SOVEREIGNTY

SOVEREIGNTYSovereignty is most important and essential element of the state.The term has been taken from the Latin word supernus which means supreme.The state is regarded as supreme, having supreme legal power over all individuals and associations.Aristotle referred to the supreme power of the state.Conditions in the medieval period were not conducive to the development of the concept of sovereignty because the king, the feudal lords and Pope all claimed to be the superior authority.The conception of sovereignty was introduced into political theory by the French writer Bodin.According to him, Sovereignty is the supreme power over citizens and subjects, unrestrained by law. To Bodin sovereignty is absolute, and perpetual power within a state.Hobbes Leviathan is the embodiment of sovereignty.Locke stood for political sovereignty.Rousseau advocated popular sovereignty.Bentham agrees that sovereignty is unlimited by law, and urged the necessity for the sovereign to justify his power by useful legislation with the object of promoting the greatest happiness of the greatest number. Definitions:1.Willoughby-Sovereignty is the supreme will of the state.2. According to Harold J.Laski The sovereign is legally supreme over any individual or group and possesses a supreme coercive power.3.John Austin- If a determinate human superior, not in the habit of obedience to a like human superior, receives habitual obedience from the bulk of a given society, that determinate human superior is the sovereign in that society, and that society, including the superior, is a society political and independent.

Attributes of Sovereignty :Absoluteness UniversalityPermanenceIndivisibilityInalienabilityExclusivenessKinds of Sovereignty :Titular SovereigntyPolitical SovereigntyLegal SovereigntyDe Jure and De Facto SovereigntyPopular Sovereignty Austins Theory of Sovereignty :Theory of sovereignty, as enunciated by Austin, depends mainly upon his view of the nature of law.According to Austin, command given by a superior to an inferior.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 human superior is sovereign in that society, and that society (including the superior) is a society political and independent.Austins doctrine of sovereign may reduced to the following propositions. In every political and independent community, some person or body of persons who exercise sovereign power.That the sovereign is a determinate person or body of persons. It is concerned with man and every State must have a determinate human superior who can issue commands and create laws.Human laws, and not divine laws, are the proper subject of State activity.That determinate human superior must not himself obey any other higher authority. His will is supreme over all individuals and associations.That the sovereign receives habitual obedience from the bulk of the community. Obedience must be a matter of habit and not merely occasional.6. The command is the essence of law. Whatever the sovereign commands is law, and law prescribes to do certain things and not to do others. Failure to obey laws, is visited by a penalty.7. The sovereign power is indivisible. It is a unity and is the incapable of division. Division of sovereignty means destruction of sovereignty.In brief, Austins analysis of sovereignty embraces the existence of the supreme power which is determinate, absolute, illimitable, inalienable, indivisible, all comprehensive and permanent. Austins first contention that sovereignty resides in a determinate human superior is put to strong criticism by Sir Henry Maine. He argues that the greatest kings cannot issue commands which are opposed to customs, traditions, usages and religious beliefs of the people.Prof. Laski is of the view that Austins unlimited sovereign cannot exist in practice, because various social, ethical, economic and cultural associations, which serve the interests of the citizens, are no less sovereign than the state.We cannot find a determinate sovereign in any state, which commands others and obeys no one.

The emergence of federal states is a contradiction of Austins sovereignty is indivisible.Austin regarded law as the command of the sovereign. This implies that the basis of law is force. That is not true because the foundation of law is social solidarity. The British common law is an outcome of long standing customs and traditions.There is an essential difference between a law and a command. Law is obeyed by both- those for whom it is made and those who make it. Command is an order, whosoever gives it does not obey it.Pluralist Theory of Sovereignty :The Pluralist theory of sovereignty was a strong reaction of Monistic Theory of Sovereignty.According to this the state as an association of other associations. Pluralism was a doctrine for a limited state and divided sovereignty. The main components of this theory are Maitland, Durkheim, GDH Cole, Laski, MacIver etc.The Pluralists regarded sovereignty as limited and divided.They believe that many associations, institutions and groups in the society perform multifarious functions.Some of these associations existed even prior to the state.The individuals owe their allegiance to the associations which serve their interests and these associations are co-sovereigns. They advocated decentralization of authority.They regarded that the state as an arbiter in case of conflicts between various associations.Pluralists supported the democracy and liberalism because the state derives its authority from the will of the people.They argued that the state does not create laws. Law exists prior to the state. The state only gives it a definite expression in the form of statutes.Criticism :According to them associations are independent and co-sovereign. But in practice this will degenerate into social disorder and anarchy.A division of decentralized powers does not imply division of sovereignty.Pluralism fails to generate feelings of patriotism and unity.Pluralists are uncertain regarding the abolishment of the state.Sovereignty can be divided and limited in a classless societies but pluralists did not aim for such society.The Pluralists advocated unity in diversity. This cannot be established in the absence of a sovereign power.