By Jibin Mary George, Amity Law School, Delhi
EDITOR’S NOTE:- The concept of sovereignty has been evolving since time immemorial. Since the World Wars, countries have stepped up their sensibilities towards their territorial limits. The recent South China Sea dispute highlighted how territoriality has extended itself to water bodies as well as air space. This article discusses the political theories explaining sovereignty. It also delves into aspects such as de jure and de facto control, with special emphasis on critically evaluating Austin’s theory.
A State and the doctrine of sovereignty are inseparable parts of the same machine. Therefore, it is impossible to discuss one, without understanding what the other entails. In the simplest terms, the doctrine of sovereignty refers to the quality of enjoying a superseding authority over a geographical area or a populace. However, before going further into understanding what sovereignty is, it is important to first understand what a State is.
The origin of the State itself is shrouded in mystery. It is difficult to suggest whether the State has a singular origin or it has evolved as a continuous process. However, what can be suggested is the fact that the State evolved from a simple to a more complex form as a result of the rising extension of man’s activities and interactions.
The expression “State” itself is derived from the Latin term “status”, which means ‘standing.’ It is however to give a precise, exact definition of the State partly because its definitions, as given by political thinkers and jurists have been constantly changing owing to the dynamic evolution of the concept of a State.
Woodrow Wilson, one of the presidents of the United States, defined State as a people organized for law within a definite territory. However, on the other hand, Grotius defines State as the complete union of freemen who join themselves together for the purpose of enjoying law and for the sake of public welfare.[i] Oppenheim stated that a State is in existence when a people are settled in a country under its own sovereign government.
The evolution of State itself has been hotly debated and questioned. In a nutshell, the following are the theories of evolution of State,
- Divine theory: According to this theory, the State is the creation of God and is therefore, through the arm of the king, a representative of God on earth. It is a superseding authority over all beings on earth.
- Natural theory: This theory suggests that man is a social being and the instinct of sociability has given rise to the origin of the State. Aristotle, a staunch proponent suggested that the interests of the individual and the State were identical and men could not live outside the State. The purpose therefore, was to promote general welfare of the people.
- Social Contract Theory: Pre-supposes that the State is a creation of agreement by the people. The people pay obedience to the State because they have, by a mutual agreement agreed to do so.
To put it into perspective, it can be reiterated that the State is essentially a politically organized society coordinating the activities of its members and protecting their interests by the maintenance of people and administration of justice. The following can be said to be the essential elements of the State,
- Population, which implies a considerable group of human beings living together in a community.
- Territory, which is a defined portion of the earth’s surface upon which a population permanently resides. As pointed out by Harold Laski, “the territories of a State are the regions over which it can exercise its sovereignty.”
- Government, which is any organization which holds the authority and power, to be exercised over its people by way of laws and other legislations. The government essentially, is the agent of the State.
- Sovereignty, which shall be glossed over and discussed in this particular project.
THE DOCTRINE OF SOVEREIGNTY
Meaning of Sovereignty
The word “sovereignty” is derived from the Latin word “superannus” meaning supreme. It means the supreme power of the state over all individuals and associations within its own territorial limits. This is internal sovereignty of the state whereby the state is the final authority to make laws, issue commands and take political decisions which are binding upon all individuals and associations within its jurisdiction. It has the power to command obedience to its laws and commands and to punish the offenders who violate the same.
At the same time, sovereignty also involves the idea of freedom from foreign control, i.e., the independence of the state from the control or interference of any other state in the conduct of its international relations. This is what is called external sovereignty whereby a state has the power to independently determine its own foreign policy and has the right to declare war and make peace. At the same time, external sovereignty implies that each state, big or small, by virtue of its sovereign status is equal to every other state. It can command no other state and it cannot itself be commanded by any other state.
Accordingly, sovereignty of the state has two aspects, namely, internal and external sovereignty.
Sovereignty is an essential element of the state and with every change in the conception of the state, the concept of sovereignty has also varied from age to age. The Greek philosopher Aristotle spoke of the “supreme power” of the state. The Roman jurists were also familiar with the notion. During the Middle Ages, the idea of sovereignty was associated either with the authority of the king or with the Pope.
Characteristics of Sovereignty
There are many characteristics or attributes of sovereignty. These are discussed below:
- Absoluteness: Sovereignty is regarded as absolute. This means that neither within the state nor outside it , is there any power which is superior to the sovereign. The will of the sovereign reigns supreme in the state. His obedience to customs of the state or international law is based on his own free will.
- Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as an independent state lasts. The death of a king or president or the overthrow of the government does not mean the destruction of sovereignty as the ruler exercises sovereign power on behalf of the state and therefore, sovereignty lasts as long as the state lasts.
- Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality in the sense that it extends to all individuals, groups, areas and things within the state. No person or body of persons can claim exemption from it as matter of right. The immunity granted to diplomats from other countries is only a matter of international courtesy and not of compulsion.
- Inalienability: Sovereignty is inalienable. It means that the state cannot part with its sovereignty. The state as a sovereign institution ceases to exist, if it transfers its sovereignty to any other state.
- Indivisibility: As sovereignty is an absolute power, it cannot be divided between different sets of individuals or groups. In every state, sovereignty must be vested in a single legally competent body, to issue the final commands. Division of sovereignty is bound to give rise to conflicting and ambiguous commands.
- Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost if it has not been exercised for a long period. A people may not have exercised sovereignty for some time due to control by a foreign power. But non-exercise of sovereign power does not put an end to sovereignty itself. It can only shift to a new bearer.[ii]
- Originality: The most important characteristic of sovereignty is its original character. Sovereignty cannot be manufactured. Dependence on another for supreme power cannot make a state a sovereign one.
Different kinds of sovereignty exist in the world. These are discussed below:
Titular and Real Sovereignty
A titular sovereign is one who is sovereign only in name and not in reality. Although outwardly, the power is vested in one person, the real power is enjoyed by another. Such a situation prevails in parliamentary democracies. The King or Queen in England is the Titular head and he/she does not enjoy any real power. Actual powers are enjoyed by ‘King/Queen-in-Parliament’ which constitutes the real sovereign. In case of India, the President of India is the titular sovereign and the real power lies in the hands of the Council of Ministers headed by the Prime Minister which constitutes the real sovereign.
De facto and de jure Sovereign
Sometimes, the existing regime in a state is overthrown through unconstitutional means, as in the case of a military takeover. In such a situation, until the new sovereign is legally established and recognized, there may exist two sovereigns-one in the legal sense, who has lost his real powers; the other in the practical sense who has not yet been legally established. The de-facto sovereign may not have any legal claim to obedience, but he is a practical sovereign whose authority is based on physical force or moral persuasion and the people are compelled to obey him. Under such circumstances, the legal or formal sovereign retains de-jure sovereignty while the actual sovereign is said to be the de-facto sovereign. In the present-day world there have been several instances where military generals have overthrown constitutionally elected governments, thereby usurping all powers of the state. Such a takeover makes the military general the de-facto or actual sovereign possessing real powers, while the dethroned regime, which still is the legal or formal sovereign, retains de-jure sovereignty. In course of time, the de-facto sovereign, by securing the consent of the people through elections or otherwise, may become a de-jure sovereign. The best example of de-facto sovereignty, in modern times, is furnished by the case of Spain under General Franco who captured the authority of the State by defeating the Republican Government of Spain. Though he began to rule by force, gradually he was trying to be a de-jure sovereign by winning the consent of the people. Historically too, there have been several examples of the emergence of de facto sovereignty. Some of these are: the authority exercised by Cromwell in England, by Napoleon in France and the Bolshevist group in Russia after 1917.[iii]
Legal and Political Sovereignty
The legal sovereign is the supreme law making body. In every independent state, there are some laws which must be obeyed by the people and there must be a power to issue and enforce these laws. The power which has the legal authority to issue and enforce these laws and final commands is the legal sovereign. It may vest in one person or a body of persons. It alone declares, in legal terms, the will of the state. Law is a command of the sovereign and he who violates it is liable to be punished. The King/Queen-in-Parliament is the legal sovereign in the UK.
Political sovereignty is vested in the electorate, public opinion and all other influences of the state which mould or shape public opinion. The political sovereign is represented by the electorate or the body of voters in the state. The electorate, that is, the political sovereign, elects the legal sovereign in the form of the members of the parliament. Accordingly, the political sovereign controls the legal sovereign. It lies behind the legal sovereign. According to A.C.Dicey, “Behind the sovereign whom the lawyer recognizes there is another sovereign to whom the legal sovereign must bow.”
The concept of popular sovereignty regards people as the source of all authority in the state. All organs of the government, whether it is the executive, the legislature or the judiciary, derive their power and authority from the will of the people taken as a whole. Accordingly, the idea of popular sovereignty implies that the supreme power in the state rests with the people. The Preamble to the Constitution of India contains the idea of popular sovereignty. It begins with the phrase, “WE, THE PEOPLE OF INDIA …” and ends with the phrase, “…HEREBY ADOPT, ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.”
In modern times, the development of sovereignty as a theory coincided roughly with the growth of the state in terms of power, functions and prestige. In the nineteenth century, the theory of sovereignty as a legal concept (i.e. sovereignty expressed in terms of law) was perfected by John Austin, an English jurist. He is regarded as the greatest exponent of the “Monistic theory of sovereignty.” It is called the Monistic Theory of Sovereignty because it envisages a single sovereign in the state. The sovereign may be a person or a body of persons. Furthermore, as sovereignty is considered to be a legal concept, the theory is called the Legal-Monistic theory of Sovereignty. John Austin, in his famous book, Province of Jurisprudence Determined (1832), stated his views on sovereignty in the following words: “If a determinate human superior not in the habit of obedience to a like superior receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society and that society (including the superior) is a society political and independent.”
On an analysis of the above definition, we could find the following implications:
Firstly, sovereignty must reside in a “determinate person” or in a “determinate body” which acts as the ultimate source of power in the state.
Secondly, the power of the determinate superior is unlimited and absolute. He can exact obedience from others but he never renders obedience to any other authority.
Thirdly, the obedience rendered by a people to an authority occasionally will not turn the authority into sovereign power.
Fourthly, obedience rendered to sovereign authority must be voluntary and as such undisturbed and uninterrupted. Austin also points out that it is not necessary that all the inhabitants should render obedience to the superior. It is enough if the “bulk”, i.e., the majority of a society renders habitual obedience to the determinate superior.
Fifthly, the sovereign is the supreme law maker. Laws are the commands of the sovereign which are binding upon all within the territorial jurisdiction of the state. Breach or violation of these commands leads to punishment from the sovereign.
Sixthly, sovereignty is one indivisible whole and as such incapable of division between two or more parties. There can be only one sovereign authority in a state.
CRITICAL EVALUATION OF AUSTIN’S THEORY
The theory of Austin has been strongly criticized by many writers like Sidgwick, Sir Henry Maine and others. The main point of criticism against Austin’s theory is that the theory is inconsistent with the modern idea of popular sovereignty. In his fascination for the legal aspect of sovereignty, Austin completely loses sight of popular sovereignty according to which the ultimate source of all authority is the people.[iv]
It is also pointed out that sovereignty may not always be determinate. It is very difficult to locate the sovereign in a federal state. For example, in the federal state of USA, sovereignty resides neither with the President nor with the legislature, namely, the Congress. It resides with the people as expressed in the constitution. The same is the case in India.
Furthermore, Austin has been criticized for defining law as the command of the sovereign. But in many countries, customary laws are supreme and they are not issued in the form of commands. But such laws influence the conduct of even despots to a great extent. Sir Henry Maine cites the example of Ranjit Singh of Punjab who fits the Austinian conception of human superior. But even a despotic ruler like Ranjit Singh dared not change the customary laws which regulated the conduct of his people.
According to the advocates of the Pluralist theory of sovereignty, the state is an association like various other associations.
However, in spite of the criticisms levelled against the monistic view of sovereignty as propounded by John Austin, it must be mentioned that Austin is an exponent of absolute and unlimited sovereignty purely from the legal or formal point of view. Fundamentally, he does not prescribe for an irresponsible sovereign, but maintains that the sovereign cannot be formally made responsible to any authority similar to himself: His authority is legally superior to all individuals and groups within his jurisdiction. Austin has done a distinct service by clearly distinguishing the legal from the political sovereign.
Pluralism or the Pluralist theory of sovereignty emerged as a reaction against the Monistic theory of sovereignty which we have discussed in the previous section. The Pluralist theory emerged in response to the undue emphasis on the power of the state as advocated by the monists. Some of the leading exponents of the Pluralist theory include Emile Durkheim, Otto von Gierke, F.W.Maitland, G.D.H.Cole, Sidney and Beatrice Webb, Miss M.P.Follet and Prof. Harold Laski. The Pluralist theory of sovereignty rejects the monistic theory of sovereignty and denies that sovereignty is the absolute and indivisible supreme power of the state.
PRINCIPLES OF PLURALISM
- Pluralistic Nature of Society: The Pluralist theory recognizes the role of several associations in the society, formed by men in pursuance of their varied interests. Such associations include the church and other religious organizations, trade unions, cooperative societies, voluntary associations and the like. At best, the state is but one of these associations, standing side-by-side with them and not above them. The state is not distinct from these associations.
- Role of the State as Coordinator: Just as an association coordinates the activities of its members, the state also coordinates the activities of the other associations in the society. The state is a means of resolving the conflicting claims of these associations. It does so by evolving a common basis of their functioning, not by imposing its own will on them but by way of harmonizing and coordinating their several interests so as to secure the “common good” or the interest of the society at large.
The Pluralist theory maintains that the claim of the state to superior authority cannot be taken for granted. The state enjoys a privileged position in the sense that its jurisdiction is compulsory over all individuals and associations within its fold. It is equipped with coercive powers so that it can punish those who defy its commands. But the state must justify the exercise of its special powers. As an association of associations, the state must fulfil its moral obligation of harmonizing the interests of all associations operating in the society, without being influenced by any “vested interests” while exercising its authority.
- Decentralization of Authority: The Pluralists hold that the complexity of the economic and political relations of the modern world cannot be dealt with by a monolithic view of the state. Therefore, the management and control of society must be shared by various associations in proportion to their contribution the social good. Accordingly, the pluralists stand for the decentralization of authority so that all authority is not concentrated in the hands of the state.
CRITICAL EVALUATION OF THE PLURALIST THEORY
The pluralist theory of sovereignty is criticized on the ground that if sovereignty is divided among the various associations existing in the society, this division will lead to the destruction of sovereignty. As a result, there will be chaos and anarchy in the society. Furthermore, some groups in the society may be more organized and vocal than other groups. In such situations, the interests of the dominant groups may prevail over the vulnerable sections of the society. Under such circumstances, the responsibility for protecting the common interests rests with the state, which has to harmonize the conflicting claims of different interest groups.
However, in spite of the criticisms leveled against the Pluralist theory of sovereignty, it must be mentioned that the pluralist theory was a democratic reaction against state absolutism. It pointed out the limitations on the authority of the state while acknowledging the role and importance of various groups and associations in the society.
Lastly, coming to the Marist view on sovereignty, they take a very narrow view of sovereignty because they believe that it is intended to protect the interests of the dominant class of society. According to Marxists, the State shall wither away with the development of a classless society. In their view, sovereignty of the state is limited by International Law which imposes a check on the absolute power of the State. They consider it as a “great stumbling block on the oath of international progress.” However, this accusation of a restraint of liberty and a lack of opportunity was derided by and opposed by John Rawls, who believed that a society in time develops on a meritocratic model and asserted that the basic purpose of the society which is to assure its citizens of freedom and opportunity shall be sustained.
Edited by Raghavi Viswanath
[i] Hugo Grotius, History of International Law (2nd Edn., Pg. 26).
[ii] Lord Bryce, Studies in the History and Jurisprudence, Vol. II, p. 537.
[iii] http://www.kkhsou.in/main/polscience/sovereignty.html (last updated 22 June 2012).
[iv] Laski Harold, Grammar of Politics, P. 49.