Concept of State and Sovereignty

The origin of the State has been a favourite subject of speculation. The Greeks organised city-states which, according to them, had a divine origin. And sovereignty is one of the chief attributes of statehood. For the first time, this term was introduced by the French political thinker Jean Bodin.

A. State

Salmond defines State as “an association of human beings established for the attainment of certain ends by certain means”. A state is the most important of all associations and is distinguished from all of them by its functions. The chief ends for which human beings associate state are :

(i) to prevent war

(ii) for the administration of justice

The means employed to attain these ends is the physical force of the State.

According to Holland, “A State is a political society. He further writes society means a natural unit of a large number of human beings united together by a common language and by a common language and by similar customs and opinions resulting from common ancestry, religion and historical circumstances.”

Grotius defines States as “the complete union of freemen who join themselves together for the purpose of enjoying law and for the sake of public welfare.”

Origin and Evolution of the State

The origin of the State has been a favourite subject of speculation. The Greeks organised city-states which, according to them, had a divine origin. Later, speculators were not convinced of the divine origin of States, explaining the rise of political society by the hypothesis of an “original contract” theory of which Hugo Grotius was the main supporter. However, this theory was later proved superfluous and untenable by subsequent thinkers.

Essential elements of State

It may be reiterated that a State is nothing but an independent political society made for maintaining peace and administration of justice amongst its population. A state has the following elements :

1. Population: It implies a considerable group of human beings living together in a community since the State comes into existence for the people, the population is one of the essential elements of the State. There is no fixed number of persons to constitute a State, but it must be a considerable number.
2. Territory: No people can constitute a State if they are not permanently settled on a fixed territory. The territory of a State includes land, water and airspace. More than one state cannot be located on the same territory. The size of the State is not materialistic.
3. Government: It is the important machinery or agency by means of which the State maintains its existence, carries on its functions and formulates, expresses and realizes its policies and objectives. It is regarded as indispensable because without it, the state cannot exist.
4. Sovereignty: Sovereignty of a State implies that it is free from any external control and commands habitual obedience from the people within its territory. It confers upon the state two things: internal supremacy and external independence. It can also be defined as a supreme and unfettered authority within a state.

Functions

It has been generally accepted that the administration of justice is the main function of the State. The functions of the State are divided into two categories: Primary and Secondary.

Primary Functions

The primary functions of a State are war and the administration of justice. The fundamental purpose and end of political society is a defence against external enemies and the maintenance of law and order within the country. These are also called the constituent functions, as they are necessary for the very existence of the State. Herbert Spencer also supported the view that the primary functions of the State include defending the country against external aggression and maintaining internal law and order.

Secondary Functions

A State may exist without discharging these functions as they are not essential. These functions are mostly related to the welfare activities of the State. The main secondary functions of the State are legislation and taxation. There are also two theories of the State – socialism and individualism. Under the former theory, the state assumes itself an unlimited variety of functions and the in the latter theory, the state leaves the individuals free.

Theories of the State

1. The Devine Theory

This is the oldest theory of the origin of the State. The Jews believed God appointed the king, deposed him and even killed bad rulers. The king of the Jews was therefore looked upon as the agent of God and was regarded as responsible to him. The theory of divine creation leads to the theory of the divine right of Kings. Not only is the state a divine institution, it is also ruled by the king, who acts as the agent and representative of God.

This theory was fully developed during the 16th and 17th centuries. The leaders of the reformation movement used this theory to support and justify the Institution of absolute monarchy. King is like a father compared to his children or like the head as compared with the body, without him, there can be no Civil Society. Today, no one believes in this theory because it is based on faith, not reason.

2. The Social Contract Theory

Hobbes, Locke and Rousseau are the most famous exponents of the social contract theory. The substance of the social contract theory is that the state was created by men employing a contract. In earlier times, there was no state and no man-made laws as men regulated their conduct based on the laws prescribed by nature, but there was no human agency to formulate and enforce the laws of nature. Men entered into an agreement and created the state. According to Hobbes, man is selfish By Nature. According to Locke, man is social by nature, and according to Rousseau, human nature is made up of 2 elements: self-preservation and sympathy for others. The theory plays an important role in the people's struggle against absolute monarchy.

3. Patriarchial Theory

According to this theory, the state is the natural extension of the family. The early family was patriarchal. Descent in the family was traced through males, and the eldest male parent exercised Supreme authority over all family members.

4. Matriarchial Theory

According to this theory, the early society was matriarchal. The Institution of the family did not exist. People lived in groups. The descent was traced through the mother. The matriarchal society evolved into a patriarchal society, ultimately leading to the state's emergence.

5. Evolutionary Theory

The state is not an invention; it is a growth and evolution resulting from the gradual process running throughout the known history of man. It is commonly agreed that four factors influence the state's evolution process.

i. Kinship

Whether the primitive form of society was patriarchal or matriarchal is controversial. Still, there is no doubt that kinship of blood relationship was the first and the strongest bond of social organization. It was a blood relationship that was the fundamental bond of union everywhere in primitive societies.

ii. Religion

Religion was another element that welded together families and tribes. Religion was linked with kinship. All the members of the family or group worshipped their ancestors together. It may be said that religion plays an important role in primitive Social Organisation.

iii. Class struggle and War

Class struggle and war were important factors in the origin and development of the state. The reorganization of primitive communities was very simple there was no need for organized forces to maintain unity and discipline.

iv. Political Consciousness

Political Consciousness was another important factor that contributed to the emergence of political power. It may be described as the innate feeling among men that they have certain aims and objects which they cannot achieve without living under an organized authority.

It may be reasonably concluded that the origin of the state cannot be assigned to a particular point in time or one particular factor it has evolved gradually with certain specified factors playing an important role in its growth and development these factors are kinship, religion, war and political consciousness.

B. Sovereignty

Sovereignty is one of the chief attributes of statehood. For the first time, this term was introduced by the French political thinker Jean Bodin. The word sovereignty is derived from the French word ‘soverain’, which was derived from the Latin word ‘suprifus’, which meant a supreme authority having no other authority above it. The term sovereignty also means Supremacy on right to command obedience. A Sovereign state is one which is not subordinate to any other state and is Supreme over the territory under its control. Its commands are necessary to be opened by all men and associations within its territory. Thus in a modern sense, the sovereign is that person or body which is the supreme legislative authority in a given state.

Concept of Sovereignty

The concept of sovereignty was unknown in the ancient world. It is an essential outcome of the medieval period when there were the European renaissance and reformation. It was Machiavelli who developed the concept of state absolutism; this state is absolute and an end in itself, and there cannot be restraints on its powers.

The term sovereignty was for the first time introduced by French jurist Jean Bodin in his famous work Republic which appeared in 1577.

The great law reformer Jeremy Bentham of England also supported the sovereign's absolute power, but he justified it on the utilitarian principle of hedonism. According to him, the sovereign had the authority to make laws, but this should be in conformity with the principles of utility. He believed that sovereign power could be subjected to certain legal restrictions.

He also defined ‘sovereign’ as a person or group of person to whose will a political community are supposed to be in a disposition to pay obedience in preference to any other person.

Lord Lloyd defined sovereignty as a practical device of law and politics whereby the effect is given to the practical need in any community for some final ultimate authority.

Theories of Sovereignty

1. Austinian Theory of Sovereignty

“If a determinate human superior, not in the 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, includes superior is the society, political and independent. To that determinate superior, the other members of the society are dependent. The position of its other members towards the determinate superior is a state of subjection or a state of dependence, the mutual relations which subsist between that superior and then maybe styled the relation of sovereign and subject or the relation of sovereignty and subjection.”

2. Salmond's Theory of Sovereignty

Like Austin, Salmond also believes that sovereign power is determined, that is, in every political society, there must be a sovereign authority. He also points out that it is not necessary that sovereignty, in all cases, should be found in its eternity within the confines of the state itself, and it may wholly or partly be external to the state. He also suggested that the sovereign power is divisible. It may be divided into three organs of the state, namely legislative, executive, and Judiciary, being free and uncontrolled in its own sphere.

He also observed that the theory of sovereignty is founded on three fundamental propositions.

• Essentiality
• Indivisibility
• Illimitability

Thus Salmond has asserted that sovereignty is indivisible, essential and illimitable.
It cannot be subordinated to any other person because the sovereign is limited to the extent to which the subjects are willing to submit to his domain.

Status of Sovereignty in India

India disagrees with the view that sovereignty is an absolute and unlimited power. Here, the Constitution is supreme, vests the president's executive sovereignty, and legislative sovereignty is vested in the Parliament and the state legislature. There is nothing like judicial sovereignty.

Originally Published on: Aug 17, 2018

Sources

• POLITICAL SCIENCE THEORY BY S.N. DUBEY
• STUDIES IN JURISPRUDENCE AND LEGAL METHOD BY DR. N.V. PARANJAPE