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INTRODUCTION

Sovereignty is the most important constituent element of the State and there can be no State
without a Sovereign power. “The basis of State sovereignty,” to quote Laski, “is the contingent
power to use the armed forces of the State to compel obedience to its will…And it is the
possession of this legal right to resort to coercion which distinguishes the government of the
State from the government of all other associations.”

There are two aspects of sovereignty: internal sovereignty and external sovereignty. Internal
sovereignty refers to the presence in every independent State of some person, assembly or group
which has the final legal power to command and enforce obedience to its authority. This supreme
authority is absolute over all individuals or associations of individuals within the State. It issues
orders to all men and all associations within that area but it receives orders from none of them. 1
Its will is absolute and it is subject to no legal limitation.

By external sovereignty we mean that the State is subject to no other authority and,
consequently, is independent of any compulsion or interference on the part of other States. It its
authority is subject to the provisions of any treaty, or if it is limited by the rules of international
law, the sovereign status of the State is not destroyed in any way. These are auto-limitations and
are obeyed at the will of the State. There is no other authority which can coerce it into obedience.
Each State is independent of other States. Its will is its own, unaffected by the will of any
external power.

It follows that the sovereignty of the State is unlimited internally as well as externally. It is
original and absolute power and it cannot be divided. Division of sovereignty means destruction
of sovereignty. Sovereignty represents the unity of the State, and the sovereign State is one
which is externally free and internally supreme. Gettell has aptly said, “If Sovereignty is not
absolute, no State exists, if sovereignty is divided, more than one States exist. There can be no
legal power at the back of the sovereignty of the State and no legal check on its scope.”2

DEFINITIONS OF SOVEREIGNTY
1
Harold Laski, A Grammar of Politics, p.44.
2
Gettell, Introduction to Political Science, p.95.
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Definitions of sovereignty, like definitions of the State, are many and varied. Bodin defined it as
the “supreme power 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.” Duguit says that sovereignty is the “commanding power of the State;
it is the will of the nation organized in the State; it is the right to give unconditional orders to all
individuals in the territory of the State.” Burgess characterized it as “original, absolute, unlimited
power over the individual subject and over all associations of subjects.” He further says that
sovereignty is “the underived and independent power to command and compel obedience.” Laski
says that “the sovereign is legally supreme over any individual or group and he possesses
supreme coercive power.” Sovereignty, according to Jenks, is “an authority which, in the last
resort controls absolutely and beyond appeal the actions of every individual member of the
community.”

TERM SOVEREIGNTY AND ITS DEVELOPMENT

Origin of the term: The term sovereignty is derived from the Latin word “superanus” which
means supreme. The notion of sovereignty, as suggesting the supreme power in a territory, is
modern and its emergence is connected with the rise of the modern nation-State. Creon says in
Sophocles’ tragedy Antigone, “Whatever the State appoints must be obeyed in everything, both
small and great, just and unjust.” Plato and Aristotle recognized the presence of the “supreme
power” in the State and emphasized the respect for State authority; the finality of law. Aristotle
claimed for the State a natural priority to the family and the individual. The Roman lawyers and
the medieval writers spoke of “fullness of the power of the State.”

Bodin and Hobbes: Both Boddin and Hobbes defended the need for one single unified
authority, which should be accepted by all and against which no group or individual could raise
the objection of any earlier rights to independence or resistance. Rights were what the States
granted, compatible with the unity of the State and keeping of peace and order within it. There
could be only one power within the community, they urged, which could not be limited, or
divided and shared. Bodin’s sovereign was, however, subject to four limitations. Firstly, as the
king did not possess super mundane sovereignty, God was above him. Secondly, the supreme
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power of the king over his subjects was “subordinated” to “the law of God and nature,” that is, to
the requirements of the moral order. Thirdly, the French king could not modify the succession or
any part of public domain, and finally, the king could not touch private property. But these
limitations, Bodin maintained, did not limit the power of the king over the body politic. He thus
defined sovereignty as “a power supreme over citizens and subjects, itself not bound by the
laws.” It gave orders and received orders from none.

In this way, the concept of sovereignty took a definite form at the moment when absolute
monarchy was beginning to make it appearance in Europe. With Thomas Hobbes it reached its
perfection when the sovereign power of the king was held to be natural and inalienable. His
whole idea was to establish that the king possessed a natural and inalienable right to rule over his
subjects. Once the people had agreed upon the fundamental law of the kingdom, and given the
king and his descendants power over them, they were deprived of any right to govern
themselves, and the full natural right to rule the body politic resided in the person of the king
whose authority was absolute and indivisible.

Sovereignty and the Modern Democratic State: Later, people began to realize that the king
was a part of the governmental machine and, accordingly, an agent rather than a master, and, as
such, he possessed subordinate and delegated authority, which could be revoked at the will of the
master, the people. It was a protest against absolute monarchy. It began with John Locke, an
English political philosopher, who justified the Glorious Revolution (1688), and found its fullest
expression in the French Revolution. The State, in its corporate capacity, was, thus, endowed
with all the attributes of sovereignty which the monarch previously possessed.

Rousseau: The concept of popular sovereignty and the identification of the people with the State
was actually the result of the teachings of Rousseau, which he had propagated thirty years before
the French Revolution. Rousseau made popular sovereignty the doctrine of individual freedom.
He injected into the nascent modern democracies a notion of sovereignty which was destructive
of democracy and pointed towards the totalitarian State. People and the State, having become
one, the personality of the individual is merged in the social whole, for it is only the power of the
State which makes the freedom of its members. Rousseau asserted that the will of the State is the
will of the individual in so far as he accepted this identification of himself with the community.
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Hegel: The theory of sovereignty as initiated by Rousseau, was given its complete and coherent
form by Hegel, the German political thinker, who made it more definitely philosophical and
metaphysical. “The State,” he said, “is ‘perfected rationality’, the eternal and necessary essence
of spirit, the rational in itself and for itself, an absolute fixed end in itself.” In this way, Hegel
completely identifies the State with society and asserts that only in and through the State does the
individual receive what makes life worth living, without it he is nothing. The State, for Hegel, is
the supreme community and organized moral life is only possible within the State. It is the
source of morality and of all civilized existence.

Austin and the Pluralists: The legal theory of sovereignty received its logical analysis at the
hands of John Austin, an English jurist. Austin’s conclusions formed the basis of the prevailing
systems of jurisprudence and they exercised immense influence on political thought in England
and the United States of America. Till recently, sovereignty, has been viewed as absolute internal
sovereignty and complete external independence. The Pluralists, the recent school of thought,
reject outright the concept of absolute authority of the State and plead for division of sovereignty
between the State and various other associations present within its territorial limits. They regard
the State as an association like various other associations with a specific purpose to perform. The
functions of the State are well-defined and it has no rightful claim to eminence. The Pluralists, in
brief, maintain that sovereignty is divisible and the State is not supreme an unlimited in its
authority.

KINDS OF SOVEREIGNTY

Titular Sovereignty: By titular sovereignty we mean sovereignty by the title only. It is another
way of saying sovereignty in name or nominal sovereignty. It refers to the sovereign powers of
the king or monarch who has ceased to exercise any real authority. In theory, he may still possess
all the sovereign powers which were once enjoyed by him, but in actual practice there is some
other man or body of men who act on behalf of the sovereign and exercise supreme authority.
The best example of titular sovereignty is the British King. Legally, the powers of the king are
supreme. He is the source of all authority, the acts of the government are his acts, and the
officers of the State – civil and military – are his servants appointed and dismissed at his
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pleasure. He is also the fountain of justice and law. But in real practice all this is not true. The
sovereignty of the king is now a legacy of the past. There is no action of government which is the
result of his initiative. The actual power and direction of government rests with the king’s duly
constituted ministers.

Legal Sovereignty: Legal sovereignty is the conception of sovereignty in terms of law, and it
refers to that person or body of persons who, by law, have the power to issue final commands. In
every State there must be some authority which is determinate and visible in the sense that it
should command all and the people may appeal to it as the final authority. Such an authority is
known as the legal sovereign and the authority of the legal sovereign is supreme and final over
all individuals and associations. No individual or group of individuals has the legal right to act
contrary to the decisions of the sovereign power, even if such decisions override the
prescriptions of divine law,3 the principles of morality, or the mandates of public opinion. The
courts recognize and apply only that law which emanates from the legal sovereign and
disobedience to such a law is accompanied by punishment.

The authority of the legal sovereign is absolute and its will is illimitable, indivisible and
inalienable. The authority of the sovereign being unlimited, he has the legal right to will
whatever he may happen to desire. All rights enjoyed by citizens are granted and enforced by the
legal sovereign and there can be no rights against him. This implies that if the legal sovereign
can grant rights, he can take them back or even annul them. In Britain, King-in-Parliament is the
legal sovereign. In the United States, the legal sovereign consists of the combination of
authorities that have the power to amend the Constitution – Conventions, or two-thirds majority
in each House of Congress which may propose amendments, and the State Legislatures or State
Conventions which may ratify them. It is thus, the interaction of specific individuals and
institutions according to specified rules of procedure.

The following characteristics of legal sovereignty may thus be noted:

 The legal sovereign is always definite and determinate.

3
Except in the Islamic countries where Islamic Law is supreme and unquestionable.
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 Legal sovereignty may reside either in the person of a monarch as in an absolute

monarchy, or it may be vested in a body of persons as in a democracy; King or
Queen and Parliament in Britain.
 It is definitely organized, precise and known to law.
 It alone has the power to declare in legal terms the will of the State.
 Disobedience to the imperatives of the legal sovereign means physical
punishment.
 All rights emanate from the legal sovereign and it can take them back or even
annul them.
 The authority of the legal sovereign is absolute, illimitable and supreme. It is
subject to no control within and without the State.

Political Sovereignty: As Dicey puts it, “Behind the sovereign which the lawyer recognizes,
there is another sovereign to whom the legal sovereign must bow.” This is called the political
sovereign and according to Professor Gilchrist, the political sovereign is the sum total of the
influences in a State which lie behind the law.4

As the political sovereign is not known to law, it is unorganized, indeterminate, and not even
precise. In modern representative democracies the political sovereign is very often identified
with either the whole mass of the people, or with the electorate or with public opinion. But the
political sovereign is neither the electorate nor is it identical with the whole mass of the people,
nor can it be identified with the public opinion. Taking first the electorate, no one can doubt its
political power in a representative system of government. The legislature dare not disregard the
will of the electorate. It may even command the legislature the legislature to do its bidding. If it
does not, the members of the legislature may be punished at the next election for failure to obey
the will of the electorate. Every few years, the electorate creates a new representative chamber,
and in doing so it largely determines the nature of parliamentary commands. But on closer
examination, it will be found that the electors have no independent opinion of their own. They
are influenced by party politics and while casting their votes, they vote for the party rather than
for the candidates. The decision of the electorate is also influenced by religious and caste
considerations, particularly in India, and the role of press, publicity and propaganda in a

4
R. N. Gilchrist, Principles of Political Science, p.93
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democratic State is significant. Thus, so many influences, visible and hidden, affect the decisions
of the electorate that it becomes difficult to say where sovereignty precisely lies.

Popular Sovereignty: The doctrine of popular sovereignty is the product of the sixteenth and
seventeenth centuries. It emerged as an expression of resentment of the people against the
despotic authority of the kings and their reliance on the theory of Divine Right. Popular
sovereignty attributes ultimate sovereignty to the people. This theory, first hinted by John Locke,
was later expounded by Rousseau and it became the slogan of the French Revolution. For
Rousseau the State and the people were one. Having created the State, the people ought to
control it and change it as they pleased, for whenever an individual decided that he belonged to a
people, he already had decided that his people should be sovereign and that, being sovereign,
they should run their own affairs. This is the doctrine of popular sovereignty.

It has been suggested that popular sovereignty refers to the sovereignty of the electorate. But
sovereignty of the electorate has no legal basis unless it is expressed through channels prescribed
by the constitution. The voters in a representative form of government do not themselves
exercise actual sovereign power. They elect their representatives and it is through them, as
members of the legislature, that the sovereign power is expressed. It therefore embraces
manhood suffrage and the control of the legislature by the representatives of the people. But as a
matter of reality, the control of the legislature rests in the parliamentary majority party which is
determined by the majority of the voters who had elected them. Out of this majority view, too,
emerges a ruling coterie who wield actual power.

Therefore, the idea of popular sovereignty is, indeed, highly confusing. At the same time, we
cannot ignore the popular appeal it has.

‘De jure’ and ‘de facto’ Sovereignty: De jure sovereignty is the legal sovereignty and it has its
foundations in law. Its attribute is the right to govern and command obedience. But it may so
happen that the de jure sovereign may not be able to command obedience while someone else,
whose identity may or may not be recognized by law, is actually obeyed. That person or body of
persons who actually exercises power, and who, for the time being, is able to enforce obedience,
or to whose commands voluntary obedience is given by the bulk of the people, is called the de
facto sovereign. The de facto sovereign may not be a legal sovereign. The criterion of
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sovereignty is actual obedience to command. The de facto sovereign may be a usurping king, or
a dictator, or a priest or a prophet, “in either case the sovereignty rests upon physical power or
spiritual influence rather than legal right.”

The de facto sovereign is, thus, the strongest active force in the State and capable of making its
will prevail. But the de jure and de facto sovereignty should ultimately coincide otherwise there
is a danger of conflict between them. The de facto sovereign himself, too, will not like to
continue his authority based exclusively upon physical force for an indefinite period of time.
There is, as Bryce has said, “a natural and instinctive opposition to submission to power which
rests only on force.”5 The new sovereign will, therefore, endeavour to make his de facto claim
converted into a legal right, because sovereignty established and exercised on a legal basis makes
obedience spontaneous and enduring.

The de facto sovereignty will, thus eventually procure de jure sovereignty. The principal criteria
of de jure sovereignty within the State are success, the passage of time, and the establishment of
a tradition. There is also another very important form of external recognition, the willingness of
other States to exchange ambassadors and establish diplomatic relations. The most notable
example is the recognition of the Baltic States which had seceded from the erstwhile Soviet
Union and declared themselves independent and sovereign states. Withholding of recognition by
a great power may contribute to the fall of a de facto Sovereign power. Woodrow Wilson
practically doomed the regime of Victoriana Huerta in Mexico in 1913 by refusing recognition.
Customarily, recognition is granted to any regime indicating capacity to rule, as in the case of
Bangladesh and Afghanistan. India was the first country to recognize both the new regimes.
Occasionally, however, there may be opposition to a regime for the manner in which it captured
power as in the case of General Pervez Musharraf, or for the philosophy underlying the new
government as in the case of the Soviet Russia and the People’s Republic of China.

5
Studies in History and Jurisprudence, Vol II, p.516.
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CHARACTERISTICS OF SOVEREIGNTY

1. Permanence: Sovereignty is permanent and it continues uninterrupted as long as the State exists.
Changes in government do not mean cessation of sovereignty. Bearers of the authority of
government may change, but the State endures and so does sovereignty. It does not cease with
the “death or temporary dispossession of a particular bearer or the reorganization of the State, but
shifts immediately as the centre of gravity shifts from one part of a physical body to another
when it undergoes external change.”6
2. Exclusiveness: The sovereign power is exclusive and there is none to compete with it. There can
be only one sovereign power in a State which can legally command the obedience of its
inhabitants. To hold otherwise would be to deny the principle of the unity of the State and “to
admit the possibility of an imperiun in imperio.”
3. All-comprehensiveness: Sovereignty is universal in character and it extends to all persons and
associations within its territorial limits. It is co-extensive in its operation with the jurisdiction of
the State and comprehends within its scope all persons and things in the territory of the State.
The modern State does not recognize the existence of any rival within its jurisdiction. There can
be neither any person, nor any organization, however universal, which can affect the sovereignty
of the State.
The only exception to the universality of sovereignty is the extra-territorial jurisdiction allowed
to embassies. An embassy is subject to the law of the State of which it flies the flag and the
ambassador and his staff are amenable, within the premises of the embassy, to the law of their
own country. The law of the State in which the embassy is located does not apply to it. It must.
However, be remembered that the extra-territorial sovereignty is only a matter of international
courtesy and is, under no circumstances, a limitation on the sovereignty of the State. If any State
wishes, it can deny this privilege and history provides many such examples.
4. Inalienability: The sovereignty of the State cannot be alienated. Liber has said that “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.” The State and sovereignty are essential to each other.
But when the State cedes a part of its territory, it does not mean that the State has lost its
sovereignty. It is, on the other hand, “an excellent example of the working of the sovereignty of

6
J. W. Garner, Political Science and Government, p.170.
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the State. All that happens is that, whereas formerly there was one State, now with such cession,
there are two States.”7
5. Indivisibility: It is asserted that sovereignty is indivisible and division of sovereignty means
destruction of sovereignty. Jellinek has remarked that the notion of a “divided, fragmented,
diminished, limited, relative sovereignty” is the negation of sovereignty. The existence of several
supreme wills, each equally capable of issuing commands and exacting obedience, would
obviously result in conflicts, disintegration of the State, and ultimately in its extinction.
Wherever it may reside, 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 triangle as of half a
sovereignty.”8
6. Absoluteness: The sovereignty of the State is absolute and unlimited. It is subject to no legal
limitations, either internally and externally. Without sovereignty there can be no State. It is the
supreme characteristic of Statehood. Sovereignty, therefore, implies absence of any restraint on
its authority, either from within or without. To hold otherwise is to create some higher power by
which the sovereign authority is limited. Absoluteness of sovereignty also implies its
universality, permanence and indivisibility.
All this is true in terms of law, but there is no such thing on earth as absolute sovereignty. It is
through human agency that the sovereign power is expressed and exercised. Therefore, the
doctrine that the State is absolutely supreme is fallacious and even dangerous.

CONCLUSION: WHAT SOVEREIGNTY MEANS TODAY?

We no longer see any magic in sovereignty. It is merely a functional power to rule a population
for its own good.
So what use is there for “sovereignty” today? I wish to point to the way in which the informal
management of an increasing number of problem-areas outside the structures of formal statehood
undermines the ability of human groups to constitute themselves as “political communities”.
When questions of economic distribution, environmental protection, security or human rights are
conceived of as essentially global, best dealt with the best forms of functional expertise, no room
is left for human communities to decide on their priorities or preferences. Globalization means
the increasing authority of technical vocabularies for which human beings appear as objects of
7
R. N. Gilchrist, Principles of Political Science, p.110
8
As quoted in J. W. Garner’s Political Science and Government, p.173
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“protection” or charity but rarely as rulers of their own lives. It foregrounds new types of value
and preference that accompany the rise of new professional classes. What is needed of
international law today is the politicization of this process - the creation of platforms and
vocabularies that highlight the contested, political nature of the choices that globalization poses.
Instead of becoming one more technical vocabulary of global governance, international law
should provide a language for criticising the global expert systems, a platform to enhance the
transparency of global decision-making and the accountability of the professional classes to the
communities affected by their (contentious) choices. But it should also enable the realisation of
alternative preferences. In a word, it should contribute to the re-imaging of what political
sovereignty could mean today.
“Sovereignty” is just a word, of course. Its meaning varies by reference to the conceptual scheme
in which it is used. As such, it is no more or no less worthy of defence than any other word. But
one of its meanings is the one it receives in polemical confrontations over the sense and direction
of “globalisation” and “empire”, over the emergence of transnational networks of private interest
and the occupation of the spheres of politics by economic and technical vocabularies with their
expert systems and embedded preferences. In such contexts sovereignty expresses frustration and
anger about the diminishing spaces of collective re-imagining, creation and transformation of
individual and group identities by what present themselves as the unavoidable necessities of a
global modernity. Against those, sovereignty articulates the hope of experiencing the thrill of
having one’s life is in one’s own hands. This is what sovereignty meant for those who struggled
against theocratic rule in early modern Europe or invoked it to support de-colonization in the 20 th
century. Today, it stands as an obscure representative of an ideal against disillusionment with
global power and expert rule. In the context of war, economic collapse and environmental
destruction, in spite of all the managerial technologies, sovereignty points to the possibility,
however limited or idealistic, that whatever comes to happen, one is not just a pawn in other
people’s games but, for better or for worse, the master of one’s life.
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BIBLIOGRAPHY:

 A. C. KAPUR, Principles of Political Science, S. Chand & Company Ltd, New Delhi.

 W. FRIEDMAN, Legal Theory, 5th Edition, Universal Law Publishing Co. Ltd.

 JULIUS STONE, The Province and Function of Law: a Study in Jurisprudence,

Universal Law Publishing Co. Pvt. Ltd.

 JOHN AUSTIN, The Province of Jurisprudence Determined, Universal Law Publishing

Co. Ltd.