Legal Sovereignty versus Political Sovereignty

In a company, the board of directors signs contracts, passes resolutions and runs the business. Courts enforce what the board lawfully decides. Yet at the annual general meeting the shareholders can vote the directors out, and a sensible board keeps them in mind. Ask a lawyer who governs the company and he points to the board; ask who really holds the power and the answer is the shareholders. Dicey saw the same double answer in the British constitution. Legally, Parliament is sovereign; politically, the electorate is. This note explains the distinction, Austin's attempt to merge the two, and how the Indian Constitution rearranges both. The general theory of sovereignty is in Note 38; the rival models of Parliament and Constitution are compared in Note 95.

1. Dicey's Distinction

A.V. Dicey, in Introduction to the Study of the Law of the Constitution (1885), observed that the word sovereignty is used in two senses that are constantly confused. In the legal sense, the sovereign is the person or body whose power of law-making is unrestricted by any legal limit, and whose enactments the courts are bound to apply. In the political sense, the sovereign is the body whose will is ultimately obeyed by the citizens of the State. Applying the distinction to England, Dicey held that Parliament (the Crown, the House of Lords and the House of Commons acting together) is the legal sovereign, while the electors are the political sovereign, or at least its predominant part.

The two questions differ in kind. The first is a question of law, answered by asking what the courts will treat as valid. The second is a question of fact about power, answered by observing whose wishes the law-makers must, in the long run, respect.

2. The Legal Sovereign

The legal sovereign is identified by what the courts do. In Britain an Act that has passed both Houses and received the royal assent is applied by every court without inquiry into its wisdom, its justice or the popularity of its authors. Dicey's doctrine has a positive limb (Parliament may make or unmake any law) and a negative limb (no court or other body may set its enactments aside); these, and the rule that Parliament cannot bind its successors, are examined in Note 95.

Legal sovereignty is unlimited in law, but Dicey admitted that it is limited in fact. He described an external limit, the possibility that subjects will disobey or resist laws they find intolerable, and an internal limit, arising from the character of the sovereign itself, since legislators share the moral outlook of the society that produced them. He borrowed Leslie Stephen's illustration: if a legislature decided that all blue-eyed babies should be murdered, preserving blue-eyed babies would become illegal, but legislators would have to go mad before they could pass such a law, and subjects be idiotic before they could submit to it. The legal power exists on paper; the political facts keep it in check. That is exactly where the political sovereign enters.

3. The Political Sovereign

The political sovereign is the body whose will the legal sovereign must, in the end, follow. In a representative democracy it is the electorate. Voters make no law, and no court will strike down an Act because it defies public opinion. But the electors choose the House of Commons, and a government that persistently acts against their wishes will be removed at the next election. Dicey argued that the conventions of the constitution, such as the rule that a ministry which has lost the confidence of the Commons must resign or seek a dissolution, exist to secure that the will of the political sovereign ultimately prevails. Law gives Parliament the last word; conventions and elections make sure that the last word echoes the voters.

The idea descends from theories of popular sovereignty. Locke held that the legislature holds power on trust and that the community keeps a supreme power to remove it when the trust is betrayed. Rousseau went further and located sovereignty itself in the general will of the people, which cannot be alienated or represented (Note 38). Dicey's political sovereign is a modest, lawyerly version: the people do not make the law; their will is what the law-makers finally obey.

4. Austin: Merging the Two

Austin did not separate the two. Searching for a determinate sovereign in Britain, he placed it in the King, the House of Lords and the electors of the House of Commons, treating the members of the Commons as trustees for those who elected them. On his view the electorate was part of the legal sovereign itself.

Dicey thought this confused law with politics. The courts know nothing of the electors; an Act passed in defiance of the voters is as valid as any other. The electors' influence is real but political, not a legal power to make or unmake law. Austin's merger also created the difficulty Hart later pressed: if the electorate is sovereign and the electorate is the bulk of society, then the society habitually obeys itself, and obedience to a superior loses its meaning (Note 38). Dicey's separation avoids this: the legal sovereign commands; the political sovereign chooses and removes those who command.

5. Neighbouring Distinctions

Do not confuse the pair with its neighbours, tabulated in Note 38. The titular sovereign holds power in name (the British monarch, the President of India), the real sovereign exercises it. The de jure sovereign has the legal right to command, the de facto sovereign is actually obeyed, as after a coup (Note 12). The legal and political pair is sometimes likened to de jure and de facto, but the parallel is imperfect: a de facto sovereign actually commands in place of the lawful one, whereas the political sovereign does not command at all.

6. The Two Compared

7. India: The People and the Constitution

The Indian Constitution rearranges both halves of Dicey's picture. Politically, the Preamble records that 'We, the people of India' adopt, enact and give to themselves the Constitution, and Art. 326 bases elections to the Lok Sabha and the State Legislative Assemblies on adult suffrage; the 61st Amendment (1988) lowered the voting age from twenty-one to eighteen. The people are the ultimate political sovereign. Legally, however, there is no Diceyan sovereign. Parliament and the State legislatures legislate 'subject to the provisions of this Constitution' (Art. 245), laws inconsistent with fundamental rights are void (Art. 13), and even the amending power under Art. 368 cannot destroy the basic structure. If a legal sovereign must be named, it is the Constitution itself, or in Kelsen's language the legal order (Note 38).

8. Criticism and Evaluation

The distinction has been criticised on several grounds. First, the political sovereign is indeterminate. The electorate acts only at elections, speaks through parties, the press and pressure groups, and is itself divided; it is hard to say what its will is on any particular law. Second, the political sovereign is shaped by law: who may vote, and how, is fixed by the legal sovereign, so dependence runs both ways. Third, the distinction fits a parliamentary system with an unwritten constitution. Where a written constitution binds the legislature, as in India and the United States, there is no single legal sovereign to set against the political one. Fourth, in direct democracy, as with referendums, the two tend to merge, because the people act directly in a legally recognised form. Fifth, on Hart's view the ultimate test of law is the rule of recognition accepted by officials, which makes the search for any sovereign unnecessary.

The distinction nonetheless explains why a legally omnipotent Parliament does not pass monstrous laws, why conventions matter, and why the Indian Supreme Court guards elections as a basic feature. A healthy constitution keeps legal authority and political legitimacy connected: the people choose, the Constitution governs, and the courts keep both links intact.

9. Frequently Asked Questions

Q. Who is the legal sovereign and who is the political sovereign in Britain?
A. Parliament, meaning the Crown, Lords and Commons together, is the legal sovereign, because the courts must apply its Acts and no one may set them aside. The electorate is the political sovereign, because in the long run Parliament must follow its will.

Q. How does the political sovereign control the legal sovereign?
A. Not by law but by elections, conventions and opinion. Dicey described internal limits (the outlook of the legislators themselves) and external limits (the risk of disobedience or resistance) that keep a legally unlimited Parliament within bounds.

Q. Is the electorate the legal sovereign in India?
A. No. The people are the ultimate political sovereign and the source of the Constitution, but legally the Constitution is supreme and every organ, Parliament and the amending power included, is limited by it (Keshav Singh, 1964; Kesavananda Bharati, 1973).

See also: Note 38 (sovereignty), Note 95 (parliamentary sovereignty versus constitutional supremacy), Note 39 (State and law), Note 40 (rule of law), Note 46 (constitutional doctrines), Note 12 (Kelsen).