There are four elements or ingredients or characteristics of the state i.e. population, territory, government, and sovereignty. Hence the state cannot be imagined without Sovereignty. It is Sovereignty that not only distinguishes the state from other associations but also gives it superiority over them. The precise and definite location of Sovereignty is, however, not an easy matter. This problem of the location of Sovereignty has, therefore, given rising to a distinction between legal and political Sovereignty, titular and Actual Sovereignty and de jure and de facto Sovereignty.
The term sovereign is used by writers in various senses. In the first place, it is used in a titular or nominal sense to designate a king or other monarchical ruler who, has ceased in fact to be a real sovereign and has become merely an organ of the government, It is used in this sense in Great Britain, where the king is officially referred to as the sovereign. Thus indictments for crime are in the name of our Sovereign Lord the King.
This usage dates back to the time when the king was in reality the sovereign, and although he has long since ceased to be such in fact the usage is retained as one of those numerous fictions which still survive in English law and legal literature.
Legal and Political Sovereignty:-
In the second place, a distinction is frequently made between legal sovereignty and political sovereignty. The former represents the lawyer s conception of sovereignty, that is sovereignty as the supreme law-making power The legal sovereign, therefore, is that determinate authority Which is able to express in legal form the highest commands of the -state that power which can override the prescriptions of the divine law, the principles of morality, the mandates of public opinion, etc Behind the legal sovereign, however, is another power, legally known, unorganized, and incapable of expressing the will of the I state in the form of a legal command, yet withal a power to whose mandates the legal sovereign will in practice bow and whose will must ultimately prevail in the state.
This is the political sovereign. In a narrower sense, the electorate constitutes the political sovereign, yet in a wider sense, it may be said to be the whole mass of the population, including every person Who contributes to the molding of public opinion, whether he is a voter or not powerful as it is, however, the electorate cannot express its will in the form of a legal rule, except where the government is a pure democracy, though it may command the legislature to do its bidding, and if the command is clearly pronounced and fully understood, it will not be lightly disregarded and in fact will usually be obeyed.
Where the will of the legal sovereign and the political sovereign conflict, the former must, however, take precedence, since only that which has been embodied in the legal form will be enforced by the courts, however much more in accordance with expediency or abstract justice the mandate of the political sovereign may seem to be.
The legal sovereign, observes a well-known writer, is the lawyer’s sovereign qua lawyer, the sovereign beyond which lawyers and courts refuse to look. For the lawyer, a law may be good law, legally, though passed by a parliament which has been condemned by the political sovereign, the electorate.
With the wishes or, feeling of the electors the lawyer as a lawyer has nothing to do. He may take into consideration their opinions and wishes, but until the latter have embodied in a written legal command they are, for him mere brutal fulmen.
Lord-Bryce remarked that the distinction between legal and political sovereignty is largely the result of the difference between the juristic and the popular conception of Sovereignty. To an ordinary layman, he said, the sovereign is that person or body of persons which can make his or there will prevail in the state, who is acknowledged to stand at the top, who can get his own way and make others go his. For the lawyer, however, a more definite Conception is required.
To him, the sovereign is no other person or body then he or they to whose directions the law attributes legal force, the person or body in Whom resides as of right the ultimate power of laying down general rules. This person or body is the legal sovereign and represents the juristic conception.
The Distinction Does not Involve a Division of Sovereignty:-
Some writers reject the distinction between legal and political sovereignty on the ground that it seems to involve-the recognition of dual sovereignty in the state. A little reflection, however, will show that the distinction between legal and political sovereignty does not rest upon the principle of divided sovereignty, but rather upon the distinction between two different manifestations of one and the same sovereignty through different channels.
As has been said, the one may not harmonize with the other, that is, the expressed will of the legal sovereign may not be that which the political sovereign has commanded, in which case the legal sovereign ought to be reorganized or reconstituted by a new election, otherwise the will of the electorate cannot be made effective.
This is nothing more than saying that law ought to conform to public Opinion when properly expressed that the legislature ought to obey the mandate of the electorate and that when it does not, the electorate and the legislature are out of harmony. The problem of good government, says Professor Ritchie, is largely the problem, of the proper relation between the legal and the ultimate political sovereignty.
Of course, where the system of pure democracy exists, the possibility of divergence between the Will of the legal and political sovereigns is eliminated, for under such conditions the two are identical. In a pure democracy the expressed will of the electorate is not mere opinion or mandate, but the law itself Ordinarily, however, the legal sovereign is organized separate and distinct from the political sovereign and is either some determine organs like the British Parliament or a constituent body called into existence for the specific purpose of formulating and expressing the sovereign will.
Legal Sovereignty in Great Britain:-
The distinction between legal and political sovereignty is most prominent in those countries like Great Britain where the constitution may be amended by the legislature and was, in consequence, there is no legal distinction between constitutional and statute law.
In Great Britain, the Parliament is both the ordinary legislative body and the constituent assembly. It is legally omnipotent and subject to no restraints except those of a moral and physical character. There is no other body of persons in Great Britain’s capable of making rules which can override or derogate from an act of Parliament.
The British Parliament is so omnipotent, legally speaking, says Dicey, that it can adjudge an infant of full age, it may attaint a man of treason after death, it may legitimize an illegitimate child, or if it sees fit, make a man a judge in his own case. By the act of 17161, it did what only a sovereign body can do when it prolonged its own existence from three to seven years. It can alter the constitution by the same legal processes that are followed in the enactment of an ordinary statute.
No court Will listen to an argument against the validity of an act of Parliament, even though it be contrary to the mast sacred prescriptions of the constitution.
Yet there is a sense in which the British Parliament is not sovereign. There is a power above Parliament whose mandates it must obey and whose will must ultimately prevail upon all matters upon which it pronounces an opinion. This is will be pronounced by the electorate at a general parliamentary election. The lawyers do not recognize this sovereignty and the courts do not take notice of it, and even the Parliament itself might for a time lawfully resist it, but in the end, if the electorate insists upon obedience, Parliament must bow before the popular will and enact its commands into law. In this sense the electorate and not Parliament is sovereign.
From the discussion of political sovereignty, we come naturally to the doctrine of popular sovereignty a doctrine that attributes sovereignty to that vague and indeterminate mass called the people. The idea originated with the antimonarchical writers of the sixteenth and seventeenth century, notably Marsiglio of Padua, William of Ockam, George Buchanan, Thomas Barclay, Francis Hotman, Boucher, Saurez, Bellarmi’n, Althusius, and others who, in their attacks upon the prevailing system of absolute monarchy and relying upon the law of nature and the theory of contract, defended the principle of the sovereignty of the people. Sovereignty, they argued, had originally belonged to the people and they could not lose it by prescription and in fact, never had alienated it to a monarch.
In the eighteenth century, Rousseau proclaimed the doctrine of the sovereignty of the people as with a trumpet blast. It became a fetish with the French revolutionists, Jefferson in the American Declaration of Independence approved it when he asserted that governments derive their just powers from the consent of the governed, and from then until now it has been generally regarded as the essence of all true democracy.
It is, says Bryce,
The basis and watchword of democracy? The term popular sovereignty is frequently and generally used by writers in a loose and inexact sense, and when so used it may lead to misconception and even to mischief. Those who attribute sovereignty to the people, and who proclaim that the will of the people is the voice of God, rarely tell us What they mean by the people.
In one sense the people may be viewed as the total unorganized indeterminate mass a monster with countless heads, incapable of collective political action, in another sense, they may be regarded as only that portion of the total population which is vested with the electoral franchise. It would manifestly be contrary to the facts to ascribe sovereignty to the people viewed in the former sense.
Sovereign power can be legally exercised only by those , upon whom the law confers the right or privilege of voting, and then only through legal channels. The formulated will of the whole mass of the people, if that were conceivable, would have no legal validity unless it were expressed in legal form and through the channels prescribed by the constitution for the expression of the popular will.
Unorganized public Opinion, however powerful, is not sovereignty unless it is clothed in legal form, no more so Ethan the informal or unofficial resolutions of the members of a legislative body is the law. The sovereignty of the people, therefore, tan mean nothing more than the power of the majority of the electorate, in a country where a system of approximate universal suffrage prevails, acting through legally established channels, to express their will and to make it prevail.
The French Revolutionists proclaimed a principle which they described as national sovereignty. In their famous Declaration of the Rights of Man and in some of their early constitutions they affirmed that all sovereignty resides essentially in the nation. This theory of sovereignty, says M. Duguit, became for a certain French school one of the intangible dogmas like the articles of revealed religion, and it forms to-day assuredly a positive principle of our political law.
He adds Now it is not difficult to demonstrate that it is null and that the pretended dogma of national sovereignty is a gratuitous hypothesis and, moreover, a useless postulate. It is false, he argues, because it implies that the nation possesses a personality and a will distinct from the persons and wills of the individuals who compose it a hypothesis which is undemonstrated and undemonstrable.
The French jurist Carré de Malberg, who states that the notion of national sovereignty is considered in France to be one of the fundamental principles of public law and of the organization of the public powers, points out that the theory was invented for the negative purpose of denying the old absolutist principle of the sovereignty of the monarch.
It was intended to mean also, contrary to the teaching of Rousseau, that sovereignty in France was not divided into some forty million fragments, each individual exercising a portion of it, but it resided in the collectivity as a whole viewed as a corporate person. It was an affirmation of the principle that sovereignty is a power of the nation personified, that is, the state, and a denial of the principle of individual sovereignty ?
The conception of sovereignty as residing in the nation personified as the state is of course an abstraction since it can be exercised by or manifested only through physical persons or institutions. National sovereignty is of course not necessarily the same thing as the sovereignty of the people, and it would not be such in a state where a system of approximate universal suffrage did not exist.
The sovereignty of Reason or Justice:-
A few writers, mostly French, have defended what they call the sovereignty of reason or justice, the, only legitimate sovereignty, they say, that can be idefendedj because it rests upon right rather than upon physical power or force. This conception is highly abstract and represents an attempt to define sovereignty in terms of ethical rather than legal principles.
De Facto Sovereignty:-
In the next place, a distinction may be made between the sovereignty which is actually able to make its Will prevail, though it may be without legal basis, and the sovereignty which according to the legal right is entitled to the obedience of the people, but which in fact may be temporarily displaced in consequence of revolution or expulsion by a usurper The person or body of persons who or which for the time is able to enforce obedience or in whose rule the people voluntarily, acquiesce is the de facto sovereign, although he or it is not necessarily the de jure sovereign.
Thus sovereign may be a usurping king, a self-constituted assembly, a military dictator, or even a priest or a prophet, in either case, the sovereignty rests upon physical power or spiritual influence rather than upon legal right History abounds in examples of such sovereignties.
Cromwell, after he had dissolved the Long Parliament, Napoleon, after he had overthrown the Directory, the English convention which offered the crown to William and Mary, the Southern Confederacy from 1861 to 1865, the Bolshevist regime in Russia following the Revolution of 1917, are instances of actual sovereignties which rested upon no legal basis, though some of them ultimately became de jure sovereignties through general acquiescence of the people and by recognition of foreign governments.
The temporary occupation of part of a state’s territory by a hostile army when the commander diSplaces the local authority and exacts obedience from the inhabitants is another example of de facto sovereignty of which history affords many instances. In some of the instances cited above, the usurping sovereign expelled the legal sovereign from his legally rightful seat and by force compelled the obedience of the inhabitants.
De Jure Sovereignty:-
De jure sovereignty, on the other hand, has its foundation in law, not in physical power alone, and the person or body of persons by whom it is exercised can always show a legal right to rule. This is the sovereignty which the law recognizes and to which it attributes the right to govern and exact obedience. It does not depend for its validity upon obedience actually rendered, for the law assumes the obedience to be enforceable.
As a matter of fact, it may not be actual sovereign, for it may be expelled, as has been said, from its rightful place or may have temporarily disappeared through disorganization or disinter grating but, however, this may be, it has legal right on its side and is lawfully entitled to command and exact obedience.
Manifestly, every consideration of experience requires that the sovereign in actual control should be legally entitled to rule, that is, physical power and mastery ought to rest upon a legal right. The sovereign who succeeds in maintaining his power usually becomes in the course of time the legal sovereign, through the acquiescence of the people or the reorganization of the state, somewhat as actual possession in private law ripens into legal ownership through prescription.
On account of the manifest advantages which flow from the exercise of power resting on the strict legal right rather than upon mere physical force, the new sovereign sometimes has his de facto claim converted into a legal right by-election or ratification.
Such an act on the part of the new sovereign by thus establishing a legal basis for his power strengthens his moral claim to the obedience of the people and diminishes the danger of conspiracies and rebellions on the part of the adherents of the displaced sovereign. There is, as Bryce well observed, a natural and instinctive opposition to submission to power which rests only on farce.
Strictly speaking, sovereignty is an internal power that is, power over all persons and things, subject to such exceptions as the state may admit, within its own territorial limits. Many writers, however, especially those on international law, distinguished between internal sovereignty and external sovereignty.
Sovereignty, they say, has two faces, the power to command all persons within the interior of the country and the power to represent the state in its relations with other states, including the power to declare war and make peace. The distinction hardly appears to be a sound one, at least it is inexact to describe the latter as external sovereignty since it leaves the implication that a state is sovereign with respect to certain? matters outside its own territorial boundaries, which is of course contrary to the fact.
Some writers employ the term external sovereignty to mean nothing more than the freedom of the state from subjection to or control by a foreign state, that is, the supremacy of the state as against all foreign wills, whether of persons or states. In short, internal sovereignty is sovereignty viewed on its positive side, while the term external sovereignty has reference to its negative aspect or manifestation.
Used in that sense the idea is unobjectionable, but the term independence would be preferable since that is what is really meant rather than sovereignty. Manifestly, if the state is sovereign in internal matters it must necessarily be sovereign externally, that is, it must be independent.
It is submitted that the term sovereignty is one of political science and constitutional law and connotes a relation between a superior and an inferior-between the state and its inhabitants, and is not a proper term of international law since it is inapplicable as a term descriptive of the relations between independent states. The notion of external sovereignty is therefore not only inexact but also dangerous, and should be expunged from the literature of both international law and political science.