KINDS OF SOVEREIGNTY
There
are five different kinds of sovereignty:
(1)
Nominal and Real Sovereignty (2) Legal Sovereignty (3) Political Sovereignty
(4) Popular Sovereignty (5) De Facto and De Jure Sovereignty.
(1) Nominal arid Real Sovereignty:
In ancient times many states had monarchies and their rulers
were monarchs. They wielded absolute power and their senates and parliaments
were quite powerless. At that time they exercised real sovereignty. Therefore,
they are regarded as real sovereigns. For example, Kings were sovereigns and
hence they were all powerful in England before fifteenth century, in U.S.S.R.
before eighteenth and nineteenth centuries and in France before 1789. The state
of affairs changed in England after the Glorious Revolution in 1688.
Now the King is like a rubber- stamp. The British king has a
right to encourage, warn and advise his Ministers or seek any information about
the administration. Except these ordinary powers, all other powers of the
British king are wielded by his Ministers.
Lowell has summed up the position of the British Sovereign in
these words: “According to the early history of the constitution, the ministers
were the counsellors of the king. It was for them to advice and for him to
decide. Now the parts are almost reversed. The king is consulted but the
ministers decide”.
(2) Legal Sovereignty:
Legal sovereignty is that authority of the state which has the
legal power to issue final commands. It is the authority of the state to whose
directions the law of the State attributes final legal force. In every
independent and ordered state there are some laws which must be obeyed by the
people and there must be a power to issue and enforce these laws. The power
which has the legal authority to issue and enforce these laws’ is legal
sovereignty.
In England, the King-in-Parliament is sovereign. According to
Dicey, “The British Parliament is so omnipotent legally speaking…. that it can
adjudge an infant of full age, it may attain a man of treason after death; it
may legitimize an illegitimate child or if it sees fit, make a man a judge in
his own case”.
The authority of the legal sovereign is absolute and law is
simply the will of the sovereign. Since the authority of the sovereign is
unrestrained, reserves the legal right to do whatever he desires. It is the
legal sovereign who grants and enforces all the rights enjoyed by the citizens
and, therefore, there cannot be any right against him. The legal sovereign is,
thus, always definite and determinate.
Only the legal sovereign has the power to declare in legal terms
the will of the stale. The authority of the sovereign is absolute and supreme.
This authority may reside either in the monarch or in an absolute monarchy or
it may reside in the body of persons.
(3) Political Sovereignty:
Dicey believes that “behind the sovereign which the lawyer
recognizes, there is another sovereign to whom the legal sovereign must bow.
Such sovereign to whom the legal sovereign must bow is called political
sovereign. In every Ordered state the legal sovereign has to pay due attention
to the political sovereign.
According to Professor Gilchrist, “The political sovereign means
the sum-total of influences in a State which lie behind the law. In modern
representative government we might define it roughly as the power of the
people”. In other words by political sovereign in the representative
democracies, we mean the whole mass of the people or the electorate or the
public opinion. But at the same time, it cannot be vigorously asserted that
political sovereignty can definitely be identified with the whole mass of the
people, the electorate or the public opinion. Political sovereignty is a vague
and indeterminate term.
Political sovereignty rests in that class of people under whose
influence the mass of the people is or the people are. Political sovereignty
rests in the electorate, in the public opinion and in all other influences in
the state which mould and shape the public opinion.
In the words of Professor R.N. Gilchrist, “Political sovereign
manifests itself by voting, by the press, by speeches, and in many other ways
not easy to describe or define. It is, however, not organized and it can become
effective only when organized. But the organizations of political sovereignty
lead to legal sovereignty. The two are aspects of the one sovereignty of the
state”. As a matter of fact, legal and political sovereignty are the two
aspects of the one sovereignty of the state. But at the same time both the aspects
stands poles apart.
Legal sovereign is a law-making authority in legal terms,
whereas political sovereignty is behind the legal sovereign. The legal
sovereign can express his will in legal terms. But the political sovereign
cannot do so. Legal sovereign is determinate, definite and visible whereas
political sovereign is not determinate and clear.
Legal sovereign cannot go against the will of the political
sovereign whereas political sovereign, though not legally powerful, controls
over the legal sovereign. The concept of legal sovereign is clear whereas the
concept of political sovereign is vague. Legal sovereign is elected by the
political sovereign whereas political sovereign is the electorate or the
people. These are the points of difference between the legal sovereign and the political
sovereign.
(4) Popular Sovereignty:
Popular sovereignty roughly means the power of the masses as
contrasted with the Power of the individual ruler of the class. It implies
manhood, suffrage, with each individual having only one vote and the control of
the legislature by the representatives of the people. In popular sovereignty
public is regarded as supreme. In the ancient times many writers on Political
Science used popular sovereignty as a weapon to refute absolutism of the
monarchs.
According to Dr. Garner, “Sovereignty of the people, therefore,
can mean nothing more than the power of the majority of the electorate, in a
country where a system of approximate universal suffrage prevails, acting
through legally established channels to express their will and make it
prevail”.
(5) De Facto and De Jure Sovereignty:
Sometimes a distinction is made between the De Facto (actual)
sovereignty and De Jure (legal) sovereignty. A de jure sovereign is the legal
sovereign whereas a de factor sovereign is a sovereign which is actually
obeyed.
In the words of Lord Bryce, de facto sovereign “is the person or
a body of persons who can make his or their will prevail whether with the law
or against the law; he or they, is the de facto ruler, the person to whom obedience
is actually paid”. Thus, it is quite clear, that de jure is the legal
sovereignty founded on law whereas dc facto is the actual sovereignty.
The person or the body of persons who actually exercise power is
called the de facto sovereign. The de facto sovereign may not be a legal
sovereign or he may be a usurping king, a dictator, a priest or a prophet, in
either case sovereignty rests upon physical power or spiritual influence rather
than legal right.
History abounds in examples of de facto sovereignties. For
example, Oliver Cromwell became de facto sovereign after he had dismissed the
Long Parliament. Napoleon became the de facto sovereign after he had overthrown
the Directory. Likewise, Franco became the de facto sovereign after he had
dislodged the legal sovereign in Spain.
In this connection, Dr. Garner has very aptly remarked, “The
sovereign who succeeds in maintaining his power usually becomes in the course
of time the legal sovereign, through the acquiescence of the people or the reorganization
of the State, somewhat as actual possession in private law ripens into legal
ownership through prescription”.
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