Concept Of State and Sovereignty

Presented By:
Sanjay Singh
Rohit Shukla
Abhishek Sati
S.L.C.- LL.B Part I

ABSTRACT
Through this presentation w e put before you the

C o n c e p t s o f S t a t e a n d S o v e r e i g n t y.
F r o m t h e 1 st a n d 2 nd s l i d e w e w i l l g o t h r o u g h t h e
various definitions of the State.
F r o m t h e 3 rd 8 th s l i d e w e w i l l s t u d y t h e e l e m e n t s
of state in a gist.
F r o m S l i d e n u m b e r 9 t h - 11 t h w e w i l l s e e t h e t h r e e
main theories of the interstate relationship
between State and Law.
F r o m S l i d e 1 2 th- 1 8 th w e w i l l t r y t o b r i n g o u t t h e
c r i t i c a l a n a l ys i s o f A u s t i n s d e f i n i t i o n o f
sovereignty with relevance to India
F i n a l l y, i n s l i d e 1 9 t h w e h a v e t h e c o n c l u s i o n t o
this presentation on Concepts of State and
S o v e r e i g n t y.

Various Definitions of State

Hollands definition of state :
Numerous assemblage of human beings
Occupying a certain territory
Where the will of the majority is by the strength of the majority and
Is made to prevail against any of the number who oppose it.
Benthams definition of state:
When a number of persons are supposed to be in a habit of paying
obedience to a person or an assemblage of persons who have a
known and certain description such persons all together are said to
be in a state.
Salmonds definition of state:
A society of men
established for the maintenance of order and justice
within a determined territory
Practised by way of force

Concepts of State in popular sense Many definitions of a STATE have been given
by various eminent philosophers which have
been referred to from time to time for bringing
out the concept of state brought out today. In
popular sense A State is a community of persons
more or less numerous, permanently occupying a
definite portion of territory, having a government
of their own to which the great body of
inhabitants render obedience, and enjoying
freedom from external control.

Elements of State:
1. People
2. Territory
3. Government
4. Sovereignty

Elements of State:
1. People
This refers to the mass of population living
within the state. There is no requirement as
to the number of people that should
compose a state. But it should be neither
too small nor too large: small enough to be
well-governed and large enough to be selfsufficing.
The smallest state is Vatican. China has
the largest population.

Elements of State:
2. Territory
Components of Territory:

1. Terrestrial/land mass
2. Aerial
3. Fluvial
4. Maritime Domain

The smallest state is Vatican

State with an area of 0.43
square kilometres. It would fit
in Rizal Park in Manila. The
biggest state is Canada with an
area of 3,852,000 square
miles which covers a surface
nearly as large as Europe.

Elements of State:
3. Government

It refers to the agency through which the

will of the state is formulated, expressed
and carried out.

Elements of State:
4. Sovereignty

It is the supreme power of the state to

command and enforce obedience to its will
from people within its jurisdiction, and to
have freedom from foreign control.

Interstate relationship between

The State and Law
1. Law as a Product of State:

According to Austin,
Positive Law is essentially a product of
state.
Sovereign himself is not bound by the law
which is binding on his subjects.
The Nazi and Fascist rulers treated law as
the creation of State and the ruler was
above law.

Interstate relationship between

The State and Law
2. Law is above State:
Harold Laski, Diguit, Sir Ivor Jennings and
Krabbe asserted that
Sovereign is bound by the law and is not
above law.
Law checks the arbitrary power by the
state, i.e. Arbitrary
Ruler cannot change law by his mere
violation.

Interstate relationship between

The State and Law
3. State and Law are one and the same:
According to Kelson,
State and Law are the two sides of the same
coin.
When we think of abstract rules we speak of
law
When we consider the institutions which
rulers create, we speak of the state.

Critical Analysis of Austins definition of

Sovereignty
(1) This theory is against popular sovereignty:
theory is deadly against Rousseaus concept of the
General Will which is the very basis of democracy.
Austins sovereign is superior and everybody else is
sub-ordinate to him.
In democracy supreme power resides in the people.
On the contrary Austins world is hierarchical.
Thus, Austins theory of sovereignty does not fit in
with a democratic set-up.

Critical Analysis of Austins definition of

Sovereignty
(2) It ignores the power of public opinion and
political sovereignty:
Austins concept of sovereignty ignores public
opinion and political sovereignty.
Austins determinate human sovereign is superior to
all. He wields the power and exercise sovereignty.
In a country such as ours, which is a democracy,
public opinion is the basic element of society. It is
because of public opinion that we are capable of
electing our representatives and voicing our
concerns.

Critical Analysis of Austins definition of

Sovereignty
(3) Law is not the command of the sovereign:
Austin is of the opinion that the determinate
human superior is the only law-maker and his
commands are laws.
In India, The sovereign does not have the power to
command anything that it desires. It is as much
bound by rules and regulation embodied in the
constitution and other laws as any common man.
Legislature is bound by the constitution and in
almost all cases court has the power to decide
whether an act done by the government is
constitutable and hence valid otherwise it can be
struck down.

Critical Analysis of Austins definition of

Sovereignty
(4) Sovereign is not indivisible according to
Pluralists:
According to Pluralists, Sovereignty is not
indivisible. It can be divided.
In our country, the powers of the Sovereign
legislature, the sovereign judiciary and the sovereign
executive is equally great in their own spheres.
Therefore, the state cannot be endowed with
sovereign power of the community. Sovereignty is
divisible and it must be divided between the state
and various other associations of the individuals.

Critical Analysis of Austins definition of

Sovereignty
(5) Sovereignty does not reside with a
determinate person in the federation:
In a federal state sovereignty does not reside with a
determinate person.
It is impossible to discover sovereign in a federal
state. It is very difficult to locate the sovereign in a
federal state.
For example, in our country, Sovereignty resides
neither with the person of the prime minister nor
with his office nor with the parliament. It resides
with the constitution.

Critical Analysis of Austins definition of

Sovereignty
(6) Force is not the only sanction behind laws:
The will of the public is also a sanction behind the
law. Hence, Austins concept of sovereignty is wrong.
In India, laws are framed by the representatives of
the people and not only by the will of the sovereign.

Critical Analysis of Austins definition of

Sovereignty
(7) This Theory is not even applicable to
Europe:
Austin has asserted that the King-in-Parliament is
the sovereign in England.
Legally speaking, this assertion is not correct
because neither the King nor the Parliament can go
to the extent of becoming completely absolute.
Always they have to pay due attention to the will of
the public.

Conclusion
Thus we can say that the notion of sovereignty in
India at present certainly not what Austin would
define as sovereignty, the concept of sovereignty is
under restraint which is very justified as the concept
of an unlimited illimitable and indivisible
sovereignty is a superfluity that debases the very
cannon of Indian Jurisprudence.
The reality is that the public is the ultimate source of
power. It is public that empowers the Parliament.
This is the reason why elections are conducted after
every five years for the House of Commons.

THANK YOU