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Transcript
Chapter 4
:! SOVEREIGNTY
Sovereignty is one of four elements of state and this term vva first of all used by the French scholar Jean
Bodin. It is derived from th Latin word superanaus which means supreme. It has two aspects: ” (i)
Internal sovereignty.
(ii)
External sovereignty.
By internal sovereignty it means that the supreme authority present within the state is absolute over all
individuals or associations of individuals. And by the external sovereignty we mean that the state is
independent of any compulsion on interference on the part other states. Its will is its own, unaffected by
the will of any external power.
Section I. DEFINITIONS
Definitions:
Definitions of sovereignty are many and varied. Some of them are discussed below:
1. Jean Bodin. ”Sovereignty is the supreme power over citizens and subjects unrestrained.by law.
2. Burgess. ”Sovereignty is original. It is absolute unlimited power over the individual subjects and
over all associations of subject.”
3. Hugo Grotius. ”Sovereignty is the supreme political power vested in him whose acts are not subject to
any other and whose will cannot be overridden.”
4. J. J. Rousseau. ”Sovereignty is an absolute and inalienable power.”
5. Jenks. ”Sovereignty is an authority which in the last resort, controls absolutely and beyond appeals the
actions of every individual member of the community.”
6. Dugit. ”Sovereignty is the commanding power of the state, it is the will of the nation organised in the
state, and it is the rig to give unconditional orders to all individuals in the territory of state.”
the state.’
7.
Willoughby. ”Sovereignty is the supreme power of
Sovereignty
99
I g.
H. J. Laski. ”The sovereign is legally supreme over
individual or group. He possesses supreme coercive power.”
9. Fredericuk Pollock. ”Sovereignty is that power, which is neither temporary, nor delegated nor subject
to particular rule which it cannot alter.”
10. Garner. ”Sovereignty is that characteristic of the state is virtue of which it cannot be legally bound
except be its own will or limited by any other power than itself.”
Section 2. CHARACTERISTICS OF SOVEREIGNTY
Following are the attributes or characteristics of sovereignty:
1. Absoluteness. Sovereignty of the state knows no legal limitations, either internally or externally. It is
its main characteristic which makes it prominent than other associations. It also implies its universality,
inalienability, permanence and individuality.
But it may be true in terms of law but politically it may be a lie. Sovereignty carried to two extreme
becomes tyranny and destroys liberty, and liberty carried to the extreme becomes anarchy and destroys
sovereignty. It embraces the following limitations of its own accord:
(a) Moral obligations. Each state observes moral values despite the fact that it is absolute. If laws
are made ignoring moral values than they will not be durable. Moreover, there will by danger of uprising
against such a government.
(b) Constitutional obligations. Each state has a constitution which is its supreme law. It is strictly
observed while running the affairs of the state. Its violation will be unconstitutional.
(c) Conventions. Each state observes some customs and usages. It is true that they are not law but their
sanctity is not violated. For example, it is a convention in Britain that the Prime Minister ”elongs to the
House of Commons and nobody has violated it.
(d) International law. States sign treaties among bemselves and resolve their disputes
amicably in the light of ^ernational law. Each state, observes international law despite its
soluteness. It does not injure its sovereign status.
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Principles of Civics
(2) Indivisibility. Sovereignty is indivisible and to divide it is to destroy it. Jellinek has aptly remarked
that the notion of a ”divided, fragmented, diminished, limited, relative sovereignty.” is the negation of
sovereignty. Similarly Gettell opines in there words: ”If sovereignty is not absolute, no state exists; if
sovereignty is divided, more than one state exists. There can no legal power at the back of the sovereignty
of the state and no legal check on its scope.” So far a federal system is concerned; it is not division of
sovereignty but of powers. They are different manifestations of the appearance of
sovereignty, e.g., parliament is the master of legal sovereignty whereas the people are political sovereign.
(3) All-Comprehensiveness.
Sovereignty of state extends to all persons and associations within
its boundaries. They all have to submit to its will. If the state wants to restrict the activities of these
associations, it can do so. It can declare any of them illegal.
The only exception is the diplomatic immunity. Diplomats and their embassies are under their own laws.
The laws of the host state do not apply to them. But it is remarkable that immunity is only s matter of
international courtesy which can be denied at any time by any state.
(4) Inalienability. Sovereignty of state cannot be alienated as the American writer Lieber has remarked:
”Sovereignty can no more be alienated than a tree can alienate its right to sprout or a man can transfer his
life and personality without self-destruction.” If a state cedes a part of its territory to another state, it is not
the transfer of sovereignty. But in the words of Gilchrest, it is ”an excellent example of the working of the
sovereignty of the state. All that happens is that, whereas formerly there was one state, now, with such
cession, there are two states.”
(5) Permanence. Sovereignty is permanent so long as the state exists. With the change of government,
the sovereignty is not affected as both are different from one another. With the shift of the centre of
gravity, it also shifts immediately to a new bearer.
(6) Exclusiveness. Sovereignty is exclusive and there is none to compete with it. There can be only one
sovereign power in the state to whom all the people bow in obedience. To hold otherwise would be to
deny the principle of the unity of the state.
In the last, it should be noted that sovereignty is an essential element of the state. It has different forms
and the political sovereign has much weight-age.
Sovereignty
\ 01
Section 3. KINDS OF SOVEREIGNTY
Different kinds of sovereignty can be discussed
under the following headings.
1. Titular
Sovereignty.
Immediately
after
the emergence of nation states in the
seventeenth century, this kind emerged when the powers of the kings were limited. This was the advent of
constitutional government and the king became only a symbol of authority. Hence it is sovereignty in
name only. Lowell has aptly remarked: ”According to the early theory of the constitution the ministers
were the counsellors of the king. It was for them to advice and for him to decide. Now the parts are
almost reversed. The king is consulted, but the ministers decide”.
2. Legal Sovereignty: It is the concept of sovereignty in term of law and it refers to that person or body
of persons who bylaw have the power to issue final commands. The authority to make laws is legal
sovereign. Its authority is absolute and its will is illimitable, indivisible and inalienable.
Its characteristics can be enumerated as under
(a) It is always definite and determinate.
(b) It may reside in a person on in an absolute monarchy, or it may be vested in a body of persons as in a
democracy.
(c) It is definitely organized, precise and known to law.
(d) It alone can declare the will of the State.
(e) Its disobedience leads to physical punishment.
(f) All rights emanate from it and it can take them back or even annual them
3. Political’ Sovereignty: It should be noted that unlimited authority of the Legal sovereign does not
exit anywhere as Dicey says:
”Behind the sovereign which the lawyer recognizes, these, is another sovereign to whom the legal
sovereign must bow.” This is political sovereign which in the words of Prof Gilchrist ”is the sum total of
the influences in a State which lie behind the law.”
Law does not recognize political sovereignty as it is unorganized, indeterminate and not even precise. It
cannot be located in electorate or public opinion. If the representatives of the people are the masters of
sovereignty, then there seems a difference between legal
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Principles of Civics
and political sovereignty. But it is not the case in direct democracy Even the electorate, masses or the
public opinion is the political sovereign, due to changing nature of first and third one. Masses cannot be
political sovereign as whole of them do not constitute the electorate Thus the term political sovereignty is
vague and indeterminate but it does exist. It can be electorate plus all other influences in a state which
mould public opinion.
4. . Popular
Sovereignty:
It
attributes ultimate sovereignty to the people. It played a vital
role in the French and American Revolutions. Lord Bryce regards it the ”basis and watchword of
democracy”
Some writers consider the term vague and indeterminate. Gattell says, ”The
sovereignty of the people, therefore, can mean nothing more then the power of the majority of the
electorate in a country where a system of approximate universal suffrage prevails, acting through legally
established channels, to express their will and make it prevail.” As voters are s small position of the total
population therefore the idea of popular sovereignty is highly confusing. But we cannot ignore its force.
Gilchrist, however, suggests that ”popular control” better indicates the idea underlying popular
sovereignty.
5. De Jure and de facto Sovereignty: De Jure is the legal sovereignty and it has its foundation in it. Its
attribute is the right to govern and command obedience. But sometimes it does not happen and someone
commands obedience and he becomes de facto sovereign. He may by a usurping king, or a dictator or a
priest. There are innumerable examples of de facto sovereignties. General Najib’s coup d’etat in Egypt is
its prominent example.
It is necessary that de Jure and de facto sovereignties should coincide otherwise there is a danger of
conflict between them. Dr. Garner says, ”The sovereign who succeeds in maintaining his power usually
becomes in the course of time the legal sovereign, through the acquiescence of the people or the
reorganisation of the State, somewhat as actual possession in private law ripens into legal ownership
through prescription”. The de fecto sovereign will endeavour to make his de facto claim converted into a
legal right.
Sovereignty
\ 03
Section 4. JOHN AUSTIN’S (1790-1859) THEORY OF SOVEREIGNTY
John Austin was a famous English Jurist who stated his theory of sovereignty in his book Lectures on
Jurisprudence It is as follows:
”If a determinate human superior, not in a habit of obedience to a like superior, receives habitual
obedience from the bulk of a given society, that determinate superior is sovereign in the society, and the
society (including the superior) is a society political and independent.”
Its main points are as under:
1. Sovereignty resides in a person or body of persons.
2. Sovereign is a determinate person or body of persons.
3. His
will
is
supreme
over
all
individuals
and associations.
4. He receives habitual obedience from the bulk of the community. ;
5. Command is the essence of law. i
6. Sovereign power is indivisible.
Criticism: John Austin’s theory of sovereignty is criticised vehemently on the following grounds:
1. Location of sovereignty: It is a difficult job to determine sovereignty in the modern states. For
example, it is not an easy job to locate sovereignty in a federal government. It does not reside in the
President or Congress or any other organ of the government in the U.S.A.
2. Popular sovereignty? Austin’s conception of a determinate sovereign is inconsistent will the
well-accepted idea of popular sovereignty. It ignores the power of public opinion and does not take into
consideration the existence of popular sovereignty, which is now believed to be the ultimate sovereign
power in a State.
3. Concept of despotism: Austin considers that the sovereign is a despot whereas the reality is that he has
to keep in view the customs of the society. Therefore it is not proper that his every command is a law. Sir
Henry Maine quotes Ranjit Singh who was a despot in every respect but he never ordered anything
contrary to the customs. His subjects led their lives in accordance with the social customs.
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Principles of Civics
4. Definition of law: Austin’s definition of law cannot be accepted. Laski says that to think of law as
simply a command is even for the jurist, to strain definition to the verge of decency.” It is not possible for
him to ignore the customary law of the land.
5. Argument of Pluralists: The Pluralists maintain that the state is an association like various other
associations and the sovereign authority cannot be invested with unique sovereign powers They do not
accept the notion of a single and unified sovereignty. They give great importance to associations and they
are as sovereign as the State. Therefore sovereignty is neither unity nor absolute.
6. Internationalism: The concept of internationalism has made it still more incompatible. A civilized
state has to respect the international law and world public opinion. It makes treaties and abides by them. If
we accept the theory of sovereignty as propounded by Austin then it is to strike at the roots of
sovereignty.
Importance: Despite the demerits of the theory, its imnortance cannot be ignored. John Austin was a
jurist therefore he propounded the theory in pure legal terms. It should, however, be admitted that as a
conception of strict legal nature of sovereignty, Austin is theory is clear, matter of fact, and logical.
Section 5. PLURALISTIC THEORY OF SOVEREIGNTY
A tremendous movement was started against the monistic theory of sovereignty of the State which
endows it with a unitary and sovereign power making other associations its dependent. On the contrary,
the pluralists regard the State merely an association like other. It’s main nrofounder are Gierke, Maclver,
Figgis, Barker, Gilchrist and Laski.
It was with the advent of industrial revolution that the aims of the State were changed. It became an
association which began to perform the functions of coordination among the industrialists, labourers and
other professional persons. It was being regarded as first among equals with other associations hence it
has no rightful claim to eminence and, thus, it cannot be the sole focus of loyalty. Each association has its
own laws and it exacts obedience to those laws independently of the State. But at the same time it should
be noted, as Maitland says, the State and these groups are species of the same genus.
Sovereignty
105
The pluralists deny that the State is a unique organisation, f hey insist on the equal rights of all groups.
They protest against the omni competence of the State.
Basic principles of pluralism
1. Liberty of associations: Monists consider that all the associations located within the territorial limits
of a state are under the law of a state but the pluralists do not accept this notion. To them, the economic,
religions and social associations feel no need for the protection of law neither the law has any power to
annual them, Every association has its own status and is fully independent.
2. Law, creator of State: Prof, Krabbe considers that state is the product of law and not vice verse. Law
not only supervises the organization of State but controls all other associations too. It is there to achieve
the economic, social, religious and political aims. The pluralists vehemently criticise Austin’s view that
”law is the command of the sovereign.” They opine that sovereignty is under law which organizes human
life and coordinates different human associations.
3. Division of sovereignty: The pluralists consider that sovereignty is divisible, the State is not
omni-potent but at the same time they do not want to put an end to it. They recognize its utility but
consider it only a means for coordination among associations. They do not agree with
Bodin that the state is superior to all other associations and they all obey it. Thus the pluralists put forth
the concept of plural sovereignty in a federal society consisting of several groups.
4. Limitations
on
sovereignty:
The
monists
consider that the State is free from every kind of outer pressure but the pluralists do not like geographical
prejudices and complete territorial separation. Constquently they respect international limitations. They
oppose the theories about the independence of the State rather they believe in the new theory of
internationalism. They feel a great danger for humanity in a state which is free from external pressure and
international limitations. There is a great benefit for humanity to Promote international relations and
cooperation.
5. State is not unique: Unlike the monists, the Pluralists regard the individual responsible to all
the associations. In the Words of Gettell, ”The Pluralists deny that the state is a unique
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Principles of Civics
organisation. They hold that other associations are equally important and natural; they argue that such
associations for their purpose are as sovereign as the state is for its purpose. They emphasize the inability
of the state to enforce its will in practice against the opposition of certain groups within it. They deny that
the possession of force by the state gives it any superior right. They insist on the equal rights of all groups
that command the allegiance of their members and that perform valuable function in society. Hence
sovereignty is possessed by many associations. It is not an indivisible unit. The State is not supreme or
unlimited.”
Criticism: Pluralism is subjected to the following criticis.n:
1. Lawlessness: Man has established innumerable associations, some small and some big, but
we cannot equalize none of them with the state. The interests of several associations can have clash with
one another and who shall be the arbitrator in such a situation? Certainly this role will be played by the
state otherwise there would be lawlessness and subsequently those objectives will be buried for which the
state had come into existence.
2. Sovereignty is inevitable: If the state is equalized with other associations but is given the powers of
maintaining the internal peace and the external defence and security, it shall have prominence over them.
It will be sovereignty enjoyed by the state. Hence the pluralism is vague.
3. Externally: International law cannot put limitation on the sovereignty of the state because it is not law
in the true sense but a code of international moral regulations. If a state abides by these regulations, it
shows that it is civilized and does not strike at the sovereign status of the state. Presumably, if the
sovereignty of the state is annulled then the international relations will be badly affected as every
association shall be maintaining its external relations with other associations. What an amusing situation!
4. Concept of law: It is true that all laws are not enacted by the state but who can deny this reality that
the constitutional sovereign can amend any law at will. Moreover, this concept of the pluralists cannot
be accepted that law existed even before the establishment of the state. How can law be
enforced unless there is law enforcing agency. In the absence of this force or agency, there shall be
Onlv chaos anrl anarrhv
Sovereignty
107
5. Negative association: The pluralists consider that the state is a negative association which is not true.
It is a useful association which maintains discipline and peace within its boundaries making them secure
from external aggression. It creates balance in the religious, economic and social activities of the
individuals. Without sovereignty, its very existence is endangered.
6. Complexities: If sovereignty is divided among all the human associations, then there will be a serious
problem of their survival. State’s establishment with full powers is utmost necessary for solving the
problems of economic, social and religious associations.
Importance: Despite the demerits of this theory, it has its importance too. It is a protest against the
elevation of the State of mystical heights. It demarcates and limits the functions of the State and defines
its authority. It projected the concept of decentralisation.
Section 6. ISLAMIC CONCEPT OF SOVEREIGNTY
Islam is a complete code of life and it enfolds every concept of life as the Holy Prophet (P.B.U.H.) is the
last prophet. The Shariah which he gave consists of the Holy Quran and Ahadith. The Islamic state is
founded on this very Shariah and it guides us completely.
According to Islam God is the fountain head of sovereignty. Man rules in world as his vicegerent. But as
a chosen Ummat, the Muslims have been given this right. After the death of the Holy Prophet (P.B.U.H.),
his successors were known as the Khilifa-tur-Rasool. Following are the attributes of vicegerency:1. Sovereignty belongs to Allah. For the smooth running of administration, the powers have been
delegated to the vicegerent.
2. The powers of the Caliph are limited.
The
Caliph
performs
his
duty
within
the
divine
3. ’imitations.
4. Sovereign.
It is the duty of the caliph to fulfil the real will of the
So far as the qualifications of the caliph are concerned, every
consid”1 Ca” bC appointed cal’Ph Provided he is a pious Muslim. Islam
Cali ’h”3 3” *e ^us’ims as eclua’ members of the Islamic society. The
divine ’S duty”bound to run the administration is accordance with the
injunctions. He is dually responsible before God and the
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Principles of Civics
Ummah We have the example of Hazrat Umar Farooq in this regard Once he was delivering a sermon. One Baddu (a
villager) refused to hear him unless he would disclose the detail of the clothes worn by him. This means that powers
of accountability lie with everyone. If the caliph does not discharge his duties as per divine injunctions then the
Islamic society is empowered to remove him.
Following verses of the Holy Quran depict that God is the
Sovereign:
1.
2
”In whose hand is the dominion over all things.”(23:88)
”He onto whom belongeth the sovereignty of the
heaven and the earth. He hath chosen no son nor hath He any partner in
the sovereignty.” (25:2)
3. ”Therefore glory by to Him in whose hand is the dominion over all things”. (36:82)
4. ”The decision rests with Allah only.” (12:40)
5. ”He is Allah, than whom there is no other God, the Sovereign Lord, the Holy one, Peace, the keeper of the Faith,
the Guardian, the majestic, the Compeller, the Superb, and Glorified.” (59:23)
6. ”(When) Allah doometh there is none that can postpone His doom.” (13:41)
7. ”He will not be questioned as to that which He doeth.” (21:23)
8. ”He directh the ordinance from the heaven unto the earth.” (32:5)
Characteristics:
Concept of sovereignty in Islam is imbued with the following characteristics:
1. God is the Sovereign.
2. Powers have been delegated to the Muslims as a trust.
3. God Himself is the Legislator. Anyhow the Muslim government can make laws of secondary nature provided they
are not contrary with the spirit of the Shariah
4. The
Islamic
State
is
founded
on
the
principles envisaged in the Holy Quran.
5. There is no difference between legal and political sovereignty, both these belong to God.
Sovereignty
109
6. If the Muslims want some guidance, they can seek it from the Holy Quran and the Ahadith.
In short, government is a trust in Islam. Islam has not only explained the determination of sovereignty but covers all
the aspects of state and government. Being a complete code of life, it has formed regular and systematic rules and
regulations regarding all the economic, political, moral, religious and other aspects of life Politics is its part and it
cannot be separated from it.
There is a complete legal code in Islam which helps to lead the life in a regular and systematic manner. To keep
organized the public in the political life, Islam has presented a constitution which cannot be changed by the public. It
is complete and comprehensive for all territories and ages to come.