Definition of Soverignty

Sovereignty’ belonged to the philosophical and political terminology long before Austin. It had, however, been recently transformed by Bentham: ‘When a number of person’, he wrote, ‘(whom we may style subjects)’ are supposed to be in the habit of paying obedience to a person or an assemblage of persons, of a known and certain description (whom we may call governor and governors) are said to be in a state of political society.

Whereas Austin says that “if a determinate human superior, not in a habit of obedience to a like superior, receive 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.’

Whereas Austin says that “if a determinate human superior, not in a habit of obedience to a like superior, receive 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.’

These points from the basis of Austin’s theory of sovereignty, and the basis was provided by Bentham. There are, however, two difference between the passages from Bentham and Austin which should not be overlooked.

Bentham defined ‘being in a state of political society’; Austin ‘an independent political society’.

That explains why Austin’s definition consists of two conditions,

• One positive (the bulk of the population habitually obeys the sovereign) and
• The other negative (the sovereign is not in the habit of obeying anyone).

Whereas Bentham’s definition mentions only the positive condition.

The negative condition is relevant only to the independence of a political society with which Bentham was not in this passage concerned.

Austin comments on this omission and says that ‘Mr. Bentham has forgotten to notice’ the necessity of a negative conditions.

The second difference between Austin’s and Bentham’s concept of sovereignty, though it was never noticed by Austin himself, is of much greater importance. Austin’s sovereign has four attributes, all of them of vital importance to his theory of legal system. His sovereignty is:

1. Not subordinate, that is (a) sovereign legislative power cannot be conferred by a law; and (b) this legislative power cannot be revoked by law;

2. Illimitable, that is (a) the sovereign legislative power is legally illimitable, it is the power to legislate any law whatsoever; and (b) the sovereign cannot be made subject to legal duties in the exercise of its legislative power;

3. unique; for every legal system there is (a) one and (b) only one non-subordinate and illimitable legislative power;

4. united: this legislative power in the hands of one person or one body of persons.

Historical Definitions of the word ‘Sovereignty’

• The word Sovereignty has been derived from the Latin word ‘Superanus’ meaning supreme.
• According to Bernard Crick, “Sovereignty as an absolute power is final decision exercised by some persons or body of persons, recognized both as competent to decide and as able to enforce the decision.”
• It means that in every independent state there is an ultimate authority as supreme both in internal and external matters.

Bodin defines the sovereignty as “the supreme power of citizens and subjects unrestrained by law.”

• According Duguit, “Sovereignty as generally understood is the commanding power of the state; it is the will of the nation organized in the state; it is the right to give unconditional orders to all individuals in the territory of the state.” (an autocratic definition to some extent)
• Burgess describes it as, “original, absolute and unlimited power over the individual subjects and overall association of subjects.” (more autocratic)
• Johannes Althusius, a German Jurist, presents a clear and precise conception of sovereignty and ascribed this authority exclusively and immovably to the people.
• Johannes Althusius vested the power in the totality of the members of the state.
• Grotius, Locke and Rousseau have the same idea that sovereignty is power vested in people.
• Roucek, Husjar and others say that “theories of sovereignty are reflections of the social facts, political institutions and cultural backgrounds which are intended to be explained and justified.