Sovereignty

Think of an appeal that travels upward: from a clerk to his officer, to the department, to a court, to a higher court. At some point the chain must stop, or nothing would ever be decided. Sovereignty is the name for the place where the chain stops: the authority whose word is final. Every theory of sovereignty tries to say where that point lies. Is it a king, a Parliament, the people, a constitution, or, as the pluralists suggest, nowhere at all? The answer shapes your view of law, because on the classical positivist view law is simply what the sovereign commands.

Figure: Two pictures of sovereignty: Austin's single sovereign receiving the habitual obedience of subjects, against the pluralists' authority shared among the State, the church, trade unions, associations and local bodies

1. Meaning and General Attributes

The word comes, through the Old French soverain, from the late Latin superanus, meaning above or supreme. Sovereignty is therefore supreme power: the highest authority within a political society, from which the legal validity of other powers is derived and which does not itself derive its authority from any higher legal source. It is the attribute that marks the State off from every other association. A club or a church makes rules for its members, but only within the law of the State.

Writers on political science, notably Garner, list the general attributes of sovereignty as permanence (it lasts as long as the State, whatever happens to rulers), exclusiveness, all-comprehensiveness (it reaches every person and association in the territory), inalienability, unity or indivisibility, and absoluteness. Keep this general list separate from Austin's marks in section 3: permanence is a political science attribute, not one of Austin's. Sovereignty also has two faces: internal supremacy over all within the territory, and external independence from the legal control of other States.

2. The Growth of the Theory: Bodin to Bentham

Jean Bodin

The modern theory begins with the French jurist Jean Bodin, whose Six Books of the Commonwealth (1576) was written during the French wars of religion, when rival factions threatened to tear the kingdom apart. Bodin defined sovereignty as the absolute and perpetual power of a commonwealth and, in the Latin version, as supreme power over citizens and subjects, unrestrained by law. The sovereign makes law for others but is not bound by his own laws, though he remains subject to divine law, natural law and certain fundamental laws of the realm. Bodin, not Hobbes, gave the first modern theory of sovereignty.

Grotius and Hobbes

Grotius (1625) defined sovereign power by its freedom from the legal control of any other human will. Thomas Hobbes, in Leviathan (1651), took the idea to its extreme. To escape the war of all against all, men covenant with one another to hand their power to a sovereign who is not himself a party to the covenant and is therefore bound by nothing. The Hobbesian sovereign is absolute and indivisible; divided sovereignty, Hobbes thought, meant civil war. His command view of law runs directly into Bentham and Austin.

Locke and Rousseau

John Locke (Two Treatises of Government, 1690) held that government holds power on trust, and that the community may remove a legislature that betrays it. Jean-Jacques Rousseau (The Social Contract, 1762) completed the move: the sovereign is the general will of the people directed to the common good, and sovereignty is inalienable and indivisible. This is the root of popular sovereignty, the idea behind the Preamble to the Indian Constitution.

Bentham

Jeremy Bentham, in A Fragment on Government (1776), defined political society by a habit of obedience paid by subjects to a person or assemblage of persons. He is the direct source of Austin's theory, but he accepted that the supreme power could be limited by express convention, such as a federal compact. Austin hardened these ideas into the doctrine of an indivisible and illimitable sovereign.

3. Austin's Theory of Sovereignty

John Austin, in The Province of Jurisprudence Determined (1832), made sovereignty the foundation of his theory: positive law is the command of a sovereign. His definition, to be learnt word for word, is: '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.'

In England Austin located sovereignty in the King, the House of Lords and the electors of the House of Commons. In the United States he placed it in the governments of the several States taken together as one aggregate body, that is, in the body that can amend the Constitution. That is how he kept indivisibility intact in a federation.

Many guidebooks add continuity as an Austinian attribute. Austin did not claim it, and his theory cannot supply it: continuity is the very weakness Hart exposed (section 5).

4. Kinds of Sovereignty

Dicey's distinction answers a question Austin found awkward. The legal sovereign is the body whose enactments the courts must apply; the political sovereign is the electorate, whose will the legal sovereign must in the long run follow. Austin squeezed the electors into the legal sovereign itself, blurring law and politics; Dicey kept them apart.

5. Criticism of Austin's Theory

Maine: the Ranjit Singh objection

Sir Henry Maine, in Early History of Institutions (1875), pointed to Maharaja Ranjit Singh of Punjab, as absolute a despot as any, who yet never issued a command of the kind Austin called law. His subjects lived by immemorial custom and religious usage administered by village and family authorities. Austin's theory, Maine concluded, fits only the modern centralised State of western Europe; for most of history law was custom, not command.

Hart: habit, continuity and persistence

H.L.A. Hart, in The Concept of Law (1961), gave the decisive criticism. First, a habit cannot explain the right to make law. When Rex I, habitually obeyed, dies and Rex II succeeds, no habit of obeying Rex II yet exists, yet his first order is law at once. Only an accepted rule of succession explains this continuity. Second, Austin cannot explain the persistence of law: a statute made by a sovereign long dead is still law. Third, legal limits on legislatures exist: a written constitution creates disabilities, and laws made in breach are void. Fourth, placing the sovereign in a democratic electorate makes the people obey themselves, which empties the idea of obedience to a superior. Hart replaced the sovereign with the rule of recognition (see Notes 11 and 61).

Federalism and the modern State

In a federation such as the United States or India, power is divided between centre and units, both subject to a written constitution enforced by courts. Austin's amending-body device is artificial: that body rarely acts and is itself bound by procedure, and in India even the amending power is limited by the basic structure. Critics also note that Austin dismissed international law as law improperly so called. His defenders answer that he spoke of legal sovereignty only.

6. Kelsen: Sovereignty of the Legal Order

Hans Kelsen removed sovereignty from persons altogether. The State is the legal order itself (see Note 39), and sovereignty is a property of that order: it is sovereign when its validity rests on no higher legal order. Kelsen added that either national or international law may be viewed as the supreme order; legal science cannot choose between them. His approach explains what Austin could not: why authority continues when rulers change, and why a legislature is bound by the constitution under which it acts.

7. The Pluralist Attack on Sovereignty

In the early twentieth century the pluralists attacked the monistic theory of a single, unlimited State. Society is made up of many associations (churches, trade unions, professions, local communities), each with authority of its own; the State is one of them, perhaps the most important, but it does not create them.

The pluralists were right that loyalty and effective power are spread through society, and their work fed modern ideas of federalism and local self-government. But when associations conflict, someone must settle the dispute with final authority, and that someone is the State. Externally, too, sovereignty is now qualified by international law; a State that joins a treaty does not lose its sovereignty, it exercises it. The lasting lesson is that sovereignty is best understood as legal supremacy within a system, not as unlimited power in fact.

8. Where Does Sovereignty Lie in India?

The Preamble declares India a sovereign socialist secular democratic republic and records that 'We, the people of India' gave to themselves the Constitution. Three propositions follow. Ultimate sovereignty rests with the people. Legal supremacy rests with the Constitution: every organ is created and limited by it, and laws inconsistent with fundamental rights are void (Art. 13). No organ is sovereign: Parliament cannot make or unmake any law whatever, and even its amending power under Art. 368 cannot destroy the basic structure. India follows constitutional supremacy, not parliamentary sovereignty.

9. Evaluation

Austin's theory remains a useful test of legal validity in a centralised State, but it confuses the fact of obedience with the right to rule and cannot account for continuity or constitutional limits. Hart's rule of recognition and Kelsen's supreme legal order place the final word in rules rather than persons, and the Indian Constitution reflects that modern understanding: the people are the source of authority, the Constitution is the supreme law, and every organ acts within limits the courts enforce.

10. Frequently Asked Questions

Q. What are Austin's marks of sovereignty?
A. The sovereign is a determinate human superior who receives habitual obedience from the bulk of a given society and is not in a habit of obedience to any like superior. Sovereignty on his view is indivisible and legally illimitable. Continuity is not one of his marks.

Q. What was Hart's main objection to Austin's sovereign?
A. That a habit of obedience cannot explain the right to make law. When Rex I dies, Rex II's first order is law at once though no habit of obeying him yet exists; and old statutes remain law after their makers are dead. Only accepted rules, above all the rule of recognition, explain continuity and persistence. Hart also showed that constitutions legally limit legislatures.

Q. What did the pluralists argue?
A. That the State is one association among many, that churches, unions and other groups have authority of their own, and that sovereignty is in fact divided and limited. Laski even suggested the concept of sovereignty should be surrendered.

Q. Who is sovereign in India?
A. No organ. The people are the ultimate source of authority and the Constitution is the supreme law. Parliament, the executive, the States and even the amending power are limited by the Constitution, as held in Keshav Singh (1964), Kesavananda Bharati (1973) and Minerva Mills (1980).

See also: Note 11 (analytical school and Austin), Note 12 (Kelsen), Note 39 (State and law), Note 40 (rule of law), Note 46 (constitutional doctrines), Note 61 (Austin versus Hart), Note 62 (Austin versus Kelsen).