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Concept of Sovereignty in Political Theory
Introduction to the Concept of Sovereignty
The dictionary traces the meaning of ‘sovereignty’ from the Latin word superanus connoting super, i.e., English ‘above’ or ‘sovereign’ or French souverein.1 This means that sovereignty stands for something that is above, super or supreme. As our survey of the development of the concept of sovereignty will suggest, it has been formulated in the specific context of the State and constitutes one of its defining characteristics. Seen as such, if the State is the central theme of political theory, sovereignty is the defining element of the State, or at least, of the nation-state.
Sovereignty is a legal/juristic concept which is related to the legal supremacy of the State. This legal supremacy is reflected not only in terms of the supremacy of legislation but also its execution. There may be many organizations and associations in civil society that represent social, cultural, economic, political and other interests. None of them, however, have the privilege to legislate. They may articulate (through pressure groups, interest groups and other channels) and aggregate these interests (through political parties and other channels) but they require the State to get these interests reflected in the form of legislation to have legal force. Legally, sovereignty is not subject to any restrictions except those provided for by the law itself. Generally, the constitution of a state lays down broader laws and rules of the land and sovereignty is represented by the constitution. For example, the Supreme Court of India, while deciding in the Synthetic vs State of Uttar Pradesh (1990) case, pronounced that the word ‘sovereign’ appearing in the Preamble to the Constitution of India, meant ‘that the state has power to legislate on any subjects in conformity with the constitutional limitations’.2 We can see the reflection of the legal supremacy of the State in terms of social, economic, developmental and political legislation. The formulations of different political theorists and thinkers like Pluralists, Guild Socialists, Syndicalists, Anarchists, Marxists, etc. have assigned different degrees of supremacy to the State, particularly when this legalistic formulation impinges on the social, cultural and political spheres of society.
Sovereignty or the supreme authority of the State has two dimensions—internal and external. Internal sovereignty reflects legal supremacy over citizens (the population) and over other associations within a state's territory. External sovereignty is reflected in the form of legal or (as we may call it) sovereign equality of states in its interaction with other sovereign states. External sovereignty invokes international law to support the sovereign equality of states and the right of the state to exist independently in the international arena. This is also reflected in what Locke calls the federative function or international treaty-making power.
Historical Perspective on the Concept of Sovereignty
Though the concept of sovereignty is associated with post-Renaissance political thought, we find the idea of supreme power of the State in Aristotle's Politics. Roman jurists also employed the terms summa potestas and plenitudo potestatis to designate the supreme power of the State.3 Medieval feudal conditions in Europe, characterized by the dispersal of power, were not conducive for conceiving a sovereign power residing in particular institutions or authority. It was the emergence of the absolutist state (states under strong monarchies after feudalism started disintegrating) that created the conditions for the development of the concept of sovereignty. These states also required this concept in some form or the other in order to consolidate their position. The decline of feudalism and the emergence of absolutism in Europe led to the concept of ‘absolute supremacy and indivisible power’ represented in absolutist monarchs and rulers. In fact, until Bodin came up with a systematic exposition of the concept of sovereignty in the sixteenth century, it was ‘conceived as personal attribute of the monarch’. Bodin's treatment of sovereignty may be regarded as a lasting contribution, as in his hands, sovereignty came to be regarded as a constituent element of the State and not a personal attribute of the monarch. He used the Latin phrase summa potestas and the French word souveraineté to refer to this concept. We may now turn to briefly survey the formulation on sovereignty by political theorists and jurists, starting with Bodin himself. This will also help us define and analyse the concept of sovereignty.
Rationalization of Natural Law and the Concept of Sovereignty
Jean Bodin
Jean Bodin, a sixteenth-century French writer, in Six Books on the Republic (1576) gave a systematic treatment of the nature and characteristics of sovereignty. According to Sabine, ‘this book also was occasioned by the civil wars and was written with the avowed purpose of strengthening the king’. He further opines that the ‘importance of the book was more due to the fact that it took the idea of sovereign power out of the limbo of theology in which theory of divine right left it.’4 To achieve this end, Bodin sought to present his Republic or the State as an entity that was not based on/did not derive its authority from divine power and divine rights, but was comprised of some kind of social grouping, like families. Bodin's State derived its power from a neutral source. For him, the State was ‘an association of families and their common possessions governed by a supreme power and by reason.’ This, on the one hand, presented sovereignty as the mark of the State, distinguishing it from other groupings including the family; on the other, it made members of these families constituents (citizens) of the State. Bodin's concept of the State (unlike Aristotle's) does not present it as a natural development evolving from families. Aristotle treated the family as the building block through which the state evolved. Bodin attributed the origin of a state to force and conquests.
To relate members of the family to the state, the relationship between the citizen and the state needs to be defined. Similarly, the political power of the sovereign and the private rights and powers of the heads of families are to be different. As the state relates to the realm of the common or the public, when members of families perform public functions, they get into a relationship with the State as citizens. The relationship of a citizen to the State is defined by subjection to the sovereign. An individual may engage in different relationships with families and other groups but his/her relationship with the State as citizen is important. This led Bodin to define sovereignty as ‘supreme power over citizens and subjects, unrestrained by law’ and as the ‘absolute and perpetual power of commanding in the state.’5 According to Bodin, sovereignty has three characteristics, namely (i) supreme power unrestrained by law, (ii) absolute power, and (iii) perpetual power.
Sovereignty is unrestrained by law because it is the source of law itself and a creator cannot be subject to its own creations. This was a departure from the medieval conception where law was conceived as part of an eternal and universal cosmic or natural order. The State as creator of law was the unique concept introduced by Bodin. Sovereigns cannot be made accountable to their subjects and the sovereign's command is the law of the land. Sovereignty is perpetual as it is not a granting of power that is limited to a specific period. It is inalienable and undelegated.
This conception of sovereignty, citizenship and the relationship between the two led Bodin to come up with two attributes of sovereignty.6 The primary attribute is the power to give laws to citizens collectively without the consent of a superior, an equal or an inferior. Other attributes have been listed—such as the power to declare war and peace, to commission magistrates, to act as a court of last resort, to grant dispensations, to coin money and to levy taxes. However, these attributes flow from the first attribute itself and may be considered to be the consequence of sovereign's position as legal head of the state.
Bodin put forward a legalistic notion of sovereignty making it the source of positive law and what Sabine calls, a ‘unified legal headship.’ According to Sabine, for Bodin, sovereignty meant ‘a perpetual, humanly unlimited and unconditional right to make, interpret and execute law.’7 For him, sovereignty lay in the ultimate law making body. Moreover, sovereignty became unrestrained and unlimited by any other power apart from the sovereign. As it is perpetual, its permanency defined the State as an unique association.
Furthermore, the presence of a common sovereign over citizens leads to the conceptualization of a political community (state). Bodin distinguished between cité and république. While the former roughly corresponds with the idea of the nation or a grouping where language, religion and customs are identical, the latter connotes a political bond when citizens are subject to the rule of a common sovereign.8
Bodin's sovereign, however, is not without limitations. Bodin included two primary limitations; namely, the inviolability of private property and the Salic law of France.
First, though supreme and unrestrained, the sovereign was bound by the laws of God and nature. The law of nature, set certain unchangeable standards of rights, stands above human law, which is made by the sovereign. For example, it requires the sovereign to keep agreements arising out of political obligations towards subjects and other sovereigns and particularly, a respect for private property. Bodin's treatment of private property as granted by the law of nature was hence inviolable, and led him to declare that ‘without just cause the sovereign can neither seize nor give away the property of another.’ This meant that the sovereign could not levy taxes on subjects without their consent or acquire their property likewise. We may presume that this position of Bodin could be attributed to his formulation of the State as an ‘association of families and their common possessions’. Bodin's concern to protect private property and ‘common possessions’ of families might have led him to iterate the inviolability of private property. However, this remains a contradiction in Bodin's formulation of sovereignty.
Second, Bodin put limitations on the sovereign that arose from what he called the leges imperii. This meant that certain fundamental laws of the land, which were necessarily, connected with the exercise of sovereignty itself, could not be changed, even by the sovereign. Leges imperii implies that sovereignty itself would vanish if these fundamental laws were violated. In particular, he invoked the inviolability of France's Salic law that related to succession and excluded females from dynastic succession. Though Bodin's sovereign had unlimited legislative power, it was restrained by the right to private property and the fundamental laws of the land. Due to this, a confusion between the sovereign and the monarch remains in Bodin's theory of sovereignty.
Johannes Althusius
Johannes Althusius, a seventeenth century French Calvinist, contributed to the concept of sovereignty by treating it as a defining element of the State. It may be mentioned that in early seventeenth-century France, Calvinists discussed anti-royalist theories and stressed the secular and human origins of government. Ironically, this was to lead to the Divine Right of Popes being given a unique place in the categories of ‘authorities’. Althusius ‘continued and elaborated the anti-royalist theory’9 in his book, the Politica Methodice Digesta (1603).
Althusius developed a political theory based on the concept of a contract, without reference to religious authority. We have seen Bodin talking about social groupings and political bonds to distinguish between the realm of the private (families) and the public/sovereign (State). Althusius came up with a theory of social groupings based on contracts arising out of natural relationships and innate social propensity. He attributed the origin of various social groups to tacit agreements which underlay all associations, on account of which people became ‘dwellers together, sharers of goods, services and laws’, which the association created and sustained. He offered an elaborate classification of associations, which evolved from the simple to the complex. The five complex associations were the family, the voluntary corporations, the local community, the province and the state. In all these associations, individuals and associations agreed to stay together as a community—a social contract.
For Althusius, the state was a product of social contract and represented a political grouping in this series of associations. The state arose by the association of provinces or local communities and its differentiating characteristic was sovereign power (majestas). Unlike Bodin, Althusius made ‘sovereignty reside in the people as a corporate body’. This was because he believed that the people as a corporate body were incapable of parting with sovereignty as it was a characteristic of this specific kind of association (called the state). Sovereignty was never passed or alienated into the possession of any ruling class or family.
However, in order to extend the anti-royalist theory stressing the secular and human origins of government, Althusius spoke of a second contract. By this second contract, ‘power is bestowed upon the administrative officers of a state by the law of the state.’10 Thus, we see Althusius talking about two contracts—one explaining the origin of social groupings including the state, and the other attributing the existence of government to ‘an agreement by which a corporate body imparts power to its administrators to make the incorporation effective.’ This also implies that in case the holder of this power forfeits the reason to justify the agreement, it reverts to the people. This can be considered to be the clearest statement of popular sovereignty. We may compare this with Locke's formulation of the social contract and the power of the government as trust. Though Locke did not explicitly mention this, the inference is posited by commentators like Sabine and Wayper, Locke tacitly assumed two contracts.11 By locating sovereignty in the people by virtue of their characteristic of being a corporate body, Althusius was able to provide the ground for legal limitations on executive power and the right to resist the tyrannical exercise of power.
Hugo Grotius
While Bodin propounded the concept of national sovereignty, Hugo Grotius (1583–1643), a Dutch jurist, laid the foundation of international or external sovereignty. He is described as the father of international law. As mentioned previously, external sovereignty invokes international law to support the sovereign equality of states and the right of the State to exist independently in the international arena. This principle can be traced to Grotius and his concept of external sovereignty. Grotius’ work, The Law of War and Peace, is considered to be the first authoritative commentary on international jurisprudence and international relations. To appreciate Grotius’ formulation of external sovereignty and international law, we should try to understand his concept of natural law, the law of nations and sovereignty of states.
He made natural law the foundation of his international law. It may be mentioned that before Grotius, natural law or the Law of Nature had been understood in terms of religious authority as the laws of God. However, he disentangled it from its religious connotations and put it in terms of ‘reason’. To designate natural law, he employed the term jus naturale rather than lex naturalis as done by other theorists. Those who employed the term lex naturalis viewed natural law as the command of God while Grotius treated it as an ‘expression of reason’ and used the term jus naturale. He defined the law of nature as ‘a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.’12 His use of the word ‘God’ did not imply any religious sanction. It was only to show that the dictate of ‘right reason’ or natural law would enjoin exactly the same if there were no God. He explains thus, ‘just as even God, then, cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil.’ He thus treated natural law as rational, immutable, eternal and universal.
For Grotius, natural law as he presented it provided a new framework to regulate relations between independent states which had fallen into disorder and chaos in seventeenth-century Europe. This disorder was increased by the post-Reformation bitterness of religious hatred. During this period, western European nations were also engaged in economic expansion, colonization and commercial rivalry. Grotius’ contribution—a comprehensive and systematic treatment of the rules governing mutual relations among states—should be understood in this context. We may understand his contributions, then, in terms of the political independence of sovereign states and the regulation of their relations by international law.
Grotius understood sovereignty ‘as a power not subject to the legal control of another.’ He differentiated between the common subject of sovereignty and the special subject of sovereignty. While the political body or the state is the common subject of sovereignty, one person or more (or the government) as per the constitutional law of each State is the special subject of sovereignty. Grotius identified sovereignty with supreme political power in the state, the exercise of which was not subject to the control of any person. He also conceded the possibility of limited sovereignty so much so that the people could wholly divest itself of its sovereign power. He also likened sovereignty to being possessed (like a piece of land). However, it is important to see his contribution limiting the sovereign in terms of international relations, natural law and the law of nations.
Having seen his formulation of natural law as the ‘dictate of right reason and sovereignty as legal supremacy without control’, we may now turn to understand his concept of the ‘law of nations’. While natural law, being dictate of right reason, is the desirable yardstick by which nations should actually be governed, the law of nations is a product of those practices, which civilized nations observed in their dealings with one another. Their origin is in the free will of man and is an expression of this will and not of reason. The content of the law of nations has been accepted as obligatory by the consent of all or many nations and what is included in it is proved by constant usage and testimony. This is in contrast to an immutable, universal, eternal and above all, rational natural law. Thus, principles of law of nations embody the deliberate choice of men and are result of general agreement and there is nothing immutable about them.
With these formulations, Grotius sought to build a system of international law and relations among nations on two foundations. First, he stressed that nations were subject to natural law in the same manner as citizens. Thus, the foundations and principles governing laws within a nation and international law are the same and trace from themselves from natural law. Moreover, the society of nations is formed on the same fundamental moral principles, which guide the behaviour of men in society. As individual citizens subject themselves to the sovereignty of the State and to its laws because the State has its origin in free will and reason, every State should also accept the supremacy of an international society based on international law and be voluntarily subject to it. Second, he recognized the law of nations, which may be called the ‘volition law’ or ‘voluntary law’, based on their free consent expressed in treaties and conventions or usage and customs. However, juxtaposing natural law and the law of nations as the basis of the regulation of relations between nations is somewhat confusing. For him, though, the law of nations should not depart from natural law.
We may discuss Grotius’ treatment of war to elucidate his formulation of the relationship between sovereignty, law of nations and natural law. The sovereignty of a state, being its independence from legal control, implies that it is just and lawful for a state to go to war to protect itself. This, being generally accepted by nations, can be deemed as the ‘law of nations’ in Grotius’ sense. Grotius sought to justify war on the basis of natural law also. He maintained that states had certain rights based on their purpose, which they must protect. One of them was the promotion of the rational well-being of the people living within their territories. Whenever this is threatened by the action of another state, it becomes lawful and just for a state to wage war against the aggressor. To quote him, ‘the end and aim of war being the preservation of life and limb, and keeping and acquiring of things useful to life, war is in perfect accord with those first principles of nature.’ For Grotius, a war was justified and in accordance with natural law when undertaken in self-defence and consistent with social purpose. Grotius maintained that war was lawful when it was waged under the authority of the person who held the sovereign power. We can see from Grotius’ formulation that sovereignty manifests itself in relation to other states and this is related to the law of nations and natural law on which international law is based.
Contractualists and the Concept of Sovereignty
Discussions of the three writers mentioned previously suggest that during the sixteenth and early seventeenth centuries (in Europe), the concept of sovereignty had been discussed in three forms, namely, national sovereignty (Bodin), popular sovereignty (Althusius) and external sovereignty (Grotius). Furthermore, we find that the concept of natural law played important role both in terms of supporting the supremacy of the sovereign power as well as putting limitations on it. Our survey and analysis of the three Contractualist writers—Hobbes, Locke and Rousseau—will continue this discussion. It is interesting to see how ‘Hobbes starts where Bodin had stopped’ and by removing the limitations on the sovereign put by him, Hobbes created his Leviathan. Similarly, Locke continued the two-contract tradition of Althusius, and Rousseau to an extent.
Thomas Hobbes
Thomas Hobbes (1588–1679) is considered to be the theorist of ‘absolute sovereignty’. He grounded the nature and powers of the sovereign on the necessities entailed by the state of nature. His argued that the state of nature and the formulation of the instinct of self-preservation in individuals led to the origin of the State. Uncertainty characterized power, possessions and life in the state of nature and the individual is not sure of fruits of their labour and industry. Hobbes's state of nature is pre-social and pre-political and there is no power to regulate, there is no principle of right or wrong and justice or injustice. For Hobbes, both the first law of nature and the natural instinct of individuals entail the search for peace, security and self-preservation. This, in turn, led to a social contract or covenant amongst individuals leading to the establishment of a corporate body, a commonwealth or the State. This contract is both social and political at the same time. While establishing the State, individuals surrendered all the rights they possessed in the state of nature to a third party who is not party to the contract. Thus, the sovereign is the third party who becomes the repository of all the rights and powers of individuals. According to Hobbes, the commonwealth was constituted when the multitude of individuals were united in one person, when every one said to the other, ‘I Authorize and give up my Right of Governing my selfe to this man, or this assembly of men, on this condition, that thou give up thy Right to him, and Authorize all his Actions in like manner.’13
This surrender of rights that existed before the covenant is complete, final and irreversible. Hobbes says that ‘I ground the civil rights of sovereign and both the duty and liberty of subjects upon the known natural inclinations of mankind.’ Security depended upon the existence of a sovereign having the power to keep the peace and to apply sanctions to curb man's innately unsocial inclinations. The sovereign gets all-encompassing power to use force and apply laws. Hobbes's justification for the use of force by the sovereign is based on the need to enforce the duties of individuas. Hobbes says, ‘Covenants, without the sword, are but words, and of no strength to secure a man at all.’14
From the nature of the covenant, we can understand the nature and power of Hobbes's sovereign. First, the emerging commonwealth is characterized by the presence of a sovereign who is not party to the covenant. Second, the sovereign is not bound by its terms but he/she enforces the contract in the interest of individuals. Third, the sovereign receives all the rights that individuals enjoyed in the state of nature as these rights were no more required by them. Fourth, the sovereign is a product of the will of the people and is justified in applying force to enforce compliance with the covenant. Fifth, the sovereign becomes the sole source of laws and the creator of rights and justice. Law becomes the command and creation of the sovereign who defines and interprets it. He distinguishes the law of the sovereign—civil law from natural law. While the former is described as a ‘command sanctioned by enforcement’, the latter is the ‘dictate of reason’. The law of nature is the basis for the creation of the sovereign and cannot be invoked to resist the command of the sovereign. By doing so, Hobbes removed the limitations, which had been put by Bodin. Furthermore, civil law cannot be contrary to the law of nature or it will be inequitable. Sixth, the sovereign represents unity as a multitude of men are made one person when they are represented by one man, or one person. This gives rise to Hobbes's theory of a ‘corporate body’ where the State or society exists only when a unified sovereign exists. By implication, this means that when the sovereign is absent, the State dissolves. It is also said that Hobbes's formulation of the sovereign does not distinguish between the sovereign and the government. This is the reason why Hobbes does not support the right to revolt against the sovereign as this would lead to the dissolution of not only the civil society but also the government, with a relapse into the state of nature. Seventh, we can say that Hobbes does not differentiate between society and the State on the one hand and the State and the government on the other. Wayper puts this very clearly when he says that Hobbes ‘fails to distinguish between State and Government, that he confounds the legal absolutism of the state with governmental absolutism.’15
The formulation of sovereignty as a necessary condition of a corporate body, be it society or the state or the government, lies at what Sabine calls, ‘the root of Hobbes's absolutism.’ It leaves no choice except one between an absolute sovereign or complete anarchy. Furthermore, Hobbes treats associations as ‘worms in the entrails of the body politic’ and sub-ordinates all associations including the Church to the sovereignty of the Leviathan.16 As such, Hobbes's concept of sovereignty is unitary, absolutist and all comprehensive. Such sovereignty is indivisible, inalienable and irrevocable except at the cost of the dissolution of the State itself.
Hobbes was writing in a time when Britain was facing political disorder and civil revolution. His avowed goal was to propound a theoretical basis for justifying and defending absolute rule. However, his defence of absolute sovereignty on the grounds of peace and security and preservation of the lives of individuals also lead to putting one limitation on the sovereign. Hobbes concedes to individual the right to disobey the sovereign when the sovereign does not achieve these ends. As he puts it, ‘the end of obedience is protection’ and ‘the obligation of subjects to the sovereign is understood to last as long and no longer, than the power lasts, by which he (the sovereign) is able to protect them (subjects).’ Hobbes concedes this doctrine of minimalist resistance and his theory of political obligation gives only one ground of resistance—the violation of the right to life. His concept of the legitimacy of this power is based on the usefulness of it for securing satisfying living conditions for individuals.
We find in Hobbes's theory of sovereignty the formulation of a legitimate, rightful and absolute authority detached from any religious connotations seeking peace and order in the State. Hobbes's formulation of sovereignty is monistic in many ways, which gets fuller treatment by Austin as the monist theory of sovereignty.
John Locke
John Locke (1632–1704), an English thinker and social contractualist, is not identified with the theory of absolute sovereignty. His understanding of the social contract and the state of nature led Locke to formulate a theory of sovereignty which was different from that of Hobbes. In his Two Treatises of Government (1690) he formulated his theory of social contract and natural rights, the understanding of which informed his formulation of a limited sovereignty.
For Locke, the state of nature is not as chaotic and licentious as Hobbes had formulated. According to Wayper, ‘The state of nature is a state in which men are equal and free to act as they think fit, within the bounds of the law of nature.’17 There are natural rights of life, liberty and property in the state of nature and also acknowledged duties. It is not free for all conditions, as Hobbes thought—rather, there is an absence of authority to interpret, execute and arbitrate the law of nature. It is not a state of war, but one where peace is not secured. This formulation of the state of nature by Locke leaves unsatisfied three important wants—the want of an ‘established, settled, known law’, a ‘known and indifferent judge’ and an ‘executive power to enforce such decisions.’ The social contract between individuals aims at creating a State which fulfils these gaps. Locke provides three organs for the State—the legislative, which he calls ‘the supreme power of the commonwealth’, the executive, which includes judicial powers as well and the federative, the power to make treaties.
For Locke, the social contract is necessitated by the need to preserve the three natural rights of life, liberty and property. This requires an instituting authority to fill the gap created by the three unsatisfied wants already mentioned. The very nature of transition from a state of nature requires the formulation of not only a theory of limited sovereignty but also of limited government. As such, the people may retain supreme power and the government is required to act only as a trust of the people for preserving those inalienable rights for which they escape the state of nature. This, however, requires the constitution of a civil society as well as the institution of government as a trust. However, as Sabine says, ‘Locke is nowhere clear as to what precisely does arise by the “original compact.” Is it society itself or only government?’18 Though it is not clear in Locke whether he refers to a second contract, some commentators like Sabine and Wayper maintain that Locke tacitly assumes a second contract whereby the government is given limited power by the people, as a trust. As Locke formulated a limited and specific contract where individuals surrender only certain natural rights, the sovereign accordingly has to be limited in its powers.
Instead of using the word ‘sovereignty’, Locke used the term ‘supreme power’ and argued that it resided in the people.19 Furthermore, his ideas about a limited transfer of rights to the government and the government as trust, the inviolability of natural rights (particularly the right to property without the consent of the people where consent stands for ‘majority vote’), all point towards a theory of limited political obligation, limited sovereignty and a limited state. Thus, his is not a theory of absolute, unlimited, unrestrained sovereignty but a theory of constitutional power in the limited by certain inalienable rights. In case the State violates the terms of this contract or betrays its trust, Locke gives people right to revolt, though the same should never be an act of the minority. Revolt for him does not lead to the dissolution of the State—at most, only a change of government.
Jean Jacques Rousseau
Jean Jacques Rousseau (1712–1778), the French contractualist, is regarded to have contributed to the concept of sovereignty by formulating his doctrine of General Will. The doctrine of General Will, along with Rousseau's revolt against reason, romanticized and rediscovered the community in contrast to atomic individualism. The General Will grounded in the community became the basis of popular sovereignty. In his Social Contract (1762), Rousseau put forward his theory of the social contract and General Will.
As in the case of the two contractualists already discussed, in the case of Rousseau as well, the nature and power of sovereignty depended on the terms and requirements of the social contract. Rousseau's idea of the state of nature was one of romantic primitivism. Individuals led an idyllic, comfortable and social life where he enjoyed freedom and liberty. However, the liberty and freedom enjoyed by the individual, was driven only by instinct and selfish desire. For Rousseau, obeying the call of selfish desires and appetites constituted slavery and not liberty, as borne out by his remark that, ‘obedience to the mere impulse of appetite is slavery’. In the state of nature, then, what man has is ‘actual will’—impulsive and unreflective will, which is based on self-interest and not the well-being of the community. Only ‘real will’ could be the basis of a civil society. ‘Real will’ takes self-interest into account and subordinates it to the common good of community. The need is to establish a society where man could be free and not a slave where the real will would prevail. This should be done ‘in such a way that each individual, when united to his fellows, renders obedience to his own will, and remains as free as he was before.’20
To achieve this end, the social contract of Rousseau was a solution to the problem of finding ‘a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.’ To create such a society the individual decides to enter into a social contract and says, ‘each of us puts his person and all his power in common under the supreme direction of the general will, and in our corporate capacity, we receive each member as an indivisible part of the whole.’21As a result of such a social contract, the following would happen:
- A community with a collective personality or body politic (what Rousseau calls moi commun) ‘a common me’ would emerge.
- This moi commun will have General Will or volonté generate. The General Will may be understood as a synthesis of the real will of members and not a mere collection of actual wills.
- The General Will will be the ‘common consciousness of common good’ which is the source of all laws—civic laws as opposed to natural laws. Obedience to this law, which one gives to oneself and which is a reflection of the General Will, is liberty.
- The General Will will possess the rule of the just and the unjust. It will also possess rights, including the right to property.
- The General Will will be characterized by unlimitedness, unity, permanence, inalienability, absoluteness, inseparability, unrepresentability and infallibility (it is always right).
- The General Will can be exercised only collectively and cannot be transferred or represented by governments or representatives.
Rousseau's conceptualization of General Will gave rise to theory of popular sovereignty where people are sovereign and retains unlimited power. However, given the impersonal nature of the General Will and the particular and personal nature of executive decrees, Rousseau made a distinction between the government and the sovereign people. The people entrust executive power to government and retain sovereign power. Hence, the government is an agent of the General Will. For Rousseau, the form of government does not matter so long as the General Will is sovereign. Rousseau's concept of sovereignty under the framework of the General Will is a concept of popular sovereignty where moi commun represents the sovereignty and gives rise to conditions where ‘people can be forced to be free’. It cannot be represented but can install the executive as its agent. Rousseau was a vehement critic of the British election system as he felt that elections made the people sovereign only on a periodic basis.
However, as pointed out by Wayper, Rousseau sometimes doubted whether the General Will ‘may be embodied in one man – a Legislator who will show people what is good for them.’22 His concept of absolute sovereignty has provoked writers to liken him as the ‘most terrible ally of despotism in all its forms’. Duguit comments that ‘J. J. Rousseau is the father of Jacobin despotism, of Caesarian dictatorship, and inspirer of the absolutist doctrines of Kant and of Hegel.’
Legalists and the Concept of Sovereignty
Jeremy Bentham
Jeremy Bentham (1748–1832), an English utilitarian, is famous for his advocacy of modern legislation. By grounding his theory of ‘Utility’ in the doctrine of ‘the greatest happiness of the greatest numbers’, Bentham assigned the State the task of the promotion and maintenance of ‘Utility’. His two works, A Fragment on Government (1776) and An Introduction to the Principles of Morals and Legislation (1789) can be considered important from the point of view of the theory of Utilitarianism and the concept of the State and legislation. As Bentham understood it, men are moved by two primary sensations, the desire for pleasure and the avoidance of pain. In his An Introduction to the Principles of Morals and Legislation, he said, ‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.’ Every individual moved in such a manner would act out of self-interest in order to avoid pain and desire pleasure. In such a situation, the promotion of the ‘greatest happiness of the greatest numbers’ required the State to regulate the motive of self-interest and reconcile these interests. To do that, the State should become the sole source of law, an important sanction or source of pain or pleasure in the form of reward and punishment. Laws help in regulating the motive of self-interest with the aim of increasing the net balance of pleasure and decreasing the net balance of pain.
Wayper says that, ‘for Bentham the State is primarily a law-making body, a group of persons organized for the promotion and maintenance of happiness, and acting through law to that end.’23 As the State is the law-making body, the law is commanding in nature and carries sanctions. Thus, it must be at the command of a supreme authority. In fact, Bentham stressed that only when such an authority was habitually obeyed did a civil society exist. Therefore, Bentham formulated a sovereign State that does nothing which can be termed illegal. He made the State the sole source of right and even said that the laws of the State sought to ensure happiness, not liberty. Natural law cannot be pleaded against the law of the State as for Bentham the ‘law of nature is nothing but a phrase’. However, Bentham granted that the right to property was essential for the security of individuals and maintained that governments should not take away property without adequate compensation.
John Austin and the Monist Theory of Sovereignty
While Hobbes and Bentham championed the concept of legal sovereignty, it is John Austin (1790–1859), an English jurist, in whose hand it gets its fullest expression. Furthermore, as Vincent maintains, like Bodin and Hobbes, Austin also identified the sovereign with the State.24 John Austin in his Lectures on Jurisprudence (1832) formulated his concept of sovereignty. According to Garner, Austin's formulation of sovereignty was conditioned mainly upon his view of the nature of law, which he defines in a general way as the ‘command given by a superior to an inferior’.25 Austin declared the sovereign to be the single source of law.
Austin's concept of sovereignty and independent political society emerges with clarity in his Lectures on Jurisprudence. He observes:
If a determinate human superior not in a habit of obedience to a like superior receives habitual obedience from the bulk of given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.26
Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject.27
Every positive law, or every law simple and strictly so-called, is set, directly or circuitously, by a sovereign person or body to member or members of the independent political society where in that person or body is sovereign or supreme.28
The following characteristics of the sovereign emerge:
- Distinct sovereign authority: A sovereign is a determinate human superior and a definite authority, not the abstract General Will of Rousseau or the mass of the people and electorates, which are not fixed.
- Right to obedience and possession of force: The sovereign is so because it is not subject to obey a superior and receives habitual obedience from society. The determinate human superior possesses power ‘to put compulsion without limit on subjects or fellow subjects.’
- Law as command of the sovereign: Law emanates directly from the sovereign and is the command of this determinate superior and defines the superior–subject relationships. Law is backed by sanction. This doctrine of positive law gives it finality also and in case of conflict with the law of God or social laws, positive law being the command of the sovereign must prevail.
- Sovereign has absolute, indivisible and unlimited authority: The sovereign is not subject to any legal restraints. Its power is absolute and indivisible. The sovereign receives obedience from the bulk of society internally and does not give obedience to similar sovereigns externally.
- Political and independent society: A society with a determinate human superior is political and independent. For Austin, like Hobbes, political communities necessarily require a sovereign as it is a defining characteristic for them.
- Monist theory of sovereignty: Austin's is a monist theory of sovereignty as the sovereign is the only source of law and positive law is the expression of the legal sovereign of the State. Austin's theory implies thesuperiority of positive law over the law of nature or the dictates of reason. Furthermore, the sovereign is also a necessary condition for the political nature of society and its independence.
Critical evaluation of Monist theory
Austin's theory of sovereignty mainly involves three inter-related propositions—first, the location of sovereignty in a determinate human superior; second, the legal superiority of sovereign authority and the finality of positive law in the form of law as the command of the sovereign; and third, the indivisibility and absoluteness of sovereignty. By the very fact of assigning final legal authority to the sovereign, it creates an image of the State which is legally unified and does not allow other groups any autonomy. We will see how this aspect of the theory has been attacked by various shades of pluralists who posit the ‘real personality’ of associations, groups etc. against the State. Austin's theory of positive law and its finality tend to deny any other source of law. This has been contested by sociological analysis by jurists who claim that the authority of law is independent of the State. Before we look at pluralist critiques of the monist theory, we may briefly discuss some other critiques of sovereignty.
Historical jurists like Henry Maine, Clark, Sidgwick and others have found the first proposition of Austin—that sovereignty must reside in a determinate human superior—lacking in historical evidence. Henry Maine, in Early History of Institutions, has sought to show that this proposition cannot be universally applied in understanding the location of sovereignty in a determinate superior. He shows how empires in the Eastern Hemisphere were generally characterized by the absence of such an authority. Maine cites an exception in the Sikh kingdom of Punjab ruled by Maharaja Ranjit Singh who exercised despotic power. However, even he was not above the customary laws of the contemporary community and never issued a command in the Austinian sense of the term. Maine's conclusion is that ‘it is a historic fact that sovereignty has repeatedly been for a time in the hands of a number of persons not determinate.’29 This, Maine maintains, is true not only in the case of such empires but also the ‘abiding place of sovereignty in the republic of the United States.’
The proposition of legal superiority is also criticized on the basis of inconsistency with the concept of popular sovereignty and the present-day idea of political sovereignty. While the concept of popular sovereignty gives supremacy to the people as custodians of ultimate power, political sovereignty takes cognizance of the power of public opinion. Thus, critics have pointed out uncertainties in the location of sovereignty as proposed by Austin. However, uncertainty in the location of sovereignty does not exclude its presence altogether. And to that extent, we may concede to Austin the credit of giving a definite formulation to one of the most important characteristics of the State.
Historical jurists have also criticized the second proposition of Austin, law emanating from a determinate human superior, which lies at the basis of his theory of sovereignty. This is based on the ground of the multiplicity of sources of law, particularly customary law, which has evolved through usage and interpretations. English common-law could be cited as an example. Austin's concept of sovereignty wrongly treats all law as being merely the command of the sovereign and exaggerates the single element of force by neglecting historical and social facts. Jurists like Duguit would say that law is an expression of social necessity and a condition of social solidarity. Notwithstanding these refutations, experience suggests that with the increasing role of the State as an agency of development and a regulator of various activities, it has led to various types of social and economic legislation. This provides sanction and legal force both behind and against different social and historical customs. Social legislation like the Hindu Marriage Act of 1956 in India gives legal force to certain customs while acts like the anti-sati and anti-child marriage acts go against social customs.
Critics have also found the proposition of the indivisibility and absoluteness of sovereignty untenable. Austin's concept of sovereignty in democratic parlance could be treated as legislative sovereignty. However, critics point out that other than the legislature, there are organs of government like the executive and judiciary that exercise power and at times override it. As such, sovereignty is not indivisible. If we take the example of Indian democracy, the legislature, in the last analysis, may enjoy legislative/legal sovereignty as it can bring constitutional amendments and even overturn judicial pronouncements of the highest courts. However, we should not overemphasize this aspect, as there are still limitations on the legislature. For example, in several pronouncements in cases like the Keshavananda Bharati Vs. State of Kerala (1973), Minerva Mills Vs. Union of India (1980), etc. the Supreme Court has held that the amending power under Article 368 of the Constitution of India does not enable the Indian Parliament to disturb what they called, the ‘basic structure’, features or framework of the Constitution of India. In this, the objectives specified in the Preamble like the republican and democratic form of government, the secular character of the Constitution and also features like judicial reviews, the rule of law, etc. have been mentioned by the Court.30 Similarly, in USA, the rigid procedure of constitutional amendments attest to some form of legislative sovereignty for the legislature. On the other hand, the principles of checks and balances emerging out of the separation of powers give a semblance of the divisibility of sovereignty in USA. Some writers like Dicey have differentiated between political and legal sovereignty. This differentiation has been construed to mean the division of sovereignty itself between ‘the determinate human superior’ and ‘the numerous body of the commons.’
Like Hobbes, Austin's sovereign is unlimited and not to be restrained by any higher law. Sovereignty, being legally unrestrainable and not in the habit of obedience to a like sovereign, gives rise to legal despotism. Theorists of political pluralism have vehemently criticized such a proposition and argued for political and historical limits on it. Beside pluralist criticism, Laski has also criticized Austin's monist concept of sovereignty on historical, legal and political grounds about which we will discuss in detail while dealing with Laski's views.
Austin treats his sovereign as the legal head of a political community who is not in the habit of obedience to a similar sovereign. Given this formulation, it can be assumed that in the era of political and humanitarian intervention by some countries in the internal affairs of others, he would not have been comfortable with this trend of ‘shared sovereignty’. Notwithstanding critiques of his theory, we may concede to Austin the credit that he was thinking of legal sovereignty which, depending on the nature of the case, could be located in a determinate authority and not of political sovereignty, which may abide in an indeterminate number of persons. On the whole, we may say that so far as sovereignty in the strict legal sense is concerned, Austin's theory is logical and forceful. In fact, as Garner says, Austin's views are accepted by most English jurists, by many in Germany and in USA by Willoughby amongst others.
Characteristics of Sovereignty
Understood in a legal sense, sovereignty has certain characteristics that define its nature and also its importance in relation to the State. Sovereignty is a special element of the State and its characteristics also define the nature of the State. As our survey of the development of the concept of sovereignty suggests, the following characteristics are noteworthy.
Absoluteness or Illimitability of Sovereignty
Theorists like Bodin, Hobbes, Rousseau and Austin have emphasized the absoluteness or illimitability of sovereignty. Absoluteness refers to power which is not restricted or limited by any consideration or authority internally and also externally. The sovereign cannot be limited or restricted by any law, moral or social considerations, customs and historical traditions, the law of nature, natural rights or other kinds of authority. Though the sovereign may pay its respect to these limitations, the sovereign is not restricted by them. As discussed, Bodin defines sovereignty as ‘supreme power over citizens and subjects, unrestrained by law’ and as ‘absolute and perpetual power of commanding in the state.’ Hobbes's concept of absolute power in the State puts the sovereign beyond resistance and makes it creator and custodian of all rights and justice. Moreover, Hobbes also removes Bodin's limitations in the forms of law of God and fundamental laws. He sub-ordinates all associations (including the Church) to the sovereignty of the Leviathan. Thus, Hobbes put forward a clear doctrine of the absoluteness of sovereignty. Rousseau's General Will is so absolute that it can force individuals to be free. Austin also put forward a concept of legal absoluteness of sovereignty whereby the sovereign is supreme and the sole source of positive law.
We can say that the absoluteness or illimitability of sovereignty flows from its legal superiority. By virtue of this quality there is only one sovereign/supreme power in the State legally entitled to the obedience of the inhabitants. Thus, absoluteness also means exclusiveness of sovereignty and unity of the State. Furthermore, the absoluteness of sovereignty also emerges from the conceptualization of the sovereign as an integral part of the ‘political community’ or ‘common-wealth’. Both for Hobbes and Austin, the existence of a political and independent community, i.e., the State, is predicated on the existence of the sovereign. In his Lectures on Jurisprudence, Austin says, ‘The State is usually synonymous with “the sovereign”.’31 For Austin, a community is political and independent when a determinate human superior is there. For Hobbes the absence of a sovereign amounts to the dissolution of the State itself. Externally, the obligation to international law is voluntary. Given the iniquitous distribution of resources and other capabilities of states in the international arena, the equality of States in international law gets distorted in practical situations. However, we may infer that this absoluteness exists in a legal sense and would not be equally applicable to political and other aspects.
Indivisibility of Sovereignty
Indivisibility as a characteristic of sovereignty can be said to emerge as a logical deduction of the characteristic of absoluteness. If sovereignty is absolute, it has to be characterized by unity, otherwise it will be logically inconsistent. As Jellinek remarks ‘a divided, fragmented, diminished, limited, relative sovereignty’ is contradictory. If law is the command of the sovereign, the command must emanate from a unified body or it may lead to conflicting and ambiguous commands. Thus, sovereignty worth its name cannot be divided, as divided sovereignty is tautological. To divide sovereignty is to create two sovereigns. Writers and statesmen like G. Jellinek, J. C. Calhoun and R. G. Gettell have argued that sovereignty cannot be divided without either dividing the sovereign into two sovereigns or by destroying the same. Gettell says, ‘If sovereignty is divided, more than one state exists.’ In a similar manner, Calhoun says that ‘sovereignty is an entire thing, to divide it is to destroy it.’
For Hobbes, a divided sovereignty is against the terms of the social contract whereby all agreed to cede their all rights to the sovereign. He even denied a independent existence to any social or religious agencies. For Rousseau, the division of the General Will is to divide it into various ‘actual wills’ or even groups of ‘actual wills’. For Austin, sovereignty lies in the determinate human superior and in indeterminate numerous people or authority.
The question of the divisibility of sovereignty has emerged either due to confusing legal and legislative sovereignty with other types like political or popular sovereignty or due to confusing sovereign authority with governmental and executive power or political arrangements. The theories of Althusius (popular sovereignty), Locke (limited sovereignty), Rousseau (popular sovereignty) and Dicey (political sovereignty) have added to this debate where legal or legislative sovereignty is confused with political and popular sovereignty. If Bodin's, Hobbes's and Austin's or even Bentham's legislative sovereignty is seen in perspective, the doubts about divisibility are taken care of. In the last analysis, the authority of law and the sanction behind it in the context of the State emerges from the supreme legislative power of a person (a President supported by legislature or a dictator) or a body of legislators (Parliament, Senate). For example, what worth does a Bill have if it is not assented to by the President of India; what worth does a treaty signed by the US President have if it is not approved by the Senate? We may argue that political and popular sovereignty gets reflected in legal sovereignty.
Some of the political and administrative arrangements like confederations (where there are several relatively autonomous political unites and one central setup which controls a few areas), federations (where there is a political arrangement between the political units and central setup with clear allocation of powers between two levels and also joint control over areas which are of joint interest), protectorates (where a state is administered by another), condominiums (where two states exercise control conjointly over the same territory) have been cited as example of the divisibility of sovereignty by some writers. Some of the examples in the twentieth and twenty-first centuries may bear this point out. Between 1900 and 1905, Manchuria, though part of China, was administered by Russia. Presently, the status of Hong Kong and post-Saddam Iraq gives instances of ambiguous sovereignty. Ambiguity or duality in the control of a State has given rise to arguments of the divisibility of sovereignty.
We may recall the famous position of Alexander Hamilton and James Madison who argued for duality of sovereignty between the Union and the States in the newly created United States. In the Federalist, Madison wrote, ‘the sovereignty is divided between the states on the one hand and the union on the other, so that the whole sovereignty consists of a number of partial sover-eignties.’32 This view was also adopted by the US Supreme Court as early as 1792 when it declared, ‘the United States are sovereign as to all powers of government actually surrendered by the states, while each state in the union is sovereign as to all powers reserved.’ J. C. Calhoun, who enunciated the concept of undivided sovereignty that sovereignty being a unit was incapable of division, contested this position of dual sovereignty. However, doubt as to whether the power left to the states in USA is sovereignty or mere local autonomy still exists. Writers like A. C. Lowell have argued that ‘there can exist within the same territories two sovereigns issuing commands to the same subjects on different matters.’ Similarly, doubt may not be found in the case of India as well as the federal units in India (states) have powers as part of devolution from the Union. The states did not come together and cede power to the Union in India; rather, it was the other way round. The Constitution of India provides three lists—the Union List, the State List and the Concurrent List. With one Constitution and overriding powers to the Union, we may not find as great a doubt in the case of India as in the case of USA.
We may conclude here the debate on the divisibility of sovereignty by differentiating between sovereignty and power. While sovereignty is unique and the repository of all powers, the latter could be expressed in governments and political arrangements. In this process of expression, power could be divided or delegated. Sovereignty should not be confused with its emanations. J. J. Rousseau stated that power may be divided though ‘will’ never can be. J. C. Calhoun, who championed the cause of the unity of sovereignty, also said that, ‘there is no difficulty in understanding how powers appertaining to sovereignty may be divided and the exercise of one portion be delegated to one set of agents and another portion to another, or how sovereignty may be vested in one man, in a few, or in many. But how sovereignty itself, the supreme power, can be divided … it is impossible to conceive.’ W. W. Willoughby, in his comments on the US political system, expressed similar views when he stated, ‘that there cannot be in the same being two wills, each supreme, is obvious. But though the sovereign will of the state may not be divided, it may find expression through several legislative mouthpieces, and the execution of commands may be delegated to a variety of governmental organs.’
Thus, we can say that while sovereignty is associated with the State, power is associated with government and as the government is the agent and expression of sovereignty, the power of sovereign is expressed through governments, its organs and political arrangements. Federations represent one way of organizing power; it does not divide sovereignty.
Inalienability of Sovereignty
Inalienability as a characteristic of sovereignty is referred to with respect to the State. It means that the State cannot cede any of its essential elements without self-destruction. If sovereignty is transferred or given away, the very essence of the State and its personality is jeopardized and compromised. Sovereignty and the State stay together. Thinkers like Rousseau and writers like Lieber have upheld the inalienability of sovereignty. Inalienability of sovereignty from the state has been summarized by Lieber succinctly when he says that ‘Sovereignty can no more be alienated than a tree can alienate its right to sprout, or a man can transfer his life or personality to another without self-destruction.’33 Rousseau had upheld the same view when he said that power, not Will, could be transferred. If we look at the nature of social contracts formulated by Hobbes, Locke and Rousseau in the context of the creation or transfer of sovereignty, we can say that for Hobbes, sovereignty came into being only when a sovereign was created by the people and it did not exist in the state of nature. So there cannot be a question of the transfer of sovereignty. For Rousseau, however, sovereignty continues to be held by the General Will and there is no question of alienability. For Locke, the surrender of certain rights to the State other than the rights to ‘life, liberty and property’ did not mean the transfer of supreme power held by the people. Locke argued that people retained supreme power.
Permanence or Perpetuity of Sovereignty
The characteristic of permanence or perpetuity is a necessary supplement of the characteristics of inalienability. If sovereignty is inalienable, it must be permanent. Permanence or perpetuity stands for the quality whereby the sovereignty of the State continues as long as the State itself exists or vice-versa. Bodin treated perpetual power as one of the elements of sovereignty. For Hobbes, as long as the sovereign existed, the commonwealth continued and by challenging or resisting the sovereign, individuals would compromise the commonwealth itself. However, as we have seen above, Hobbes's formulation confuses the State and the government. As we have seen while discussing the characteristic of indivisibility, to understand the characteristic of permanence, we must differentiate between sovereign power and the government. While the State along with sovereignty is permanent, its expression through government in the form of an assembly of persons, a body of executives or a single person is subject to change. Changes in government do not lead to a change in sovereignty. This is because the change of the government from one to another merely reflects a shift of power from one to another, while sovereign power remains immutable and the sole source of power for the outgoing as well as the incoming governments.
However, permanence should not be interpreted to mean that sovereignty is eternal. In cases where the State ceases to exist due to loss of independence, cessation of territorial boundary to another State or due to coming under colonial relationship, sovereignty is also lost.
Universality or All-Comprehensiveness of Sovereignty
Sovereignty is also characterized by its universality or all-comprehensiveness. This quality refers to the universality of sovereign power over the territorial limits of the state. Thus, sovereignty is all-comprehensive and all-pervasive and its power extends over all persons, associations, and things within the territorial limits. We may recall how Hobbes made his sovereign all-pervasive by denying the right to resistance to individuals and an independent existence to organizations and associations. All-pervasiveness of the General Will speaks louder when Rousseau wants the General Will to force individuals to be free. As an exception, however, state grants concessions and immunity in terms of diplomatic immunity to officials and representatives of foreign governments and certain international organizations as part of their external relations, by free consent. We generally come across cases where States declare a particular person/representative/official or body as persona non-grata meaning thereby that the same has been declared as ‘non-acceptable’ to the host state in the officiating capacity. However, this universality does not get relaxed in terms of many international organizations and associations, which continue to be subject to the sovereignty of the host States and follow their rules and laws. In the context of the operation of multinational corporations, we can say that they are subject to the rules and laws prevailing in the host countries. It is the operation of the characteristic of universality that we see in the form of diplomatic immunity, double taxation avoidance treaties, extradition treaties, immigration laws, political asylums, etc.
We may add that these characteristics are specifically formulated in the context of legal sovereignty and do not correspond in their entirety in a modern nation-state. Three exceptions can be cited that may not fully corroborate these characteristics. First, in a democratic, federal and constitutional setup, these characteristics may not fully apply. Second, as pluralist critics have pointed out, political pluralism does not give credence to monist notions of sovereignty and its characteristics. Third, globalization, issues of global concerns like human rights, terrorism, inter-continental missiles, nuclear warheads and political and humanitarian interventions have challenged the traditional notion of sovereignty and its characteristics.
Aspects or Types of Sovereignty
As our survey of the historical development of the concept of sovereignty bears out, Bodin, Hobbes, Bentham and Austin are identified with the doctrine of ‘legal sovereignty’ while Althusius and Rousseau formulated doctrine of ‘popular sovereignty’. Similarly, Grotius introduced an important element by formulating the doctrine of ‘external sovereignty’. It may also be recalled how before Bodin, the sovereign was generally identified with the monarch. In fact, even today, monarchs and titular heads in countries like Great Britain, Japan and Spain are treated as nominal sovereigns. This is identified as ‘titular sovereignty’. A. V. Dicey has added a new formulation by coining ‘political sovereignty’ in contrast with legal sovereignty. We may also recall how the French Revolution resulted in declaration of ‘national sovereignty’. This concept was also invoked by post-colonial States. Some writers and observers have also made a distinction between de jure and de facto sovereignty to distinguish between legal and actual wielder of power. Added to these has come up the doctrines of ‘shared sovereignty’ which describes the status of a state when other nation-states interfere in its internal affairs either militarily or for humanitarian aid or both (as in Afghanistan, Timor Leste, Iraq, Kosovo and Somalia). Thus, we see how sovereignty has been viewed differently and has been used to describe its different aspects. We may briefly survey them all to understand their nature and inter-relationships and what extent they all contribute to or alter the position of the State in the debate of State versus individual.
However, we hasten to add that sovereignty is fundamentally a legal concept and stands for a unique element of the State in its juristic capacity.
Titular Sovereignty
As mentioned earlier, before Bodin gave a definite meaning to sovereignty as a specific element of the State, it was generally identified with the personal attribute of the monarch and its power. Not in the same sense but in a similar manner is sovereignty invoked to designate a king or a monarchical ruler who has ceased to be the real ruler but remains the titular or nominal head. Countries like Great Britain, Japan and Spain, which are constitutional monarchies, refer to their heads as sovereigns. They are nominal and titular heads of the State. A titular head represents the State and the real power is vested in the head of the government. Thus, we may differentiate between the head of the State and the head of the government. However, all actions of the government are carried and all laws of the State are passed in the name of the titular sovereign. We may also find a similar example in India where the President of the Republic of India being the head of the state may not enjoy real power (which lies with the Prime Minister) but all actions are carried out/orders of the government are passed in the name of the President of India.
Legal Sovereignty
As we have noted previously, Bodin, Hobbes, Bentham and Austin conceptualized and formulated sovereignty in a legal sense. This refers to the legal and legislative supremacy of a person or a body of persons/legislature. Positive laws are commands of this person or body of persons, which carry legal sanctions behind it. In its legal sense, sovereignty overrides all other forms of laws and prescriptions including divine law, the law of nature, moral and traditional prescriptions and public opinion. In courts of justice, positive laws are generally recognized for administering justice. Thus, justice according to law is upheld by lawyers. We find the fullest exposition of legal sovereignty in the monist theory of Austin.
Political Sovereignty
The concept of political sovereignty has been put forward by the English constitutionalist, A. V. Dicey in his Law of the Constitution. He says that, ‘the body is politically sovereign, the will of which is ultimately obeyed by the citizens of the State.’34 Though the legal sovereign is the supreme law-making and law-enforcing body, behind this legal sovereign is another power legally unknown, unorganized and incapable of expressing the will of the State in the form of legal commands. For Dicey, in England, this sovereign is the electorate, which in the long run can always enforce their will. The electorate is the political sovereign to whom the legal sovereign in practice will bow and whose will must prevail in the state. Gilchrist has tried to define political sovereignty as ‘the sum total of the influences in a State which lie behind the law.’ Thus, political sovereignty may be identified with the electorate or the public opinion including those who are not electorates.
In a direct or pure democracy like a few cantons of Switzerland, political sovereignty may find fullest expression. In such a situation, even the two—legal and political sovereignty—may coincide. However, in an indirect democracy, legislative supremacy is reflected in the functions of the legislative body, Parliament, Congress or Senate. In this situation, legal and political sovereignty lie separately. Now to say that the political sovereign can enforce their will and the legal sovereign will bow to them is to say that either the legal sovereign is the true representative of the will of the electorate and always reflects the will of the political sovereign or that the legal sovereign will always bow to the political sovereign because of the fear of revolt by the latter. The experience of some of the largest democracies like USA, Great Britain, India, etc. suggest that the political sovereign has always been humbled and been afflicted with the phenomenon of what psephologists describe as ‘political apathy’. Political apathy describes the position and attitude of the electorate whereby they feel that their vote might not have any impact on the governmental process, including the legislative one. On the other hand, though we have seen how the electorates of England, Denmark and France have voted against joining EU by their governments (in various referundums). Thus, we can say that in situations of direct democracy or referendum, political sovereignty prevails but in an indirect democracy it may not prevail clearly
Dicey held that ‘behind the sovereign which the lawyers recognize there is another sovereign to whom the legal sovereign must bow’, thereby suggesting a distinction between the political and legal sovereign. In the legal sense, sovereignty is the supreme lawmaking power able to express the highest commands of the State. This legal sovereign has to be identified as a determinate authority. On the other hand, the political sovereign is the force behind the legal sovereign and is characterized by indeterminate, numerous individuals or the electorate. According to James Bryce, an American constitutional expert, the distinction between legal and political sovereignty largely results due to juristic and popular conceptions of sovereignty. To jurists, a sovereign is a person or body to whose directions the law attributes legal force and in whom resides as a right the ultimate power of laying down general rules. While in a popular or layman's view, a sovereign is that person or body of person which can make his or their will prevail in the State. Sidgwick rejects the distinction between legal and political sovereignty on the ground that it seems to recognize dual sovereignty within the state.
We can say that the legal sovereign and the political sovereign may harmonize provided the expressed will of the legal sovereign becomes that which the political sovereign commands. That is, the law ought to conform to public opinion when properly expressed and the legislature ought to obey the mandate of the electorate. When the contrary happens, the two are not in harmony. D. G. Ritchie holds that the problem of good governance is largely the problem of the proper relation between legal and political sovereigns.
However, while discussing the doctrine of political sovereignty, we should not forget that it assumes the political unity of the electorate which it considers capable of presenting their demands and opinion in an aggregate manner. However, in practice, this underlying assumption may not hold good, given the multi-partisan or even bipartisan behaviour of the electorate. If political sovereignty lies in those who elected the representatives then what happens to those whose choices could not translate into selection of representatives? Does this necessarily lead us to consider that political sovereignty is nothing but the opinion of the political majority in a democracy? If this is so, then we have a fragmented political sovereignty, as this political majority is not permanent in democracy.
Popular Sovereignty
The doctrine of political sovereignty stops short of assigning a philosophical basis of supremacy to the political community and remains a reluctant doctrine of popular sovereignty. Political sovereignty gives the electorate primacy while popular sovereignty attributes power to the masses/people. Popular sovereignty attributes sovereignty to the people or the community which has a ‘common consciousness of common good.’ We have seen how Althusius in his anti-royalist formulation defended the sovereignty of the people. In the sixteenth and seventeenth centuries, anti-monarchical formulations like those of Marsiglio of Padua (he described the principle of supreme authority of the people as republicanism, which he invoked to restrict the powers of the papacy), William of Occam, Thomas Barclay, Johannes Althusius et al argued for the inalienability of the supremacy of the people vis-à-vis the monarch. The French Declaration of the Rights of Man and the American Declaration of Independence approvingly asserted that governments derived their just powers from the consent of the governed. James Bryce in his Modern Democracies states that popular sovereignty is ‘the basis and watchword of democracy.’35
The fullest expression of this doctrine can be found in Rousseau's concept of General Will. Rousseau's concept of General Will, which he defined as the ‘common consciousness of the common good’, provides strong philosophical ground to the concept of popular sovereignty. In this, the community retains and exercises full supremacy and is the source of all powers. The philosophical formulation of General Will may be understood from Table 5.1.
Table 5.1 Philosophical Formulation of General Will
| Stages | Individual | Community |
|---|---|---|
| State of Nature | Particular Will
|
A collection of ‘noble savages’, an ‘idyllic community’ |
| Social Contract | Triumph of ‘Real Will’
|
Emergence of General Will Reflected in the common consciousness of common good |
| Civil Society |
|
Corporate Body with General Will |
We find the doctrine of General Will is the basis of the community retaining all powers and is the source of all rights and justice. In fact, individual freedom lies in following the general will as this is not external to individuals but a reflection or synthesis of their real will. And since it is a synthesis of the real will of individuals willing common good, it can neither be divided nor represented. Furthermore, it can be the only true source of all laws, rights, freedom and justice. The interest of the General Will and the interests of the individuals willing the common good cannot diverge. It is this situation that leads to true freedom and liberty for the individual. And if an individual fails to follow this ‘he can be forced to be free’. As such there is no resistance to the General Will. In this form, Rousseau's doctrine of General Will is a doctrine of maximalist political obligation on the part of the individual. The General Will is marked with the characteristics of unity, permanence, righteousness, absoluteness, inalienability and non-representability.
Thus, Rousseau's concept of General Will provides a philosophical basis for popular sovereignty where the people are supreme. We may recall Althusius's concept of the social contract and how he makes ‘sovereignty reside in the people as a corporate body’. This is because the people as a corporate body are incapable of parting with sovereignty as it is a characteristic of this specific kind of association, called the State. Sovereignty is never passed or alienated into the possession of any ruling class or family. We find in Althusius and Rousseau philosophical grounds for popular sovereignty.
However, this form of sovereignty is possible in small democracies. As indicated above, popular sovereignty gives birth to certain confusions regarding its location as well. Writers and theorists have used terms like ‘the community’, ‘the people’ and ‘the electorate’ interchangeably which stand for an indeterminate and unorganized mass. Due to this confusion we may end up blurring the distinction between political and popular sovereignty.
Broadly, critics have sought to discount the philosophical basis of popular sovereignty by criticizing Rousseau's General Will doctrine. L. T. Hobhouse has criticized the distinction between ‘actual’ will and ‘real’ will. He doubts that the real will is based on the consciousness of common good. If we extend the logic of Hobhouse in a market society which has competition and profit-making as primary motives, the consciousness of the common good may not stand the test. However, for Rousseau, the understanding emerged from his belief in the basic goodness of men.
Harold Laski has criticized the concept of popular sovereignty and feels that the theory of Rousseau is ‘an impossible fiction’.36 Laski admits that Rousseau's doctrine of popular sovereignty and the doctrine that unlimited power in society should be vested in the people as a whole has been the theoretical basis of a number of popular revolutions like the American and the French. However, he maintains that the sovereignty of the General Will could not have operated even under the modern conditions of representative government. Laski's criticism emerges from the inoperability of the concept of popular sovereignty. Rousseau gives a restricted role to government and tends to disallow representative institutions while the General Will (the State) gets overwhelming powers. In this situation, how is the government to function? It is either by frequent meetings of the assembly of all citizens, i.e., in the direct manner or by perpetual plebiscites. Laski asks if this is possible to do so in large states when it is difficult even in small states. For Laski, this is possible only through some kind of majority rule. Hence, he concludes that popular sovereignty in the sense of the people legislating, adjudicating and administering themselves is an impossible fiction and not in the realm of a working hypothesis. However, it should not be lost sight of that Laski, being an exponent of political pluralism, does not accept the concept of either popular sovereignty or legal sovereignty. Merely because he criticizes the lack of institutional arrangements should not lead us to conclude that popular sovereignty is not worthy of consideration.
In fact, we can say that the concept of popular sovereignty gains significance in not only furthering the cause of democratic ethics but also seeking to resolve the primary thematic concern of political theory in the form of the State-versus-individual antithesis.
Notwithstanding Laski's criticism, the doctrine of popular sovereignty contains certain significant ideas like: (i) the State should reflect the common good and should exist for the good of the people, (ii) if otherwise, the General Will, i.e., the basis of the State stands defeated, (iii) the government should be directly responsible to the people, (iv) mere representation through periodic elections is not enough, constant vigil of public opinion and people should be there.
National Sovereignty
The famous Declaration of the Rights of Man emerging from the French Revolution proclaimed the principle of national sovereignty affirming that ‘all sovereignty resides essentially in the nation.’ It has been stated that this principle was invented to deny the old principle of the sovereignty of the monarch. Garner maintains that the Constitution of Belgium (Article 25), the 1923 Constitution of Rumania (Article 23) and the 1925 Constitution of Chile (Article 2) proclaimed the same principle.37 It signifies that sovereignty is the power of the nation personified and not in the electorate (as Dicey says) or in a determinate legal superior (as monist theory says). However, it is difficult to say as to where sovereignty lies in terms of national sovereignty. If it resides in the people it is popular sovereignty and when it is in the electorate where universal adult suffrage prevails, it is political sovereignty.
The principle of national sovereignty was also employed by the colonized people to put forward their struggle against colonial dominations. Attaining national sovereignty fostered anti-colonial struggles in many countries.
De Jure and De Facto Sovereignty
A situation may arise when actual sovereignty may pass on to someone/a body of men/an assembly which is able to make its will prevail whether it has legal status or not though formally sovereignty rests with another person or body or assembly. This situation may arise in revolutions, depositions from power or temporary coups. To describe such a situation, a distinction is made between de jure and de facto sovereignty.
De jure sovereignty refers to the legal and formal sovereignty, which is entitled to the obedience of the people but which may be incapable due to deposition, expulsion, exile, a military soup etc. The de jure sovereign has the legal right to command obedience and is based on law. It does not seek some extraneous elements like force, religious influence or ideology to enforce its legitimacy. The legitimacy of the de jure sovereign is derived from law and its legal authority. It assumes that obedience will be enforceable.
On the other hand, de facto sovereignty refers to the power, which is actually able to make its will prevail though it may be without legal basis. While the de jure sovereign has a legal basis, the de facto sovereign may be based on physical force or religious influence or the result of revolution, etc. A de facto sovereign may be a self-appointed leader, a self-constituted assembly, a military dictator or even a priest or prophet. In many cases, a de facto sovereign would always seek to convert his acquired position into legal and de jure sovereignty. This eventually would enable a moral claim for obedience. Force may not always be the basis for obedience. As Bryce would say, there is a natural and instinctive opposition to submission to power which rests only on force.
Some of the historical examples of de facto sovereignty are Oliver Cromwell after he dissolved the English Parliament in 1649, Napoleon after he had overthrown the Directory the Bolshevik regime following the Russian Revolution of 1917, the sovereignty of the Peoples’ Republic of China after Chiang Kaishek was overthrown.
John Austin does not accept the distinction between de jure and de facto sovereignty as adjectives like ‘lawful’ and ‘unlawful’ cannot be applied to sovereignty. The only law (he says) by which a person or body of persons can be sovereign is its own law, its won command or will, and hence to say that a person or body is the de jure sovereign is tantamount to saying that it is legal because it declares itself so to be so. Austin stresses that the distinction between de facto and de jure may apply to governments but not to sovereignty.38
Internal versus External Sovereignty
As we have seen, the formulations of Bodin, Hobbes, Rousseau, Bentham and Austin have provided the logical and theoretical ground for strong sovereign and legislative supremacy within the State. Internal sovereignty is also based on the territorial concept. On the other hand, external sovereignty represents the power to represent the State in its relations with other States, including the power to declare war and make peace. We may recall how Grotius expounded the concept of external sovereignty where the law of nations and international law regulated the relations between States.
However, it appears that the distinction between internal and external sovereignty may not be justified, as external sovereignty is nothing but an extension of the sovereignty of a State. The concept of territoriality is expressed in the form of respect for the territorial integrity of another State. Similarly, internal sovereignty leads to the concept of sovereign equality of States in their external relations. If external sovereignty is employed to describe the freedom from control and subjection by another State, then it is misplaced, as this is the sine qua non for internal sovereignty as well.
Furthermore, the concept of external sovereignty is neither in consonance with internationalism nor with the process of globalization. Internationalism as the cooperative political evolution of states for achieving international order and peace, subsumes external sovereignty. Laski has remarked that the notion of external sovereignty is dangerous and should be expunged from political science. On the other hand, global economic, finance and trade flows, by introducing element of compulsion on the states in the form of international monetary and trade regulations (INF, World Bank and WTO), has limited the possibility of independent decision making in external matters. Thus, we can say that the concept of external sovereignty though capable of explaining external relations and treaty-making agreements including the declaration of war and peace may not be important from the practical point of view. The concept of ‘internal’ sovereignty itself subsumes this concept and requirements.
‘Instituted Sovereignty’ versus ‘Acquired Sovereignty’
The types of sovereignty that we have mentioned above cannot sufficiently capture the nature of sovereignty in a colonial context. For example, British colonial rule in India enjoyed or arrogated for itself a special kind of hegemonic power. Colonial sovereignty by its very nature and political arrangements denied Indians the principle of popular sovereignty. Even the concept of the political sovereign of Dicey would not apply. A few commentators have likened colonial sovereignty, at least during some part of the nineteenth century when feeling of loyalty to British liberalism and rule appeared, with what Hobbes called ‘acquired sovereignty’.39
Hobbes, in his Leviathan, has differentiated between acquired and instituted sovereignty. A ‘Commonwealth’ is said to be ‘instituted’ when a multitude of men agree and covenant, every one with every one, to give to man or assembly of men, the right to present the person of them all and authorize all the actions and judgments from which is derived all the rights and faculties of the sovereign. Thus, the original contract becomes the first source of sovereignty. Hobbes also mentioned a second source of sovereignty, which he called ‘A Commonwealth by Acquisition’—‘acquired’ sovereignty. A commonwealth is said to be acquired where the sovereign power is acquired by force. It is acquired by force because when men singly or by plurality, for fear of death or bondage, authorize the sovereign. However, this is not due to fear of the sovereign but in fact, due to the fear of one another. Thus, it is not the force of the conqueror but the submission of the conquered due to fear of life that is the basis of sovereignty.
However, with the rise of nationalism in the late nineteenth and early twentieth centuries, this condition could not be obtained and the fear to life was never there in the minds of Indians or at least amongst the majority. As such, acquired sovereignty could not be enforced, so, at most, Colonial rule was domination, not sovereignty.
Sovereignty and the Indian Constitution
The Preamble to the Constitution of India declares India to be a ‘Sovereign Socialist Secular Democratic Republic’.40 Though the Constitution itself does not elaborate or define the meaning of ‘Sovereignty’, the Supreme Court in various pronouncements has sought to establish what it could mean or imply. In Gopalan Vs. State of Madras (1950) and Union of India Vs. Madan Gopal (1954), the Court held that the phrase ‘We, the people of India … adopt, enact and give to ourselves this Constitution’ appearing in the Preamble, declares ultimate sovereignty of the people of India and that the constitution rests on their authority.41 Furthermore, in the Synthetics Vs. State of U.P. (1990), the Supreme Court maintained that ‘the word "sovereign" meant that the State had power to legislate on any subject in conformity with constitutional limitations.’42 Thus, we have the doctrine of popular sovereignty implied in the Preamble where the Constitution itself becomes sovereign though under the authority of the people of India. This understanding of sovereignty has the context of transfer of power where colonial rule has ended and there was a need to declare the sovereignty of the people of India. On the other hand, once the Constitution has been declared as sovereign, the State, drawing its legislative power from it, is also empowered to legislate within constitutional limits.
We also find mention of the word, ‘Sovereignty’ in Article 19 under Part III of the Constitution of India. Article 19, dealing with the Fundamental Rights of citizens, puts some ‘reasonable restrictions’ on the exercise of certain rights, namely rights under Article 19 (1), (a), (b) and (c). Rights under Article 19(a) to freedom of speech and expression, Article 19(b) to assemble peacefully and without arms and Article 19(c) to form associations and unions are subject to reasonable restrictions in the interests of, amongst others, ‘the sovereignty and integrity of India’. This may be to create a balance between the sovereign legislative power of the State and the Fundamental Rights of the citizens, or ‘to strike a balance between individual liberty and social control.’43 This enables the State to promulgate acts and legislation to control unlawful and terrorist activities. Here, sovereignty is understood in terms of national and territorial integrity.
The Supreme Court, in Indira Gandhi Vs. Raj Narain (1975) added, ‘India as a sovereign democratic republic’ as one of the fundamental elements of the basic structure of the Constitution.44 We find that the Indian Constitution enshrines ‘sovereignty’ as one of the important aspects of the Constitutions and also invokes it in favour of the legislative power of the State (Article 19). However, the Preamble makes the people sovereign, which gets reflected in the Constitution itself. In short, we can say that sovereignty lies in the Constitution and the people remain the ultimate source of the Constitution.
Review Questions
- What are the philosophical bases of popular sovereignty? How have Johannes Althusius and Jean Jacques Rousseau contributed to it?
- Critically examine Laski's critique that the concept of popular sovereignty is not a working hypothesis but a myth.
- Does sovereignty seen in terms of positive law invariably lead to absolutist and monist theory of sovereignty?
- What are the limitations on sovereignty put by the law of nature and natural rights?
- Is sovereignty absolute or divisible? What are the political and governmental arrangements that give rise to arguments about the divisibility of sovereignty?
- What are the main features of the monist theory of sovereignty and what are its critiques?
- Critically examine the formulation that the social contract leads to absolute sovereignty for Hobbes, constitutional power for Locke and popular sovereignty of General Will for Rousseau.
- Critically examine the concept of ‘political sovereignty’ and its relation with popular sovereignty.