STATE AND SOVEREIGNTY

StateThe term ‘State’ has variously been defined

by various writer. It is the chief artificial person having rights and duties

Salmond defines State as a society of men established for the maintenance of order and justice within a determined territory by way of force.

STATESalmond observes that the State is a body of

men dwelling upon a determined territory, of which the stronger impose their wills on the weaker, which power is called Sovereignty

To Woodrow Wilson, “State is a people organized for law within a definite territory.”

The individual person or the body of individual persons which bears the supreme powers in an independent political society

Salient features.-

There are four salient features of a State:Population.-The first essential of State is its

people, without whom a State cannot be visualized

A population “sufficient to provide both a governing body and a number of persons to be governed, and of course sufficient to support a State organization.”

Salient featuresTerritory.-People alone without territory cannot form a

State. So nomads without a definite territory may not be said to have a State.

The size of the territory, like that of population is however immaterial.

A State without a fixed territory a nomadic tribe or example is perfectly possible?

Salient featuresOrganization. – Population however huge and territory

however large amount cannot amount to a State unless there is some organization to express the will of its people and to ensure that such a will is enforced

There must be legislature to make laws, judiciary to interpret, and executive to enforce them

Salient featuresSovereignty.-Sovereignty is the chief attribute of

statehood. Sovereignty means supreme authority.

The human superior in the State must have the habitual obedience of the bulk of the people, and he must not be in the habit of rendering obedience to another determinate superior

State and LawState creates Law.-According to Austin, law is the command of

sovereign. He says, “Every positive law obtaining in any

community is a creature of the sovereign or state.

Dr. Salmond, “It is in and through the State alone that law exists

Functions of the State.Aristotle says that the State is natural and

necessary.” He further observes “The state exists that

men may lead a good life.” The State originates for the sake of life

and exists for the sake of best life. Dr. Holland, “A state is an association

of human beings generally occupying a territory for the attainment of internal order and external security.

The functions of a State -primary and secondary.Primary functions.-Primary functions also called the constituent

functions are the basic fundamental functions. According to Salmond, they are war and

administration of justice i.e., external security and internal peaceAccording to Herbert Spencer, “the two

functions of a State are to protect against external enemies and to suppress internal anarchy.”

functions of a StateSalmond, the fundamental purpose and end of

political society has been defence against external enemies, and the maintenance of peaceable and ordinary relations within the community itself

Hobbes, “Leviathan carries two swords-the sword, of war and that of justice.”

Each function consists in the exercise of the organized physical force of the community and in each case this force is made use of to the same end

Use of Force – Judicial, Extra-judicialThe distinction between these two functions

of the State lies in the nature of use of force

In the administration of justice the use of force is judicial

In war, the use of force is extra-judicial

Secondary functionsSecondary functions are meant for advancing

the general interests of the society. These are optional and not very rigid

depending upon the State of advancement of the society

Secondary functions may be further divided into two classes

functions of a State(1) To the first category belong such functions as

are necessary for the fulfillment of primary functions.

Legislation and taxation may be mentioned as examples of such functions.

In the present complex state of life, administration of justice is, at any rate, not an easy task without legislation.

So also for defence huge amounts are required so need for taxation. Moreover, money is needed even for administering as justice it is not always possible to sell justice; it has to be given free

functions of a State(ii) In addition to legislation and taxation, the modern

States have undertaken several functions. These are for the convenience of the society.

In fact, the functions, of the State have increased manifold in volume and variety. The modern States are no more police States.

According to modern Jurists who agree with the Aristotelian doctrine that, “the state came into existence to make life possible and exists to make it good.” The State is responsible for the well being of all persons under it

Such a beneficial conception of a State is described as a “Social service state.” or welfare state

SOVEREIGNTYConception of sovereigntyLiteral Meanings. The word ‘sovereign’ has

its roots in the French word ‘souveratin” which has been derived from the Latin words ‘superanus’ meaning supreme authority. Hence by sovereignty is meant supremacy

The term “Sovereignty” was introduced into political science by Jean Bodin, the renowned French philosopher in 1577

sovereignty Bodin defined sovereignty as “the absolute

and perpetual power within a StateIt is not subject to any lawHobbes went even beyond Bodin maintaining

that a Sovereign was not bound by anything and had a right over every thing even over religion

In the 20th century the rapid growth of International Law has made the concept of sovereignty more complicated and controversial

sovereigntyLegal sovereignty is composed of (2) nominal,

and (3) political sovereignty. Nominal sovereignty vests in the titular head

of the State viz, monarchPolitical sovereignty rests with the electorate. Dicey clearly observes that behind the legal

sovereign there lies another (political) sovereign to whom the former must bow.

sovereigntyWe are concerned only with the legal sovereignty, i.e,

supreme law making power. This legal sovereignty according to Austin has two

marks: (1) Positive and (2) Negative. For the positive mark the (common) human superior

(sovereign) should have the habitual obedience of the bulk of the people. That is all persons within its borders are bound to obey it. This is also called internal sovereignty

For the Negative mark, the sovereign must not be in the habit of rendering obedience to another determinate superior, i.e. its relations to other communities

ConclusionThe authority to command obedience from

the person within its borders is internal aspect of sovereignty, while its supremacy in not rendering obedience to other communities is external aspect of sovereignty

The sovereign authority is source of all laws.The power of this sovereign authority is

legally unlimited