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Legalistic in nature
It 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.
It enjoys the monopoly of power to
punish those who violate its commands.
Characteristics of Sovereignty
Absoluteness
Universality or all
comprehensiveness
Inalienability
Permanence
Indivisibility
Exclusiveness
Imprescriptibility
Types of Sovereignty
Legal Sovereignty
Political Sovereignty
Popular Sovereignty
National Sovereignty
Titular Sovereignty
De Jure Sovereignty
De Facto Sovereignty
Legal Sovereignty
It is the supreme law making power of a state which is not
bound by any law and which enjoys habitual obedience from
the people.
Violation of the commands of the legal sovereign invites
punishment.
"The legal sovereign 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." – Garner
Law is nothing but the command of the legal sovereign. It is
the source of all legal rights. Courts recognise only the laws
made by a legal sovereign.
The concept of legal sovereignty found the most
comprehensive treatment in Austin's theory of sovereignty
known as Monism.
The British Parliament, with the consent of the monarch, is
competent to issue the highest commands of the state.
Political Sovereignty
Behind the legal sovereign lies the will of the people which is
the final source of authority.
"Behind the sovereign which the law recognises there is
another sovereign to whom the legal sovereign must bow. That
body is politically sovereign, the will of which is ultimately
obeyed by the citizens of the state“ – Dicey
Gilchrist defines it as "the sum total of the influences in a state
which lie behind the law“.
John Locke – Limited Government, Constitutional Monarchy,
Rule with the Consent
The term 'political sovereignty' is vague and indeterminate. It
is very difficult to say where it rests.
Collective community - the mass of the people - the general
will - public opinion - with the physical power of that part of
the people who can bring about a successful revolution
In representative democracies it is said to reside in the
electorate which can replace one legal sovereign by another
through periodic elections.
Popular Sovereignty
Popular sovereignty originated with the anti-monarchical
writers of the 16th and 17th century. People have
supreme power and ultimate authority rests with them.
In the 18th century Rousseau’s doctrine of “general Will’
became the driving force of the French Revolution.
Jefferson made it the basis of the American Declaration
of Independence.
The doctrine received further impetus in the 19 th
century with the growth of democracy.
It became a powerful revolutionary idea which
overturned monarchies in the European continent.
It is difficult to locate popular sovereignty: (a) "the total
unorganised indeterminate mass" (b) the electorate.
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.
National Sovereignty
It was first formulated by the French revolutionists in
their Declaration of the Rights of Man.
It means that sovereignty resides essentially in the
nation – 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.
It is an abstract concept since national sovereignty can
be exercised by or manifested through individuals and
institutions.
Titular Sovereignty
It refers to a monarch who at one time was
actual sovereign, but has ceased to be such.
As the constitutional or ceremonial head of
the state he is called a titular sovereign.
The monarch of England is officially referred
to as the "sovereign" although his powers are
only nominal.
In practice the vast array of powers are
exercised by the cabinet which acts on behalf
of the titular sovereign.
De Jure Sovereignty
It is the sovereignty which is legally entitled
to the obedience of the people.
It has its foundation in law, not in physical
power alone.
The de jure sovereign is competent to issue
the highest command of the state.
As 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.
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“
“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“ – Bryce
De facto sovereignty rests on force, physical or spiritual.
This sovereign may be an usurping King, a dictator, a
priest, a prophet or even a charismatic leader.
Mao Tse Tung (Ching Kai Shek: 1949)
Nature and Basis of
Sovereignty
Legalistic view – Traditional
conception of sovereignty
based on law
Liberal View – sovereignty
grounded not on naked power
or coercion but on legitimacy
Cont…