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STATE AND SOVEREIGNTY

State
The term State has variously been defined by various

writer. It is the chief artificial person having rights and duties Salmond defines State as a society of men established for the maintenance of order and justice within a determined territory by way of force.

STATE
Salmond observes that the State is a body of men

dwelling upon a determined territory, of which the stronger impose their wills on the weaker, which power is called Sovereignty To Woodrow Wilson, State is a people organized for law within a definite territory. The individual person or the body of individual persons which bears the supreme powers in an independent political society

Salient features. There are four salient features of a State:


Population.-The first essential of State is its people,

without whom a State cannot be visualized A population sufficient to provide both a governing body and a number of persons to be governed, and of course sufficient to support a State organization.

Salient features
Territory. People alone without territory cannot form a State. So

nomads without a definite territory may not be said to have a State. The size of the territory, like that of population is however immaterial. A State without a fixed territory a nomadic tribe or example is perfectly possible?

Salient features
Organization.
Population however huge and territory however large

amount cannot amount to a State unless there is some organization to express the will of its people and to ensure that such a will is enforced There must be legislature to make laws, judiciary to interpret, and executive to enforce them

Salient features
Sovereignty. Sovereignty is the chief attribute of statehood.

Sovereignty means supreme authority. The human superior in the State must have the habitual obedience of the bulk of the people, and he must not be in the habit of rendering obedience to another determinate superior

State and Law


State creates Law. According to Austin, law is the command of sovereign. He says, Every positive law obtaining in any

community is a creature of the sovereign or state. Dr. Salmond, It is in and through the State alone that law exists

Functions of the State.


Aristotle says that the State is natural and necessary.
He further observes The state exists that men may

lead a good life. The State originates for the sake of life and exists for the sake of best life. Dr. Holland, A state is an association of human beings generally occupying a territory for the attainment of internal order and external security.

The functions of a State -primary and secondary.


Primary functions. Primary functions also called the constituent functions

are the basic fundamental functions. According to Salmond, they are war and administration of justice i.e., external security and internal peace According to Herbert Spencer, the two functions of a State are to protect against external enemies and to suppress internal anarchy.

functions of a State
Salmond, the fundamental purpose and end of

political society has been defence against external enemies, and the maintenance of peaceable and ordinary relations within the community itself Hobbes, Leviathan carries two swords-the sword, of war and that of justice. Each function consists in the exercise of the organized physical force of the community and in each case this force is made use of to the same end

Use of Force Judicial, Extrajudicial


The distinction between these two functions of the

State lies in the nature of use of force


In the administration of justice the use of force is

judicial In war, the use of force is extra-judicial

Secondary functions
Secondary functions are meant for advancing the

general interests of the society. These are optional and not very rigid depending upon the State of advancement of the society Secondary functions may be further divided into two classes

functions of a State
(1) To the first category belong such functions as are

necessary for the fulfillment of primary functions. Legislation and taxation may be mentioned as examples of such functions. In the present complex state of life, administration of justice is, at any rate, not an easy task without legislation. So also for defence huge amounts are required so need for taxation. Moreover, money is needed even for administering as justice it is not always possible to sell justice; it has to be given free

functions of a State
(ii) In addition to legislation and taxation, the modern

States have undertaken several functions. These are for the convenience of the society. In fact, the functions, of the State have increased manifold in volume and variety. The modern States are no more police States. According to modern Jurists who agree with the Aristotelian doctrine that, the state came into existence to make life possible and exists to make it good. The State is responsible for the well being of all persons under it Such a beneficial conception of a State is described as a Social service state. or welfare state

SOVEREIGNTY
Conception of sovereignty
Literal Meanings. The word sovereign has its roots

in the French word souveratin which has been derived from the Latin words superanus meaning supreme authority. Hence by sovereignty is meant supremacy The term Sovereignty was introduced into political science by Jean Bodin, the renowned French philosopher in 1577

sovereignty
Bodin defined sovereignty as the absolute and

perpetual power within a State It is not subject to any law Hobbes went even beyond Bodin maintaining that a Sovereign was not bound by anything and had a right over every thing even over religion In the 20th century the rapid growth of International Law has made the concept of sovereignty more complicated and controversial

sovereignty
Legal sovereignty is composed of (2) nominal, and (3)

political sovereignty. Nominal sovereignty vests in the titular head of the State viz, monarch Political sovereignty rests with the electorate. Dicey clearly observes that behind the legal sovereign there lies another (political) sovereign to whom the former must bow.

sovereignty
We are concerned only with the legal sovereignty, i.e,

supreme law making power. This legal sovereignty according to Austin has two marks: (1) Positive and (2) Negative. For the positive mark the (common) human superior (sovereign) should have the habitual obedience of the bulk of the people. That is all persons within its borders are bound to obey it. This is also called internal sovereignty
For the Negative mark, the sovereign must not be in the

habit of rendering obedience to another determinate superior, i.e. its relations to other communities

Conclusion
The authority to command obedience from the person

within its borders is internal aspect of sovereignty, while its supremacy in not rendering obedience to other communities is external aspect of sovereignty The sovereign authority is source of all laws. The power of this sovereign authority is legally unlimited