Sovereignty: Austin, Bodin, Laski & Kautilya | Philosophy Optional Notes for UPSC PDF Download

The Concept of Sovereignty in the State

Introduction: Sovereignty is a fundamental and exclusive attribute of a state, essential for defining its status as a state. It represents the supreme power vested in the state, allowing it to exercise complete freedom in making decisions related to laws, political and economic systems, foreign policies, and international relations. In essence, sovereignty grants a state the autonomy to manage its internal and external affairs independently, free from external interference. This article delves into the concept of sovereignty, exploring its historical roots and its crucial role in modern statehood.

I. Historical Origins of Sovereignty:

• The term "sovereignty" originates from the Latin word "superanus," meaning supreme or paramount.
• Early philosophers like Aristotle referred to the concept as "supreme power," while Roman lawyers and medieval thinkers alluded to the "fullness of power."
• Jean Bodin, a 16th-century French thinker, popularized the term "sovereignty."

II. Sovereignty as a Cardinal Feature of Modern Statehood:

• Sovereignty is a central concept in political theory and a defining characteristic of a modern state.
• Without sovereignty, a state cannot exist, as it is what distinguishes a state from other associations and entities.

III. Internal and External Aspects of Sovereignty: 
A. Internal Sovereignty: - Internal sovereignty pertains to the state's ultimate legal authority to command and enforce obedience within its territory. - It signifies the absolute power of the state over all individuals and associations within its borders.
B. External Sovereignty: - External sovereignty indicates that the state is not subject to the authority of other states and remains independent, free from compulsion or interference. - The state's sovereign status remains intact even when it enters into treaties or adheres to international law.

IV. Characteristics of Sovereignty:

1. Absoluteness:
   • Sovereignty implies the absence of any constraints on its authority, whether self-imposed or external.
2. Permanence:
   • Sovereignty is a permanent feature of the state, continuing uninterrupted as long as the state exists.
   • Changes in government do not affect the continuity of sovereignty.
3. Exclusiveness:
   • There is only one sovereign power within a state, and no individual or association can rival it within the state's territory.
4. All-Comprehensiveness:
   • Sovereignty is universal, extending to all individuals, groups, and associations within the state, with the exception of extra-territorial jurisdiction granted to embassies.
5. Inalienability:
   • Sovereignty cannot be transferred or lost over time due to the non-exercise of its powers.
6. Indivisibility:
   • Sovereignty cannot be divided, as division leads to the destruction of sovereignty.
   • The notion of divided sovereignty is erroneous and could result in conflict and disintegration of the state.

In summary, sovereignty is a crucial concept in statehood, representing a state's supreme and exclusive authority to govern itself without external interference. Its characteristics, including absoluteness, permanence, exclusiveness, all-comprehensiveness, inalienability, and indivisibility, underline its significance in defining a state's identity and autonomy.

Jean Bodin's Theory of Sovereignty (1530 to 1596)

Introduction: Jean Bodin, a prominent French thinker who lived from 1530 to 1596, is credited with formulating the modern concept of sovereignty. His ideas on sovereignty are considered a cornerstone of his political philosophy. Bodin's definition of sovereignty emphasizes its role in distinguishing the state from other social groups and highlights several key characteristics and limitations. This article provides an overview of Bodin's theory of sovereignty, including its defining features and the paradox it creates by simultaneously asserting absolute power and acknowledging certain limitations.

I. Characteristics of Bodin's Theory of Sovereignty:

1. Supreme Power:
   • Bodin posits that sovereignty represents supreme power over citizens and subjects, unrestricted by legal constraints.
2. Perpetual and Undelegated:
   • Sovereign power is perpetual, meaning it is not delegated, or if delegated, it is done so without limits or conditions.
3. Inalienable:
   • Sovereignty is inalienable, and it cannot be transferred or subject to prescription.
4. Source of Law:
   • Bodin asserts that the sovereign is unrestrained by law because they are the source of law itself.
5. Lack of Legal Accountability:
   • Sovereigns are not legally accountable to their subjects, although they are answerable to God and bound by natural law.
6. Power to Legislate:
   • The primary attribute of sovereignty is the authority to enact laws for citizens, either collectively or individually, without the need for consent from a superior, equal, or inferior authority. The sovereign is the legal head of the state.

II. Bodin's Limitations/Checks on Sovereignty:

1. Divine Law:
   • Sovereigns are expected to obey Divine Law based on their conscience, which serves as a moral constraint.
2. Natural Law:
   • Bodin acknowledges the supremacy of the laws of nature over human laws, setting immutable standards of conduct. However, a sovereign's obligation to respect natural law is primarily a moral duty rather than a strict legal obligation.
3. Protection of Private Property:
   • Private property, granted by the law of nature, is considered inviolable. Sovereigns cannot tax their subjects without their consent.
4. Respect for Promises and Rights:
   • Sovereigns must honor promises made to the people and adhere to the principles of succession and individual property rights. They are also expected to follow the principles of international law.

III. Bodin's Paradox:

• Bodin's theory of sovereignty simultaneously grants sovereigns unconditional power to create, interpret, and enforce laws, including the authority to declare war, make peace treaties, commission magistrates, grant dispensations, coin money, and levy taxes.
• The law of the land, according to Bodin, is synonymous with the sovereign's commands. However, Bodin acknowledges certain extralegal limitations, such as the "law of God and of nature."
• This dual perspective creates a paradox in Bodin's theory of sovereignty, where sovereignty is absolute on one hand and subject to moral and natural constraints on the other.

In summary, Jean Bodin's theory of sovereignty introduces the concept of absolute power vested in the state, with the sovereign as the ultimate source of law. However, Bodin also acknowledges moral and natural limitations on sovereignty, resulting in a paradox where absolute power coexists with certain inherent constraints.

John Austin's Legal Theory of Sovereignty

Introduction: John Austin, an English jurist, and a disciple of Jeremy Bentham, made significant contributions to the concept of legal sovereignty. He consolidated and elucidated Bentham's ideas on sovereignty, particularly emphasizing the principle of utility. Austin's work in jurisprudence, particularly his lectures on "The Province of Jurisprudence Defined," aimed to delineate the boundaries between law and ethics and to define the scope of positive law. Austin's theory revolves around the concept of sovereignty as the source of all legal rules, and this article provides an overview of his theory, its unique features, and the criticisms it has received.

I. Austin's Definition of Law:

• Austin's definition of law is consistent with Bentham's, characterizing law as "an expression of will by a determinate being that a certain course of conduct comes to pass, failing which, an evil will come upon one who deviates from that course."
• Austin differentiates two primary categories of law: divine law and human law, with human law divided into positive law and positive morality.

II. Austin's Division of Law: 
A. Positive Law: 

•  Austin's theory focuses primarily on positive law, which encompasses rules imposed by political superiors in independent societies. -
• Positive law, as Austin defines it, is the subject matter of jurisprudence and represents man-made law.

B. Positive Morality:

• Positive morality refers to rules established by individuals who are not political superiors, such as societal norms, customs, conventions, and non-legal codes of conduct. 
• It falls outside the purview of jurisprudence.

III. Austin's Doctrine of Sovereignty:

• Austin's theory revolves around the concept of sovereignty, which he considered "the most influential contribution to political theory proper."

• He defines sovereignty in a powerful sentence: "If a determinate human superior, not in a 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 (including the superior) is a political and independent society."

• Key features of Austin's legal theory of sovereignty:
  • In every political society, there is a determinate human superior who receives habitual obedience from the majority of its citizens.
  • Whatever the sovereign commands is law, and without the sovereign, there is no law.
  • Sovereign power is indivisible.
  • The sovereign's power is absolute and cannot be limited by law, morality, or ethics.

• Austin's theory posits that the existence of a state is evidenced by the rule and obedience within the society, where laws are commands calling for obedience, leading to the concept of legal rights.

• Legal rights are granted by the sovereign power of the state and upheld by that power, leaving individuals with no rights against the state itself.

• The State, according to Austin, is the source of all legal rules to which obedience is habitually given.

IV. Criticism of Austin's Theory of Sovereignty:
Austin's theory has faced significant criticism, including the following objections:

1. Failure to account for societies where immemorial custom rather than a determinate human superior reigns supreme.
2. Emphasizing laws as mere 'commands' and neglecting their moral and societal origins.
3. The untenable proposition that sovereignty is indivisible.
4. Difficulties in locating 'the determinate human superior' in complex, federal states.
5. Resistance from pluralist thinkers who advocate shared power and autonomy for various societal groups.
6. Neglecting sociological and historical factors influencing law-making.
7. Critics argue that Austin's concept of the absoluteness of sovereign authority is unrealistic and abstract.

Conclusion
John Austin's legal theory of sovereignty, which emphasizes the concept of a determinate human superior as the sovereign, has been both influential and subject to criticism. While providing a clear and logical analysis of the legal nature of sovereignty, Austin's theory has faced objections related to its adequacy in explaining complex social and political realities, the role of custom and morality in law, the divisibility of sovereignty, and the influence of societal factors. Despite these criticisms, Austin's theory remains a significant contribution to jurisprudence, particularly in delineating the scope of positive law and legal rights.

Harold Laski concept of sovereignty

• Laski was an advocate of pluralism and criticized the monistic view of state sovereignty presented by theorists like Jean Bodin and John Austin.
• Initially, he believed that the theory of state sovereignty would vanish, similar to the divine theory of kingship. However, he later realized the necessity of state sovereignty to fulfill its functions.
• Laski criticized Austin's theory, asserting that it does not reflect the complex relationship between modern states and citizens. States cannot exercise absolute and unlimited power over their citizens.
• He argued that modern law does not result solely from the command of sovereignty but is influenced by social forces, democratic government, and public opinion.
• Ethically, Laski found it wrong to demand unquestioned obedience without granting individuals the right to judge for themselves. He believed that loyalty should be directed toward the purpose for which the state exists, rather than the state itself.
• Laski advocated for political decentralization to secure the civil, economic, and social rights of individuals against the encroachment of those in power.

Thomas Hobbes concept of sovereignty

• Hobbes is known for his view that in a state of nature, human life is "solitary, poor, nasty, brutish, and short."
• He believed that individuals entered into a social contract, creating a civil society to escape the state of nature and preserve their lives.
• In this contract, individuals surrendered their natural rights to a sovereign authority, which was given absolute, unlimited power.
• According to Hobbes, the sovereign had the authority to make laws and was not bound by any constitution or fundamental law.

John Locke concept of sovereignty

• Locke's theory is based on the social contract and supreme power rather than the term sovereignty.
• He distinguished between the legislative power and the supreme power of the community.
• The legislative power was subject to limitations by fundamental law and the law of nature, and it could not arbitrarily take away people's property.
• The supreme power of the community, while temporarily suspended under government, would be exercised when creating a new government. It had the power to remove or alter the legislature if it acted contrary to the trust placed in it.
• Locke's theory does not endorse unlimited government authority and acknowledges the importance of preserving individual rights.

Jean-Jacques Rousseau concept of sovereignty

• Rousseau's concept of sovereignty also departs from Hobbes and Locke.
• He believed in the idea of the "general will" as the collective will of the people, which should determine the laws.
• Rousseau's theory emphasized popular sovereignty, where citizens collectively participated in the legislative process to create the general will.
• He stressed the importance of individual freedoms while contributing to the formulation of the general will.
• Unlike Hobbes and Locke, Rousseau's theory promoted a more participatory form of governance and emphasized the role of the community in shaping laws.

These three philosophers, Laski, Hobbes, Locke, and Rousseau, provide different perspectives on sovereignty, highlighting the complexities and debates surrounding the concept throughout the history of political thought.

Kautilya's Theory of Sovereignty

Kautilya, also known as Chanakya, was a prominent ancient Indian scholar, teacher, economist, political strategist, and the author of the "Arthashastra," an ancient treatise on statecraft, economic policy, and military strategy. Kautilya's theory of sovereignty and the structure of the state, as outlined in the "Arthashastra," is a significant part of his political philosophy.
In the "Arthashastra," Kautilya presented a comprehensive view of the state and its components. He conceived of the state as a complex entity with seven organs, known as the Saptanga State, each serving specific functions. The seven organs of the state are:

1. Swami (Ruler): The Swami, or ruler, is the central figure of the state and possesses absolute authority. Kautilya favored hereditary monarchy, as it ensured the continuity of leadership.
2. Amatya (Bureaucracy): The Amatya represents the administrative bureaucracy, responsible for executing the policies and directives of the ruler. The Amatya class played a vital role in governance and decision-making.
3. Janapada (Population or Territory): The Janapada signifies the population and territory of the state. Kautilya recognized the importance of the land and its people as a fundamental aspect of statehood.
4. Durga (Capital City with Fort): The Durga refers to the capital city of the state, which must be fortified to protect against external threats and invasions.
5. Kosa (Treasury): The Kosa represents the state treasury, which is essential for funding various activities of the state, including the maintenance of the army.
6. Danda (Army): The Danda refers to the military or armed forces of the state, crucial for protecting the sovereignty of the state and ensuring internal and external security.
7. Mitra (Friend): The Mitra denotes alliances and friendly relations with neighboring states. Maintaining allies was considered crucial for enhancing the power and security of the state.

Kautilya was particularly concerned with preserving and maintaining the sovereignty of the state. He recognized various threats to the sovereignty, which could originate from external enemies, internal unrest, or even the ruler's own policies. To counter these threats, Kautilya offered several strategic recommendations:

• External Threats: To protect against external threats, Kautilya advised the construction of well-fortified border towns or forts. Additionally, maintaining friendly relations with neighboring states and having a strong, well-equipped army were crucial for safeguarding sovereignty.
• Internal Threats: Kautilya considered internal troubles more dangerous than external ones. He stressed the importance of maintaining control over the army and the finances of the kingdom. A policy of "divide and rule" was suggested to manage internal affairs effectively.
• Treasury and Allies: Ensuring a constant flow of funds to the treasury and having a sufficient number of allies or friends were essential for preserving sovereign power.

In summary, Kautilya's theory of sovereignty emphasizes the importance of strong leadership, a well-organized bureaucracy, a secure capital city, a robust military, and friendly relations with neighbors in maintaining and protecting the sovereignty of the state. He recognized that sovereignty was not merely about authority but also about effectively countering threats and internal challenges to the state's power and stability.