Chapter 8

Sovereignty
In the lexicon of political theory, the concept of sovereignty is very much conspicuous by its
nature. Sovereignty is the basic quality of the state. It is the most essential attribute of the state
which differentiates it from all other associations. In the society which is a cobweb of
associations, sovereignty makes the position of the state distinct by entrusting to it the final law-
making power. It is essentially juristic concept implying supreme and final power. It means that in
every independent state there is an ultimate authority from which there can be no appeal. his
authority is supreme both in internal and in external matters. in case of conflicts between
individuals! interest and association!s interest, the state, by virtue of its sovereignty, acts as the
referee and the final arbiter. It moderates and harmoni"es 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. Subjection to the provisions of any
treaty or rules of international law and membership of any international organi"ation like the
#eague of $ations or the %nited $ations are considered as auto-limitations and are obeyed at the
will of the state.
Traditional Meaning and Definitions of Sovereignty
he term !sovereignty! is derived from the latin word !superanus! which means supreme.
It means the absolute and ultimate power of the state in its territorial domain.
&he supreme power over citi"ens and subjects, unrestrained by law.& ' (ean )odin
&he supreme political power vested in him whose acts are not subject to any other and whose
will cannot be overridden.& ' *rotius
&hat characteristic of the state in virtue of which it cannot be legally bound except by its own will,
or limited by any other power than itself.+ ' (ellinek
,he commanding power of the state- it is the will of the nation organi"ed in the state- it is the
right to give unconditional orders to all individuals in the territory of the state.& ' .uguit
&he original, absolute, unlimited power over the individual subjects and over all associations of
subjects.& ' )urgess
he above mentioned definitions of sovereignty have been dominated by the legalistic view. he
traditional concept of sovereignty conveyed by such definitions views the state as a supreme and
unrestrained agency, which through its coercive power can compel individuals and associations
within its territorial confines, to obey its commands. /onopoly of power to punish those who
violate its commands is the most fearsome aspect of the state!s sovereignty.
Characteristics of Sovereignty
0rom the traditional definitions of sovereignty the following characteristics emerge.
1. Absoluteness - he sovereign power is absolute and unlimited. here is no higher authority
which can bind it. Internally it has absolute power over all individuals and groups within the state.
Internal limitations like constitutional law and conventions are only self imposed. 2xternally also
the state is independent of any compulsion or interference by other states. #imitations stemming
from treaties, international law and decisions of international organi"ations are also self-imposed
by the state and these cannot destroy sovereignty as there is no compelling force behind them.
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3. Universality or all-comprehensiveness - he sovereign power is supreme over all
individuals, associations and institutions within the state. $o one is exempt from its all-embracing
authority. 4f course, the immunity enjoyed by foreign diplomatic personnel is granted by the state
as a matter of international courtesy and can be withdrawn at will.
5. Inalienability - It means that sovereignty cannot be transferred or given up. 6lienation of this
essential attribute of the state amounts to the death of a state. Sovereignty is the very essence of
the state!s personality. 7ousseau who upheld this point of view opined that power of the state
could be transferred, but not its general will or sovereignty.
8. ermanence - Sovereignty is as permanent as the state itself. It is an inseparable element of
the state. 6 change in the government of the state does not entail a break in the continuity of the
state or in the exercise of its sovereign power. Sovereign power shifts to the new persons who
control the governmental apparatus.+
9. Indivisibility - he indivisibility of sovereignty is a logical inference from its absoluteness. If
sovereignty is divided the state as a single political unit is destroyed. he supreme power of the
state can be shared among different organs but sovereignty remains the attribute of the state as a
whole. *ettell writes: &If sovereignty is not absolute, no state exists- if sovereignty is divided, more
than one state exists&. ;alhoun forcibly argues: &Sovereignty is an entire thing: to divide it is to
destroy it. It is the supreme power in a state, and we might just as well speak of half a square or
half a triangle as of half a sovereignty&.
<. !"clusiveness - It means that the state alone possesses supreme power and its legal
competence to command obedience is unchallengeable. o believe the existence of more than
one sovereign is to deny the very unity and integrity of the state.
=. Imprescriptibility - Sovereign power of the state is not lost by disuse. It is the basic quality of
the state which remains with it so long as the state continues to exist. It does not cease to exist
by non-exercise of the power.!
#ature and basis of Sovereignty
he traditional meaning of sovereignty and the attributes flowing from it constitute a narrow,
legalistic view of this concept. Such a view has been challenged by many modern writers who
make an attempt to ground sovereignty not on naked power or coercion but on legitimacy.
#egitimacy of sovereignty rests on its ability to resolve conflicts, bring out harmony and to serve
the general interest of the community. /odern liberals take this position. hey give less
importance to coercive power and more to ideological power of the state. State can enforce its
supreme power through consensus, developing the habit of obedience and serving the
community by performing welfare functions. >owever, liberals believe in the efficacy of coercive
power of the state in times of crisis in order to save the socioeconomic and political order.
Since sovereignty is generally defined as the supreme power of the state, it is pertinent to
examine the relationship between sovereignty and power. Social philosophers have differed on
this question. 4ne school of thought represented by /achiavelli, >obbes, >egel, $iet"sche,
)ernhard etc., have equated sovereignty with power, pure and simple. 4n this basis some
political behaviouralists like /erriam and >arold #asswell have established politics as the study of
power and power relations in a given society. /achiavelli and >obbes were the first modern
political thinkers who took the power view of sovereignty. In the interest of peace, order and
stability the ruler must exercise supreme power. /achiavelli supports the absolute rule of a prince
to control the aggressive and acquisitive impulses of human beings. >e was also concerned with
the maintenance and expansion of state power. >e supported the absolute theory of sovereignty
free from all limitations. >egel raised the state to mystical heights and justified war among nation-
states to prove their respective superiority. )ernhard, $iet"sche and the fascists advocated
absolute power of the state and regarded state sovereignty as nothing other than naked power
and brute force.
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6n important dimension of the power approach to sovereignty is provided by the /arxists. hey
hold that sovereignty is a class power. In a class-ridden society this power is used by the
economically dominant class to further its own interests and to oppress the dispossessed and
deprived class. Sovereignty is not shared among various interests, but it is centralised power of
the ruling class. In a classless society of the future, sovereignty ?which is a class power@ along
with the state will have no use. o achieve this ultimate objective the Aorking class must capture
state power ?sovereignty@ through revolution and establish its own dictatorship which will pave the
way for the withering away of the state.
/odern elite theorists maintain that in a democratic society power is shared by competing groups
of elites. Bower is taken to be diffused rather than centralised in such societies. Blural elites keep
power divided and their competition for the sharing of power is the best safeguard against
monopoly of power by any single group.
Bluralist writers advocate the division of supreme power amongst different groups and
associations. hey challenge the monistic concept of state sovereignty as both unreal and
dangerous.
6s opposed to the power approach to sovereignty, influential social thinkers like 7ousseau,
*reen, #aski and /acIver hold that sovereignty is not power. o 7ousseau the basis of
sovereignty is general will which represents the real wills of the community. >e writes: &/ight
does not make right and that duty of obedience is owed only to legitimate powers&. 2nglish
idealistic philosopher *reen declared: &Aill, not force, is the basis of the state&. he object of
sovereignty is to serve the general interest and to create conditions conducive to good life. he
essence of sovereignty is not naked power but the will of the people. 6ccording to #aski, an
exponent of the modern welfare ?service@ state, the state &becomes an organisation for enabling
the mass of men to realise social good on the largest possible scale&. )eing a pluralist /acIver
refuses to accept that sovereignty is the monopoly of the state and maintains that &Bower should
be relative to function&. he state is an association.& It commands only because it serves, it owns
only because it owes&. >e maintains that the basis of sovereignty is justice, order, and security-
not power or force.
he truth lies somewhere between the two schools of thought. Sovereignty is a blending of both
naked power and people!s consent ?will@ although this consent may be a contrived one. !2very
state exercises its sovereign power with the help of some material and ideological apparatuses.
Ahile material apparatuses or instruments use physical force to obtain obedience, ideological
instruments make sovereignty effective by creating a sense of obedience ?law-abidingness@ in the
people and impart legitimacy to the existing socio-economic and political order. If any individual or
group disobeys the commands of the sovereign and threatens the existing order, the material
apparatuses of sovereignty, namely, the police, military, bureaucracy, courts, prisons and other
instruments of coercion are used. hese are used against any external danger to state
sovereignty. >owever, these are used by the state sparingly and only as a last resort. 6fter all,
physical force is an expensive and transitory instrument to secure people!s compliance to the
sovereign!s commands.
Ideological basis of the state includes the moral and rational bases of political obligation. he
ideological apparatuses include means of communication ?press, .C., radio etc.@, propaganda
machinery, educational system, religious, cultural and political organi"ations etc. hese make
sovereignty effective by generating the habit of obedience among the people. /odern welfare
states induce compliance to law through performance of welfare functions which benefit the
masses. hey rely more on the efficacy of the ideological instruments than the physical. ;onsent
and consensus are either created or contrived by skilful employment of the ideological
apparatuses of the state. he ruling class influences the mass mind in its favour. Swingewood
remarks: &capitalist stability hinges increasingly on the ideological subordination of the working
class&. he weakness or failure of the ideological apparatuses bring out into the open, the play
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of physical apparatuses.
S$%!&!I'#T(
Development of the Concept of Sovereignty
he concept has evolved through different historical steppings and found mention in the writings
of different political philosophers. ;lassical writers such as 6ristotle referred to the &supreme
power& of the state. he middle 6ges knew little about the doctrine and practice of concerted final
authority. he political form, then, was feudalism, based on personal independence and
allegiance within small groups. 0eudalism was the antithesis of unified authority. here was open
conflict between the spiritual and temporal authority and if anybody under the circumstances,
could claim, final authority, it was the church. he common belief in the supremacy of the law of
nature or of law of god over laws of the political authority of the feudal society further hindered the
rise of sovereignty.
Aith the onset of the 7enaissance movement in the closing decades of the fifteenth century and
the beginning of the sixteenth century, supremacy of the state gained ascendancy over
ecclesiastical authority. he origin of the concept is closely linked with the rise of modern notion of
state. It is the result of the political movement of the emerging capitalist class against the
medieval feudal order where state power was decentralised. he rise of national feeling, the
development of trade and commerce, the recovery of the classical idea of sovereign states of
7ome, and the withdrawal of religion from the temporal sphere culminated in /achiavellian nation
state. ;. .. )urns !aptly observes that the word sovereignty may be taken as symbolic of our
political inheritance from the renaissance.
6lthough the term was never mentioned by him, /achiavelli implicitly developed the doctrine of
sovereignty in his famous work Brince. >is conception of the state as a morally isolated entity, as
an organi"ation of force and as a centrali"ed authority contributed to the conception of
sovereignty.
he reformation and the establishment of diverse religions in the sixteenth century did indeed
influence the establishment of diverse states. #aski writes: he territorial and omnipotent state is
the offspring of the religious struggles of the sixteenth century 0or when #uther appealed against
the divine ;hurch, he was driven to assert the divinity of states. he state became incarnate in
the Brince. hus sovereignty was conceived as a personal attribute of the monarch. 0rench
philosopher )odin developed the modern concept of state sovereignty in his book, he 7epublic.
>e was making a plea for peace in an age of war. >e regarded it as a constituent element of the
state but located the residence of sovereignty in the monarch. )odin did not carry his theory to its
logical conclusion because he admitted that there were some fundamental laws which the
sovereign could not lawfully abrogate- and that private property being granted by the law of
nature and, therefore, inviolable, the sovereign could not tax the subjects without their consent.
Ahile )odin analysed the internal aspect of sovereignty, *rotius, the .utch jurist, developed its
external aspect. >e propounded the theory of equality of the sovereign states and their freedom
from external control.
2nglish Bolitical philosopher >obbes in his #eviathan established the modern concept of absolute
legal sovereignty of the state by removing the limitations suggested by )odin. >is view was later
elaborated by )entham and analytical school of jurisprudence of which (ohn 6ustin was the most
important representative. 6ustin!s theory expounded in his &#ectures on (urisprudence& is known
as the monistic theory of sovereignty.
Idealistic philosophers like 7ousseau, >egel and )osanquet analysed the concept from a
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philosophic standpoint. 7ousseau maintained that sovereignty belonged to the people- it could be
exercised only in an assembly of the whole people. *overnment was but the executive agent of
the general will- it had no pretensions to sovereignty. 7ousseau!s theory of sovereignty was given
its complete form by >egel who made it more definitely philosophical and metaphysical. >e
regarded the state as a &perfect rationality& the &.ivine Idea! as it exists on earth&, >egel
completely identified the state with the whole society and asserted that only in and through the
state does the individual receive what makes life worth living, without it he is nothing.
he legal or monistic theory of sovereignty has been assailed by the pluralists in the twentieth
century. hey have challenged the omnipotence of the state on the ground that sovereignty, far
from being the monopoly of the state, is divisible and must be shared between the state and a
host of other associations which, in their genesis and functions, are as natural and necessary as
the state.
Types of Sovereignty
he term sovereignty is used in different senses, and failure to distinguish the various types
results in much confusion.
I) *egal Sovereignty: It is the conception of sovereignty in terms of law. It is the lawyer!s
conception of sovereignty. It is the supreme law making power in any society which is not bound
by any law but enjoys habitual obedience from the people. Ciolation of the commands of the legal
sovereign is visited with punishment. 6ccording to *arner, &he 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.& ;ourts recognise only the laws made by a legal sovereign. #aw
is nothing but the command of the legal sovereign. It is the source of all legal rights. he concept
of legal sovereignty found the most comprehensive treatment in 6ustin!s theory of sovereignty
known as /onism. Such a sovereign is found in 2ngland in the Ding-in- Barliament, he )ritish
Barliament, with the consent of the monarch, is competent to issue the highest commands of the
state. It is not easy to locate legal sovereignty in a unified and definite body in most other
countries as the supreme law making power is shared by a number of organs.
+) olitical Sovereignty: Ahile the legal sovereign is the supreme lawmaking and law-enforcing
authority, there is behind it the will of the people which is the final source of authority. In the words
of .icey, &)ehind the sovereign which the lawyer recognises there is another sovereign to whom
the legal sovereign must bow hat body is politically sovereign, the will of which is ultimately
obeyed by the citi"ens of the state&. *ilchrist defines it as &the sum total of the influences in a
state which lie behind the law&.
(ohn #ocke for the first time discerned the importance of Bolitical sovereignty. >e spoke of
Beople!s right to &appeal to heaven&?right to revolution@ in case a government has violated the
trust reposed in it. he term !political sovereignty! is vague and indeterminate. It is very difficult to
tell where it rests. 6sirvatham observes: &Some writers identify political sovereignty with the
collective community, some with the mass of the people, some with the general will, some with
public opinion, some with the physical power of that part of the people who can bring about a
successful revolution&. It is difficult to locate political sovereignty. In representative democracies it
is said to reside in the electorate which can replace one legal sovereign by another through
periodic elections. In a direct democracy legal and political sovereignty are almost coincident. In
dictatorships political sovereignty resides in the revolutionary power of the masses.
he relation between legal and political sovereignty is very close, both being two facets of state
sovereignty. he problem of good government, as *ettell observes, is largely one of the proper
relationship between the legal and the ultimate political sovereignty. In a healthy political system
legal sovereign gives due respect and consideration to political sovereign which acts as a bulwark
against misuse of power. In case of conflict between the two, the legal sovereign will override
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temporarily but in the long run the political sovereign ?the will of the people@ will assert itself by
means of a revolution, if necessary. he legal sovereign should reflect and carry out the will of the
people in the interest of good government.
,) opular Sovereignty: he idea of popular sovereignty originated with the anti- monarchical
writers of the sixteenth and seventeenth century. It means that people have supreme power and
ultimate authority rests with them. In the eighteenth century 7ousseau proclaimed the doctrine
which became the driving force of the 0rench 7evolution. (efferson made it the basis of the
6merican .eclaration of Independence. he doctrine received further impetus in the nineteenth
century with the growth of democracy. It became a powerful revolutionary idea which overturned
monarchies in the 2uropean continent. It is, says )ryce, &the basis and watchword of
democracy&.
he main difficulty with the doctrine is that it assumes the whole people as having one unified will
which 7ousseau calls the &general will&. )ut in a class-divided society, the interests of various
classes do not converge and what goes on for popular will is nothing other than the will of the
ruling class which exploits the rest. 6gain it is difficult to locate popular sovereignty. he two
possible meanings of the term &people& in defining popular sovereignty are: ?a@ &the total
unorganised indeterminate mass&, ?b@ the electorate. Beople, as understood, in the first sense,
cannot obviously be the sovereign. 6s regards the second, people may be regarded as sovereign
if they can act through legal channels. In actual practice, popular sovereignty seems to mean
nothing more than public opinion in times of peace and the might of revolution in times of crisis
and conflict.
-) #ational Sovereignty: he principle of national sovereignty was first formulated by the 0rench
revolutionists in their .eclaration of the 7ights of /an. It means that sovereignty resides
essentially in the nation, conceived as a collective body of all the people enjoying independence
from external control. It is an affirmation of the principle that sovereignty is a power of the nation
personified and a denial of principle of individual sovereignty. he concept is an abstraction since
national sovereignty can be exercised by or manifested through individuals and institutions.
.) Titular Sovereignty: he term is used with reference to a monarch who at one time was actual
sovereign, but has ceased to be such. 6s the constitutional or ceremonial head of the state he is
called a titular sovereign. he monarch of 2ngland is officially referred to as the &sovereign&
although his powers are only nominal. In practice the vast array of powers are exercised by a
different body of men, namely, the cabinet which acts on behalf of the titular sovereign.
/) De 0ure Sovereignty: It has its foundation in law, not in physical power alone. It is the
sovereignty which according to legal right is entitled to the obedience of the people. he de jure
sovereign is competent to issue the highest command of the state. 6s a matter of fact it may not
be the actual sovereign, for it may be expelled or overthrown but it is lawfully entitled to issue
commands and exact obedience.
1) De facto Sovereignty: It is the actual sovereign which exercises control over the people and
enjoys their real obedience to its commands. It is the &sovereignty which is actually able to make
its will prevail, though it may be without legal basis&. 6s )ryce observes, &the person or body of
persons who can make his or their will prevail whether with the law or against the law: he, or they,
is the de facto ruler, the person to whom obedience is actually paid&. .e facto sovereignty rests
on force, physical or spiritual. his sovereign may be an usurping Ding, a dictator, a priest, a
prophet or even a charismatic leader.
>istory is full of examples of de facto sovereignty. 4liver ;romwell became de facto sovereign in
2ngland in 1<8E after he dismissed the long Barliament. $apoleon )onaparte became the de
facto sovereign of 0rance after overthrowing .irectory. )olsheviks under #enin became the de
facto sovereign in 7ussia after overthrowing ;"ardom. ;ommunists in ;hina under /ao se
6
ung assumed de facto control in 1E8E by dislodging the de jure sovereign ;hiang Dai-Shek.
/any military dictators have assumed de facto control in third world countries after overthrowing
the duly elected de jure sovereigns through coups. hus political-upheavals or civil wars- in a
country usually results in the displacement of the de jure sovereign by the de facto sovereign.
6 de facto sovereign in the long run attains legitimacy and becomes a de jure sovereign. It is
accorded international recognition by foreign states in course of time. *arner observes: &4n
account of the manifest advantages which flow from the exercise of power resting on strict legal
right rather than upon mere physical force, the new sovereign sometimes has his de facto claim
converted into a legal right by election or ratification&.
he analytical school of jurists object to the distinction between de jure and de facto sovereignty
in as much as sovereignty is essentially a legal concept and a de facto sovereignty, not based on
law, cannot be called sovereign as such. In 6ustin!s opinion, it is plausible however, to use the
terms de jure and de facto in respect of government rather than of sovereignty. )ut the distinction
becomes relevant only in cases of revolution, civil war, coups etc., in a state because during such
crises two competing authorities stake their claims to sovereignty. !
T2!$&I!S $3 S$%!&!I'#T(
here are two diametrically opposite views relating to state sovereignty. he 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
he monistic theory of sovereignty which goes back to >obbes and )entham found elaborate
treatment in the writings of the analytical school of jurists of which (ohn 6ustin was the most
prominent representative. >is notable treatise on &he Brovince of (urisprudence .etermined&
?1F53@ contains a brilliant and precise exposition of the monistic or legal theory of sovereignty.
&Ae must ceaselessly remember&, says #aski, ,that the monistic theory of the state was born in
an age of crisis and that each period of its re-verification has synchroni"ed with some momentous
event which has signali"ed a change in the distribution of political power&. he monistic political
thinkers, who evolved the doctrine of state sovereignty, did so in order to reinforce the authority of
the state in a period of crisis. 4riginally the sovereign state emerged to vindicate the supremacy
of the political authority against ecclesiastical claims. Subsequently, it extended its supremacy to
every department of human activity, religious or otherwise. In the hands of >obbes, the theory of
sovereignty became an instrument of monarchical despotism. )entham was the spokesman of
the 2nglish middle class that aspired to control the 2nglish state by way of parliamentary
sovereignty. 6ustin, as #aski thinks, emphasi"ed the dogma of parliamentary sovereignty as a
device to perpetuate a similar status quo.
6ustin!s most famous statement of the doctrine of sovereignty is as follows: &If a determinate
human superior not in a habit of obedience to a like supcrior receives habitual obedience from the
bulk of a given society, that determinate superior is sovereign in that society, and the society
?including the superior@ is a society political and independent&. #aws are defined simply as the
command of a superior to an inferior. o quote 6ustin: &#aw is the aggregate of rules set by men
as politically superior, or sovereign, to men as politically subject&. he primary reason for the bulk
of a given society rendering obedience to the sovereign is his power of punishment for non-
compliance with his commands.
6ustin!s legal view of sovereignty carries with it a certain scientific precision and finality which is
highly impressive. >is analytical view of sovereignty and law has some implications:
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0irst, as #aski says, the state for 6ustin is a legal order in which there is a determinate authority
acting as the ultimate source of! power. >ence, neither the people, which is indeterminate, nor the
general will ?7ousseau!s conception@, which is impersonal and abstract, can be designated as
sovereign.
Secondly, its authority is absolute and incapable of limitation. he sovereign receives habitual
obedience from the people but not in the habit of obedience to a like superior.
hirdly, whatever the sovereign commands is law, and without him there can be no law. #aw 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.
0ourthly, sovereignty is indivisible. o divide sovereignty between two or more persons or bodies
of persons is to limit it, while sovereign power s by definition incapable of limitation.
Criticism
6ll of these propositions have been severely assailed by critics. he first proposition was attacked
by 2nglish scholar Sir >enry /aine in his &2arly >istory of Institutions&, in which he illustrates that
ill many of the 2mpires of the 2ast there is nothing to correspond with the !determinate superior!
of 6ustin. >e urges that 6ustin!s conception is inapplicable to underdeveloped communities
where custom is a powerful force. ;iting the case of 7anjit Singh ?Ding of the Sikhs, 1FG1-5E who
was absolutely despotic@ who was a perfect embodiment of 6ustinian sovereignty, /aine wrote:
&yet I doubt whether once in all his life, he issued a command which 6ustin would call a law&. he
rules which regulated the life of his subjects were derived from their immemorial usages and
customs. $o sovereign can afford to ignore the social customs which do not, of course, proceed
from his authority. 6s /acIver aptly observes: &he state has little power to make customs and
perhaps less to destroy it.+
6gain the location of sovereignty in the state is a very difficult question. here is a diversity of
opinion among reputed thinkers on this question. *ettell notes that according to these thinkers
sovereignty is located respectively in: &?1@ the people of the state- ?3@ the organi"ation which has
a legal right to make or amend the constitution of the state- ?5@ the sum total of the legal law
making bodies in the government of the state&. he two possible meanings that can be given to
the term &people& in defining popular sovereignty are ?a@ &the total unorgani"ing indeterminate
mass&, and ?b@ the electorate. Beople, as understood in the first sense, cannot obviously be the
sovereign. 6s regards the second, people must act only through legal channels if they are to be
regarded as sovereign in any sense, at all.
#ocation of sovereignty is not a problem so far as the %. D. is concerned, where no distinction is
made between constitutional law and statutory law. he most perfect example of the 6ustinian
view is, of course, the position held by the Ding-in-Barliament. 6ll bills passed by both houses of
parliament and assented to by the monarch become the law of the land and are put into effect by
the courts. )ut in other states the sovereign is not so determinate.
In the %nited States, on account of its rigid constitution and federal character, it is not easy to
locate sovereignty. $either the Bresident, nor the legislatures of federal or State, enjoy absolute
legal powers. (udicial review limits their constitutional powers. Sovereignty therefore, is not
vested in them but rests in that body which has the power to amend the constitution. )ut to call
this body determinate is an abuse of language in much as there are as many as four alternative
methods of amending the constitution. &6 body, which is now one, now another can hardly be
called determinate&. /oreover, this body does not normally meet- it acts intermittently and does
not pass ordinary laws, while the sovereignty of the state is constantly exercised. ruly does #aski
consider the discovery of sovereignty in a federal state as practically an &impossible adventure.&
*ettell and others locate sovereignty in &the sum total of all lawmaking bodies in the government&,
including ?1@ #egislature-$ational or local, ?3@ ;ourts -in so far as they create law, ?5@ 2xecutive
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officials ' in so far as they create law, by ordinances, proclamations etc., ?8@ ;onventions ' when
acting legally as law-making bodies, and ?9@ 2lectorate - when exercising power of referendum or
of plebiscite. 6sirvatham finds this analysis unsatisfactory and writes: &he various law-making
bodies are manifestations of the organic unity of the state and are not divisions of the sovereignty
of the state. heir powers of law-making are delegated powers. herefore, sovereignty does not
rest in them, but is vested in that body which can make and amend the constitution and allot its
powers among the various organs which express its will&.
he second proposition of 6ustin that the authority of the sovereign is absolute and unlimited has
been contested on several grounds.
It conflicts with the basic ideas of democracy, 6ustin talks in terms of a hierarchical order
characteri"ed by superior-subordinate relationship while democracy is a society of equals.
6ustin!s idea is inconsistent with a democratic polity based on popular sovereignty.
6ustin!s legalistic view breaks down on the rock of political realities. 6s #aski observes: &In
practice legally unlimited power turns out to be power exercised under conditions fairly well-
known to each generation.& In every society there are principles or maxims expressly adopted or
tacitly approved, which the sovereign should habitually observe. >enry /aine has referred to
social customs and traditions as important limiting factors on the power of the sovereign.
Sovereignty is also limited by the power of the electorate and of public opinion. In a democratic
state, as .icey rightly holds, the legal sovereign should bow to the political sovereign. he
sovereign is compelled by the logic of political realities to respect the articulate needs and desires
of the electorate.
)esides, as *ilchrist observes, there are &limits of human endurance&: Ahen the sovereign
ignores these limits, it enters the dangerous "one of popular rebellion. In practice those who
attempted to reali"e in their conduct the substance of sovereignty found themselves sooner or
later deprived of it. Indeed, revolutions, in the expressive phrase of #aski, are foot notes to the
problem of sovereignty.
!he Bluralists argue that the state is but one association among several and, therefore, it cannot
be invested with the unique sovereign power of the community. hey 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. hey contend that the voluntary associations should not be dictated to
by the state.
6gain state sovereignty is limited internally by constitutional law and externally by international
.law. International law backed by world public opinion puts definite limits to the power of the state
in its relations with other states. he theory of sovereignty developed in a self-sufficient age
cannot be maintained in a world where the interdependence of states is so marked. #aski is of the
opinion that the notion of an independent sovereign state is, on the international side fatal to the
well-being of humanity.
6ustin!s third proposition is that the, sovereign in the sense of a &determinate human superior& is
the supreme law-maker. Ahatever he commands is law. his 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. 6ustin meets this uncomfortable position by observing that &what the sovereign permits
he commands&. )ut the moot point is this: ;an a sovereign abolish a major social custom without
endangering his own securityH 6ustin!s theory errs in regarding all laws as merely &commands&.
he sociological school of law denies the 6ustinian view that law is the command of the
sovereign. he obligations involved in law arise not from the fact that they are decreed by any
sovereign- they rise from the conditions of social life. .uguit holds that social solidarity constitutes
9
the foundation of law. Drabbe holds that law springs from men!s sense of right, while #aski finds
the individual!s conscience to be &the only true source of law&. 6s such the conception of the legal
sovereign as the authority creating law is inadequate as the content of law is never actually
&created&.
he last proposition of 6ustin is that sovereignty is indivisible. 0rom one point of view, as #ord
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. he distinction between legal and political
sovereignty also has at times been interpreted as the divisibility of sovereignty.
he theory of a dual sovereignty under the 6merican federal system was generally held by
publicists at the time of the adoption of the constitution. It was enunciated by >amilton and
/adison in the &0ederalist&. he Supreme ;ourt upheld it in ;hisholm C. *eorgia ?1=E3@ and
observed that the %nited States is sovereign as to the powers which have been conferred upon
the national government, and the &states& are sovereign as to those which were reserved to them.
It received the approval of constitutional lawyers like ;ooley and Story and political writers like .e
ocqueville, Aheaton, >alleck, >urd and )liss. his theory of dual sovereignty was vigorously
combated by ;alhoun.
&It is now settled doctrine&, observes 6ppadorai, &that, legally, sovereignty in a federal state is
vested in the amending body of the constitution. Ahile governmental powers are divided between
two governmental authorities, sovereignty itself is not divided- it is vested in that body which can
change the constitution or fundamental law. It may be added that !the amending authority in a
federation is neither determinate nor fixed. It is difficult to place one!s finger on the exact spot
where it reposes.
4n account of these limitations and deficiencies it is impossible to make the monistic theory of
sovereignty valid for political philosophy. It grossly neglects the socio-political forces in every
community which profoundly influence the operation of its legal instrument. he chief merit,
however, of the theory is that, as a conception of the legal nature of sovereignty, it is clear and
logical.
luralistic Theory of Sovereignty
Bolitical pluralism as an eloquent protest against the monistic theory of state sovereignty is the
logical consequence of a pragmatic analysis of the dynamics of power. Bluralists argue that
concentration of power at a single central source results in a tyrannical social order. he
dispersion of power to peripheral points of the body politic is the basis of free societies. In its
positive aspect pluralism recogni"es the existence of variety of associations and groups in society
which are as natural and necessary as the state and which must enjoy independence and
autonomy from the control of the state. %nlike the anarchists who want to abolish the state, the
pluralists retain it but restrict its area of operation.
he pluralistic theory of state is opposed to the monistic theory. In his work &Bolitical Bluralism&,
>siao defines the monistic--state as &one which possesses, or which should possess, a single
source of authority that is theoretically comprehensive and unlimited in its exercise&. )y contrast
the pluralist state is defined by him as &one in which there exists no single authority that is all
competent and comprehensive, no unified system of law, no centralised organ of administration,
no generation of political will&. Bluralists view modern society as a web of associations. hese
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. hus 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.
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3actors &esponsible for the &ise of luralism
It is commonly held that pluralism is a reaction to the absolutist conception of the state as held by
>egel and his followers and as it influenced the militarists and fascists. >egel!s glorification of the
state was a threat to individual freedom and the autonomy of associations. )oth individualists and
pluralists challenged the legal and moral supremacy of the state.
he rigid legal view of sovereignty known as monism is often regarded by pluralists as the
principal ?actor responsible for the rise of pluralism. he pluralists discredit the idea that the state
habitually exercises any sort of authority which can be properly designated as sovereign. hey
consider the legal view of sovereignty as a dangerous and futile doctrine.
he sociological and historical schools of law object to the approach of the analytical school of
law which is closely connected with the legal approach to sovereignty.
Iet another factor put forward by some writers for the development of pluralism is the rise and
rapid spread of federalism. hey argue that sovereignty in the 6ustinian sense is difficult, if not
impossible to locate in a federal state and as such pluralism is the only logical solution. his
argument is not tenable because in a federal state sovereign power is shared between two sets
of governments but is not absent. 6s >siao says, &0ederalism and monism are not incompatible
terms&.
It has also been argued that the urgent need for an effective international law and international
morality provides sufficient reason for limiting state sovereignty and modifying it in the direction of
pluralism.
luralistic Thin4ers and their Ideas
Bluralism received wide support in 2ngland, $orth 6merica and some 2uropean countries. It may
be said to have its dim beginnings in the guild system of 18th and 19th centuries. 4ttovon *ierke
of *ermany and 0. A. /aitland of 2ngland are the earliest proponents of pluralism. hey gave a
legal and historical theory of autonomous corporations. hey stated that permanent associations
which arise naturally possess real personalities. hey have rights and duties as groups ?right-
and-duty bearing units@, regardless of the state!s formal sanction.
Ariters like (. Baul-)ancour and 2mile .urkheim have given special attention to the position of
professional and economic groupings in society. hey plead for transferring the function of
economic control from the state to the vocational group. .urkheim suggests that the professional
groups must be re-established both as bases for political representation and as sources of
economic regulation.
4ther authors have argued on behalf of the rights of lesser associations against prevailing
doctrines of state omnipotence. (. $. 0iggis pleads for a large discretion and initiative for such
essential social groups as churches, trade-unions, local communities, and the family in controlling
their respective interests. >uman society, writes, 0iggis, is not a &sand heap of individuals related
only through the State, but an ascending hierarchy of groups&.
6mong the 2nglish writers, Sidney Aebb and )eatrice Aebb, *. .. >. ;ole, 6. .. #indsay, 2.
)arker, and >. (. #aski are prominent advocates of Bluralism. he Aebbs envisage a &Social
Barliament& and a &Bolitical Barliament&, the former to represent individuals as members in a
!social democracy! and the latter to represent them as citi"ens in a !political democracy!.
*uild Socialists like *. ..>. ;ole are most passionate champions of workers! control in
industry and advocate withdrawal of state control from economic sphere. hey advocate
!functional representation! according to which society must contain& as many separately elected
11
groups of representatives as there are distinct and essential groups of functions to be performed&.
hey advocate setting up of *uilds or corporative associations in the economic sphere and
putting the state and the *uilds on the same footing. State can exercise power only in a limited
field such as defence, justice, education, taxation and international relations.
6ccording to 6. .. #indsay the state is! merely &an organi"ation of organi"ations& and can have
control over other associations only if, and so far as, the citi"ens are prepared to concede it such
power.
2arnest )arker while rejecting the doctrine of the &real personality& of groups upholds that the
groups are prior to the state and have their own functions independent of the state. >e
characteri"es the state as a !group of groups! or a !community of communities! and writes: &he
State as a general and embracing scheme of life, must necessarily adjust the relations of
associations to itself, to other associations, and to their own members to itself, in order to
maintain the integrity of its own scheme- to other associations, in order to preserve the equality of
associations before the law- and to their own members, in order to preserve the individual from
the possible tyranny of the group.
#aski!s earlier works reflect a strong Bluralistic bias. >is Bluralism was fundamentally a revolt
against the Bhilosophy of >egel and the jurisprudence of 6ustin. In his &6uthority in the /odern
State& and the 0oundations of Sovereignty and other 2ssays& #aski assails the moral validity of
the doctrines that attributes sovereignty to the state. >ere he appeals to the claims both of
individual conscience and of various group loyalties. &he only State to which I owe allegiance is
the State in which I discover moral adequacyJ our first duty is to be true to our conscience&. he
state, moreover, &is only on among many forms of human association&. It competes for men!s
loyalty and obedience with voluntary associations which meet our diverse needs and aspirations.
he state, as conceived by #aski is a power system. he monistic state is both administratively
incomplete and ethically inadequate. >e advocated administrative decentrali"ation and
reorgani"ation of industry through &industrial federalism&. >is conception of social organi"ation
implied a federalist concept of society in the economic as well as political spheres. >e visuali"es
&a society in which authority is not hierarchical but coordinate.& he administrative machinery of
the modern state should be organi"ed to provide the greatest opportunity for continuous
consultation between the government and the people in their various associative capacities. In his
&6 *rammar of Bolitics&?1E39@ #aski visibly moved away from his earlier position and accepted
the need of &ultimate reserve power of the state&. >e conceded that sovereignty of the state was
necessary for the fulfilment of its functions.
Ailliam (ames, /iss /. B. 0ollet and 7./, /acIver are the prominent pluralists in $orth 6merica.
Ailliam (ames provided pluralism with philosophical basis of pragmatism. >e looks upon
pragmatism as offering a middle course between absolute monism and absolute pluralism. /iss
/. B. 0ollett is a moderate pluralist who in her book &he $ew State& looks upon the state as a
unifying agency. 7./. /ac Iver in his &he /odern State& argues that the state is one association
among many within the society, although exercising unique functions. he state has the essential
character of a corporation. It has &definite limits, definite powers and responsibilities&. 4ther
associations being as native to the soil of society as the state itself, the state is not their creator. It
stands for the common interest of all individuals and associations, but not for the whole of the
common interest. he state!s primary function is to give &a form of unity to the whole system of
social relations-hips&. >e critici"es the legalistic conception of sovereignty as false because it
speaks in terms of power and not of service. o attribute power to government beyond the limit of
its capacity for service is the grave error on which all tyranny is based.
6mong the continental pluralists *ierke, .uguit and Drabbe are prominent. .uguit of 0rance is
opposed to the 6ustinian theory of law and says that law is &independent of, superior and anterior
to political organi"ation, and is objective, and not subjective&. #aws are the conditions of social
solidarity or the interdependence of men. #aw is not a command- it emanates from many sources,
and this plurality, .uguit calls, legal decentrali"ation. Drabbe of >olland takes almost similar
12
position and says that law is independent of, and superior to, the state. he source of law lies in
&the sense of right of the right-minded majority of the community. his sense of right should
extend to international affairs as well.
Criticism
Bluralistic theory of sovereignty contains a large element of truth, but it grossly exaggerates it.
;ritics argue that pluralism suffers from logical contradiction. Ahile in theory they plead for the
reduction of state activities, in practice they assign to. the state much power for implementing
their schemes. *ierke pleads for unfettered autonomy of the groups while he ascribes to the state
sovereign power where general interests are involved. Baul )ancour regards the state as the sole
representative of general interests and of national solidarity. .urkheim like-wise ascribed to the
state the function of laying down the general principles of economic control. 4ther pluralists
looked upon the state as a &society of societies and a &group of groups& and assigned to it a
distinctive function and a superior authority as an agency of coordination and adjustment. 2ven
#aski recoiled from his earlier pluralistic position and supported state socialism in the interest of
better economic management and promotion of common welfare. >siao writes: &he pluralists
attempt to abolish sovereignty but are finally compelled to restore it&.
he dividing line between pluralism and anarchism is very thin. 7ejection of the monistic theory of
sovereignty leads to logical position of the anarchists and syndicalists. If the state is an
association like other associations it ceases to be a state and the way is wide open for anarchy
and disorder.
he numerous groups and associations do not run along parallel lines, nor do they operate in
water-tight compartments. here is overlapping of functions, the clash of interests and the conflict
of loyalties in society. he supreme power of the state is needed for &the special function of
adjusting and adjudicating such clashes as well as of caring for certain common interest&. If the
state is merely one association among many, have more or less similar power and status. It is
difficult to see how it can satisfactorily fulfil its unique function of adjustment and adjudication. he
innumerable groups which function in the community do not exhaust all the functions required for
the well-being of man. hey serve only partial interests. In the great society of today the state is
the only organi"ation which is in possession of an elaborate mechanism and vast personnel to
deal with the universal needs of human beings.
0. A. ;oker points out that the &defects of the pluralists &analysis lie in part in their failure to make
clear which of the specific functions assigned to the state by the monist they would deny to it, and
in part in their underlying assumption that, if only an individual or group be released from state
control, then we shall have a condition in which spontaneous action, self-expression, and initiative
Aill enjoy free play.& 6. 2. Kimmern has warned us that &those who talk of state absolutism are
ignoring the simple truth that there is no tyranny like the tyranny of the near neighbours. he
smaller the group the tighter the stranglehold over your life and activities. #aski having modified
his earlier pluralist position at a later stage critici"es pluralism on the ground that &it did not
sufficiently reali"e the nature of the state as an expression of class relations&. >e believes that the
sovereign power of the state cannot be dispensed with unless collective control of the means of
production ushers in a classless society. he ultimate objective of pluralists must be the classless
society.
Bluralists fail to go clear over to their goal of a non-sovereign state. $otwithstanding 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. &Cirtually all the great driving forces in modern society
combine in a centralist direction&. he social, economic and political forces in the contemporary
society have, as #ipson observes, &aggrandi"ed the state and made the twentieth a century of
monism.&
he objections of pluralists to 6ustinian 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
13
community. 6ustin!s chief interest is in the form of law -its legal source. $o law, however good
substantially, is valid unless it is formally recogni"ed by the state. he terms !social solidarity! and
!sense of right! do not have the precision conveyed by the term !legal sovereignty!. hese terms
are incapable of giving us specific laws that can be interpreted and enforced by the courts of law.
%alue
$otwithstanding some valid objections to the pluralist contention, the doctrine has made valuable
contribution to cotemporary political thought. 6s a theory which corrects the excesses of the
monistic doctrine of sovereignty and supplements what is lacking in it, pluralism is valuable.
Bluralism was positive, humanistic and democratic reaction against state absolutism. *ettell
writes: &heir emphasis on the fact that state!s, in spite of legal omnipotence, should be subject
to, moral restraints is a desirable reaction against the ideali"ation of the State and the doctrine
that the State is an end in itself, free from all moral restraints. he pluralists also make a timely
protest against the rigid and dogmatic legalism of the 6ustinian theory of sovereignty&.
Bluralism has rendered a great service to modern political theory by inviting the pointed attention
of states to the reality of group life. hey highlight the vital and unique part played by economic,
social, professional, cultural and religious groups in the life of the community. !
In her book, he $ew State, /iss 0ollett sums up the value of Bluralism as follows: ?1@ he
pluralists prick the bubble of the present State!s right to supremacy. ?3@ hey recogni"e the value
of the group and see that the variety of our group life today has a significance which must be
immediately reckoned within a political way. ?5@ hey plead for a revivification of local life. ?8@
hey see that the interest of the State is not always identical with the interest of its parts. ?9@
Bluralism is the beginning of the disappearance of the crowd. ?<@ It has sei"ed upon the problem
of identity, of association, and of federalism.
oday the position of state sovereignty lies somewhere in between the monistic and the pluralistic
theories. he welfare state of the 3G
th
century requires vast authority to render positive functions.
he increase in the functions of the modern state has led to its greater powers. 4urs is the age
of-glory of the state which is the declared agency of general welfare. 6t the same time
mechanisms for checking the arbitrary use of power have developed. Carious groups get due
importance in the decision-making process.
Ae may conclude with #aski: &>owever much we may reduce the direct administrative capacity of
the political state, the fact remains that once it is charged with the provision of services which
men stand in common need, it has their interests in trust to it degree with which no other body
can in temporal sense at least compete. 2ven if we abstract from the modern state the final
control of international affairs, the civic area of internal matters that is left, seems overwhelming&.
14