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Chapter 4: Sovereignty

On the afternoon of 13 December 1946, the Constituent Assembly of India was sitting in New Delhi. Its members had been chosen a few months earlier by the provincial legislatures, under a plan drawn up by the British government. The Assembly met in a country that was still, in law, governed from London. Its authority, strictly speaking, was borrowed.

That afternoon Jawaharlal Nehru rose to move a resolution setting out the aims of the constitution the Assembly intended to write. It declared that India would be an ‘Independent Sovereign Republic’. It went further. All power and authority in that India — of the Union, of its parts, of every organ of government — would be derived from the people.

Read carefully, the claim was extraordinary. The Assembly was not requesting supreme authority from anyone. It was announcing where supreme authority already lay: not with the British Crown, not with the rulers of the princely states, and not with the Assembly itself, but with ordinary Indians.

The resolution was debated for several weeks and adopted on 22 January 1947, seven months before the transfer of power. India was not yet independent. Yet its Assembly had already settled the question this chapter is about. In every state, someone or something must have the last word. Who has it, and how would we know?

Diagram

Fig. 4.0-1 Caption: The Constituent Assembly of India in session in New Delhi, 1946–49. Brief: Archival photograph of the Constituent Assembly chamber during a sitting, members seated in rows facing the President’s chair; label the President’s chair and the members’ benches; emphasise the scale of the gathering rather than any single individual.

NoteCuriosity Corner

Q1. If the Assembly’s own authority came from a British plan, how could it declare that authority belonged to the Indian people? Q2. What exactly does it mean to call a state sovereign, and how is that different from simply being powerful? Q3. A head of state who signs every law but decides none — is such a person really the sovereign? Q4. When a general seizes power and suspends the constitution, who is the sovereign: the suspended constitution or the general? Q5. Can sovereignty be shared — between a Union and its States, or between a state and the international bodies it joins? This chapter will let you answer all five for yourself.

4.1 What Sovereignty Means

Every society contains many centres of power. A family sets rules for its members. A school decides what its students may wear. A trade union can call its workers out on strike, and a religious body can lay down duties for its followers.

Yet none of these bodies has the last word. If a school rule breaks a law, the law prevails. If a company’s contract is challenged, a court settles it. Somewhere in every political community there is an authority above which no further appeal lies.

That final authority is what political scientists call sovereignty. It is the idea that gives the state its distinctive character, and separates it from every other association human beings form.

4.1.1 The Origin Of The Word

The word ‘sovereignty’ reached English through Old French from the Latin superanus, meaning supreme, highest or above all others. The root meaning survives in the modern idea.

Sovereignty is the supreme authority of the state — its power to make final decisions within its territory, and its freedom from control by any outside authority. A state that possesses it can legislate, administer and enforce its will without needing anyone’s permission.

Recall from your study of the state that a state has four elements: population, territory, government and sovereignty. The first three can be found elsewhere. A large corporation has members, premises and a management structure. Only the state has the fourth. That is why sovereignty is treated as the distinguishing mark of the state.

Power And Authority

It is tempting to think that sovereignty simply means being the strongest. That would be a mistake, and the distinction is worth pausing over.

Power is the capacity to make others do what you want, if necessary by force. Authority is the recognised right to give commands and be obeyed. A robber with a weapon has power over you for a few minutes. A tax officer has authority over you for a lifetime.

Sovereignty belongs to the second category. It is not merely the largest quantity of force in a territory; it is the final say that others accept as rightful. This is why obedience to a sovereign state is normally habitual and unforced, while obedience to a gang lasts only as long as the threat does.

Is Sovereignty Simply Great Power? Claim: A state is sovereign because it is the strongest force inside its territory. Reasons: It commands the police, the armed forces and the courts, and nobody within can defeat it. Strongest objection: An armed gang may be strongest in one district, yet nobody calls its orders law. What it turns on: Whether we are describing force, or authority that people accept as rightful.

Q2. What exactly does it mean to call a state sovereign, and how is that different from simply being powerful?

A. Sovereignty is supreme authority: the recognised right to the final decision inside a territory, and independence outside it. Power is only the capacity to compel.

4.1.2 How Thinkers Have Defined Sovereignty

Political thinkers have defined sovereignty differently, because each wrote for a different political world. Three definitions are usually placed side by side, and the differences between them matter more than the wording.

Jean Bodin, writing in France in 1576, called sovereignty the absolute and perpetual power of a commonwealth. He was arguing during a period of religious civil war, and he wanted one undivided authority that could impose order.

John Austin, an English jurist writing in 1832, defined the sovereign as a determinate human superior whose commands are habitually obeyed by the bulk of the people, and who does not himself obey anyone else. Austin’s definition is examined in detail later in this chapter.

Harold Laski, an English political scientist of the twentieth century, rejected both. He held that sovereignty is not absolute but relative, and is only one form of authority among the many social powers that shape people’s lives.

Two families of definition therefore emerge. The older one treats sovereignty as absolute, undivided and supreme. The newer one treats it as limited, conditioned and shared. Each of these traditions is set out fully in sections 4.5 and 4.6.

4.1.3 Internal And External Sovereignty

Sovereignty faces in two directions at once. It looks inward, at the people and associations within the state’s borders, and outward, at other states. These two aspects are called internal and external sovereignty, and Fig. 4.1-1 sets them side by side.

Diagram

Fig. 4.1-1 Caption: Sovereignty works in two directions: downward within the territory and outward towards other states. Brief: Two panels sharing one central shape labelled ‘The State’. Left panel, headed ‘Internal’, shows arrows running downward from the state to boxes labelled ‘citizens’, ‘companies’, ‘unions’, ‘religious bodies’, ‘local authorities’. Right panel, headed ‘External’, shows a double-headed arrow between the state and three equal shapes labelled ‘other sovereign states’, and a separate arrow to a shape labelled ‘international organisations, joined by consent’. Emphasise that the left arrows are one-way and the right arrows are between equals.

Internal sovereignty is the supreme authority of the state over every person, group and institution inside its territory. The state makes the laws, enforces them and judges disputes under them.

Three things follow from this. The state may legislate on the matters entrusted to it for everyone within its borders. No individual or association inside the territory can claim to stand outside its legal authority. And every other body — a factory, a cricket club, a place of worship, a newspaper — operates within the legal framework the state provides.

External sovereignty is the state’s independence in its dealings with other states. It frames its own foreign policy, decides which treaties to sign, and chooses which international organisations to join or leave.

Three things follow here too. In international law every sovereign state is the legal equal of every other, whatever the difference in size or strength. A sovereign state may make treaties, and it alone decides whether to do so. And no foreign government may lawfully give orders inside its territory.

India’s membership of the United Nations — the world body of states founded in 1945 to maintain international peace and cooperation — illustrates the point. India joined by its own decision and takes part by its own consent. Membership binds India to obligations it has accepted, not to commands it never agreed to.

Does Signing A Treaty Shrink A State’s Sovereignty? One view: A state that accepts binding rules made outside its borders is no longer supreme at home. Another view: Choosing to be bound is itself an act of supreme authority, and the state may withdraw. What would you need to know to decide?

Internal and external sovereignty are not two separate powers. They are one authority described from two positions. A state that cannot enforce its laws at home will not be treated as an equal abroad, and a state under foreign control cannot claim to be supreme at home.

4.2 The Characteristics Of Sovereignty

A definition tells us what sovereignty is. It does not yet tell us how sovereignty behaves. For that we need its characteristics — the qualities that political thinkers have identified as belonging to supreme authority wherever it is found.

These characteristics matter because together they explain why the state is treated differently from every other association. A trade union, a company and a temple trust all issue rules and expect obedience. Their authority, however, is borrowed, partial and revocable. The state’s is not.

The nine characteristics below are the ones traditionally listed. Read them as a description of sovereignty in its classical form. Several of them have been strongly disputed, and section 4.6 sets out that dispute.

  1. Originality. Sovereignty is original, which means it is not derived from any other authority. The state does not borrow its supreme power from a higher body. Every other association in society holds its powers from the state: a company exists because a law allows companies to be formed, and a municipal corporation exercises exactly the powers a State legislature has given it. When a colony becomes independent it acquires sovereignty of its own; when a state loses its independent existence, its sovereignty goes with it.

  2. Absoluteness. Sovereignty is said to be absolute because there is no legal authority above it. Its decisions are legally final, and no superior body can set them aside. This is a claim about law, not about wisdom or morality: a sovereign decision may be unwise and still be valid.

The claim must be stated carefully in a country with a written constitution. In India, Parliament makes law, but its competence is bounded. The Constitution distributes law-making subjects between Parliament and the State legislatures, laws must not violate the fundamental rights, and in 1973 the Supreme Court held that Parliament may amend the Constitution but may not destroy its basic structure. Absoluteness therefore attaches to the constitutional order as a whole, which is the final legal authority, rather than to any single organ acting alone.

  1. Permanence. Sovereignty lasts as long as the state itself lasts. Governments rise and fall, ministries are voted out, and constitutions are amended, but sovereignty continues. In India a general election replaces the government roughly every five years; the sovereignty of the Indian state is untouched by the result. The death of a ruler or the defeat of a party ends a government, not a state.

  2. Universality. Sovereignty extends over every person and every association within the territory. Nobody may claim exemption because of wealth, office or belief. The one recognised departure is diplomatic immunity, under which foreign diplomats are exempt from certain local legal processes — and that exemption exists only because states have agreed to it by treaty, which is itself an exercise of sovereign authority.

  3. Indivisibility. Sovereignty is said to be indivisible: it cannot be shared between two rival authorities without destroying the unity of the state. Federal systems appear to contradict this, since India divides law-making powers between the Union and the States. The traditional reply is that what is divided is governmental power, not sovereignty, because both levels draw their authority from a single Constitution which neither of them may set aside.

  4. Inalienability. Sovereignty cannot be permanently transferred or given away. A state may delegate powers, sign treaties and accept binding obligations, but it does not thereby part with its supreme authority. India follows the rules of the World Trade Organization, the body set up in 1995 to make and enforce the rules of international trade. Those rules bind India because India agreed to them, and India retains the legal right to withdraw.

  5. Independence. Independence is the outward-facing characteristic, corresponding to external sovereignty. A sovereign state decides its own foreign policy without taking instructions from any other state. It alone decides which countries to recognise, which agreements to enter, and on what terms people and goods may cross its borders.

  6. Exclusiveness. Within a given territory there is only one sovereign, and it does not share that position with anyone. No foreign government may lawfully make law for people in India. If another state passed a statute claiming to govern Indian citizens at home, it would have no force here. This exclusiveness gives the state a monopoly of law-making and enforcement within its boundaries.

  7. Comprehensiveness. Sovereignty is comprehensive because it covers every sphere of activity, not merely a few. Here it is worth separating two ideas that are easily confused. Universality means the state’s authority reaches all persons; comprehensiveness means it reaches all matters. Other associations have authority in one field only — a sports federation over its players, a union over conditions of work — while the state’s authority runs across economic, social, religious and personal life alike.

Are These Claims Beyond Dispute?

They are not. Each of the nine characteristics was developed to describe a particular kind of political order, and critics have argued that several of them fit no real state.

Absoluteness sits uneasily with written constitutions and international obligations. Indivisibility is hard to square with federations. Comprehensiveness is challenged by those who hold that certain areas of life should lie beyond the state’s reach altogether.

You will meet these objections in an organised form in section 4.6. For the moment, treat the nine characteristics as a claim to be examined rather than a list to be accepted.

Is Sovereignty Divided In A Federation? Claim: In India sovereignty is divided, since Parliament and the State legislatures both make law. Reasons: Each level has its own subjects, its own legislature and its own elected government. Strongest objection: Both draw their powers from one Constitution, which neither made and neither can set aside. What it turns on: Whether we count law-making powers, or the single source those powers come from.

List three rules that apply to you but are not made by any government — a school rule, a housing society rule, a sports body rule. Beside each, write one line naming the law or authority under which that body operates.

4.3 The Kinds Of Sovereignty

Sovereignty is one thing, but it can be found in more than one place at the same time. The office that wears the crown may not be the office that decides. The body that law calls supreme may depend for its survival on people who hold no office at all.

Political thinkers therefore speak of different kinds of sovereignty. These are not different sovereignties competing with one another. They are answers to different questions about the same supreme authority.

Four kinds are studied here, in the order in which they are usually taught: titular and real, legal and political, de jure and de facto, and popular sovereignty.

4.3.1 Titular And Real Sovereignty

This distinction arises when the person or office that is formally recognised as sovereign does not in fact take the decisions.

Titular sovereignty is sovereignty in name only. The titular sovereign holds the highest formal office in the state, but does not govern. The role is largely ceremonial: opening the legislature, receiving foreign heads of state, and giving assent to laws that others have already settled.

Real sovereignty lies with whoever actually exercises supreme power. The real sovereign takes the binding decisions, directs the administration, and answers for the results.

The clearest example is the British monarchy. The King is formally the Head of State of the United Kingdom and Acts of Parliament are enacted in his name. He does not, however, decide policy or refuse assent to laws that Parliament has passed.

India presents a similar arrangement in republican form. The President is the head of state, every law is made in the President’s name, and the armed forces are formally under the President as Supreme Commander. In the ordinary working of government, the President acts on the aid and advice of the Council of Ministers, the group of ministers headed by the Prime Minister who are drawn from the legislature and answerable to it.

Real sovereignty in both countries therefore rests with the elected government of the day, which holds office only so long as it commands a majority in the legislature.

The distinction teaches something a student can easily miss. Ceremony and prestige are not the same as authority. To find the sovereign, ask not who signs the document but who decided its contents.

Q3. A head of state who signs every law but decides none — is such a person really the sovereign?

A. Only in name. Such an office holds titular sovereignty. Real sovereignty rests with those who actually take the binding decisions and answer for them.

4.3.3 De Jure And De Facto Sovereignty

The third distinction becomes important in unsettled times — during a revolution, a civil war, or the collapse of a constitutional order. The terms come from Latin: de jure means ‘by law’, and de facto means ‘in fact’.

De jure sovereignty is sovereignty that is legally established and recognised. The de jure sovereign holds supreme authority according to the constitution and the law, whether or not it is in a position to enforce that authority at a given moment.

De facto sovereignty is sovereignty that is actually exercised. The de facto sovereign controls the territory and is obeyed, even though it may have no legal title to rule at all.

In a settled state the two coincide, and the distinction is invisible. In India the Constitution is the de jure source of all authority, and the governments that function under it are also in effective control. Nobody needs to separate the two.

They come apart when power is seized. A group that takes control by force governs in fact while the constitution it has set aside remains, in law, the legitimate order. Both claims exist at once, and neither can be wished away.

A Historical Illustration

England in the middle of the seventeenth century shows the split clearly. After the execution of Charles I in 1649 the monarchy was abolished, and from 1653 Oliver Cromwell governed as Lord Protector. Royalist opinion at home and several courts abroad continued to regard the exiled Charles II as the lawful king. For about a decade one authority ruled in fact while another was recognised in law by many. The monarchy was restored in 1660.

In the twentieth century the same pattern recurred wherever governments came to power through a coup and ruled until some new constitutional order was framed. In many such cases the de facto authority eventually became de jure, either through a fresh constitution or through recognition by other states.

One caution is essential here. To describe an authority as de facto sovereign is to record a fact about who is obeyed. It is not to say that seizing power was justified, and political scientists who use the term are not approving what they describe.

Q4. When a general seizes power and suspends the constitution, who is the sovereign: the suspended constitution or the general?

A. Both, in different senses. The constitution remains the de jure sovereign; the general exercises de facto sovereignty for as long as he is actually obeyed.

4.4 Sovereignty: A Historical Analysis

Sovereignty is not an eternal truth about political life. It is an idea with a history, invented at a particular time to solve a particular problem, and challenged ever since.

Knowing that history is useful for a simple reason. Once you can see what the idea was built to do, you can judge how well it still works.

Authority Before Sovereignty

In medieval Europe there was no single supreme authority within a territory. Authority was layered, and several claims covered the same people at the same time.

A peasant in fourteenth-century France lived under the customs of his village, the jurisdiction of his feudal lord, the law of the king, and the courts of the Church — the organised authority of Western Christianity, headed by the Pope in Rome, which claimed jurisdiction over marriage, wills and the conduct of the clergy. Towns held charters of their own, and guilds regulated trades.

None of these authorities could overrule all the others in every matter. Kings quarrelled with popes, lords resisted kings, and towns bargained with both. Fig. 4.4-1 contrasts this arrangement with the one that replaced it.

Diagram

Fig. 4.4-1 Caption: Authority shifts from overlapping layers to a single supreme power inside fixed borders. Brief: Two panels. Left, headed ‘Layered authority’, shows several overlapping circles of different sizes labelled ‘Church courts’, ‘emperor’, ‘king’, ‘feudal lord’, ‘town charter’, ‘guild’, all crossing over a small group of figures labelled ‘the same people’; no outer boundary line. Right, headed ‘Territorial sovereignty’, shows one firm bounded rectangle labelled ‘the state’, a single shape inside it labelled ‘supreme authority’, the same figures wholly within the boundary, and two identical rectangles beside it labelled ‘other sovereign states’. Emphasise the absence of a boundary on the left and its presence on the right.

The Problem That Produced The Idea

Between roughly 1500 and 1650 this arrangement broke down. The division of Western Christianity after the Reformation meant that rulers and subjects no longer shared one religious authority. Long and destructive wars followed in France, in the German lands and in England.

The practical question of the age was therefore urgent. If two authorities give contradictory commands to the same people, who decides? A political community that cannot answer that question cannot keep the peace within its own borders.

Sovereignty was the answer offered. Within each territory there would be one final authority, and outside it no superior authority at all.

Why Europe Reached For A Single Sovereign Religious division and overlapping jurisdictions → rival authorities issue conflicting commands → prolonged wars fall hardest on ordinary subjects → thinkers argue that one final authority within fixed borders is the price of peace.

Bodin And Hobbes: Sovereignty Stated

The first systematic statement came from Jean Bodin in France in 1576. He defined sovereignty as the absolute and perpetual power of a commonwealth, and insisted it could not be divided without inviting civil war.

Who Was Jean Bodin? Jean Bodin (1530–1596) was a French lawyer, official and political philosopher. He wrote Six Books of the Commonwealth in 1576, during the French Wars of Religion, when rival religious factions were fighting for control of the kingdom. Bodin argued that a commonwealth must contain one authority that makes law for all and receives law from none, and that this power is perpetual because it does not expire with the ruler who holds it. He did not, however, think the sovereign could do anything whatever: he held that the sovereign remained bound by divine law, by natural law, and by the fundamental laws of the realm.

Thomas Hobbes carried the argument further in England. Writing in Leviathan (1651), immediately after the English Civil War, he argued that people escape a condition of insecurity by agreeing among themselves to submit to a common power. That power, once created, must be single and undivided, because a sovereignty split into parts would simply reproduce the conflict it was meant to end.

Meanwhile the states of Europe were settling their external relations along the same lines. The Peace of Westphalia in 1648, which ended the Thirty Years’ War in the German lands, is conventionally treated as the point at which rulers accepted one another as equals, each supreme within his own territory and none entitled to command another.

Rousseau’s contribution in 1762, which you met in section 4.3.4, changed the location of sovereignty without abandoning the idea. Supreme authority remained single and undivided; it simply belonged to the people rather than to a monarch.

TL 4.1 — How The Idea Developed Caption: The idea of one supreme authority takes shape. Span: 1576 to 1925 — nearly four centuries. 1576 | Bodin Defines Sovereignty | Absolute, perpetual power claimed for the commonwealth. 1648 | Peace Of Westphalia | States accept one another as equals. 1651 | Hobbes Writes Leviathan | Sovereignty is undivided and created by contract. 1762 | Rousseau Relocates Sovereignty | Supreme authority is placed in the people. 1832 | Austin’s Legal Statement | Sovereignty rests in a determinate human superior. 1925 | Laski’s Pluralist Reply | Authority is shared among many associations.

Two Traditions

By the nineteenth century the idea had hardened into a doctrine, and John Austin gave it its most rigorous legal form in 1832. His account is the subject of section 4.5.

This line of thought is called the monistic theory of sovereignty: the view that supreme authority must reside in one single, determinate body, and cannot be divided or shared. Bodin, Hobbes and Austin are its principal figures.

In the twentieth century it met a sustained challenge. The pluralist theory of sovereignty holds that authority is in fact distributed among many associations in society, and that the state is one of them rather than the master of all. Harold Laski stated the case at length in A Grammar of Politics (1925), and R. M. MacIver, G. D. H. Cole, J. N. Figgis and Léon Duguit argued along similar lines. Section 4.6 sets out its features.

Notice what changed and what did not. Both traditions agree that the question ‘who has the last word?’ is the central question of politics. They disagree about whether any real society has ever had a single answer to it.

4.5 Austin’s Theory Of Sovereignty

The monistic tradition reached its sharpest and most influential form in the work of John Austin. His account is usually called the legal theory, or the command theory, of sovereignty.

Austin’s aim was not to praise sovereign power or to say who ought to hold it. He wanted a definition precise enough for lawyers to work with: a test that would let anyone look at a society and say exactly where its supreme authority lay.

4.5.1 Austin And The England Of His Time

John Austin published The Province of Jurisprudence Determined in 1832, the year Parliament passed the first great Reform Act. He was writing at a moment when the English legal system seemed to offer a clear answer to his question.

Britain had no single written constitutional document, as you saw in section 4.3.2. Parliament could make or unmake any law whatever, and no court could declare an Act invalid. If a supreme, legally unlimited authority existed anywhere, it appeared to exist there.

Who Was John Austin? John Austin (1790–1859) was an English jurist, appointed to teach jurisprudence at the newly founded University of London. He is regarded as the founder of analytical jurisprudence, the study of law as a system of rules rather than as a branch of ethics or history. His lectures attracted few students and he resigned his chair, but the book drawn from them shaped legal thinking for a century. Austin’s central move was to separate two questions that earlier writers had run together: what the law actually is, and what the law ought to be. He argued that only the first belongs to jurisprudence.

Austin’s method explains a great deal about his conclusions. He was trying to make the study of law analytical and exact, and an exact science has no use for authorities that cannot be located. That demand for precision runs through every feature of his theory.

Source 4.2 gives his definition in his own words.

Source 4.2 — Austin Defines The Sovereign From: John Austin, The Province of Jurisprudence Determined, 1832. “If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.” Discuss: According to this test, what two facts would you need to establish before naming the sovereign of any country?

Read the sentence slowly, because every phrase is doing work. ‘Determinate’ means the sovereign must be identifiable. ‘Not in a habit of obedience to a like superior’ means the chain of obedience stops there. ‘The bulk of a given society’ allows for some disobedience without destroying sovereignty. Taken together, they turn a philosophical idea into a factual test.

The extract also shows the limits of this kind of evidence. It is a definition proposed by a jurist, not a description of any actual state. It tells us how Austin decided to use the word ‘sovereign’; it cannot by itself tell us whether such a superior exists in India, Britain or anywhere else. Nor does it say anything about why people obey — whether from fear, habit, agreement or respect. Those questions lie outside the test, and they are precisely where later thinkers attacked it.

4.5.2 Features Of Austin’s Theory

  1. Sovereignty lies in a determinate human superior. A determinate human superior is a definite, identifiable person or body of persons whose authority everyone can recognise. Austin insisted that sovereignty must belong to such a body and not to an abstraction. He therefore rejected notions like the general will as too vague to be located. In the England of his day he found the determinate superior in Parliament.

  2. Law is the command of the sovereign. For Austin a law is a command — an order issued by a superior to an inferior, backed by the threat of harm for disobedience. That threatened harm is the sanction. Customs, moral codes and religious rules are not law in themselves; they become law only when the sovereign adopts and enforces them. A rule is valid law because of where it comes from, not because of what it says.

  3. Obedience must be habitual. Sovereignty rests on habitual obedience — the settled, continuous compliance of the bulk of the society, rather than occasional or accidental compliance. Equally important is the other half of the condition: the sovereign itself habitually obeys no one. The chain of obedience must end somewhere, and where it ends is where sovereignty lies.

Q. If Parliament is elected, are the voters not the real sovereign?

A. Not by Austin’s test. The electorate issues no commands and cannot be pointed to as a determinate body, so he placed sovereignty in Parliament itself.

  1. The sovereign is above the law. Every person and institution in the state is bound by the sovereign’s commands, but the sovereign is not bound by them. It may make, amend or repeal any law. It cannot be legally restrained, because a restraint would require a superior authority, and by definition none exists.

  2. Sovereignty is absolute and unlimited. There are no legal boundaries to what the sovereign may command. Austin’s argument here is tight: if some body could impose limits on the sovereign, that body would itself be supreme, and would therefore be the real sovereign. A command may be wise or foolish, just or unjust, and remains legally valid either way.

  3. Sovereignty is indivisible. It cannot be shared between the legislature, the executive and the judiciary, or between a centre and its regions. Division would leave the crucial question unanswered, since nobody could say which authority prevailed in a conflict. Sovereignty must sit in a single locus of power.

  4. Law is separate from morality. This is Austin’s version of legal positivism — the position that the validity of a law depends on its source, not on its justice. As he put it, the existence of a law is one thing and its merit or demerit another. A law may be harsh and still be law; a moral principle may be admirable and still not be law.

What Austin Was Trying To Secure

Austin defended his conception by pointing to what it delivers: certainty. If everyone knows who holds final authority, disputes about jurisdiction end and the legal system becomes predictable. A society in which nobody can say where the last word lies is a society in which no legal question can ever be finally settled.

That is a real advantage, and it explains the theory’s long dominance. Whether the price is too high — whether any actual state has ever contained such a superior — is the question the pluralists took up, and section 4.6 sets out their reply.

Is Law Simply A Command Backed By A Threat? Claim: A rule is law because a sovereign issued it and punishment follows disobedience. Reasons: This identifies exactly which rules are law, without asking whether they are just. Strongest objection: Many laws confer powers rather than command — they tell you how to make a valid will or contract. What it turns on: Whether ‘law’ names one kind of rule or several different kinds.

4.6 The Pluralist View Of Sovereignty

The pluralist theory did not arrive as a small correction to Austin. It was a direct denial of his central claim, and it came from writers who thought the monistic account described no society that has ever existed.

Their starting point was observation rather than definition. Look at how authority actually works in a modern country, they said, and you will not find one determinate superior commanding everybody else. You will find many bodies, each commanding obedience in its own sphere, and a state that coordinates rather than dominates.

4.6.1 Why The Pluralists Rejected A Single Sovereign

The pluralist case against the monistic view rests on several grounds, and it is worth setting them out before turning to what pluralists positively assert.

  1. No determinate superior can be found. In a modern democracy, authority is spread across a legislature, an executive, a judiciary, and often several levels of government. Asking which single body is the determinate sovereign produces no clear answer, because in different matters different bodies have the final say.

  2. History records no absolute sovereign. Even rulers described as absolute were restrained in practice — by nobles who could withhold support, by established custom, by the Church, and by the settled expectations of their subjects. If no sovereign has ever been unlimited, the pluralists argued, an unlimited sovereign is a definition rather than a discovery.

  3. Modern states are limited by law. Written constitutions restrict what legislatures may enact, guaranteed rights place certain matters beyond ordinary legislation, and courts may test laws against the constitution. Austin held that a limited sovereign is a contradiction; the pluralists replied that every existing state is limited, so the contradiction lies in his definition.

  4. Obedience is not mere submission. People obey laws for many reasons: because they think the law right, because they accept the authority that made it, because their neighbours obey. Fear of the sanction is one reason among several, and usually not the main one. A theory built entirely on command and punishment misdescribes the ordinary citizen’s relation to the state.

  5. Loyalty is divided. Nobody obeys only the state. A worker may follow the decisions of a trade union, a believer the rulings of a religious body, a doctor the code of a professional council. These loyalties are real, they sometimes pull against each other, and no single command explains them.

  6. Federations and international bodies do not fit. If sovereignty cannot be divided, a federal state should be impossible, and yet federations function. If no authority stands above the state, international obligations should be meaningless, and yet states honour them.

These objections are why the pluralists rejected absolute sovereignty. They also explain what the theory tries to put in its place.

4.6.2 Features Of The Pluralist View

  1. Rejection of absolute sovereignty. Pluralists hold that sovereignty is relative, conditioned and limited rather than absolute, indivisible and unlimited. Authority everywhere operates within constraints — constitutional, social and international — and a theory that denies this describes an imaginary state.

  2. Sovereignty as distributed authority. Instead of concentrating supreme power in one body, pluralists see it dispersed among many centres. Families, religious institutions, trade unions, professional associations, universities and corporations each exercise genuine authority over their members. Sovereignty is plural in fact, whatever it may be in theory.

  3. The state is one association among many. This is Harold Laski’s characteristic claim. The state has wider functions than other associations and a special responsibility for public order, but it is not their master. Its task is to coordinate and harmonise the activities of many groups rather than to absorb them.

  4. State and society are not the same thing. R. M. MacIver pressed this distinction hardest. Society is the whole web of human association; the state is one specialised association within it, concerned with political order. Treating the two as identical, he argued, exaggerates the authority of the state and hides the richness of social life.

  5. Law rests on consent, not only on command. Pluralists deny that a rule is law simply because a superior issued it and attached a penalty. Laws work because they are accepted, and they draw their force from social recognition as much as from enactment. Where acceptance disappears, enforcement alone rarely holds.

  6. Authority is limited from above and from outside. Constitutions and courts limit governments from within the legal order. Treaties, international organisations and international law limit them from outside. Pluralists treat both kinds of limit as normal features of statehood rather than as exceptions to it.

  7. Dispersed power protects liberty. Because no single authority controls every sphere of life, individuals retain room to act, to associate and to dissent. Pluralists regard this dispersal as a safeguard: a person who can appeal to several centres of authority is harder to dominate than one who faces a single, comprehensive power.

Table 4.2 places the two accounts side by side.

Table 4.2 — Austin’s Monistic Theory And The Pluralist View Compared Caption: The two accounts differ over where sovereignty lies, what makes law binding, and whether limits are normal. | Basis | Austin’s monistic theory | The pluralist view | |—|—|—| | Where sovereignty lies | In one determinate body that obeys no other | Dispersed among many associations, including the state | | Why law binds | Because the sovereign commanded it and attached a sanction | Because it is enacted and also socially accepted | | Limits on sovereignty | None in law; a limited sovereign is a contradiction | Constitutions, courts, associations and international obligations | | Federations | Hard to explain, since sovereignty cannot be divided | Explained easily, since shared authority is normal | | What it claims to deliver | Certainty about who has the final word | Accuracy about how authority actually works | Flattens: The grid suggests a straight contest, but the two are partly answering different questions — one about where final legal authority must be located, the other about how authority is actually exercised.

That last row deserves attention, because it is the real point of difference. Austin was asking a legal question and wanted a determinate answer. The pluralists were asking a sociological question and reported an untidy one. Much of the disagreement between them turns on which question is worth asking.

Is The State Just One Association Among Many? One view: unions, faiths and professions command real obedience, so the state is one authority among several. Another view: only the state can bind all the others, and they exist on terms it lays down. What would you need to know to decide?

The Limits Of The Pluralist Case

Pluralism has its own difficulties, and a fair account must state them.

First, it leaves the location of ultimate authority uncertain. If several bodies exercise real authority, the question of who decides when they conflict still has to be answered, and pluralism does not answer it as cleanly as Austin did.

Second, emergencies expose the difficulty. In war, natural disaster or a breakdown of public order, decisions must be taken quickly and enforced everywhere. In such moments only the state can act, and the plural centres of authority look less like rivals than like bodies awaiting direction.

Third, the associations that pluralists point to often owe their standing to the state. A trade union can bargain, and a company can hold property, because law recognises them and courts enforce their arrangements. That does not disprove pluralism, but it complicates the claim that these bodies stand alongside the state rather than within its legal order.

Where you come down between the two traditions is not settled by this chapter. What the chapter can settle is what each is claiming, and what evidence would count for or against it.

Q5. Can sovereignty be shared — between a Union and its States, or between a state and the international bodies it joins?

A. Monists say no: powers are shared, sovereignty is not, since one constitution remains the source. Pluralists say yes: authority genuinely sits in several places at once.

4.7 Summary

  1. Sovereignty is the supreme authority of the state: its power to take final decisions within its territory, and its freedom from control by any outside authority. It is the element that separates the state from every other association.

  2. The word comes through Old French from the Latin superanus, meaning supreme or highest. Sovereignty is the fourth element of the state, alongside population, territory and government, and the only one no other body possesses.

  3. Sovereignty is authority, not merely power. Power is the capacity to compel; authority is the recognised right to command and be obeyed. A gang may have the first without the second.

  4. Thinkers have defined sovereignty differently. Bodin called it the absolute and perpetual power of a commonwealth; Austin located it in a determinate human superior habitually obeyed; Laski held it to be relative, and only one form of authority among many social powers. Two families of definition follow — the absolute and the limited.

  5. Sovereignty faces two ways. Internal sovereignty is supremacy over all persons and associations inside the territory; external sovereignty is independence in dealings with other states. They are one authority described from two positions.

  6. Nine characteristics are traditionally listed: originality, absoluteness, permanence, universality, indivisibility, inalienability, independence, exclusiveness and comprehensiveness. Universality concerns all persons; comprehensiveness concerns all matters.

  7. Absoluteness must be stated carefully where a written constitution exists. In India, Parliament’s competence is bounded by the constitutional distribution of law-making subjects, by the fundamental rights, and by the Supreme Court’s holding of 1973 that the basic structure of the Constitution may not be destroyed by amendment. Final authority rests with the constitutional order as a whole, not with any single organ.

  8. Titular sovereignty is sovereignty in name; real sovereignty lies with whoever actually decides. The British monarch and the President of India hold the highest formal office, while the elected government of the day exercises real authority.

  9. Legal sovereignty belongs to the body the law names supreme and whose enactments courts enforce; political sovereignty belongs to the electorate and to public opinion. The first explains why a law binds, the second why lawmakers behave as they do. The legal sovereign is determinate; the political sovereign is not.

  10. De jure sovereignty is authority recognised by law; de facto sovereignty is authority actually exercised. The two coincide in settled states and come apart when power is seized. Describing an authority as de facto records who is obeyed; it does not approve how power was taken.

  11. Popular sovereignty holds that ultimate authority originates with the people, and that rulers hold it in trust. Rousseau gave it philosophical form through the general will. In India it is written into the Preamble, which opens in the people’s name and closes by giving the Constitution to themselves, and it is exercised through universal adult franchise, public opinion and peaceful participation.

  12. The idea has a history. Medieval Europe had layered, overlapping authorities and no single supreme power. The breakdown of that order after the Reformation produced prolonged wars, and sovereignty was the answer offered: one final authority within fixed borders, and no superior outside them.

  13. That tradition is the monistic theory. It runs from Bodin in 1576 through Hobbes in 1651 to Austin in 1832, with the Peace of Westphalia of 1648 marking the acceptance of states as equals, and Rousseau in 1762 relocating sovereignty from ruler to people.

  14. Austin’s theory has seven features: sovereignty lies in a determinate human superior; law is the sovereign’s command backed by a sanction; obedience must be habitual, and the sovereign obeys no one; the sovereign is above the law; sovereignty is absolute and unlimited; sovereignty is indivisible; and law is separate from morality. What the theory secures is certainty about who has the final word.

  15. The pluralist theory rejects this on several grounds: no determinate superior can be found in a modern democracy, history records no unlimited sovereign, existing states are limited by constitutions and international obligations, obedience rests on acceptance rather than fear, loyalty is divided among many bodies, and federations and international organisations do not fit a single indivisible sovereign.

  16. Its features are: rejection of absolute sovereignty; sovereignty as distributed authority; the state as one association among many (Laski); the separation of state from society (MacIver); law resting on consent as well as command; limits imposed by constitutions and by international law; and the protection of liberty through dispersed power.

  17. Pluralism has its own limits. It leaves ultimate authority uncertain, it explains emergencies poorly, and many of the associations it relies on hold their standing because the law of the state recognises them.

The Arguments In One Place

The chapter’s central claim is the monistic one: in every state there must be some authority whose word is final, because a community that cannot say who decides cannot settle any dispute for good.

The strongest position against it is the pluralist reply: no actual state has ever contained such an authority, so an unlimited sovereign is a definition rather than a discovery about how power works.

Much of the disagreement turns on the question each side is asking. Austin asked where final legal authority must be located, and wanted an answer precise enough to use. The pluralists asked how authority is actually exercised, and reported that it is shared.

The chapter does not settle which question matters more. It equips you to state what each side claims, and what evidence would count for or against it.

4.8 Key Terms

  1. Authority — the recognised right to give commands and be obeyed, as distinct from the bare power to compel.

  2. Command — in Austin’s theory, an order issued by a superior to an inferior, backed by the threat of harm for disobedience.

  3. De facto sovereignty — sovereignty that is actually exercised over a territory, whether or not it is recognised by law.

  4. De jure sovereignty — sovereignty that is established and recognised by law, whether or not it is effective at the moment.

  5. Determinate human superior — a definite, identifiable person or body of persons in which Austin held that sovereignty must reside.

  6. External sovereignty — the state’s independence from the control of other states in its dealings beyond its borders.

  7. General will — in Rousseau’s account, the shared will of the people as a body, directed at the common good rather than at private preferences.

  8. Habitual obedience — the settled, continuous compliance of the bulk of a society, which Austin treated as the test of sovereignty.

  9. Internal sovereignty — the state’s supreme authority over every person, group and institution within its territory.

  10. Legal positivism — the position that the validity of a law depends on its source, not on whether it is just.

  11. Legal sovereignty — the authority that the law itself declares supreme, and whose enactments the courts enforce.

  12. Monistic theory — the view that sovereignty must reside in one single, determinate body and cannot be divided or shared.

  13. Pluralist theory — the view that authority is distributed among many associations in society, of which the state is one.

  14. Political sovereignty — the ultimate power of the electorate and of public opinion, to which the legal sovereign must in the end answer.

  15. Popular sovereignty — the principle that ultimate authority originates with the people, who entrust it to those who govern.

  16. Real sovereignty — sovereignty held by whoever actually takes the binding decisions of the state.

  17. Sanction — the penalty threatened for disobedience, which in Austin’s theory gives a command its force as law.

  18. Sovereignty — the supreme authority of the state: its power to take final decisions within its territory, and its freedom from outside control.

  19. Titular sovereignty — sovereignty held in name and ceremony only, without the power to decide.

4.9 Points to Ponder

  1. If a written constitution limits every organ of government, can any body in that state still be called sovereign — or has sovereignty become simply another name for the constitution itself?

  2. Austin required a sovereign that can be pointed to. Yet ‘the people’ can never be assembled in one place. Does that make popular sovereignty a fiction, or does it show that Austin was asking for the wrong kind of answer?

  3. A state may lawfully withdraw from any treaty it has signed. Suppose the cost of withdrawing were so high that no government would ever attempt it. Would such a state still be fully sovereign?

  4. If an authority that seized power is obeyed for fifty years, at what point — if any — does habitual obedience turn into legitimacy? What would have to change for the answer to be yes?

  5. Could a political community exist with no final authority at all, or is sovereignty only another way of saying that disputes must end somewhere?

4.10 Objective Questions

  1. Sovereignty that exists only in name and ceremony, without the power to govern, is called: [1 mark]
    1. real sovereignty
    2. legal sovereignty
    3. titular sovereignty
    4. political sovereignty
  2. According to Austin, a rule is valid law because it is: [1 mark]
    1. just and morally acceptable
    2. the command of the sovereign, backed by a sanction
    3. approved by public opinion
    4. founded on long-standing custom
  3. The characteristic of sovereignty which means that it extends to all matters, and not merely to all persons, is: [1 mark]
    1. universality
    2. exclusiveness
    3. originality
    4. comprehensiveness
  4. The pluralist view of sovereignty is most closely associated with: [1 mark]
    1. Jean Bodin
    2. Thomas Hobbes
    3. Harold Laski
    4. John Austin
  5. Assertion (A): In India the Constitution is described as the de jure sovereign. Reason (R): Every organ of the state derives its authority from the Constitution, and no law that violates it is valid. [1 mark]
    1. Both A and R are true, and R is the correct explanation of A.
    2. Both A and R are true, but R is not the correct explanation of A.
    3. A is true, but R is false.
    4. A is false, but R is true.
  6. Assertion (A): Austin refused to locate sovereignty in the general will. Reason (R): Austin held that sovereignty must lie in a determinate human superior who can be identified. [1 mark]
    1. Both A and R are true, and R is the correct explanation of A.
    2. Both A and R are true, but R is not the correct explanation of A.
    3. A is true, but R is false.
    4. A is false, but R is true.
  7. Match each thinker in Column A with the work in Column B. [1 mark]
Column A Column B
a. Jean Bodin i. A Grammar of Politics
b. Thomas Hobbes ii. Leviathan
c. John Austin iii. Six Books of the Commonwealth
d. Harold Laski iv. The Province of Jurisprudence Determined

  1. Fill in the blank: The characteristic of sovereignty which means that it cannot be permanently transferred or surrendered is called ______. [1 mark]

  2. Fill in the blank: Sovereignty that is actually exercised over a territory, though it may lack legal recognition, is called ______ sovereignty. [1 mark]

  3. True or False: External sovereignty means that every sovereign state is the legal equal of every other, whatever the difference in size or strength between them. [1 mark]

4.11 Check Your Concepts

  1. Define sovereignty. [2 marks]

  2. State any two features of internal sovereignty. [2 marks]

  3. Differentiate between power and authority. [3 marks]

  4. Differentiate between legal sovereignty and political sovereignty. [3 marks]

  5. Explain any four characteristics of sovereignty, giving one example for each. [4 marks]

  6. Explain, with an example, the difference between de jure and de facto sovereignty. [4 marks]

  7. ‘Sovereignty is indivisible.’ Evaluate this claim with reference to a federal state. [4 marks]

  8. Describe the features of Austin’s theory of sovereignty. [6 marks]

  9. Describe the features of the pluralist view of sovereignty, and state one limitation of that view. [6 marks]

  10. Explain the principle of popular sovereignty and describe how it finds expression in India. [6 marks]

4.12 Source & Passage-Based Questions

  1. A parliamentary democracy has a written constitution which declares the President to be the Head of State. Every law is enacted in the President’s name and all ambassadors present their credentials to him. The same constitution provides that the President shall act on the aid and advice of a Council of Ministers, drawn from and answerable to the elected legislature. In seventy years no President has refused a proposal placed before him.
    1. Name the kind of sovereignty the President holds, and give one reason for your answer. [2 marks]
    2. Where does real sovereignty lie in this state, and what makes it real? [2 marks]
    3. State one thing this description cannot tell you about how sovereignty works in that country. [1 mark]
  2. A cartoon shows a single large chair labelled ‘SOVEREIGN’. Four figures are pulling at it from different directions, labelled ‘Parliament’, ‘Courts’, ‘Trade Union’ and ‘Global Trade Body’. A student stands to one side holding a textbook and asking, ‘So who actually gets to sit?’
    1. Which theory of sovereignty does the cartoonist appear to favour? Give one reason from the drawing. [2 marks]
    2. How would a follower of Austin reply to the cartoon? [2 marks]
    3. State one thing a cartoon of this kind cannot show about the disagreement. [1 mark]
  3. In a country with a written constitution, the army takes control of the capital, suspends the legislature and announces that it will govern until fresh elections are held. Government offices continue to work under its orders and taxes are collected as usual. The constitution has not been repealed, and several foreign governments state that they still regard it as the country’s legitimate legal order.
    1. Name and explain the kind of sovereignty the army is exercising. [2 marks]
    2. Who remains the de jure sovereign, and on what basis? [2 marks]
    3. Does describing the army as a sovereign amount to approving what it has done? Explain your answer. [2 marks]
  4. A government holds a comfortable majority in the legislature and is fully entitled in law to pass a proposed measure. After several weeks of newspaper criticism, public meetings and peaceful demonstrations, it withdraws the proposal without putting it to a vote.
    1. Which kind of sovereignty does the government’s legal entitlement illustrate? [1 mark]
    2. Which kind of sovereignty best explains the withdrawal, and why? [2 marks]
    3. ‘This proves that the people are the real sovereign.’ Give one reason for treating that conclusion with caution. [2 marks]