State sovereignty law

Course-LL.B –II

Subject-Jurisprudence-II

Unit-I

1

State

Garner

“The state is the community of persons more or less numerous ,permanently occupying a definite portion of territory, independent or nearly so of external control and possessing organized government to which the great inhabitants render habitual obedience.”

Woodrow Wilson

• A state is a people organized for law within a definite territory”

Salmond

• A society of men established for the maintenance of order and justice within a determined territory ,by way of force.

Elements of State

• Population

• Territory

• Government

• Sovreignty

Functions of the State

Salmond

-Primary

-Secondary

Kinds of State

• Unitary State

• Composite State

The State and lawtheory

• The State is superior to law and creator of law

• Salmond –It is in and through State alone that law exists.

• Law as a command of the Sovereign.

• Only the sovereign has the power to make law and he himself is not bound by it.

• The second theory is that law is more important than the state and the state is bound by it.

• Law is anterior to the states

• The rule of law is ,clearly, independent of the states and is ,indeed anterior to it.

3rd Theory

• State and law are one and the same thing.

• legal order

• The term State and law are the same things.

• The identification of law with the State is like the identification of church and state or religion and the state.

Meaning of Sovereignty

• “sovereignty” is derived form the Latin word “superannus”

• It means the supreme power of the state over all individuals and associations within its own territorial limits.

• It has the power to command obedience to its laws and commands and to punish the offenders who violate the same

Sovereignty

• In its popular sense, the term sovereignty means supremacy or the right to demand obedience.

• The Sovereign state is one which is subordinate to no other

• It is supreme over the territory under its control.

• sovereignty also involves the idea of freedom from foreign control

• This is what is called external sovereignty

• sovereignty of the state has two aspects, namely, internal and external sovereignty.

Characteristics of Sovereignty

• Absoluteness

• Permanence

• Inalienability

• Imperceptibility

• Originality

Different kinds of soverginty

• Titular and Real Sovereignty

• De facto and de jure Sovereign

• Legal and Political Sovereignty

• Popular Sovereignty

Austin’s Theory

• According to Austin’s theory of sovereignty, the state is a legal order in which there is a determinate authority acting as the ultimate source of power.

• The main point of criticism against Austin’s theory is that the theory is inconsistent with the modern idea of popular sovereignty

• It is very difficult to locate the sovereign in a federal state.

THE PLURALIST THEORY OF SOVEREIGNTY

• Pluralism or the Pluralist theory of sovereignty emerged as a reaction against the Monistic theory of sovereignty which we have discussed in the previous section.

• The Pluralist theory emerged in response to the undue emphasis on the power of the state as advocated by the monists

Principles of Pluralism:

• The Pluralist theory recognizes the role of several associations in the society, formed by men in pursuance of their varied interests

• Such associations include the church and other religious organizations, trade unions, cooperative societies, voluntary associations and the like

Role of the State as Coordinator

• Just as an association coordinates the activities of its members, the state also coordinates the activities of the other associations in the society

• the state also coordinates the activities of the other associations in the society

Decentralisation of Authority

• The Pluralists hold that the complexity of the economic and political relations of the modern world cannot be dealt with by a monolithic view of the state.

• Therefore, the management and control of society must be shared by various associations in proportion to their contribution the social good.

• Accordingly, the pluralists stand for the decentralization of authority so that all authority is not concentrated in the hands of the state.

• Its independence in the face of other communities is the mark of external sovereignty .

• Soveregnity is the chief attribute of statehood.

Diecey

• Two kinds of sovereignty-

• Legal

• Political

References

• B.N.M. Tripati : An Introduction to Jurisprudence (Legal Theory)

• 1.https://lh5.ggpht.com/HLnLMmZqbfbQirTFZ3eQjqzDnvnSbXYOs3zoqHvKuhXL25APHW0nFkWo4zFQGqMNbvQ7=s153