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Essay on Sovereignty
Essay Contents:
- Essay on the Definition of Sovereignty
- Essay on the Characteristics of Sovereignty
- Essay on the Legal Sovereignty
- Essay on the Political Sovereignty
- Essay on the Popular Sovereignty
- Essay on the Pluralist Theory of Sovereignty
- Essay on the Titular and Actual Sovereign
Essay # 1. Definition of Sovereignty:
The term sovereignty is derived from the Latin word “superanus” which means supreme. It is common knowledge that sovereignty is the most important characteristic which distinguishes the state from other associations.
According to Jean Bodin- “Sovereignty is the supreme power of the state over citizens and subjects unrestrained by law.” Hugo Grotius defined it as “the supreme political power vested in him, whose acts are not subject to any other and whose will cannot be overridden.”
For J. W. Burgess, it is “original, absolute, unlimited power over the individual subjects and over all other associations of subjects. It is the un-derived and independent power to command and compel obedience.” According to Woodrow Wilson- “Sovereignty is the daily operative power of framing and giving efficacy to the laws.” W.W. Willoughby identified it with “the supreme will of the state.”
There are two aspects of sovereignty – internal and external. Internally, sovereignty has undisputed control over all citizens, aliens, associations and organisations. Its command is final and binding. The disobeyer of the sovereignty is punished. The limitations on the sovereignty, if any, are those mentioned in the constitution. The fact is that there can be no higher authority to restrain the sovereignty.
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From the external point of view, the sovereign is free and independent and equal with the sovereigns. The sovereign is master of its destiny and decides about war and peace. It sends envoys to other states and receives envoys of other states. It enters into contracts and treaties with other states and participates in all international conferences.
Essay # 2. Characteristics of Sovereignty:
The following are the major characteristics of sovereignty:
The first characteristic of sovereignty is absoluteness. It means that the sovereign is supreme and unlimited. In the state there is no other power higher than the sovereign to command over. Sovereignty is the storehouse of all laws and rights.
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It is very clear that if a sovereign is put under the control of any other power it will lose its sovereign status. There is no authority internal or external to poach on the power of the sovereign.
But there are some limitations, as argued by the critics, upon the sovereign:
(i) No sovereign, however great he might be, can curb religion, morality or customs. The King-in-parliament in England cannot make a law that all blind children will be killed.
(ii) In modern states the constitution guarantees some fundamental rights to the citizens. Obviously, these are limitations on the sovereign.
(iii) In the international field each state has to obey the international law, which goes against the absolute nature of the state.
The second essential characteristic of sovereignty is its indivisibility, which means that it cannot be divided into so many parts. So John C. Calhoun rightly observed- “Sovereignty is an entire thing to divide it is to destroy it. It is the supreme power in a state and we might just as well speak of half a square or half a triangle or half a sovereignty.” It is said that sovereignty stands for the supreme will. If it is dissected it cannot represent the supreme will.
But there are some limitations on the theory of indivisibility of sovereignty:
(i) In a federation the sovereignty is divided between the centre and the federation states. It is also possible that in the centre one political party is in power and in the federating units some other parties are holding the rein of administration. In such a case the sovereignty is shared between the different parties.
According to A. L. Lowell:
“There can exist within the same territory two sovereigns issuing commands to same subjects touching different matters.”
(ii) The pluralist do not believe in the indivisibility of sovereignty. The sovereignty resides on the various units of the society, of which the state is one. According to them, the state is never absolute nor is sovereignty indivisible. Sovereignty is split up among the state, the central government, provincial government, local self-government, family, etc. So the indivisible aspect of sovereignty is negative by the pluralists.
The third inherent element of sovereignty is its exclusiveness. This characteristic is very much akin to the element of indivisibility which means that there can be only one sovereign in one state.
The fourth important feature of sovereignty is universality or all-comprehensiveness. The sovereign has full jurisdiction over every person or every-thing within the state. With such sweeping control there cannot be any social disorder.
But the critics put some limitations on the universality of sovereignty. The diplomats and envoys of foreign countries, the ships and aircraft of foreign countries are to be exempted from the purview of the sovereignty of the state.
The fifth essential mark of sovereignty is permanence. So long the state will remain in existence its sovereignty will continue because sovereignty is a permanent trait of the state. The King may die, the government may be replaced but the state will continue and with the continuance of the state will continue the sovereignty.
The final trait of sovereignty is inalienability. It means that sovereignty cannot be transferred. So Francis Lieber rightly said- “Sovereignty can no more be alienated than a tree can alienate its right to sprout or man can transfer his life and personality without self-destruction.” The alienation of sovereignty from the state is as suicidal as the transfer of heart from the body of a man.
Essay # 3. Legal Sovereignty
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Legal sovereign is defined as that person or body of persons that makes law which is final and recognised by the courts and enforced by the executive. The concept of legal sovereignty is associated with the English jurist John Austin. This theory is also known as the classical theory or monistic theory of sovereignty.
According to the monistic school, sovereignty is absolute, determinate, supreme, omnipotent, indivisible and inalienable.
In his book Province of Jurisprudence Determined, published in 1832, John Austin defined legal sovereignty as:
“If a determinate human superior not in the 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 the society is political and independent.”
The focal point of Austin’s theory of Sovereignty is law which is the weapon of the sovereign. Law is nothing else but the command of the sovereign and is obeyed because of physical penalties.
In the words of Austin:
“Law is the command of a determinate human superior to an inferior, i.e., a command of the sovereign to the subject. The essence of law is the coercive force of the state.”
Law creates unity in the state. The rights of the people are what the sovereign sanctions. It can make and unmake any law or right. Sovereignty is universal. Whatever exists in the state are permitted and commanded by the sovereign.
The English constitutionalists who support the theory give out the example of the British Crown in Parliament as the embodiment of Austinian sovereignty. So the closest that the English constitutionalists came to identifying the centre of sovereign power is in the phrase used frequently from the sixteenth century onward – the King (or Queen)-in-Parliament.
Basic Features of Austin’s Legal Sovereignty:
From an analysis of Austin’s concept of legal sovereignty we find the following essential features:
1. In every state there must be one sovereign, who may be a person or a body of persons. The sovereign must be both definite and determinate. In other words, it should be clear to ascertain who is the sovereign. It may be a King, a dictator or the parliament. Without sovereignty the state loses its status of a state and degenerates into a dependency.
2. The authority of the sovereign is absolute, unlimited and indivisible. All the people inside the state must obey him and if there be anybody not loyal to him, he will be punished by the sovereign. Outside the state also the sovereign is supreme, because he is not under the control of any other sovereign or foreign state.
3. Law is what the sovereign commands. Whatever the sovereign says becomes law. So the courts of law will respect only those laws as are made by the sovereign. There can be no limit to the law-making power of the sovereign. The individuals have no legal rights against the sovereign. The individuals, however, can enjoy some rights which are granted by the sovereign.
4. All laws are backed by the coercive power of the sovereign. It means that for the enforcement of law the sovereign will take recourse to force. If law is violated by anybody he will be punished by the sovereign.
Criticism of Legal Sovereignty:
The legal theory of sovereignty as propounded by Austin is subjected to searching criticism:
In the first place, Sir Henry Maine, who is the main antagonist of legal sovereignty, attacks the determinate and absolute nature of legal sovereignty. For Maine, the sovereign is neither determinate nor absolute. Maine cites the example of Ranjit Singh, an oriental despot who could not do anything or everything, he had in mind. Every sovereign must respect the public opinion, the legislature, the electorate and the religion and customs of the people.
In reply Austin said that what the electorate, the press and other bodies do they can do so because the sovereign permits them to do so. This eye-wash of Austin is not maintainable because if the sovereign goes against the public opinion or the wishes of the people that sovereign will be overthrow. This public opinion or the electorate is the political sovereign which stands behind the legal sovereign. So it is said that behind every legal sovereign there is one political sovereign.
In the second place, refuting the coercive aspect of law, Thomas Hill Green pointed out that law is obeyed not because it is backed by force but because of the willingness of the citizens. Such willingness is actuated by the common welfare of the community, not the fear for penalties. The sovereign receives habitual obedience from the bulk of the society not out of fear but because the law is meant for the promotion of the common welfare.
In the third place, the American philosophers like James Madison and Alexander Hamilton seriously contended that sovereignty cannot be indivisible because in a federation like the USA the sovereignty is shared by the federal union and the component units. But the supporters of legal sovereignty tried to meet this point on the ground that it is the governmental powers that are divided, not the sovereignty, which in the USA resides with the body that can amend the constitution.
In the fourth place, sovereignty is externally limited by the international laws and international organisations like the UNO. A resolution of the UNO cannot be disobeyed by the state and if it actually disobeys it will be punished.
In the fifth place, the sociologists are of the view that moral ethos, law of equity and good conscience are limitations on the sovereignty. Law is not the command of the sovereign but a code governing the behaviour of the sovereign. The sovereign is not above law, but under law. Again, the sovereign is under the constitution of the country, which is known as the supreme law of the land. If Austin’s sovereign is the parliament of India or the parliament of the USA, can these two parliaments go against the constitutions of the country? The answer is no.
Lastly, the pluralists are of the firm conviction that the sovereignty does not lie in a particular body but in multiple bodies like the King, the parliament, the provincial government, local self-government, families and various associations in the society. This is refuted by the Austinians on the argument that all these bodies are creations of the sovereign. If the sovereign wills, he can curb them. The Nazis in Germany and the Fascists in Italy curbed and destroyed all these bodies.
Conclusion:
The legal or classical theory of sovereignty, as laid down by John Austin, does not tell us the real concept of sovereignty. The King-in-Parliament, which is the classic example of the classical theory, is a seat of legal sovereignty in a particular point of time. Otherwise, it does not’ stand the test of reality. We may conclude with the words of R. M. MacIver- “Physical force is not the essence but only differentia or criterion of the state. Sovereignty belongs to the state because the performance of the purpose of the state demands it.”
Essay # 4. Political Sovereignty:
The legal sovereignty is that body which makes the laws of the land. Thus the King-in-Parliament is the legal sovereign of England. But there is another sovereign behind the legal sovereignty. That sovereignty is called the political sovereignty. The electorate of the country is identifiable with the political sovereignty, because without the support of the electorate the legal sovereign cannot go ahead with its programme of legislation.
So Albert Venn Dicey rightly said:
“Behind the legal sovereign that the lawyer recognises there is another sovereign, to whom the legal sovereign must bow.”
That sovereign is called the political sovereign.
In a democracy the legal sovereign receives its authority from the electorate. As a matter of fact, the legislature makes laws on the wishes of the electorate. So the real sovereign is not the parliament but the voters. But the electorate is not the only consideration for legislation. There are some other factors like public opinion, press and several associations. So R. N. Gilchrist rightly maintained that the political sovereign is “the sum total of the influence in a state which lie behind the law.”
Criticism of Political Sovereignty on Political Theory:
The theory of political sovereignty is attacked on the following grounds:
First, the seat or composition of political sovereignty is rather shaky. The political sovereignty is said to be represented by the electorate. If so, the voters who are the political sovereign, will be incapable of any direct political action.
The voters in all countries do all their works through their representatives, because it is not possible for all the voters to make the laws or enforce them. This will inevitably result in shedding powers by the voters and transferring these powers to some other set of persons. This runs contrary to the basic idea of sovereignty.
Secondly, the concept of the electorate being the political sovereign is seriously challenged by another school which thinks that the real political sovereign power resides with the people as a whole. This theory is called popular sovereignty.
Essay # 5. Popular Sovereignty:
The concept of political sovereignty locates the seat of sovereignty in the electorate. The popular sovereignty shifts the seat of sovereignty to the people. This concept may be traced back to Julius Caesar who is said to have derived his authority from the populace of Rome.
In the medieval age this theory was nurtured by Marsiglio of Padua, George Buchanan and Francis Hotman. In the modern period this theory was espoused by the French philosopher Jean-Jacques Rousseau. The American celebrity Thomas Jefferson made use of this in the American Declaration of Independence when he announced that the governments derive their just powers from the consent of the governed.
Since then it is considered as the watchword of true democracy. Lord James Bryce is an important advocate of this concept. According to R. N. Gilchrist, popular sovereignty means the power of the masses as against any individual or classes. Popular sovereignty stands for universal adult franchise and control of the legislature by the representatives of the people. Thus popular sovereignty is identifiable with representative democracy.
Criticism of Popular Sovereignty:
It is difficult to precisely locate the popular sovereignty, because the term people is a very vague term. It refers to the whole unorganised mass of men and women of all ages. Such an unorganised people cannot take any political action. There must be some definite representatives of the people to discharge the political functions. Only in a small state the people as a whole can exercise the functions of a sovereign. So the concept of political sovereignty is unclear and unrealistic.
Value of the Theory of Popular Sovereignty:
The above criticism must not blind us with the idea that popular sovereignty has no value in a large state having indirect democracy. This theory has immense value.
First, we find the remnants of this theory in modern democratic states in the form of referendum, initiative and recall. These are the devices through which the people themselves exert their influence in the state.
Secondly, the theory tells us that the government exists for the good of the people, not for its own good. If the interest of the people is not preserved by the government, that government will be overthrown. The government must not act close up arbitrarily but must take into consideration the paramount interest of the people at large. For ensuring popular confidence there should be frequent elections and the government should be split up into local self-government.
Essay # 6. Pluralist Theory of Sovereignty
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The pluralist theory of sovereignty is directly opposed to the legal theory of sovereignty. While the legal theory concentrates sovereignty in one unit, the pluralist theory splits it up among various units. So the former is called monistic theory and the latter is known as the pluralist theory.
According to the pluralists, the state is one of the associations of the society. The state is not co-terminus with the society. The state is not all-pervading. It deals only with the external conditions of the social order. It does not concern itself with the internal aspect.
The pluralists believe that each association is a real personality, independent of the state. Family and the church are some of the associations that existed long before the state. These associations had their own constitution, purpose and regulative institutions which cannot be interfered by the state.
Man is an associative animal and he expresses his corporate personality through the family, church, club, economic organisations, etc. For a man, these associations are more important than the state.
According to A. D. Lindsay:
“The state is only one of the many associations and organisations which possess corporate personalities”.
If and to what extent the state can control these organisations are to be decided by the citizens.
So Lindsay rightly pointed out- “These associations attract deeper loyalties than the state and prove more effective agencies of social coordination.” For a man the state is necessary only to create external conditions by which he can elect his association and develop his personality. It is but natural that these associations are limitations on the state. So R. M. MacIver rightly observed- “Customs, religion, principles of morality and public opinion are a limitation upon the state.”
The pluralists do not subscribe to the view that laws are the commands of the state. The real nature of law is its sociological purpose of the society. These laws are definitely restraints on the state. The people obey law not because they are afraid of punishment but because laws are good for all, since they promote common welfare.
Harold J. Laski, who is an exponent of the pluralist theory, believed that the state cannot be said to be the sole unit of sovereignty. The true position is that there are numerous units of sovereignty, of which the state is one. He wanted that the whole concept of monistic sovereignty should be surrendered. The associative impulse of men generates the growth of several associations which are as much sovereign as the state.
According to J. N. Figgis:
“The state is agency of coordination and adjustment.”
Criticism:
There are scathing criticisms to which the pluralist theory of sovereignty is subjected:
First, the pluralist theory is one of anachronism because by equating the associations with the state it creates disorder in the society. In the absence of one authority there is bound to be chaos and finally anarchy.
Secondly, this theory overlooks the fact that the state is a unifying force.
Thirdly, there is want of clarity and uniformity among the pluralists about their exact nature of sovereignty.
Fourthly, the pluralist theory is rather a negative theory of sovereignty and does not tell anything positive. To quote Harold J. Laski- “It will be of lasting benefit to the world if the whole concept of absolute sovereignty is expunged from political science.”
The pluralists succeeded in negating the legal theory of sovereignty without giving anything new instead. So we are to conclude with the words of J. W. Garner- “Notwithstanding weakness of Austin’s theory of sovereignty as a concept of strict legal nature of sovereignty, his theory on the whole is clear and logical and much of the criticism directed against it has been founded on inapprehension and misconception.”
Essay # 7. Titular and Actual Sovereign:
The titular sovereign and actual sovereign are two opposite terms. The titular or nominal sovereign is one who is sovereign only theoretically. But the real sovereignty is vested in a different body. The first is rather a rubber stamp and the second is the real man controlling the puppet from behind the scene. The best example of titular sovereign is the Queen of England. In effect, she has no power, though the administration of the country is carried on by the name of the Queen. Who is the real sovereign there? The parliament of England is the actual sovereign.
De Jure Sovereign and De Facto Sovereign:
In times of war or during the revolution some authority captures the power in the state and rules the country with the backing of the army. That authority has no legal right to hold on power. Thus during the French Revolution the Jacobins captured power and ruled over France.
The Jacobins had no right to rule over the country under the laws of the land. This type of emergency-born sovereign is called the de facto sovereign. When the de facto sovereign is successful in restoring law and order and victory in the war front, that sovereign may continue permanently and become de jure sovereign.
For example we may say that Field Marshal Ayub Khan overthrew the civilian government in Pakistan and established martial law in that country with himself as the President of Pakistan. But he was welcome by the people of Pakistan and so he continued in power. He began as the de facto sovereign but later on became the de jure sovereign.
Internal and External Sovereignty:
The state has both internal and external sovereignty. The former refers to the authority of the state over every individual and institutions within its boundary lines. This is a basic ingredient of sovereignty. But the state has also its external sovereignty which means its authority and command over its foreign policy, its relation with the other states and its place and position in the political bodies like the UNO, the Commonwealth of Nations, the South Asian Association of Regional Co-operations etc.
Thus the freedom exercised by the state in regulating its foreign policy is as elementary as independence of a state. It, however, does not mean occupying the land of other state. Iraq in 1991 occupied Kuwait. This was illegal. Iraq was corrected by the UNO. Finally Iraq had to pull out. Similarly, Russia occupied Afghanistan illegally. Ultimately, Afghanistan was freed.
Marxian Doctrine of Sovereignty:
Marxism looks at sovereignty through the prism of class-struggle and gives a peculiar concept of sovereignty. It thinks that sovereignty resides with the most dominant class in the society. It arose with the class struggle. There was no need for sovereignty in the primitive age because there was no class struggle at that time.
The class struggle arose with the pastoral age when the conception of sovereignty was invented to protect the possessing class, economic factor being the most vital point in the determination of where the sovereignty lay. Thus sovereignty began to change hands with the change in the class coming to occupy the cockpit of power. That power was economic power. Thus it went on from the slave master to the feudal barons, from the feudal barons to the capitalists.
The Glorious Revolution of 1688 and the French Revolution of 1789 shook the theory of absolute sovereignty and sovereignty was shifted to the bourgeoisie. Thus the bourgeoisie headed the sovereignty in the European countries since the seventeenth and eighteenth centuries.
The parliament of the European counties and the USA made laws to protect the interest of the bourgeoisie. With the Russian Revolution in 1917 and the Chinese Revolution of 1949 the sovereign element was taken from the bourgeoisie and transferred to the proletariat, who held on the economic power in those countries.
The Marxists do not accept that sovereignty in any country in Europe or the USA belongs to the people or even to the electorate as held by the priests of popular sovereignty. The Marxists also reject the idea of the believers of the pluralist sovereignty on the argument that in all these bourgeois systems the sovereignty is enjoyed by the parliament which is the institute of the bourgeoisie to upkeep its interest and exploiting the others who are the majority.
The minority rule is the order of the day for all systems until the on-coming of the dictatorship of the proletariat who are in the majority. The Marxists do not accept the theory as is commonly believed in the USA that the sovereignty belongs to the constitution which is above all. The Marxists sneered at the constitution calling it a document prepared by the bourgeoisie to protect their own interest and to rule over and oppress the other classes.
Criticism of Marxist Doctrine of Sovereignty:
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The Marxist idea of sovereignty came under heavy fire in the hands of the critics.
The criticisms go on the following lines:
The first line of criticism is that the Marxists have failed to give a clear-cut picture of sovereignty. Instead they have thrown the sovereignty to be found out in the strait-jacket of the most dominant class in the society. It is vague and indefinite.
The second line of criticism is that nobody has heard that sovereignty was absent until the class struggle ensued. It-is-common knowledge that sovereignty began with the coming of the state. Sovereignty is linked with the state, not with the class.
The third line of criticism is that Marx would have us believe that with the death of the class struggle there will be end of sovereignty. It may sound acceptable that an umpire is necessary so long there are two teams playing cricket and after the game is over the umpire will also go. The state is neither cricket, nor the sovereign an umpire. Marx misconceived the entire concept of sovereignty. So we must conclude with the observation that Marx’s theory of sovereignty must be dismissed as false and misleading one.