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Concept of State and Sovereignty

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 state.

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 Independence (1776).

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 states.

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.

The constitutional 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 bodies:
  1. The corpus naturale, the consecrated host on the altar, and
  2. 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 someone 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.

The 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.

The limit 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.

According to him :
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.

Brierly:
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 carried on.

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:

Divine Theory:
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.

Conclusion

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.

Constitutional 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 in India.

References:
  • State and Sovereignty : Dr. N.V. Paranjape : Studies in Jurisprudence and Legal Theory
  • https://indianculture.gov.in/sovereignty-ancient-indian-policy-study-evolution-early-indian-state
  • https://www.legalbites.in/concept-state-sovereignty/
  • https://www.britannica.com/topic/sovereignty
Written By: Siddharth Gupta, BBA. LL.B (Hons) , Amity Law School , Noida

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