Theories of Sovereignty

Dr. Avinash SamalAssistant Professor

Hidayatullah National Law UniversityRaipur, Chhattisgarh

Monism or Monistic TheoryA classical defence of the determinate,

absolute and indivisible character of state sovereignty

Pluralism or Pluralistic TheoryA protest against the monistic theory of

sovereignty that stresses the limited nature of state sovereignty

It must be shared between the state and a host of other associations which are as natural and indispensable as the state.

Various Theories of Sovereignty?

Can be traced back to Hobbes and Bentham

John Austin - The most prominent representative of the ‘Analytical School of Jurisprudence’ gave an elaborate treatment to the concept of sovereignty

His treatise on "The Province of Jurisprudence Determined" (1832) contains a brilliant and precise exposition of the monistic or legal theory of sovereignty

Monistic Theory

The monistic theory of the state was born in an age of crisis

The monistic political thinkers, who evolved the doctrine of state sovereignty, did so in order to reinforce the authority of the state in a period of crisis.

Originally, the sovereign state emerged to vindicate the supremacy of the political authority against ecclesiastical claims. Subsequently, it extended its supremacy to every department of human activity, religious or otherwise.

The theory of sovereignty became an instrument of monarchical despotism in the hands of Hobbes.

Bentham was the spokesman of the English middle class that aspired to control the English state by way of parliamentary sovereignty.

Factors Responsible for Monistic theory of Sovereignty

"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, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.“ Laws are defined simply as the command of a

superior to an inferior. The primary reason for the bulk of a given society

rendering obedience to the sovereign is his power of punishment for non-compliance with his commands.

John Austin’s Concept of Sovereignty

Determinate authority acting as the ultimate source of power. Neither the people, which is indeterminate, nor the

general will (Rousseau's conception), which is impersonal and abstract, can be designated as sovereign.

Absolute and unlimited authority The sovereign receives habitual obedience from the

people but not in the habit of obedience to a like superior. Law as the command of the sovereign

Whatever the sovereign commands is law, and without him there can be no law. Law is a command of the state obliging the subject to do, or to refrain from doing, certain acts, failure to obey being visited by punishment.

Sovereignty is indivisible Sovereign power is by definition incapable of limitation. To divide sovereignty between two or more persons or

bodies of persons is to limit it.

Implications of John Austin’s Concept of Sovereignty

Sovereign as determinate superior Sir Henry Maine in his "Early History of Institutions"

illustrates that in many of the Empires of the East there is nothing to correspond with the of Austin’s ‘Determinate Superior’

He argues that Austin's conception is inapplicable to underdeveloped communities where custom is a powerful force.

Citing the case of Ranjit Singh (King of the Sikhs, 1801-39 who was absolutely despotic) who was a perfect embodiment of Austinian sovereignty, Maine wrote:

"I doubt whether once in all his life, he issued a command which Austin would call a law".

The rules which regulated the life of his subjects were derived from their usages and customs.

No sovereign can afford to ignore the social customs which do not, of course, proceed from his authority.

As MacIver aptly observes: "The state has little power to make customs and perhaps less to destroy it.”

Criticism

Location of Sovereignty The people of the state; The organization which has a legal right to make or

amend the constitution of the state; The sum total of the legal law making bodies in the

government of the state The two possible meanings that can be given to the

term "people" in defining popular sovereignty are "the total unorganizing indeterminate mass"the electorate.

People, as understood in the first sense, cannot obviously be the sovereign. As regards the second, people must act only through legal channels if they are to be regarded as sovereign in any sense.

Criticism

United Kingdom - Unitary State Location of sovereignty is not a problem as there is no

distinction between constitutional law and statutory law. The most perfect example of the Austinian view is, of

course, the position held by the King-in-Parliament. All bills passed by both houses of parliament and

assented to by the monarch become the law of the land. United Sates – federal structure – difficult to locate

sovereign Neither the President, nor the legislatures of federal or

State, enjoy absolute legal powers. Judicial review limits their constitutional powers. Sovereignty therefore, is not vested in them but rests in that body which has the power to amend the constitution

Criticism

Absolute and unlimited It conflicts with the basic ideas of

democracy.Austin talks in terms of a hierarchical order

characterized by superior-subordinate relationship while democracy is a society of equals.

Austin's idea is inconsistent with a democratic polity based on popular sovereignty

Criticism

Sovereignty is also limited by the power of the electorate and of public opinion. In a democratic state, the legal sovereign

should bow to the political sovereign. The sovereign is compelled by the logic of

political realities to respect the articulate needs and desires of the electorate.

Limits of human endurance – When sovereign ignores those limits, it enters the dangerous zone of popular rebellion

Rebellions are foot notes to the problem of sovereignty – H J Laski

Criticism

The Pluralist Argument – They argue that the state is but one association among several and, therefore, it cannot be invested with the unique sovereign power of the community

They contend that the voluntary associations should not be dictated to by the state.

State sovereignty is limited internally by constitutional law and externally by international law.

International law backed by world public opinion puts definite limits to the power of the state in its relations with other states.

The theory of sovereignty developed in a self-sufficient age cannot be maintained in a world where the interdependence of states is so marked.

Criticism

Sovereignty as indivisible - is seen as an untenable proposition.

In every state there is a division of function though not of will and without such division no government can be run effectively.

It is argued that sovereignty is shared between the legislative, executive and judicial branches and between the national and state governments in a federation.

The distinction between legal and political sovereignty also has at times been interpreted as the divisibility of sovereignty.

Criticism

The theory of dual sovereignty in the American Federal System

It was enunciated by Hamilton and Madison The Supreme Court upheld it in Chisholm V.

Georgia (1792) and observed that the United States is sovereign as to the powers which have been conferred upon the national government, and the "states" are sovereign as to those which were reserved to them.

Criticism

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 instrument.

The chief merit, however, of the theory is that, as a conception of the legal nature of sovereignty, it is clear and logical.

Values

Political pluralism is seen as a protest against the monistic theory of state sovereignty

Pluralism recognizes the existence of variety of associations and groups in society which are as natural and necessary as the state and they must enjoy independence and autonomy from the control of the state.

Pluralists argue that concentration of power at a single central source results in a tyrannical social order. The dispersion of power to peripheral points of the body politic is the basis of free societies.

Unlike the anarchists who want to abolish the state, the pluralists retain state but restrict its area of operation.

Pluralistic Theory of Sovereignty

As opposed to the monistic-state defined as “one which possesses, or which should possess, a single source of authority that is theoretically comprehensive and unlimited in its exercise”, the pluralist state is seen as: “one in which there exists no single authority that is all

competent and comprehensive, no unified system of law, no centralised organ of administration, no generation of political will".

Modern society is a web of associations which emerge naturally to fulfil the diverse needs and aspirations of the members of a society and they must have functional freedom and the state which is but one among numerous associations must not claim monopoly over sovereignty.

Pluralistic theory advocates division or sharing of sovereignty on group basis, and limited sphere of state action.

Cont…

Pluralism emerged as a reaction to the absolutist conception of the state which influenced the militarists and fascists.

Hegel's glorification of the state was a threat to individual freedom and the autonomy of associations.

Both individualists and pluralists challenged the legal and moral supremacy of the state.

Factors Responsible for Rise of Pluralism

The rigid legal view of sovereignty known as monism is also regarded by pluralists as the principal actor responsible for the rise of pluralism.

They consider the legal view of sovereignty as a dangerous doctrine

Rise and spread of federalism – The scholars argue that sovereignty in the Austinian sense is difficult, if not impossible, to locate in a federal state and as such pluralism is the only logical solution.

Cont..

Pluralism received wide support in England, North America and some of the European countries

Ottovon Gierke of Germany and F. W. Maitland of England are the earliest proponents of pluralism

They argued that permanent associations which arise naturally possess real personalities. They have rights and duties as groups regardless of the state's formal sanction.

Exponents of Pluralism

Emile Durkheim has given special attention to the position of professional and economic groupings in society.

Pleading for transferring the function of economic control from the state to the vocational group, Durkheim suggests that the professional groups must be re-established both as bases for political representation and as sources of economic regulation.

Sidney Webb and Beatrice Webb envisaged a "Social Parliament" and a "Political Parliament", the former to represent individuals as members in a 'social democracy' and the latter to represent them as citizens in a 'political democracy'.

Cont…

A. D. Lindsay - the state is merely "an organization of organizations" and can have control over other associations only if, and in so far as, the citizens are prepared to concede it such power.

Earnest Barker argues that the groups are prior to the state and have their own functions independent of the state. He characterizes the state as a 'group of groups' or a 'community of communities‘.

Cont…

Laski's conception of Pluralism was fundamentally a revolt against the Philosophy of Hegel and the jurisprudence of Austin.

In his "Authority in the Modern State" and the “Foundations of Sovereignty and other Essays" Laski assails the moral validity of the doctrines that attributes sovereignty to the state.

Appealing to the claims both of individual conscience and of various group loyalties, he writes: "The only State to which I owe allegiance is the State in

which I discover moral adequacy… our first duty is to be true to our conscience". The state, moreover, "is only one among many forms of human association. It competes for men's loyalty and obedience with voluntary associations which meet our diverse needs and aspirations.”

Cont…

Laski advocated administrative decentralization His conception of social organization implied a federalist

concept of society in the economic as well as political spheres.

He visualized "a society in which authority is not hierarchical but coordinate."

The administrative machinery of the modern state should be organized to provide the greatest opportunity for continuous consultation between the government and the people in their various associative capacities.

In his "A Grammar of Politics"(1925), Laski moved away from his earlier position and accepted the need of "ultimate reserve power of the state".

He conceded that sovereignty of the state was necessary for the fulfilment of its functions.

Cont…

Pluralistic theory of sovereignty is a gross exaggeration and it suffers from logical contradiction.

While in theory they plead for the reduction of state activities, in practice they assign to the state much power for implementing their schemes.

The pluralists attempt to abolish sovereignty but are finally compelled to restore it

The dividing line between pluralism and anarchism is very thin. Rejection of the monistic theory of sovereignty leads to logical position of the anarchists.

If the state is an association like other associations it ceases to be a state and the way is wide open for anarchy and disorder.

Criticism

The numerous groups and associations do not run along parallel lines, nor do they operate in water-tight compartments. There is overlapping of functions, the clash of interests and the conflict of loyalties in society.

The supreme power of the state is needed for "the special function of adjusting and adjudicating such clashes as well as of caring for certain common interest".

If the state is merely one association among many, have more or less similar power and status; it is difficult to see how it can satisfactorily fulfil its unique function of adjustment and adjudication.

Criticism

The objections of pluralists to Austinian concept of law tends to confuse the substance with the form of law.

It is true that the substance of law is derived from usages, practices and needs of a community.

Austin's chief interest is in the form of law - its legal source.

No law, however good substantially, is valid unless it is formally recognized by the state.

The terms 'social solidarity' and 'sense of right' do not have the precision conveyed by the term 'legal sovereignty'.

These terms are incapable of giving us specific laws that can be interpreted and enforced by the courts of law.

Criticism