SOVEREIGNTY

MEANING AND DIMENSIONS

It is sovereignty which gives to the State a legal status and vests it with supreme, final, ultimate and
legally unlimited power over all persons, organisation and groups which inhabits its territory. All the
people of the State live as citizens of the State and are under its supreme power.

Two Dimensions of Sovereignty:

1. Internal Sovereignty:
o Means the exercise of supreme power over all people and all territories of the state
o Entire population of people living in the State are bound by the laws of this State
o State has power to command obedience and punish the offenders

2. External Sovereignty:
o Means external equality with all other States
o The freedom of action at the international level for securing its national interests.

Definition
"Sovereignty is the supreme will of the State". – Willongbhy

NATURE/CHARACTERISTICS OF SOVEREIGNTY
1. Originality:
o It is the original power of the State.
o It is neither delegated by any association of the state nor does State derive it from any
source

2. Permanence:
o It is a permanent element of the state
o While the state exists, sovereignty exists
o While sovereignty exists, state exists

3. Absoluteness:
o All people and places residing within the State are under the sovereignty of the State.
o It is the absolute and unlimited power of the State.
o It is always free from internal and external limitations.

4. Exclusiveness:
o It is the exclusive and supreme power of the state.
o It can only belong to the state.
o State alone can exercise sovereignty.

5. Comprehensiveness:
o It is all-inclusive and all-comprehensive supreme power of the State.
o State exercises sovereignty over all persons, their groups and over all parts of its
territory.
o There is no person or group who can avoid the sovereign power of the state.
6. Inalienability:
o State cannot separate its sovereignty from itself.
o It cannot leave its sovereignty either in full or part.
o If the State partakes its sovereignty, it commits suicide.

7. Imperceptibility:
o It permanently belongs to the state
o Even when the State does not exercise it, Sovereignty continues to live.
o The non-use of sovereignty for a period of time by the State does not mean the death of
sovereignty.

KINDS/FORMS OF SOVEREIGNTY
1. Nominal/Titular Sovereignty:
a. It is one in whose name the sovereign power of the State is exercised, but he himself
does not exercise it.

2. Real Sovereign:
a. The real sovereign himself exercises his sovereign power.
b. He actually uses the sovereignty of State and all citizens are bond by his commands.

3. De Jure Sovereign:
a. Person or group of people who has the legal title of Sovereign of State.
b. He is duly elected or lawfully constituted holder of authority in the State
c. He has constitutional right to run the State administration and command people.
d. He holds sovereign power by virtue of law
e. People is legally bound to obey his commands

4. De Facto Sovereign:
a. Person or group of people who come to power by any unlawful means i.e. By a
revolution or coup is known by de facto Sovereign.
b. By virtue of his ability to exercise power he begins commanding the people, even though
the title of his authority is not legal.
c. This happens when a change of ruler comes through a revolt or coup in which a new
ruler comes to forcibly replace the duly elected ruler.
d. In case the de-jure sovereign can recapture power then he becomes de facto sovereign
as well
e. If de facto sovereign is successful in enduringly exercising the supreme power and is
successful in preventing the De Jure sovereign from re-gaining the real power, his
authority also gets legalised and he becomes de jure as well.
5. Legal Sovereign:
a. Is the one who has the supreme powers to issue legal commands which are binding on
the people
b. Possesses the supreme power of law making
c. The person or institution that has the law-making power in the state is the legal
sovereign.
6. Political Sovereign:
a. Political Sovereign determines the exercise of legal sovereignty by the legal sovereign
b. Political sovereign is not known, it is not really organised and is by itself- incapable of
expressing the will of the State.
 c. It is present behind the legal sovereign and the latter acts under the influence of the
political sovereign

7. Popular Sovereignty:
a. It means the sovereignty of the people
b. People are regarded and recognised as the ultimate source of all authority and power
c. The representatives exercise power on behalf of the people
d. People are real makers of the popular and legal sovereigns
e. People are the real sovereign.

IS SOVEREIGNTY ABSOLUTE OR INDIVISIBLE?

a. Sovereignty resides within the state
b. It is the original, absolute and indivisible supreme power of the state
c. Division of sovereignty = destruction of sovereignty
d. Austin and Hobbes held that Sovereignty is an absolute and indivisible power.
e. Austin said that sovereignty resides in one determinate human superior in every state and that
it has a monolithic character
f. Sovereignty is an indivisible entity
g. Pluralists hold that sovereignty is divisible and in-reality stands divided among group within
the state.
h. Legally, sovereignty is indivisible and absolute power of the state.

AUSTIN'S THEORY OF SOVEREIGNTY

 Features:
a. Sovereign is a determinate human superior. Sovereign is definite and determinate
b. Sovereign is independent of external control
c. Sovereign is the law maker. Laws are the command of the sovereign
d. Laws of the sovereign are continuously and regularly obeyed by the people
e. Laws of the sovereign are backed by force
f. In a state i.e. In a politically independent society, the presence of a sovereign is
essential. Without the presence of a sovereign the society cannot become a state.
g. According to Austin, Sovereignty is absolute. The Sovereign has the power to make and
enforce binding laws for all the people in respect of all types of activities.
h. Sovereignty and State are inseparable and inalienable. Sovereignty is indivisible.

CRITICAL EVALUATION OF AUSTIN'S THEORY OF SOVEREIGNTY

1. Sovereignty is not always determinate:
a. Austin wrongly holds that sovereign is one determinate human superior
b. We cannot locate any one determinate sovereign
2. Unhistorical:
a. Not supported by historical facts
b. There has never been determinate human superior
3. Sovereignty is not absolute and unlimited:
a. Several internal limitations on sovereign
b. He cannot practice absolutism
4. Sovereign can regulate only external behavior:
a. Sovereign can only regulate external aspect of people
b. No way for him to regulate the thinking and attitudes of the people
5. Internal and External Limitations:
a. Sovereign works under both internal and external limitations
 b. Public opinion, morality, customs, and conventions bind the sovereign internally
6. Law is not always the command of the sovereign:
a. Austin's definition of law as the command of the Sovereign to an inferior is incorrect.
b. There are several sources of law like religion, morality, custom, convention and the like.

LAW

LAW: DEFINTION AND MEANING

"A Law is a general rule of external behavior enforced by a sovereign political authority." -
Holland

Law is a definite and general rule of behavior which is backed by the sovereign power of the State. It
also means a uniform rule of conduct which is applicable equally to all the people of the state.

SOURCES OF LAW
1. Customs and Usages:
a. In primitive societies, social relations gave rise to several usages, traditions and customs.
b. Customs were practiced habitually, and violations of customs were disapproved and
punished by the society.
c. The state emerged as the organized political institution of the people having the
enforcing rules based upon customs and traditions.
d. Most of the laws were born when the State began converting the customs into
authoritative and binding rules and values.

2. Religion and Morality:

a. Religion then started regulating the behavior of people and began involving "godly
sanctions", "fear of hell" and "possible fruits of heaven", for enforcing religious codes
b. It compelled he people to accept and obey religious codes
c. Several religions came forward to formulate and prescribe definite codes of conduct
d. The rules of morality also appeared in society
e. The religious and moral codes of a society provided to the State, the necessary material
for regulating the actions of the people.
f. The state converted several moral and religious rules into its laws.
3. Judicial Decisions:
a. It is the responsibility of the courts to interpret and apply a law to specific cases.
b. The decision of the court is binding on the parties to the dispute.
c. These also get accepted as laws for future cases.
d. Only the judicial decisions given by the apex court or the courts which stand recognized
as the Court of Record, are recognized and used as proper laws.
e. Courts can settle future cases based on such judicial decisions.

4. Scientific Commentaries:
a. The works of eminent jurists include scientific commentary include scientific
commentaries on the constitution and the laws of the land
b. These are used by the courts for determining the meaning of law
c. It helps the court to interpret and apply laws
d. The jurists not only discuss and elaborate the existing law but also suggest the future
possible rules of behavior
 e. They highlight the weaknesses of existing laws, as the need to overcome these as well as
the possible changes in the law.
f. They make suggestions for improving or supplementing the law

5. Equity:
a. Equity means fairness and sense of justice
b. Laws cannot fully fit in each case and it can be silent in some respects
c. In such a case, the judges depend on equity and act in accordance with their sense of
fair play and justice
d. As such equity acts as a source of law however, it is an informal and smaller source of
law.
6. Legislation:
a. The legislature emerged as an organ of the government engaged in transforming the
customary rules into definite and enacted rules of behavior in society
b. Gradually, legislation became chief source of law-making and later the legislature got
recognition as the legal sovereign.
c. In contemporary times, legislation has come to organized as the chief means for the
formulation of the will of the state into authoritative and binding rules/values.
d. In the age of democracy, legislation has arrived as a chief source of law.

KINDS OF LAW
1. Municipal Law:
a. It means the body of domestic or internal law of a sovereign state which is in the
operation in each state
b. In the context of international law, municipal law means, the system of laws made, or
followed, and implemented by each state within its own territory.
c. In the context of national law, municipal law refers to the systems of local laws at work
within the national boundaries.

2. National Law:
a. It means the system of law enforced by the state through its law courts
b. It applies to the whole territory of the state and all the people residing there
c. In contemporary times, the laws passed by the legislature of the state, implemented by
the executive and adjudicated upon by the judiciary, together constitute the system of
national law.

3. Constitutional Law:
a. Supreme law of the land
b. It stands embodied in the constitution of the state
c. It relates to organizational, power, functions and inter-relationship of the three organs
of the government
d. It also lays down the relationship between the people and the government
e. Right and duties of the citizens is also stated

4. International Law:
a. International law is that body of law which relates to the behavior, actions and
interactions of the state at the international level.
b. Since all the states are sovereign states and no law can be imposed on them,
International law is a system of law among the states and not above the states
 c. It does not enjoy any legal sanctions, and neither is it backed by force
d. Punishment cannot be given to state for violation of rules as each state is a sovereign
state
e. The states obey these laws because they are deemed essential and useful for the
conduct of international relations among countries

5. Statues or Statutory Law:

a. The laws enacted by the legislature of each state are called statute or statutory laws
b. They are passed by the legislature
c. Give union list and concurrent list example

6. Ordinances:
a. An ordinance can be defined as a temporary or ad-hoc rules of law which is needed at a
time when the parliament is not in session
b. It is issued by the head of the state for satisfying an urgent need for law
c. Parliament can adopt or reject the law
d. The head of the state can also issue a new ordinance for terminating an existing
ordinance
e. Hence, ordinances can also be defined as temporary laws
f. Ordinance making power is an emergency/ad-hoc arrangement; it cannot replace law
making by the parliament

LIBERTY

MEANING AND DEFINITION

"Liberty is the opposite of over-government" - Seeley

Liberty is taken to mean the absence of not all restraints but only those restraints which are held to
be irrational. Liberty involves the elimination of irrational restraints but at the same time it also
means the existence of rational, logical, tested and established restraints i.e. restraints which have
stood the test of historical experience and reason.

NEGATIVE AND POSITIVE DIMENSIONS OF LIBERTY

1. Negative Liberty (Traditional View):
a. Liberty is taken to mean as freedom with absence of any restraints
b. Traditional, liberal, individualist and anarchist view of liberty
c. Rejected view of liberty

2. Positive View (Modern View):

a. Liberty is taken to mean freedom under rational and logical restraints and restraints
which have stood the test of time
b. Accepted form of liberty in a civil and civilized society
c. Accepted view of liberty
WHY LIBERTY NEEDS SOME CONSTRAINTS?
Constraints are deemed essential for:
1. Preservation of the territorial, social, economic, political and cultural security and integrity of
the state
2. Securing the dignity of individual and unity and integrity of the nation
3. Respecting the freedom of expression of all
4. Protecting the life and liberty of all

KINDS OF LIBERTY
1. Civil Liberty:
a. The liberty which all individuals enjoy as members of society is called civil liberty
b. It is equally available to all individuals
c. All enjoy equal freedom and rights in society
d. Civil liberty is not restrained liberty
e. It is enjoyed only under the restrictions imposed by the state and society

i. State guarantees Civil Liberty: It refrains from creating obstacles in the way of
enjoyment of liberty by all the people. It protects liberty from such obstacles and
actions of other men and organisations can limit the equal liberty of all.
ii. Civil Liberty stands for the protection of rights and freedom from undue
interference by the government: It involves the concept of limiting the possibility
of a violation of the rights of the people by the government.

2. Political Liberty:
a. The opportunity to enjoy political rights by the people is defined as political liberty.
b. When the people have the freedom of participation in the political process, it is held
that they enjoy political liberty
c. This type of liberty involves the exercise of such rights as the right to vote, right to
contest elections etc.

3. Economic Liberty
a. Laski defines economic liberty as freedom from the wants of tomorrow and availability
of adequate opportunities for earning the livelihood.
b. It stands for freedom from poverty and unemployment, and ability to enjoy at least the
three basic minimum needs-food, clothing and shelter.

LAW AND LIBERTY: RELATIONSHIP

1. Law Limits Liberty - The Negative View:
a. The more the laws, the lesser is the liberty of the individual
b. Law is the means by which the state exercises force and limits the liberty of the
individual
c. The Anarchists go to the extent of demanding an elimination the State, religion, and
private property
d. The Individualists regard the state as a necessary evil - necessary for protection and
providing security but evil because its laws use force and limit freedom.
e. Therefore, they want a minimum functioning state
f. However, this view is a negative, extreme and dangerous view =
 g. It forgets that law imposes restraints to protect the right and freedom of the people and
not restrain them

2. Law creates Liberty - The Wrong View:

a. It seeks to define liberty as slavery to the state and its laws
b. It is wrong in stating that state is the creator of liberty
c. State only recognises and protects the right and freedom of the people
d. Rights and freedom are the natural products of social living

3. The Correct View - Law and Liberty are Compatible:

a. Lays down the rules for the regulating of behaviour of the people in society. Without
these there is no order in society.
b. Law gives legal protection to the rights of the people, including the right to liberty
c. Law helps liberty by settling disputes between people over their rights
d. One of the best ways to protect the right to freedom is to make all the rights of the
people a part of the constitution of the state
e. Liberty involves the presence of restraints which are necessary, logical and historical.
Law does this.
f. Law by eliminating exploitation of man by other men, by protecting the weaker sections
of society helps and ensures Liberty for all.

SAFEGUARDS OF LIBERTY
1. Equal Fundamental Rights of all the Citizens:
a. For the safeguarding of liberty, it is essential that in society there should be no privileged
class of persons
b. Liberty can exist only when equal rights are granted to all classes of people without any
discrimination
c. The privileged class, if present, is bound to limit the freedom and use it for safeguarding
its class interests
2. Democratic Polity with a well-knit Party System and Free Press and Media:
a. Both democracy and liberty are supplementary to each other
b. In the absence of right to freedom there can be no real democracy
c. The presence of a liberal democratic party system, having a well-organized and healthy
party system, free press and media always act as one of the most essential safeguards of
Liberty
3. Economic Justice:
a. While discussing the safeguards of liberty, Laski suggests that the state must ensure the
rights and freedoms of some people should not be dependent upon the will and
happiness of others
b. The rulers and ruled should both be under the rule of law
c. Every individual in society should have the opportunity to earn his livelihood in an
honourable way and should have the right to adequate wages
4. Protection of Fundamental Rights:
a. One of the key methods is to incorporate a charter of fundamental rights and freedoms
in the constitution of the State
5. Separation of power:
a. Separation of power should be between the legislature and the executive
b. Any concentration or combination of these powers can be dangerous for the liberty of
the people because it can lead to misuse of power by the powerful organ
6. Rule of Law:
a. All should be bound by same type of obligations