SOVEREIGNTY

INTRODUCTION
Generally, we say that the state is our state and it is for our benefit. All of us have rights given
by the constitution and the state has to respect them. We also know that the government is
responsible for the maintenance of peace and security. For this purpose, the government makes
laws and it has a right to punish those who disobey them. But the question is why do we obey
the law and what is state authority? We experience state authority everywhere in our routine
life; for example, when we demand some favour from the authorities and the authorities refuse
to grant us the same, we protest. We do it because we feel that we have a right to get what
we think, we deserve and the government is duty bound to work for us. If all this is well known,
then why, you might say, we have to study what we already know. But are we sure that we
know it properly or our knowledge is just scanty? The fact is that we only have a dim view
of the state power or sovereignty. It seems to be very simple, but the fact remains that it is
one of the most complicated notions in Political Science and a rudimentary understanding has
no meaning because state power is not something which is theoretical and confined to books.
We have to face it especially, when our friends and we find the government unresponsive or
even insensitive. Therefore, while studying political theory, we need to go into details to study
the concept of sovereignty very clearly and precisely; for after all it is with this and other basic
concepts and definitions that we would later try to understand the great complexities of the
societies we live in.

WHAT IS SOVEREIGNTY?
Sovereignty is a key concept in traditional political theory. It constitutes one of the four elements
of the state without which statehood remains incomplete. Derived from the Latin term
Superanus, which means supreme, sovereignty denotes the supreme power of the state to
extract obedience from the people who inhabit it. It means that the power of the state is
unquestionable and the state has a right to demand allegiance from its citizens. It also means
that the violation of the command of the state would invite penalties or other punishment.
This is also called internal sovereignty. Internally, the state is supreme to any individual or
organisation, living or functioning, within its boundaries, and they have to function under the
laws and command of the state. None can claim superiority over or immunity to the state. The
power of the state over them is original, total, unlimited and all comprehensive. Sovereignty
also has an external connotation, which means that in the comity of states, every state is
supreme and is free to cast its destiny. No other state or any international organisation can
claim superiority to a state. The state may be subjected to certain treaties or other obligations,
but they are self-imposed obligations on the part of the state. None can compel or enforce any
obligation on the state, which it is not willing to accept. Thus, the state is equipped with
internal and external sovereignty that gives it over-riding powers over individuals, groups and
organisations and makes it absolute.

Some Definitions of Sovereignty

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 Sovereignty is the supreme power over citizens and subjects unrestrained
by law. Bodin

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Sovereignty isthe supreme political power vested in him whose acts are not subject to any
other and whose will cannot be overridden Grotius

Sovereignty is the supreme irresistible absolute, uncontrolled authority in which the supreme
legal power reside. Blackstone

Sovereignty is the commanding power of the state: it is the will of the nation organised in the
state: it is the right to give unconditional orders to all individuals in the territory of the state.
Duguit
Sovereignty is the supreme will of the state. Willoughly

Sovereignty is the exercise of final legal coercive power by the state. Soltaire

Sovereignty is the concept which maintains no more-if no less-than that there must be an
ultimate authority within the political society if the society is to exist at all. Hinsley

Sovereignty means the political authority within a community which has the undisputed right
to determine the framework of rules, regulations and policies within a given territory and to
govern accordingly. David Held

Meaning Of Sovereignty
The above mentioned definitions of sovereignty project the traditional view of sovereignty,
which emphasised the following points:

i) Sovereignty is an attribute of the state.

ii) It is the supreme will of the state.

iii) It is a legal coercive power of the state.

iv) The sovereign makes the laws and extracts obedience from the people.

v) Sovereignty lies in a person or a body of persons.

vi) The power of the sovereign is absolute and unlimited.

DEVELOPMENT OF THE CONCEPT OF SOVEREIGNTY

Sovereignty as the supreme power of the state is a modern concept. It came into existence with
the rise of the nation-state in Europe when the powerful monarchs asserted their authority. But
as such, the idea of sovereignty is very old and can be traced to the ancient Greek city-states.
Aristotle, the father of Political Science, defined it as the supreme power of the state. But
Aristotle did not discuss the nature of sovereignty. He concentrated on the location of
sovereignty. Here, Aristotle had two views. According to him, the deliberative organ of the
state should be sovereign and secondly, he held that the law should be sovereign. He
preferred sovereignty to be vested in law. The Romans considered sovereignty as the fullness
of the power of the state. It was generally accepted that the state should be the final
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authority in solving the disputes among its citizens and the law of the state was binding
upon them. Romans are also credited with the idea of uniformity of law, centralised
administration and common citizenship.

But in the medieval ages, feudalism prevailed where there was no unified authority and it
seemed that all the achievements of the Roman Empire had gone to waste. In the feudal state,
the kings authority was highly restricted. It was limited by the church which claimed immunity
in both civil and criminal cases. Infact, the church was the organised group during the medieval
times and the head of church-the Pope-claimed superiority over the king. Besides, the feudal
overlords and the local communities or commons in the town also challenged the authority of
the king. Thus, the king was not sovereign. His competitors came to be known as Estates and
feudalism was a state of these estates. Barker calls it as a paradise of estates rather than
a pattern of a state where the authority of the state was sidelined. Thus, there could not be the
modern concept of sovereignty. Further, the law of God was supposed to be superior to human
laws, which also restricted the development of sovereignty as an absolute and indivisible
concept.

Jean Bodin is the first political philosopher who propounded the modern concept of sovereignty.
He defined sovereignty as the supreme power over citizens unrestrained by law. He also
defined citizenship as subjection to a sovereign. To Bodin, the power of sovereignty cannot be
delegated; sovereignty is also perpetual and unlimited. Sovereign is the source of law and has
the unconditional right to make, interpret and execute law. Bodin also discussed the location of
sovereignty which, he argued, depended upon the form of government. Thus, it is located in the
king in a monarchy, while in a democracy it resides in popular bodies. But customary and
constitutional law and the institution of private property limited Bodins sovereign. Hobbes
further developed on Bodin and attempted to make the theory of sovereignty perfect. To
Hobbes, sovereignty is the creation of a social contract and the sovereign is that individual or
assembly who is authorised to will for the general purpose of a peaceful life. Hobbes gave vast
powers to his sovereign. His command is law and all laws are subject to his interpretation. His
authority is absolute and unlimited and the individual cannot disobey him. Sovereignty is in-
alienable and indivisible. Hobbes pointed out that limited sovereignty is a contradiction in terms.
But Hobbes very clearly put one limitation on sovereignty. The sovereign cannot command any
individual to kill, wound or maim himself. He also made it clear that sovereignty is also limited
by the purpose for which it was created. Hobbes also conceded the right to resist the sovereign
in case the life of an individual is endangered. Infact, his theory of unlimited sovereignty is a
necessary compliment to his individualism.

Another social contractualist, Rousseau located sovereignty in the people expressed as General
Will. To Rousseau, general will and sovereignty are inter-changeable concepts. Sovereignty is
unlimited, supreme and absolute. It is also inalienable and indivisible. But unlike Hobbes,
Rousseaus sovereignty is based upon the consent of the people. It is a free acceptance by
every individual of the exercise of force by the whole group of which every individual is a
part. Therefore, nobody can refuse to render obedience to the sovereign and anyone who
does so may be constrained by the whole body of citizens. This means that the individual
may be forced to be free. Unlike Hobbes who gave all powers of sovereignty to a monarch,
Rousseau vested the power not in one individual but in the community. But both of them
are one, so far as the characteristics of sovereignty are concerned. Both of them laid down
the foundations of a totalitarian state. In between the two, John Locke stood for a
limited government. Locke justified the results of the Glorious Revolution of 1688 which
devoided the monarchy of its absolute powers in England and advocated the doctrines of
popular sovereignty, supremacy of parliament, constitutional government, limited monarchy and
the rule of law. Unlike Hobbes and Rousseau, Locke stood for a limited sovereignty. His
government was a government based on the division of power and subjected to many
limitations. He did not accept the view that the sovereign power was indivisible. He felt that
different organs of the government should exercise the legislative, executive and federative
powers of the state independently of one another. His state is subservient to the society and
governance cannot be done arbitrarily. But Locke is not consistent in his views on
sovereignty. At times, he suggests that sovereignty is located in the people and at times, it is
the legislature that is supreme. He also seems to suggest that when there is a fusion of
legislative and executive powers in one person, he may be called the sovereign. The
weakness in Lockes argument is that he recognised the force of political sovereignty, but
failed to fully comprehend legal sovereignty.

The French Revolution is another milestone in the development of the modern concept of
sovereignty. The French Revolution stood for absolute and unlimited sovereignty on the ground
that people being sovereign, there is no need to restrict the supreme power. The newly emerged
nation-states also claimed total sovereignty, both internally as well as externally. They also
asserted their right to expand at the expense of others. The Industrial Revolution expanded the
activities of the state enormously and the importance of the state as a lawmaker was asserted.
These developments led to the concept of absolute sovereignty. In England, the parliament
became supreme and its supremacy was unlimited.

These ideas were reflected in Hegel who stood for constitutional monarchy, but his king had
the power to veto over legislation. According to Hegel, The State is a perfected rationality, the
eternal and necessary essence of spirit, the rational in itself and for itself, an absolute fixed end
in itself. Hegel combined mysticism with his state. To him, the state is the march of God on
earth. He completely subordinated the individual to the state. The state has the highest right over
the individual and his freedom is the gift of the state. The state not only allows, but also enlarges
the freedom of the individual. But the state acts through laws that must be rational. They must
be applied equally. A constitutional government provides order and security in society. The
exercise of authority is according to rules that limit the discretionary powers of officials. But
the state is internally and externally supreme. Hegel also glorified war and his state had the right
to wage war because the state of war reflects the omnipotence of the state and the victorious
state can claim to be the agent of world spirit. Thus, Hegels sovereignty is absolute and beyond
any control. Morality and international law also do not constitute any limitation on sovereignty.
Hegel was followed by Austin who nevertheless freed the state and sovereignty from all the
mysticism projected by Hegel. He advocated a legal view of sovereignty in which sovereignty
was absolute, unlimited, inalienable and indivisible. The pluralists later on challenged Austins
views. We will discuss both the legal and pluralist perspectives in details. But first let us
understand the meaning of sovereignty.

KINDS OF SOVEREIGNTY
The term sovereignty has been used in many ways in Political Science that makes its
comprehension very difficult. Therefore, it is necessary to understand its varied uses.

Real and Titular Sovereignty

A distinction is often made between real and titular sovereignty. Infact, this distinction came
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about due to a unique development in English Constitutional system. Initially, the king was all-
powerful and actually exercised his powers. But with the development of democracy, the king
was devoid of his powers and the parliament became supreme. However, the English people
loved monarchy and did not abolish it. Instead, the powers of the king were transferred to an
institution called the Crown. The monarchy in England still exists and all the powers are
exercised in the name of the king or the queen but the real sovereign is the Crown. This
distinction also exists in countries where the parliamentary form of government is prevalent.
Like in India, where the president is the titular head while the real sovereign is the prime
minister and his cabinet. In a country like the United States of America, no such distinction
exists as the president is said to be both real as well as the titular sovereign. But this distinction
makes sovereignty more an attribute of the government rather than that of the state.

Legal and Political Sovereignty

Another distinction is made between legal and political sovereignty. The legal sovereign is a
constitutional concept, which means the identification of the holder or holders of power in the
legal sense. There cannot be any confusion regarding the person or persons who exercise the
power of sovereignty in the eyes of law. The legal sovereign commands and makes the law and
such commands and laws are to be obeyed by the people. In case of violation, it is equipped
with the necessary powers to punish the offender. Legal sovereign is determinate, all
comprehensive and possesses coercive powers to implement its law and command. Thus, the
authority of the legal sovereign is characterised by legal sanctity in which no individual or
association can claim immunity. The best example of legal sovereignty is the British King-in-
Parliament which, as one
political scientist puts it, may remodel the British Constitution, may prolong its life, may
legalise illegalities may give dictatorial powers to the government may introduce
communism, or fascism entirely without legal restriction. This position of the British Parliament
is also summed up in the saying that it can do everything except making a man a woman and
vice versa, though it may do even that legally. Thus, the power of the legal sovereign is
absolute, without any restriction.

In contrast, the concept of political sovereignty is very vague and confusing. It is pointed out
that behind the legal sovereign lies the political sovereign to which the legal sovereign has to
bow. Political sovereignty is not recognised by the law. It is not determinate also in the sense
that its identification is a very difficult task. Yet its existence cannot be ignored. It influences
and controls the legal sovereign. One writer has identified the political sovereign as the sum total
of all influences, which lie behind the law. In a system of direct democracy where the people
participate in law making and decision-making, the distinction between the legal and the political
sovereign is blurred. But in a representative democracy, this distinction becomes obvious where
people participate in law making and decision-making indirectly through their representatives. In
such cases, political sovereignty lies with the electorate, which has the power to make or
unmake a government at regular intervals when the elections are conducted. Infact, the elections
are the best forum in which the will of the political sovereign is expressed.

Dejure and Defacto Sovereignty

Often the dejure sovereign and the defacto sovereign are the same because the person or
persons holding power are also recognised by the law. The distinction between the two becomes
real in some situations of crisis which may be the result of a coup or any other kind of violent
overthrow of the government. For example in Russia, the communists overthrew the Tsarist
Government. While the law recognised the latter as the holder of power, in reality the former
was in command and using the authority. Similarly, during the First and the Second World
Wars, many countries were defeated by Germany and the German rulers became defacto
rulers, but the laws in the respective countries still recognised the overthrown government as
the ruler. In
1971, as a result of liberation from Pakistan, Bangladesh became a new country but as per the
law, the Pakistani President was the dejure sovereign. In such a situation, the rule of a defacto
ruler is based upon force or on the fact that the situation is under his control. In contrast, the
de jure sovereign has the legal sanctity to rule. However, this distinction between the two
remains for sometime, and ultimately they become one. The defacto ruler makes the necessary
changes in the law of the land and thus, becomes the dejure ruler also.

Concept of Popular Sovereignty

Modern democracy is based on the concept of popular sovereignty which means that the source
of all authority is the people. J.J. Rousseau is credited with espousing it in modern times. But
earlier also, the concept of popular sovereignty was not unknown. In medieval times, Cicero
pointed out that the state was peoples affairs. He held that the state was a moral community,
a group of persons and the authority arose from the collective power of the people. Later on,
Althusius also said that the people as a corporate body held sovereignty and this power could
not be transferred to any other person or organisation. Althusius forcefully argued that the
people as a corporate body gave power of administration to the administrators, through a
contract for specific purposes and the power would go back to the people, in case they forfeit
it due to any reason. Althusius also gave the people the right to resist tyranny. Similarly, John
Locke also based his civil society on the basis of consent of the people. According to him, the
government existed for the welfare of the people and there could not be any arbitrary rule. To
Locke, Government was a trustee constituted through a social contract for the protection of life,
liberty and property of the people. If the government failed in its duty of protecting the life,
liberty and property of the people, they had a right to rebel against it and overthrow it.

But Rousseau is considered the father of the concept of popular sovereignty. According to
Rousseau, men by their very nature are free and equal and the system of government has to
be based upon the free will of men. This, in turn, can be achieved when the individual enters
into a contract with each other, as a result of which they become an indivisible part of a body
of sovereign people which has the supreme power of lawmaking. Rousseau also made a clear
distinction between the state and the government. To him, the government is merely an agent
of the state having a limited authority. Infact, it is the people who have delegated the power
to rule to the government and this power can be withdrawn by their will. This will of the people
becomes sovereign in Rousseaus state to which Rousseau gave the name of the General Will.
In Rousseaus scheme, the sovereign can only act for the welfare of the people. He writes, It
is impossible for the sovereign body to hurt its members. The sovereign for its part cannot
impose upon members any fetters that are useless to the community.

According to Asirvatham, the concept of popular sovereignty contains the following valuable
ideas:

i) Government does not exist for its own good. It exists for the good of the people.

ii) If peoples wishes are deliberately violated, there is a possibility of revolution.

iii) Easy means should be provided for a legal way of expressing public
opinion.

iv) Government should be held directly responsible to the people through such means as
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 frequent elections, local self-government, referendum, initiative and recall.

v) Government should exercise its authority, directly in accordance with the laws of the land
and not act arbitrarily.

The concept of popular sovereignty was accepted as the basic principle of governance in the
American and French revolutions. The American Declaration of Independence expressly
declared,We hold these Truths to be self-evident, that all Men are created equal, that they are
endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and
the Pursuit of happiness that to secure these Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed.... The Declaration clearly
recognised the peoples right to alter or abolish any government, which was destructive of the
inalienable rights of life, liberty and pursuit of happiness. The Declaration also noted the fact
that the British King had become a tyrant by his acts and therefore, unfit to be the ruler of a
free people. The French Revolution declared, Men are born and remain free and equal in
rights. It also pointed out that right to liberty, property, security and resistance to oppression
are the aim of any political association and the law is the expression of general will and all
citizens have the right to take part personally or through their representatives in its formation
and that all officials of the state are responsible to the people.

The concept of popular sovereignty is very attractive. But it is shrouded with vagueness. It is
very difficult to explain it in practical terms. It is good to say that people are the basis of any
political system and their will must be reflected in the governance. But the question is what does
the term people mean? How do we identify them? Obviously the entire mass living in a state
cannot be identified as people because there are infants, invalids, criminals, insolvent, aliens and
others who cannot have any participation in the political system. If they constitute people then
the concept, as such, does not make any sense at all. Even the electorate cannot be called as
people because they do not constitute a political entity. Further, all people do not participate in
the election. Then the elections are won on the basis of majority. So does it mean that we should
equate people with the majority of the electorate? In any case, the number of electorate in any
country is very small in comparison to the total population and they cannot be regarded as legally
sovereign. Infact, the more we go into the details, it is only confusion and nothing else. If we
study the dynamics of modern democracy, we find that a voter is subjected to many influences
and manipulations. Peoples choices are manufactured in the modern age of science and
technology and democracy has become infected with mobocracy. Popular sovereignty may be
successful in a small state with a system of direct democracy where the people directly
participate in law making. It may also reflect in devices such as the referendum. But the
modern state is a big state with a huge population. It is also a fact that the business of modern
state has become too complex and it cannot run on the basis of referendum. The concept of
popular sovereignty creates another problem. In the present system of democracy, the ruling
elite as well as the opposition claim to be reflecting the will of the people and in such cases, it
becomes increasingly difficult to discover the truth and if the concept of popular sovereignty is
implemented legally, then it may lead to instability in the government. Yet all said and done,
the concept of popular sovereignty has made a permanent contribution in Political Science
because besides advocating the idea of popular control over the government, it is a strong
repudiation of dictatorship and totalitarianism.

AUSTINS CONCEPT OF SOVEREIGNTY

The legal view, also called the monistic view or traditional view of sovereignty, was
propounded by John Austin (1779-1859), a great jurist, in his book, Lectures on
Jurisprudence (1832). According to Austin, 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 superior is sovereign in that society; and the society (including the superior)
is a society, political and independent. According to Austin, following are the characteristics
of sovereignty:

i) Sovereignty is necessary for the state. Sovereignty is one of the four elements of the state.
There cannot be a state without sovereignty. If state is the body, sovereignty is its spirit. The
state cannot alienate itself from the power of sovereignty. The end of sovereignty means the
end of state.

ii) Sovereignty has to be determinate .It resides in a person or a body of persons. To Austin,
State is a legal order in which the sovereignty can be located very clearly. It cannot be the
people or the electorate or the General Will since all of these are vague expressions. It is not
vested in God also. Sovereign must be a human being or a body of human beings who can
be identified.

iii) Sovereign is the supreme power in the state. He is the source of all authority in the state. His
authority is unlimited and absolute. He does not take commands from any one as nobody
has a right to command him. But he commands every one within the state. His authority is
universal and all comprehensive. Sovereignty is independent from any internal or external
control.

iv) The Sovereign receives habitual obedience from the people. Thus, the authority of the
sovereign is not casual. It is continuous, regular, undisturbed and uninterrupted. If a
significant part of the population refuses to accept him and renders disobedience, then he is
no longer a sovereign. Similarly, a short term obedience is not an attribute of sovereignty.
The power of the sovereign has to be permanent in society.

v) Law is the will and the command of the sovereign. He is the source of law. Law is a
command given by a superior to the inferiors who are in a state of subjection or dependence.
Sovereign is above the customs and traditions of society. They exist with his permission.
Whatever the sovereign permits, that alone can exist. The rights and liberties of the
individual also emanate from the sovereign and do restrict the operation of the individuals
sovereignty.

vi) Sovereignty has the legitimate physical force to exert command and obedience and enforce
its laws.

vii) The power of sovereignty is exclusive and indivisible. It is a unit in itself that cannot be
divided between two or more persons. Division of sovereignty means its destruction.

Thus according to Austin, sovereignty is the supreme power of the state that is absolute,
permanent, universal, inalienable, exclusive and indivisible. However, these characteristics are
not acceptable to the pluralists who reject the entire thesis of Austin in toto.

PLURALISTIC ATTACK ON AUSTINS CONCEPT OF SOVEREIGNTY

The prominent pluralist writers are Dr.J.Neville Figgis, Paul Boncour, Durkheim, MacIver,
Laski, Barker, Duguit, Krabbe, G.D.H.Cole and Miss Follet. Here we will study the pluralist
attack on Austins concept of sovereignty with special reference to Laski and MacIver.

The pluralists do not believe that the sovereign is determinate. According to them, the
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determination was possible in old days when the king ruled with absolute powers. But in
modern times the political system is based upon the concept of popular sovereignty in which
the government is responsible to the people who can make or unmake the government. The
constitutions clearly proclaim the sovereignty of the people, but Austin will not accept people as
sovereign. Similarly, the electorate cannot be termed as sovereign because both the terms-
people and electorate are vague and do not constitute determinate human being in the
Austinian sense. The task of locating sovereignty becomes more difficult in case of a
federation in which the powers are divided between the centre and the units and both are
supposed to be sovereign in their respective fields. In such a system, the constitution is
supposed to be supreme but it is not a human being and hence, cannot be sovereign. Even
in Britain where the supremacy of the parliament is the basic law of the land, the parliament
cannot be termed as totally sovereign as it also works under limitations. Laski rightly points
out that the real rulers of a society are not discoverable.

The pluralists believe that Austins concept of sovereignty cannot be verified from history.
According to Laski, historically, sovereignty has always been subjected to limitations except for
a very small period when we really had a sovereign in Austins sense. This was the period when
the nation-state arose and the kings asserted their authority. This nation-state was the result of
the religious struggle of the 16th century and the emergence of the sovereign state was a
vindication of the primacy of the secular order over religion. Thus, there were certain historical
factors which were responsible for the creation of absolute sovereignty of the state. And if we
leave this brief period, we do not find any example of absolute sovereignty. In modern times,
sovereignty is limited. The only exception could be the British King-in-Parliament but as Laski
argues, everybody knows that to regard the King-in-Parliament as sovereign body in the
Austinian sense is an absurd. No parliament can defranchise the Roman Catholic church or
prohibit the existence of trade unions. Therefore, Laski says, No sovereign has anywhere
possessed unlimited power; and the attempt to exert it has always resulted in the safeguards.
Infact, every sovereign has to work within the society and the society works through customs
and traditions, which are the result of a long historical process and no ruler, no matter how
ruthless he is, can violate them. It has been pointed out that internally the rights of the individual
limit the sovereignty and externally, the international law restricts the operation of sovereign
power. Besides the concept of popular sovereignty gives ultimate powers to the people and
accordingly, the legal sovereign has to bow before them.

It will not be wrong to suggest that the pluralists have a great distrust of power and those who
exercise it. That is the reason why Laski objected to the absolute powers of the sovereign. To
him it is ethnically indefensible. It is ethically wrong as it retards the development of the
individual and his moral stature. Austin makes the individual completely servile to the state and
such an absolute sovereign would never grant any liberty to the individual. Laski stood for
decentralisation and argued that the state should be responsible for its actions. The state should
also protect and respect certain rights of the individual without which the individual cannot
develop his personality. Laski reminded that the state is not an end in itself; rather it is merely
a means to an end, the end being the enrichment of human lives and the position of the state
will always depend upon its capability in achieving this end.

The Pluralists also reject the notion of law as advocated by Austin. According to Austin, law
is the command of the superior and this command is from higher to inferior. Laski termed this
as ridiculous. He pointed out that to call law, as a command from the higher to the inferior, is
to strain its definition to the verge of indecency. Laws are universal in character and are applied
on both the lawmaker as well as the subjects. But in the case of a command, the commanding
authority is over and above its command and is not bound by it. Similarly, MacIver critcised
Austins concept of law as misleading as it denies two of the basic attributes which every law
exhibits- its universality and formality. These attributes, MacIver argues, are necessary
consequences of the structure and operation of every political system. Besides, the command
belongs to the sphere of administration, as it is a means of execution. Command does not belong
to legislation, as it is not a form of enactment. Infact, law is both permanent and fundamental
than command. MacIver also pointed out that there are many kinds of law. For example, there
are social laws, which are based on the customs and traditions of society, and some of them
also become state laws. But, MacIver says, in the great book of the law, the state merely writes
new sentences here and there and scratches out an old one. Much of the book was never
written by the state at all, and by all of it, the state is itself bound, save as it modifies the code
from generation to generation.Therefore to MacIver, the state is both the child as well as the
parent of law and the authority of law is greater than the authority of state. The state is merely
an official guardian of law rather than its maker. It has to uphold the rule of law. Laski stressed
the fact that law is an instrument of satisfying social needs and the laws are followed not
because of any coercion, but because they satisfy the requirements of the people. Duguit rightly
says that, Law is the product of our social life. We obey law because they are for social
interest and that it is impossible to maintain social order without them. The absence of law
would mean anarchy where no human existence would be possible.

The Pluralists also point out that there are customs and traditions in society, which were neither
created by the state, nor the state has any control over them. Even the most dictatorial ruler
had to bow before them. Laski gives the example of the Sultan of Turkey, who, even at the
height of his power, was bound by a code of observance and it was compulsory for him to obey
them. Similarly, Sir Henry Maine gave the example of King Ranjit Singh who enjoyed absolute
powers over his subjects and even the slightest violation could invite severe punishment, but
even he did not violate the conventions of society. However in defense of Austin one may point
out that Austin does not deny the existence of customs and traditions by saying that whatever
the sovereign permits, he commands. But Pluralists do not accept this argument. Laski points
out that the Sultan of Turkey had the power to change the social laws in theory only, in practice
he survived by willing not to will those changes which might have proved him the sovereign of
Austinian jurisprudence. MacIver forcefully asserted that the state cannot destroy the customs,
because customs, when attacked by law, retaliate in return and in their retaliation, they attack
not only the particular law but also the spirit of law-abidingness which is the basis of state.

The Pluralists view the state as an association. Here, firstly, they distinguish between state and
society. According to MacIver, to identify the social with the political is to be guilty of the
grossest of all confusion, which completely bars any understanding of society. The state exists
within the society but it is not even the form of society. Infact, the society is composed of
different associations and the state is one of them. There are many associations like the family
and the church, which are as natural as the state and the state had no role in their formation.
Legally, the state may be unlimited because it is the source of legal enactment but then the same
is true of the Church because it happens to be the source of ecclesiastical law. The objective
of an association is to develop human personality in the specific area for which it is formed.
Thus, every association serves certain interests in society. Similarly, the state also looks after
certain interests and all these associations including the state have their own distinctive identity
and personality. Therefore, there cannot be one supreme power or as MacIver prefers to call,
a single all comprehensive authority in society. Laski asserts that we are not a universe, but
multiverse and the associations are as real as the state. The associations have their interests
to promote and functions to serve and they are not dependent on the state; rather, they grow
in the whole environment as a natural response to factors in that environment. They have an
inner life that is as autonomous as the state itself. According to MacIver, The difference
between other associations and the state lies just in this: that the other associations are limited
primarily by their objective, which is particular, whereas the state is limited primarily by its

11
instrument, which is particular, while its objective is general, within the limits so imposed. State
laws are universal and they have coercive sanctions and therefore, the state should concern
itself with those interests that are universal. Pluralists do not deny the essential differences
between the state and associations. The state has a power to inflict corporal punishment over
its citizens while the associations lack this power. Membership of a state is compulsory while
in case of an association it is voluntary. The state is also territorial in nature while the association
may cross the boundaries of different states. Similarly, unlike the associations, the state is
permanent. MacIver says, if a state dissolves, it is like convulsion of nature. If it breaks into
two, it is with violence and fierce repulsion. This is not true in case of other associations.

But nevertheless the state is an association and the above mentioned differences cannot give
the state a special status. At the most, state can be, as Asirvatham suggests, first among equals
and nothing more. It is only a particular group. Laski writes, We then give to this particular
group (i.e. the state) no peculiar merit. We refuse it the title of creator of all else. We make
it justify by its consequences. We stimulate its activities by making it compete with the work
of other groups co-extensive with or complementary to itself. As an association, the state
protects the interests of men as citizens. The state regulates the common needs in society.
But it cannot control the internal affairs of other associations. It can neither determine their
purposes nor (for the most part) their methods. As the human life and culture is diversified
therefore, the doctrine of absolute sovereignty if actually practiced would be, in the words of
MacIver, fatal to the harmony of social life. Laski says that the structure of society is federal
and therefore the authority must also be federal. It will be wrong to give all the sovereign
powers to the state. Laski also felt that the allegiance to various associations depended upon
their performance. Men belong to many groups at a time and a competition for allegiance is
continuously possible and no group, including the state, can claim total loyalty from the
individual. He wrote, The only state to which I owe allegiance is the state in which I
discover moral adequacy, and if a given state fails to satisfy that condition I must, to be
consistent with my moral nature attempt experimentOur first duty is to be true to our
conscience. The state, as an association, cannot regulate the total life of man. Its functions
are merely to coordinate the activities of different associations in the society.

Austins concept of absolute sovereignty has also been criticised by the pluralists on the basis
of dangers that it poses to the maintenance of international peace and tranquility. The Pluralists
point out that the doctrine of absolute sovereignty is incompatible with the interests of humanity
as it leads to destructive wars. They believe that it is due to the notion of external sovereignty
that the world had to face the two world wars that brought so much of suffering and destruction.
With the stockpiling of nuclear weapons which can destroy the world many times and which
can only lead to mutually assured destruction (MAD), there is an urgent need to restrict state
sovereignty. Laski writes, Internationally it is not difficult to conceive the organisation of an
allegiance which reaches beyond the limits of the state. To leave with a handful of men, for
instance, the power to make war may well seem anachronistic to those who envisage the
consequences of war. When state sovereignty in international affairs was recognised, there was
no authority existent to which that type of control might be entrusted. It is atleast arguable now
that an authority predominant over states may be conceived which is entrusted the regulation
of those affairs or more than national interests. It involves at any rate, on the international side,
abolition of state sovereignty. To Laski, international government is axiomatic in any plan for
international well-being. But international government implies the organised subordination of
states to an authority in which each may have a voice, but in which also, that voice is never
the self-determined source of decision. Laski firmly believed that the concept of the sovereignty
of state would pass away, just as the divine rights of king had. Infact, the pluralists regard state
sovereignty as an obstacle towards the establishment of international order, as such a concept
has no concern for world peace and security.
Maxey sums up the major postulates of pluralism as follows:

i) That the state is but one of the numerous social, economic, political and other grouping
through which men in society must seek to satisfy their interests and promote their welfare;

ii) That these different groupings are not creatures of the state but arise independently and
acquire power and authority not given by the state;

iii) That the functions of such voluntary associations as churches, labour unions, trade
organisations, professional societies and the like are as necessary as those of the state;

iv) That the monistic state is not only incapable of wielding absolute authority over such
bodies, but is incapable of regulating their affairs intelligently or administering them
efficiently;

v) That the monistic concept of sovereignty is a mere legal fiction which not only misses the
truth but does incalculable harm in obstructing the evolution of society along more natural
beneficial lines.

Pluralistic View of Sovereignty-A Critique

The pluralist assumptions and their critique of the legal view of sovereignty have been criticised
on many grounds. Firstly, the pluralists suffer from an inner contradiction. On the one hand,
they stand for decentralisation of power and autonomy of groups or associations, on the other
hand, they also want the state to play a regulating role by coordinating the activities of the
various associations. But the question is as to how the state will perform this function without
overriding powers. Infact, by assigning the job of coordination, the pluralists give back the
power of sovereignty with all its characteristics in Austins sense to the state. Secondly, it is
pointed out that modern society is highly complicated and the state must have power as the
final judge in reconciliation of the interests of divergent groups. The concept of welfare state
and planning has increased the activities of the state and it is dominating the entire life of an
individual. No doubt, the individual is organised in groups and the groups play a
commendable role in the enrichment of human personality but, that in any case, does not
affect the primacy of state. Besides, various groups also perform functions that are over-
lapping and the pluralists seem to have ignored this fact. These groups do not run on parallel
lines and this is likely to clash and create disorder and chaos in society and the state will have
to intervene to restore order. Finally, Austin himself will not object to what the pluralists
stand for. He has only given a legal interpretation of sovereignty, which is the true statement
of facts. International law is still in the developing stage and cannot be regarded as a
limitation on sovereignty and legally speaking, customs and traditions are also no restraint
on sovereignty. The inadequacy of the pluralist argument can be well understood when we
find that even a strong advocate like Laski, later on, criticised the pluralist view of
sovereignty. He pointed out that the pluralists failed in understanding the state as an
expression of class relations. Laski accepted Austins monistic doctrine when he said,
Legally no one can deny that there exists in every state, an organ whose authority is unlimited.

The significance of pluralism lies in its assertion of the importance of group life. As against the
absolute authority of the state, the pluralists argued for democracy and decentralisation. Though
it is difficult to accept the pluralistic abolition of state sovereignty, their contribution in explaining
and emphasising the importance of groups or associations in the context of modern complex life

13
can never be underestimated. As for state sovereignty, we are inclined to agree with Sabine
that, For my own part, then, I, must reserve the right to be a monist when I can and a pluralist
when I must.

SOVEREIGNTY AND GLOBALISATIONNEW CHALLENGES

The modern world is often called the global village. Globalisation means the increasing
interaction of the inhabitants of the world that has been hither to unknown in the history of
mankind. It is also seen as the process of integrating the national economy, culture,
technology and even governance into a global system. The global interconnectedness, which
is both reality as well as a necessity, has thrown many challenges to state sovereignty. State
sovereignty today does not mean state autonomy or in other words, the right to do anything it
likes. We know that the sovereignty of the state has never been in doubt, but it has always
been under strains. It has never been absolute, except legally. The limitations on state
sovereignty were recognised by Bodin, Hobbes, Hegel and Austin during the days when
globalisation was not on the agenda of internationalism.

Today, globalisation has become a fact of our times, a fact that has raised many questions
regarding the state and its sovereignty. The following aspects pointed out by David Held need
our attention:

i) With the increase in global connectedness, the number of political instruments available to
governments and the effectiveness of particular instruments has shown a marked decline;
border controls have lessened; and flow of goods and services, ideas and cultures has
increased. The result is a decrease in policy instruments, which enable the state to control
activities within and beyond its borders.

ii) States can experience a further diminution in options because of the expansion in
transnational forces and interactions, which reduce and restrict the influence particular
governments can exercise over the activities of their citizens. The impact, for example, of
the flow of capital across borders can threaten anti-inflation measures,exchange rates and
other government policies.

iii) In the context of a highly interconnected global order, many of the traditional domains of
state activity such as defence, communication and the like cannot be fulfilled without
resorting to international forms of collaboration. As the demands on the state have increased
in the post- war years, the cooperation of other states has become necessary.

iv) Accordingly, states have had to increase the level of their political integration with other
states so as to control the destabilising effects that accompany global interconnectedness.
They have to strengthen, for example, organisations like the International Monetary Fund
(IMF) and the World Trade Organisation (WTO).

v) With the growth of a vast number of institutions and organisations, a basis for global
governance has already been laid. The new global politics involving among other things,
multibureaucratic decision-making within and between governmental and international
bureaucracies, and the like has created a framework in and through which the rights and
obligations, powers and capacities of states have been redefined.

The sovereignty of the state continues, but the sovereign structure of the state is heavily
influenced by global tendencies, besides those found within the boundaries of the state itself.
Sovereignty and Power-Blocs

The development of global system of states as it appears in the form of numerous power-blocs
has immensely influenced states authority and integrity. This is clear from the following:

i) After the Second World War, the world was divided between the two blocs led by the
U.S.A. and the USSR. Both of them exerted a great influence on their bloc-members in the
operation of their domestic and foreign policy. This was the reason why India and many
other non- aligned countries refused to join any of the two blocs, because in plain terms it
meant putting restriction on th countrys sovereignty and accepting the dictates of the bloc
leader. After the disintegration of the USSR, we have a unipolar or multipolar world, in
which the states are dependent on each other. The U.S.A. exerts a large measure of
influence on the domestic and external policy of many states, especially the small and the
weaker states.

ii) The dominance of the U.S.A. and the USSR in their power alliances constrained numerous
states from making decisions themselves or independent of their bloc leader. The NATO
(North Atlantic Treaty Organisation), the SEATO (the South East Asian Treaty
Organisation), the CENTO (the Central Treaty Organisation), the OAS (the Organisation of
American States), all under the American influence and the Warsaw Pact under the
Soviet leadership gave meagre international choice to their respective member-states. Held
says, A states capacity to initiate particular foreign policies, pursue certain strategic
concerns, choose between alternative military technologies and control weapon systems
located on its own territory are restricted by its place in the international system of power
relations.

iii) Each of these military alliances has its own structure, its own procedure and method of
functioning and its own policy as developed by the member-states. But the influence of the
leader goes unquestioned and the other member-states have limited options to operate on.
Giving the NATO example, Held says, Its (NATOs) concern with collective security
has trodden a fine line between, on the one hand, maintaining an organisation of sovereign
states, and, on the other, developing an international organisation which operates defacto, if
not dejure, according to its own logic and decision-making procedures. The NATO is an
example of a supranational organisation in which the USA commands while the other
member states merely submit.

iv) But even without a commitment to a NATO armed conflict, Held says, state autonomy as
well as sovereignty can be limited and checked. This is because, he continues the routine
conduct of NATO affairs involves the integration of national defence bureaucracies into
international defence organisations. Such organisations create transgovernmental decision
making systems which escape the control or even consultation of any single-member state.
They lead to establish informal and yet powerful, transgovernmental personnel networks or
coalitions outside the control of and accountability to any national mechanism.

v) The membership of NATO or any other power-bloc does not abolish state sovereignty but it
certainly compels the member-states to compromise on many issues.

Sovereignty and Global Economy

In economic field, no country can claim self-sufficiency. One sees the rise of the global
economy in which national economies have no option but to readjust and redefine their priorities

15
and goals. Here, following points need careful attention :

i) The internalisation of production has been made possible through the organisation of
multinational corporations. These corporations work across the borders and function outside
the domain of national sovereignties. The Multinational Corporations (MNCs), says Held,
plan and execute their production, marketing and distribution, with the world economy
firmly in mind. Though these MNCs have a national base, the nation from where they
originate, their interest is always global, as is their strategy. The states do little in controlling
these corporations, while these corporations have much to do in guiding the policies of the
states where they operate.

ii) The financial organisations such as banks are becoming global progressively, no matter
from where they function- London, New York or Tokyo. A greater role is being played by
the new information technology in so far as it helps in the mobilisation of economic units-
currencies, stocks, shares and the like-for financial and commercial organisations of all
kinds.

iii) With the technological advancement in communication and transportation, the separate
market- boundaries, necessary for independent national economic policies are losing
importance. Inspite of the fact that the distinctive identities are kept preserved, markets and
societies are becoming more sensitive to one another. To a great extent, the possibility of a
national economic policy has, accordingly, reduced so as to suit itself to the claims of
international financial and fiscal system. Likewise, as Held says, the levels of employment,
investment and revenue within a country are often subordinated to the decisions of
MNCs

iv) As no country is self sufficient, especially in economic matters, the states have to organise
themselves regionally and globally. There are such groups, though loose, as West-West,
North
South, South-South, East-West, the developed and the developing. These groups do affect
the economy of each individual state.

Thus we see that the internationalisation of production, finance, management and distribution is
unquestionably eroding the capacity of each individual sovereign state to do what it wants to
do. No country, howsoever strong it may be, has control over its future economic policies, for
it has to affect and get affected by the economic policies as they are pursued globally. There
is a definite diminution of state autonomy in the face of world economy.

Sovereignty and International Organisations

Modern times have witnessed the growth and development of a large number of international
organisations, which limit state sovereignty. The following points need attention in this context:

i) The international organisations are making global decisions and the states have to respect
them. In todays world, no state can take the United Nations for granted and each state has
to function within the framework of the UN Charter. The international organisations are
setting up international standards to be followed by the individual states. For example, the
preamble of the UN Charter asserts its determination to affirm faith in fundamental human
rights, in the equal rights of men and women and the nations, large and small. The Universal
Declaration of Human Rights contains those rights which are universal and transcend
national boundaries. They are very comprehensive and include all kinds of rights like civil,
political, economic, social, cultural and collective rights like the rights of minorities,
indigenous people and the right to development. It is becoming increasingly difficult to the
 states to violate these human rights. The states have to observe these rights in their dealings
with the secessionist and ethnic groups also. Infact, there are many international
organisations and numerous pressure groups that influence the activities and policies of the
national states.

ii) Then there are international organisations which work in technical areas and are non-
controversial like the Universal Postal Union (UPU), the International Telecommunication
Union (ITU), the World Meteorological Organisation (WMO). These organisations
supplement the services offered by the individual states to their citizens. These non-political
and technical organisations do influence some notable aspects of the foreign policies of
individual states and as such do not allow them to act arbitrarily.

iii) But then there are many controversial organisations like the International Monetary Fund
(IMF), the World Bank, the United Nations Conference on Trade and Development
(UNCTAD) and the World Trade Organisation (WTO) which are non-state actors and have
usurped the functions of state. They even take up a supranational role in certain areas.

iv) The operations of the IMF go a step further and almost grab the sovereign rights of a nation.
While giving loan to a particular state, the IMF may insist on certain conditions such as a cut
on public expenditure, devaluation of currency, a cut on welfare programmes, liberalisation
and privatisation of economy and all this diminish the sovereignty of the concerned state.
The developing countries have to tolerate the intervention of the IMF, even if it leads to
many internal troubles like food riots, or the fall of a government or even imposition of
martial law.

v) Another important international organisation that has become highly controversial is the
World Trade Organisation (WTO). The World Trade Organisation is a permanent
legislative body and acts as a watchdog in the spheres of trade in goods, services, foreign
investment, intellectual property rights and in all these spheres, state sovereignty has been
curtailed. The constitution of the WTO makes the provision for the further expansion of the
jurisdiction of WTO activities. It has been pointed out that the WTO has emerged as a
virtual parliament in economic matters and possesses power to make laws on the subjects
which hitherto have been the domain of state legislation. No state can go against the
decisions of WTO even if it harms their interests.

vi) The European Union (EU) provides a bigger threat to the sovereignty of the states. Members
of the EU have delegated their sovereignty in certain matters to the Union. It has an
executive body in the form of the President and members of the European Commission,
legislative body in the form of the European Parliament and the European Council (the
Council is the main decision making body and also the union legislative body which
exercises legislative power in co-decision with the European Parliament), a Court of Justice
and a Court of Auditors. There is also a European Bank with the responsibility of framing
and implementing monetary policies. The EU can make laws that are, or can be, imposed
on the member-states. The EU has become, more or less, a supranational agency, for
within it, the Council has the power to make or enact policies. It also coordinates
international agreements, on behalf of the EU with one or more states or international
organisations. Accordingly, the member-states of the EU are no longer the sole centres of
power within their own borders. Within the Union, sovereignty is clearly divided; any
conception of sovereignty, which assumes that it is indivisible, unlimited, exclusive and a
perpetual form of public power-embodied within an individual state is defunct.

17
Sovereignty and International Law
International law has also affected the sovereignty of the state. This is clear from the following:

i) By state sovereignty, we mean the right of the state to act independently and under no
explicit influence of any other foreign government. It implies, among other thing, two
points; (a) that a state is powerful enough to protect its own autonomy in all matters of
foreign policy, and (b) to prevent domestic courts from ruling on the behaviour of foreign
states. Such aspects of state sovereignty are under strain. The EU laws, for example, hardly
ensure national sovereignty to any of its members.

ii) The UN Declaration of Human Rights and other conventions, which are the part of
international law and are increasing by becoming binding on the states, are not the results
of the states acting individually. They may not take away the sovereignty of a state, but
certainly fashion it.

iii) The European Convention for the Protection of Human Rights and Fundamental Rights is a
typical case, which does not fit in the framework of sovereignty. Any citizen belonging to
the European Union can demand the introduction of any right included in the Convention,
but not incorporated in the constitution of the concerned state. Obviously, the European
Union does not leave an individual state free to treat its own citizens, as it thinks fit.

iv) Though the international law is a law applicable for states, the individual is also becoming
the subject of international law. The International tribunal at Nuremberg stated that crimes
against international law are committed by men, not abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced. The
tribunal also made clear that when international rules concerning humanitarian values come into
clash with state laws, individual laws must transgress the state laws.

v) Infact the international law is no longer a law between the states only and exclusively. It is
changing and gaining ground for itself increasingly on the norms of co-existence and
cooperation. Unlike the traditional international law which assumed the separateness of the
individual states, the new international law is binding itself on the concept of togetherness
and closeness of the numerous states.