists thus aim at decentralising authority and feel that most
imminent of our needs “is the awakening and invigorating, the educating and organising of the local unit.”
4. “The Pluralists see that the interest of the State is not now always identical with the interests of its parts.”
5. Pluralism is “the beginning of the disappearance of the crowd.”
6. Finally, pluralism “contains the prophecy of the future because it had with the keenest insight seized upon the
problem of the identity of association, of federalism.”

According to the pluralist conception, power in a society is not centralized in the state, but divided among different
associations and groups. Behaviouralists maintain that in a democratic society, power is shared by competing plural elite.
Thus, power is assumed as diffused, rather than centralized, in a democratic society.

Sovereignty and Globalisation-Contemporary Relevance:

Sovereignty is a contentious concept in domestic and international relations. Political thinkers from Machiavelli to
Rousseau believed that instabilities and disorder were obstacles to a stable society and could only be overcome by viable
governments that could firmly establish sovereignty over territory and population. Globalisation means the increasing
interaction of the inhabitants of the world that has been hither to unknown in the history of mankind. It is also seen as the
process of integrating the national economy, culture, technology and even governance into a global system. The concept
of sovereignty was then integrated into theories of international relations through a set of ideas that evolved over a period
of time, but got established at Westphalia that ended the moral authority of the Church over secular rulers. Though
external sovereignty has undergone major changes as a result of the international commitments made by sovereign states
as well as because of growing interdependence of states, the basic international norms, principles and practices continue to
rest on state sovereignty that is constitutional independence of states.
International law has also affected the sovereignty of the state. The international law is a law applicable for states; the
individual is also becoming the subject of international law. The new international law is binding itself on the concept of
togetherness and closeness of the numerous states. Contemporary international law has clearly demonstrated from the
decisions in the Islands of Palmas 12 and the Eastern Greenland cases 13 that modern international law has primarily relied
on the notion of the ‘better right to posses the land’ as the key element in establishing territorial sovereignty over and
above any right that is conferred through a particular mode of acquisition which occurred previously. Arbitrator Huber’s
decision in the Islands of Palmas case is consistent with the Courts decision in the Miniquiers and Ecrehos 14case such that
the issue of determining the right of territorial sovereignty between two competing States passes to which one has the
better - or more sustainable - right.15

Bin Laden mission violated Pakistan Sovereignty:

On May 2, 2011, U.S. forces entered Pakistan—without the Pakistani government’s consent—to capture or kill Osama Bin
Laden. In the wake of the successful U.S. military operation, the Pakistan Government objected to the “unauthorized
unilateral action” by the United States and cautioned that the event “shall not serve as a future precedent for any
state.” 16 Former President Musharraf complained that the operation violated Pakistan’s sovereignty. 17 The facts and
politics in this case make it unlikely that Pakistan’s defence of its sovereignty will find significant international support.
Nevertheless, it would be useful as a matter of international law for states to agree that the U.S. raid against Bin Laden in
Pakistan against the Will.18

Therefore today, globalisation has become a fact of our times, a fact that has raised many questions regarding the state and
its sovereignty. The sovereignty of the state continues, but the sovereign structure of the state is heavily influenced by
global tendencies, besides those found within the boundaries of the state itself.

CONCLUSION:
Concept of sovereignty is being comprehensively looked which essentially means that the state performs all its functions
with the help of some authority or power.

Sovereignty rose largely owing to the conflict between the rising national states. When the state was recognized as
supreme over all its citizens, the concept of sovereignty was established as absolute and unlimited. However, the notion of
sovereignty was interpreted in a different frame-work. Legal sovereignty was understood as a supreme law making power,
not bound by any laws. Its laws were to be obeyed by all and involved punishments on disobedience. Austin was the chief
exponent of this notion. On the other hand, political sovereignty was revolutionary power of the people which could
destroy any legal sovereign. So, in a representative democracy, legal sovereignty had to work in close proximity with
political sovereignty.

Otherwise, there was a fear of destruction of the legal sovereign by revolutionary political sovereignty. Sovereignty is the
central concept in the theory of the State. It is the essence of the state.

Monistic theory in which envisaged a single sovereign ruler in the state. Therefore it is described as the monistic theory of
Sovereignty. The best explanation of legal sovereignty is contained in the writings of Austin. He regarded as the founder
of the analytical school of law. The present century has been a century of reaction against all authoritarian thoughts. The
pluralist view of sovereignty was a reaction against the legal, traditional, monistic, absolutist, Austinian theory of
sovereignty and against the theory of fascist, unlimited, absolute state supported by idealist philosophers like Hegel and
other supporters of the power view of state and politics like Nietzsche, Treitschke and Bernhardi. It may be termed as a
strong voice for decentralization of authority against the absolute centralized sovereignty of the state. Thus, pluralism was
a reaction against unlimited state and sovereignty; it was an attack on the absolutism of state and its absolute sovereignty;
it was a voice to control, limit and divide the sovereignty of state; it was a movement of labour, economic, religious and
professional associations and unions for the fulfillment of demands of rights and power against the state. It is also a fact
that time is changing very rapidly and theoretically the concept of state sovereignty still exists but very important in-roads
have been made especially since globalisation has curtailed the effectiveness of the state supreme power. One cannot
dream of a state in the absence of sovereignty. Sovereignty is the supreme power of a state, both in the internal and
external spheres.

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insights110505.cfm#_edn1

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WEBLIOGRAPHY:
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