BAQ110_Political Science-I(English)

Sovereignty 145 has binding effect upon all. The modern states does not recognise the existence of any rival within its jurisdiction. Sovereignty makes no exception and grants no exemption to anyone. (d) Inalienability: The sovereignty of the state cannot be alienated. It is not transferable. As a man cannot live without his heart, so also the state without sovereignty. Barker has said that sovereignty can no more be alienate that a tree can alienate its right to sprout or a man can transfer his life without self-destruction. The state and sovereignty are essential to each other. But when the state lost a part of its territory, it does not mean that state has lost its sovereignty. Closely connected with inalienability is the attribute of the imprescriptibility of sovereignty. This means that sovereign power cannot be lost with lapse of time by the not-exercise of such power. (e) Exclusiveness: The sovereign power is exclusive. There is none to compete with it. There can be only one sovereign power in a state. And the state is legally competent to compel the obedience of its inhabitants. State and sovereignty go together. The state excludes any outside agency in the exercise of sovereignty. No individual or association within a state or outside can wield sovereignty and be equal to the state. (f) Indivisibility: The sovereignty of the state is indivisible. Legal sovereignty aims at its unity. Division of sovereignty means destruction of sovereignty. Jellinek has remarked that the notion of a “divided, fragmented, diminished limited, relative sovereignty” is the negation of sovereignty. Gettel writes of sovereignty is not absolute, no state exists, if sovereignty is divided more than one state exists. Thus, sovereignty is always full and indivisible. Thus, sovereignty is the supreme characteristic of statehood. 8.4 Types of Sovereignty The term Sovereignty is used in different senses, and therefore it is of various types. Political scientists have classified the kinds of sovereignty on different bases. These are: (1) Titular and Real; (2) Legal and Political; (3) Popular and National; (4) De Facto and De Jure; and (5) Internal and External. CU IDOL SELF LEARNING MATERIAL (SLM)

146 Political Science – I 1. Titular Sovereignty and Real Sovereignty We draw a line of distinction between titular sovereignty and real sovereignty on the basis of the manner in which sovereignty is exercised: (a) Titular Sovereignty: Titular sovereignty is nominal sovereignty, that is, supreme power only in name and not in reality. A titular sovereign is theoretically mighty in power but in practice only a cipher. A monarch or a person who has sovereignty only in name is known as titular sovereign. He does not exercise real power but exercises it in a nominal capacity. He is like a shadow without substance, a mere ornamental head who is, unable to use to practical effect what is given to him by a theoretical principle. (b) Real Sovereignty: Supreme power, which is actually or really exercised, is real sovereignty. An individual or group of individuals exercising real supreme power is known as real sovereign. Prime Minister of Britain or Prime Minister of India exercising sovereignty on behalf of the state and responsible to Parliament may be cited as an example of real sovereign. 2. Legal Sovereignty and Political Sovereignty On a legal basis sovereignty can be divided into two types: Legal and Political: (a) Legal Sovereignty: Supreme power in a state which has a legal basis is legal sovereignty. Such a sovereignty is valid strictly from the legal point of view or according to law. The legal sovereign is the supreme law-making authority, which is competent to put in legal terms the highest orders of the state. Sovereignty, which, carries with it legal sanctity or supreme power according to law is legal sovereignty. The legal sovereign is known to all and is recognised by all in the legal sense. He is competent to issue final commands in legal terms. People appeal to him as the final source of authority. He is the only supreme authority recognised by lawyers and law courts. Nobody can disobey the orders of the legal sovereign. It may also be said that legal sovereignty is the lawyer’s concept of sovereignty. CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 147 (b) Location of Legal Sovereignty: In every state, legal sovereignty located or vested in one person or in a group of persons and is exercised on behalf of the state. In England, Parliament is legal sovereign. 3. Political Sovereignty behind Legal Sovereignty Political sovereignty stands behind legal sovereignty. The people or the electorate expressing the will of the state behind the legislature constitute the political sovereign, who has the competence to elect the legal sovereign. The political sovereign is not recognised by lawyers and law-courts, though he is the maker or creation of the legal sovereign. In a broad sense, the entire population represents the political sovereign, and in a narrow sense, only the electorate is the political sovereign. Difference between Legal and Political Sovereigns: We may note the difference between the legal sovereign and the political sovereign: (a) The legal sovereign is the supreme law-making authority expressing the will of the state in legal terms. The political sovereign, who is behind the legal sovereign, cannot express his will in legal terms. (b) The legal sovereign is determinate, definite and visible. The political sovereign, who is not determinate, definite and visible. The political sovereign, who is not determinate and clear, is unorganised. (c) Legal sovereignty is vested in one person or a group. Political sovereignty is vested in the electorate. (d) The legal sovereign is recognised by lawyers. The political sovereign is not recognised by lawyers. (e) The legal sovereign cannot go against the political sovereign (that is, people or electorate) because in the ultimate analysis the political sovereign controls the legal sovereign. (f) The concept of legal sovereignty is clear but the concept of political sovereignty is vague. (g) The legal sovereign is elected by the political sovereign in a democratic country. The people or electorate form the political sovereign. (h) The legal sovereign and the political sovereign are not independent entities. CU IDOL SELF LEARNING MATERIAL (SLM)

148 Political Science – I 4. Popular Sovereignty and National Sovereignty (a) Sovereignty with Electorate: Supreme power, which lies in the hands of the people, is popular sovereignty. The people means electorate, that is, adults who are qualified to cast their vote at general elections in democratic countries. Popular sovereignty is grounded in the concept that ultimate power lies in the people in their aggregate capacity. The principle of popular sovereignty emerged and took shape in the sixteenth and seventeenth centuries. (b) Governing or Expressing Will: It is said that popular sovereignty prevails in Britain, the USA, India and other democratic states. Many writers have written much on popular sovereignty in modern times. (c) Popular Sovereignty a Great Force: In the modern world, particularly from the 19th century, popular sovereignty as a concept has become very powerful. It speaks volumes of the people as a source of power and puts the people in the sun. (d) National Sovereignty Not Synonymous with Popular Sovereignty: The principle of national sovereignty was put forth by the French Revolutionaries in their celebrated document, the Declaration of the Rights of Man. This concept vests sovereignty in the nation. But if the nation does not enjoy the principle of universal suffrage and a vast population has no right to vote at general elections, national sovereignty cannot be equated with popular sovereignty. (e) National Sovereignty Concept of Little Use: The expression National Sovereignty as used by the French Revolutionaries perhaps drives home the point that sovereignty does not lie in the absolute monarch but in the nation. The age of absolute monarch has gone and the concept is not of much use now. 5. De Facto and De Jure Sovereignty (a) De Facto Sovereignty: De facto sovereignty means sovereignty by fact, reality or actually. A de facto sovereign wields power and commands obedience by virtue of the fact that he is able to force people to obey him and remain loyal to him. He may exercise power even without a legal basis. CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 149 (b) De Jure Sovereignty: De Jure sovereignty is sovereignty by law. A de jure sovereign is the legal sovereign, who has a lawful claim to obedience. He exercises power on the basis of law, that is, legally he has the right to rule and command loyalty. A king is the de jure ruler in a state. Law recognises him as ruler, who commands obedience and loyalty. (c) Coexistence of De Facto and De Jure Sovereigns : In a kingdom, a de facto sovereign and a de jure sovereign may co-exist. Actual power may be exercised by the Diwan, who becomes the de facto ruler when the king the de jure sovereign does not take active interest in state affairs and remains in the background as a mere figure head. If the king is strong and wields actual power taking great interest in governance, he is not only the de jure sovereign but also de facto sovereign. 6. Internal Sovereignty and External Sovereignty (a) Internal Sovereignty: The supreme power exercised by the state on all individuals and associations is internal sovereignty. (b) External Sovereignty: J.W. Garner seriously objects to the use of expression external sovereignty, which he says is not the apt term to be used in international law. He prefers the use of the term Independence. By virtue of external sovereignty, a state is on an equal footing with other states. Treaties and agreements are made between states on the basis of equality. A state is not competent to issue orders to other states; but at the same time it does not take orders from other states. All states, whether big or small, are independent and have an equal rank of status. 8.5 Monism or Monistic Theory of Sovereignty The theory of sovereignty which was developed by Jean Bodin, Thomas Hobbes, Jeremy Bentham and other writers received scientific exposition at the hands of John Austin (1790-1859), an eminent English jurist and philosopher. In his inimitable manner, Austin gave a clear and precise exposition of the legal or Monistic theory of sovereignty in his classic work Province of Jurisprudence Determined (1832). In his Lectures on Jurisprudence Austin differentiated between law and morality, and between positive law and customs. CU IDOL SELF LEARNING MATERIAL (SLM)

150 Political Science – I Statement of Austin’s Monistic Theory Sovereignty in Determinate Human Superior: According to Austin, sovereignty in a state is vested in a determinate human superior, who is legally placed above all people. He says, “If a determinate human superior not in a habit of obedience to a like superior, receives habitual obedience, from the bulk of a given society, the determinate superior is sovereign in that society and that society (including the superior) is a society political and independent.” The determinate human superior is the final source of supreme power. The statement of Austin can be analysed as follows: 1. In a state, the majority of citizens obey habitually a determinate human superior, who is to be deemed as one person or a group of persons. 2. The determinate human superior is the law-maker in the state. Laws are his commands and without him the state can have no laws. Whatever the determinate superior wills is law. 3. The supreme power vested in the determinate human superior is sovereignty. 4. Sovereignty is absolute, indivisible and unrestrained. It lies in the hands of the determinate human superior. It is not vested in the people or the electorate or the General Will as conceived by Rousseau or in God as given by the Divine Right Theory. 5. The determinate human superior does not obey the order of anyone, because he has no rival of equal status in the state. He is placed above all the people. 6. Most of the people obey the sovereign’s orders as a matter of regular habit. The obedience is not casual or irregular, but constant and invariable, and on a permanent basis. Evaluation of Austin’s Theory We shall briefly examine the merit and drawbacks in Austin’s Theory of Sovereignty: 1. Merit: Austin’s Theory clearly and logically explains the legal nature of sovereignty. It is lucid and free from imprecision and ambiguity. CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 151 2. Drawbacks: The theory suffers from several infirmities and has been vehemently criticised on various grounds by several writers including advocates of democracy, internationalists and pluralists. The following drawbacks can be mentioned: (a) Not Possible to Discover Determinate Human Superior: In no state can the determinate human superior as visualised by Austin can be found. Sovereignty cannot be located in one or a few, who cannot be discovered. Courts of law in a modern state look at the legislature as a source of law and not at the determinate human superior as given in Austin’s theory. In fact no court of law today will be able to discover such an authority, whose commands are laws. Hence Austin’s theory is untenable. In Britain, Parliament is supreme and sovereignty is located in it. Parliament cannot be regarded as a determinate superior (who does not obey the orders of others), as it is answerable to the electorate and cannot act as it likes. (b) Sovereign Never Absolute: Sir Henry Maine and other historical jurists strongly criticise the absolute nature of sovereignty. Sir Henry says that in history, sovereignty has never been absolute. To strengthen his argument, Sir Henry says that even Maharaja Ranjit Singh (1801-39) could not exercise absolute sovereignty over the Sikhs in Punjab. He had always to temper his supreme power by taking into consideration customs and usages in the Sikh community. He could not govern in the style of Austin’s determinate human superior, though he had powers of life and death over his subjects. (c) Too Legal and Abstract: Austin’s theory, which is too legal and abstract, fails to take cognisance of the philosophical aspect of sovereignty. The concept of popular sovereignty says that sovereignty is vested in the people, and rulers are ultimately answerable to them. (d) Importance of Customs and Traditions Ignored: Austin’s theory makes law very simple. It is nothing else but sovereign’s command. This argument of Austin does not hold water, as all laws cannot be commands of the sovereign. Austin commits the serious mistake of ignoring the importance of customs and traditions. CU IDOL SELF LEARNING MATERIAL (SLM)

152 Political Science – I Laws are derived from various sources, and some of them are rooted in customs and usages of the people. (e) Absolute Sovereignty is Harmful: Absolute or unrestrained sovereignty is harmful, as the sovereign is likely to rule in an autocratic and irresponsible manner. (f) Anti-Democratic: Austin’s theory is anti-democratic and it cuts at the very roots of democracy as a form of government and a way of life. The theory says that subjects have no legal rights. (g) Concept of Law is Unreasonable: Austinian concept of law that it is a command of the sovereign is unreasonable. Any command of a sovereign cannot be law. On account of these limitations and deficiencies it is impossible to make the monistic theory of sovereignty valid for political philosophy. It grossly neglects the socio-political forces in every community which profoundly influence the operation of its legal instruments. The chief merit, however, of the theory is that, as a conception of the legal nature of sovereignty, it is clear and logical. 8.6 Pluralism or Pluralistic Theory of Sovereignty The pluralistic view of sovereignty constitutes one of the most remarkable movement in recent political theory. Pluralism is purely a reaction against Monistic view of sovereignty which is absolute, indivisible and a complete unity in itself. Monism regards the state as the sole source of legal authority. All other associations are the creation of the state and dependent for their existence upon the will of the state. As an eloquent protest against monistic theory of sovereignty, pluralism says sovereignty is never absolute and is divided between the state and many other associations. In the pluralistic state there exists no single source of authority that is all competent and comprehensive. There is no unified system of law and no centralised organ of administration. On the contrary, it is a multiplicity, it is divisible into parts and should be divided. The pluralistic point of view received a great stimulus from the writings of the German jurist Otto Gierke. In England the other exponents of pluralism are Maitland, Figgist, Barker, G.D.H. CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 153 Cole, Lindsay, Mac Iver etc. Prof. Laski is regarded as the most vehement critic of the Monistic Theory. Statement of the Pluralistic Theory: Laski says that sovereignty is neither absolute nor a unity. Man’s social nature finds expression in numerous associations and groups. These associations or groups pursue various ends like religious, social, economic, political, professional and recreational. Some of these associations are even prior to the state. The pluralist argue that the state is not the only supreme association. The state is one of these associations or groups. No one of these group is superior to others. All associations in their origin are natural and spontaneous and all do not derive their existence of rights from the state. Also all act in their respective fields independently of state control. The state is an association of associations. Though, it is the most important association, yet is the first among the equals. So the state alone cannot be the sole source of powers or focus of loyalty. The loyalty of the citizens is divided among so many associations which influence the life of modern man. Each association has its own law and Government. Thus, sovereignty is divided among so many associations or groups. The pluralists reject the distinction between the state and Government. They consider the distinction as being artificial and product of legal reasoning. The pluralistic theory, thus finds practical explanation in a variety of associations and groups which promote the industrial, political and other interests of man. All these groups determine his choice, plan his activities and provide him opportunities for the fulfillment of his desires. Society is a well-organised association that link men and women with one another. The state is, as Barker put it “more an association of individuals already united in various groups for a further and more embracing common purpose.” It means that the state is only one among many other forms of human associations. As a compared with other associations it has no more superior claims. Maitland says, “the state and the associations are the species of the same genus.” From this point of view the state is viewed as component of a federation. It is an interlocking union of groups. So the state is not the sole authority to command and enforce obedience of the citizens. CU IDOL SELF LEARNING MATERIAL (SLM)

154 Political Science – I Gettell has nicely summed up the central idea of a pluralism. He says “The pluralists deny that the state is a unique organisation.” They hold that others associations are equally important and natural. They agree that such associations for their purpose are as sovereign as the state for its purpose. They emphasize the inability of the state to enforce its will in practice against the opposition of certain groups within it. They deny the possession of force by the state gives it any superior right. This insist on the equal rights of all groups that command the allegiance of their members and that perform valuable functions in society. Hence sovereignty is possessed by many associations. It is not an indivisible unit, the state is not supreme or unlimited. Evaluation of the Pluralistic Theory: The pluralist views as to the division to sovereignty is true to the great extent. Our life is a group life. Modern society consists of a number of associations. No one can deny that voluntary groups and associations play an important role in the local and national life of the people. Man owes allegance to these groups and associations in order to enrich his well being. The pluralistic theory does not subscribe to the idea of elevation of the state to mystical heights. It demarcates and limits the functions of the state. The pluralist recognise the value of the group which is a great characteristic of modern life. They plead for awakening of local life by decentralisation of authority. Apart from these merits of pluralism, this theory has been criticised on the following grounds: 1. While the associations are taken to be equals with the state, it is to be noted that these associations can exist, grow and achieve their goals within the framework of the state. So we cannot abandon the doctrine of the sovereignty of the state. Without sovereignty there can be no state and without state there cannot have variety of associations. There must be some political organisation to co-ordinate the collective life of man and decide dispute among associations. 2. The pluralists have not attempted to make these groups independent of the state. Clark says, “The state is distinguished from other social bodies by its position among them, it is highest.\" Even Laski did not purpose to get rid of the state altogether. He recognised the distinction between the state and an association and defined the state as association to protect the interests of men as citizen. CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 155 3. Pluralism appears to be a dangerous doctrine. In the absence of sovereign authority, all other groups will in no time fall into anarchy. The legal consequence pluralism would be organised anarchy. 4. Lastly, we may conclude that the pluralists fail to expunge the nation of sovereignty from political theory. “While most pluralists have sought to derive sovereignty out the front door of their new society, they quitely smuggle it again through back door. To destroy the sovereignty is as dangerous as it is furtile.” Factors Unfavourable to Pluralism: In recent times, several factors have been unfavourably to pluralism, which has suffered a serious setback. The duties and responsibilities of state all over the world have increased enormously owing to the acceptance of the concept of the welfare state. Planning on a large scale is done in every state for bettering the lot of the masses of people. Planning compels states to shoulder very heavy burdens and they have to be armed with wide controlling and regulating powers. In the new circumstances in every state there is very little scope for the free play of pluralism. Shift in Stand of Pluralists: Pluralists themselves have realised that times have changed and it will not be possible for them to stick to their rigid principles and therefore revision of their attitude towards monism has become obligatory. Leslie Lipson says on page 427 in The Great Issues of Politics (1973): “Because a society in rapid flux requires a central focus for organisation, the latter-day advocates of pluralism have been placed on the defensive and forced into retreat.” Some like G.D.H. Cole, who was a pluralist in the days when he argued for guild socialism, or Harold J. Laski, who wrote from a pluralist standpoint until the depression of the 1930’s reversed their positions and accepted the logic of Monism. Others have maintained their view, but with increasing difficulty. The following conclusions can be drawn about pluralists: 1. Pluralists have done well in aptly upholding the importance of associations, for which they claim autonomy. 2. However, as regards the relationship between the state and associations, they have betrayed confused thinking. CU IDOL SELF LEARNING MATERIAL (SLM)

156 Political Science – I 3. They attack and undermine the very basis of the state by dividing and breaking sovereignty. 4. They indirectly admit the need of sovereign state, which can coerce all individuals and associations into submission for maintaining peace and order and for promoting the happiness and welfare of the people. 8.7 Monism Vs. Pluralism Monistic theory of sovereignty or Monism offers the most powerful proposition of absolutism of sovereignty. This theory explains that state's sovereignty is absolute, indivisible and a complete unity in itself. Monism regards the state as the sole source of legal authority. All other associations are the creation of the state and the dependent for their existence upon will of the state. Thus monism believes in that sovereignty which is vested in one and only one place. It is determinate, absolute indivisible, inalienable, illimitable, permanent, universal and all pervasive. Sharply contradistinguished from it is the pluralism that admits of the division of sovereignty. The principles of pluralism is that sovereignty is never absolute and is divided between the state and many other association. In pluralistic state, there is no single source of authority that is all competent and all comprehensive. There is no unified system of law and no centralised organ of administration. On the contrary, it is a multiplicity; it is divisible into parts and should be divided. Man’s social nature finds expression in numerous associations and groups. The state is one of these associations. So it is not the supreme association. As the loyalty of the people is divided among so many groups so sovereign power must be divided between the state and many other groups. 8.8 Summary Thus, in Lexicon of political theory, the concept of sovereignty is very much conspicuous by its nature. Sovereignty is the basic quality of the state. It is the most essential attribute of the state, which differentiates it from all other associations. Today the position of state sovereignty lies somewhere in between the monism and pluralism. The welfare state requires vast authority to render positive functions. The increase in the functions of the modern state has led to its greater CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 157 powers. Ours is the age of glory of the state which is the declared agency of general powers have developed. Various groups get due importance in the decision-making process. 8.9 Key Words/Abbreviations  Sovereignty: Means supreme power  Superanus: A Latin word means paramount or supreme  De-Facto: Holding a specified position in fact but not necessarily by legal right.  De-Jure: Holding a position in legal way or rightful entitlement of position.  Monism: A type of absolute sovereignty.  Pluralism: A type of sovereignty that pleads for division of sovereignty between state and other associations. 8.10 Learning Activity 1. “Sovereignty is the supreme will of the state”. Analyse it. ----------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------- 2. “Austin’s theory of sovereignty is otherwise known as monism”. Prove it. ----------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------- 3. ‘Division of sovereignty means destruction of sovereignty’. It is true. ----------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------- 4. “Pluralism is an eloguent protest against monism”. In this context make a comparison between monism and pluralism. ----------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------- CU IDOL SELF LEARNING MATERIAL (SLM)

158 Political Science – I 8.11 Unit End Questions (MCQ and Descriptive) A. Descriptive Types Questions 1. Define Sovereignty and discuss its characteristics. 2. Discuss the meaning and types of Sovereignty. 3. Analyse the Austin’s Theory of Sovereignty. 4. Examine critically the pluralistic conception of Sovereignty. 5. Make a comparision between Monism and Pluralism. 6. What do you mean by Sovereignty? 7. What is Legal Sovereignty? 8. What is Political Sovereignty? 9. What is Monism? 10. What is Pluralism? 11. What are the differences between De Facto and De Jure Sovereignty? 12. Make a distinction between Titular and Real Sovereignty. 13. Make a distinction between Monism and Pluralism. B. Multiple Choice/Objective Type Questions 1. The term Sovereignty has been derived from the ______ word ‘Superanus’ (a) English (b) French (c) Latin (d) Greek 2. __________ said, ‘Sovereignty is the supreme power over citizens and subjects unrestrained by law’. (a) John Lock (b) Jean Bodin (c) Austin (d) Hobbes 3. According to __________ “Sovereignty is the Supreme will of the state”. (a) Jean Bodin (b) Hobbes (c) Rousseau (d) Willoughby CU IDOL SELF LEARNING MATERIAL (SLM)

Sovereignty 159 4. __________ of the following is not an feature of Sovereignty. (a) Absoluteness (b) Indivisibility (c) Limited (d) Permanence 5. __________ among the following is a strong supporter of Monism. (a) Austin (b) Laski (c) Barker (d) Maitland Answers 1. (c), 2. (b), 3. (d), 4. (c), 5. (a) 8.12 References 1. Agarwal, Bhushan and Bhagwan, Principles of Political Science, 1971. 2. Asirvatham Eddy, Political Theory, 1957. 3. Garner J.W., Political Science and Government. 4. Gokhale B.K., Political Science (Theory and Governmental Machinery), 1964. 5. Gilchrist R.N., Principles of Political Science, 1961. 6. Laski H.J., A Grammer of Politics, 1957. 7. Laski H.J., The Problem of Sovereignty. 8. Ray and Bhattacharya, Political Theory, 1962. 9. Ray, Dasgupta and Ray, Principles of Political Science, 1963. 10. Ward, P.W., Sovereignty, 1920. CU IDOL SELF LEARNING MATERIAL (SLM)