The term Sovereignty is derived from old French word Souverain
meaning supreme power within a territory
. In political sense, it is the ultimate power
or authority , in the process of decision making of the state and to maintain an
order. Its concept is one of the most controversial ideas in political science
and international law, said to be inter-related to concept of state and
government along with independence and democracy. It is understood in three
dimensions- i) The holder of sovereignty , ii) The absoluteness of sovereignty
and iii) The internal and external dimension of sovereignty. The sovereignty in
embedded in any political institution. And numerous states together forms a
sovereign state system.
Emergence of Sovereignty
During 16th century France Jean Bodin brought up the concept of sovereignty to
bolster the French kings power above the rebellious feudal lords, to facilitate
the transition from feudalism to nationalism. The philosopher who provided most
of the term with the modern meaning was the English philosopher Thomas Hobbes,
he argued that in each individual state, some person or body of person shall
have the ultimate and absolute authority to validate a law, to divide the
provided authority, in his opinions was essential to destroy the unity of any
Whereas , the theories of English philosopher John Locke and the French
philosopher Jean- Jacques Rousseau provides that state is based upon formal and
informal compact of the citizen within that territory. It is a social concept by
way of which citizen entrust the power to a government as may be necessary for
the interest of common protection, it lead pt the development of the doctrine of
the sovereignty , found the expression in the American Declaration of
Later, the twist was given to the doctrine was in the
French Constitution (1791) as a statement sovereignty is one , indivisible,
unalienable and imprescriptible; it belongs to the Nation ; no group can
attribute sovereignty to itself nor can an individual arrogate it to
himself. And so the popular notion of national sovereignty was now combined
with the idea of national sovereignty , and not to be exercised by any unorganised people in the state or territory , but by a nation organized in
Jurist John Austin (1790-1859) in 19th century developed the concept of
sovereignty further. He investigated who exercises sovereignty in the name of
people or of the state. In his investigation report he concluded that,
sovereignty is vested in a nation’s parliament, which is a supreme organ that
enacts laws binding upon everybody else but that is not itself bound by the laws
and could change the laws at its will.
But this does not fits in every states,
but a particular system of government, as like in Great Britain (19th century).
Austin’s notion of legislative or parliament sovereignty does not apply
tantamountly, one such situation is the American constitution. The constitution
of United States, specifically, the fundamental laws of the federal union, did
not endow the national legislature with such supreme power as the defined in
sovereignty, meanwhile imposed restriction upon it.
Moreover, in case of Marbury v. Madison (1803),
The Supreme Court of United
States held itself to have an embedded right to declare any law unconstitutional
through the process of judicial review. Even if this case did not lead to any
significant judicial sovereignty, but it gave sovereign power to the
fundamental law of the state, i.e. the Constitution.
sovereignty kept on developing thereafter, as the power to amend the
constitution and to assent it was not only in the hands of congress, but also in
the states. So it is plausible to understand that sovereignty continued to
reside in the states as well as in the people of the states , the power that is
not just delegated by the constitution or expressly prohibited by the
constitution applicable to the territory by the Tenth Amendment.
Definition of Sovereignty
Medievalist Ernst Kantorowicz in his book The King’s Two Bodies (1957)
describes a change in the concept of of the political sovereignty over the
period of the medieval period. The transformation profoundly begun with the
introduction of the concept of the body of Christ developed to the notion of two
- The corpus naturale, the consecrated host on the altar, and
- Was the corpus mysticum, the body dedicated to social work of church
with an administrative structure.
This notion of the collective organization with an
enduring, mystical essence, would come to be transformed into the political
bodies. Ernst also described the development in the mid-ages of the concept of
the King’s two bodies, vivified in Shakespeare’s Richard II and applicable to
the early modern body politic.
The evolution of the sovereignty that Ernst describes is formative for
sovereignty is a signature feature of modern politics. Some jurists have doubted
, if a stable , essential belief of sovereignty exists. But, there is in fact a
definition that captures what sovereignty came to mean in early modern Europe
and of which most important definitions are a variant: supreme authority within
a territory. This is the quality that lacked in popes, emperors, kings and
bishops, but present in modern states.
The component of the given definition pins an important aspect of the concept.
First, a holder of the sovereign authority, which means, the person or entity is
not merely wield coercive power, explained as ones
ability to cause
to do what he would otherwise not do. Authority is rather what philosopher R.P.
Wolff proposed; the right to command and inter-relatively the right to be
obeyed. The important term in here is right, connoting legitimacy.
sovereign authority derives its power from a mutual acknowledgement source of
legitimacy, natural law, custom law, a divine mandate, hereditary law, a
constitution and sometimes from the international law. Sometimes , body of law
is ubiquitously source of sovereignty.
But, it the important gist in a sovereignty is matter of authority, is not just
a matter of merely authority , but also of the supreme authority. Supremacy is
something embedded in the constitution of the United States to the government of
Pennsylvania, or any other entity. The holder of the sovereignty is supreme to
all other authorities under its umbrella. Supremacy is an endemic to modernity.
The final component of the sovereignty is territory, along with the political
authority in modernity. Territoriality principle is derived by which members of
a community are to be defined it specifies that the membership derives from
their residence within borders. It is a powerful principle, as it defines
membership in a way that , there may not be correspond with identity.
of sovereign entity may not all circumstances a people
or a nation
, and may
in-fact encompass several of there identities , as national self- determination
and irredentist movement make evident. It is rather by virtue of the location
within the provided geographic border that people belong to a particular state
and comes under the authority of its ruler within the geographic territory that
modern sovereigns are supreme authority.
In modern era, territoriality have been taken for granted, it is a feature of
authority all across the globe. Even the multi-national and international
institution like the European Union and the United Nations are made of state
whose membership is in turn defined territorially. This universal form is
distinct of modernity and underlines the sovereignty connection with modernity.
Though territoriality has existed in different eras and locales, various
principles of membership like family, kinship, religion and tribe ties have also
had held great prestige. Most intensely contrasting with territorial is
wandering tribe, where an authority structure is completely disassociated with a
particular piece of land.
Territory makes it certain by what quality citizen are
subject to authority, their geographical location within is a state boundaries.
Foreign affairs theorist have pointed out some similarity between sovereignty
and another institution in which clearly demarcate private land. And so, two
distinction rose in thought of Thomas Hobbes
Emergence of ‘State’
The emergence of the state seems to be developed with mystery. It is difficult
to answer , if the State had a single origin or it was evolved as in a process.
The history unfolds the fact that, men as social being tend to live in a large
groups under the common authority to safeguard their interest inter-se as along
with the adjustment of relations between it and the alike groups. The State
evolved from a simple to a complex form with the increase in the activities
under its authority. And so it eventually the strong political society aided to
the formation of a modern governmental state.
The important factor which contributed to the evolution of the state includes
religion, industry, common belief, sociability of man, and war too led to the
growth of a socially organized body form of a larger group called State for the
sake of protection and self-preservation of man and material.
The term state was derived from a latin word ‘status
’, which means ‘standing
, or status of a person or entity of person. It is difficult to give a
particular definition of state due to different ideology of the political
thinker and jurists have defined it in different ways.
Some definition accepted of the State by eminent jurists are:
Salmond definition of State:
An association of human beings
established for the attainment of certain ends by certain means.
The state is made of a society consisting of men established for the
maintenance of peace and justice , provided , within a definite territory by way
of force. So, it follows that the central authority of political society which
is called State must be powerful enough to command obedience of its subjects and
must be able to withstand external aggression.
Holland defines it as:
A State is a numerous assemblage of human beings, generally occupying a certain
territory amongst whom the will of the majority or of an ascertainable class of
person is, by the strength of such majority or class made to prevail against any
of their member who posses it.
According to Brierly:
A State is an institution, that is to say, it is a system of relations which men
establish among themselves as a means of securing certain objects, of which the
most fundamental is a system of order within which their activities can be
The evolution of States has been an interested subject of speculation. The
Greeks earlier organised city States which was said to have divine origin ,
later , the speculators un-convinced with the concept of divine origin of State,
explained the upsurging political society by the hypothesis of an ‘original
contract’ theory which Hugo Grotius supported entirely.
However, this theory of was later proved to be superfluous and untenable by
other thinkers. And so the conflicting thoughts led to emergence of various
theories regarding the emergence of the State, as follows:
According to this theory , the state is a creation of God. This
theory gained popularity in middle ages in Europe because of the influence of
Christianity, which belief the King to be the representative of God and they
have divine right to rule.
The Natural Theory:
Also known as Aristotle’s theory of origin of State, this
theory suggests that man is a social being and instinct of his sociability has
given rise to the origin of the State. As per this theory the State is to
promote general welfare of its people. However, it fails to point anything upon
the influence of various factors which led to the formation of a State.
The Social Contract Theory:
According to this theory , the State is a creation
of an agreement by the people in that territory. The people binds themselves to
be abided to the agreement formed with mutual consent.
And at last, The Patriarchal Theory:
As per this theory , history of mankind
reveals that primitive societies were closely knit together by the bond of
kinship. The ‘family’ and not the ‘individualism’ was the unit of society. The
theory mainly is influenced by Henry Maine , who pointed that, eldest member of
the family was the head of the family, and had complete control over the members
of the family.
In India, the constitution is the supreme law , providing constitutionalism ,
constitutional governance and also sets out norms, morality and value, embedded
in articles of the constitution, and also plausible inferred from the
constitution. This dynamism feature makes it natural and , therefore, the
concept of the ‘constitutional sovereignty’ is sacrosanct. And as stated earlier, all authorities in India, get their powers from the Constitution.
Constitutional Sovereignty is said to be Constitution supremacy.
supremacy mandates that every entity of the governance is subject to the
principles embodied in the constitutional text. The Indian Constitution does not
allow absolute sovereignty in a particular entity which it creates. Judicial
review, like in the Constitution of United States of America, is a part of the
basic feature of the Indian Constitution.
Thus it is clear that India does not posses the idea of absolute sovereignty and
ultimate power. In India, Federal structure , Constitutional Principles is
supreme which delegates the executive sovereignty in the President and
legislative sovereignty upon the parliament and state legislature. Judiciary is
a guardian of the Constitution , but there is nothing like judicial sovereignty
Written By: Siddharth Gupta,
- State and Sovereignty : Dr. N.V. Paranjape : Studies in Jurisprudence
and Legal Theory
BBA. LL.B (Hons) , Amity Law School ,