Few ideas sit closer to the heart of jurisprudence than the twin concepts of the State and sovereignty. For the analytical positivist, law simply is the command of a sovereign; strip away the sovereign and the entire imperative theory collapses. Yet the moment one asks where sovereignty truly resides — in a monarch, in Parliament, in the people, or nowhere at all — the apparently solid foundation begins to shift. This article traces the concept from Bodin and Hobbes through Austin's classic formulation, tests it against the pluralist critique of Laski and Krabbe, and grounds it in the constitutional reality of India, where the Supreme Court has repeatedly had to locate sovereignty for very practical ends. It is designed for judiciary and CLAT-PG aspirants who must be able to define the State, list its elements, state Austin's marks of sovereignty, and deploy the leading Indian authorities with precision.
What is a State? The four constituent elements
Before sovereignty can be analysed it is necessary to fix the meaning of the State, for sovereignty is one of its attributes rather than a free-standing thing. Jurists and political theorists are broadly agreed that a State is a politically organised body of people occupying a definite territory under an organised government that is free from external control and possesses the power to make and enforce law. From this definition four constituent elements are conventionally extracted: population, territory, government and sovereignty. The first three are physical and institutional; the fourth is the distinctively legal attribute that converts a mere community into a State properly so called.
A population is essential because law is a regulation of human conduct — there can be no legal order over an uninhabited tract. Territory supplies the spatial limits within which the State's authority runs; modern international law treats a defined territory, however small, as indispensable. Government is the agency through which the will of the State is formulated, expressed and carried out, comprising the legislature, the executive and the judiciary. It is the fourth element, sovereignty, that has generated the deepest jurisprudential controversy, because it is here that questions of supremacy, divisibility and the ultimate source of legal authority arise. Salmond observed that constitutional law is the body of legal rules that determines the constitution of the State — its organic law — and it is precisely within constitutional law that the question of where sovereignty lies must be answered. The student who is new to these debates should first read the introduction to jurisprudence and then the broader overview of the schools of jurisprudence, since the concept of the State is approached very differently by the analytical, historical and natural-law traditions.
The meaning of sovereignty
Etymologically the word derives from the Latin superanus, meaning supreme. In its developed legal sense sovereignty denotes the supreme, original and independent power of the State to make and enforce law within its territory, owing no allegiance to and accepting no command from any superior. Sovereignty is conventionally analysed along two axes. Internal sovereignty is the supremacy of the State over all persons, associations and things within its borders — the power to legislate, tax, punish and command obedience. External sovereignty is the independence of the State from the control of any other State, the freedom to conduct its own affairs and relations as it sees fit. A further classical distinction separates legal sovereignty — the authority recognised by law as supreme law-maker — from political sovereignty, the body of opinion or the electorate that lies behind and ultimately controls the legal sovereign, and from popular sovereignty, the principle that ultimate authority resides in the people. These distinctions matter enormously, because much of the confusion in the literature springs from treating a claim about legal sovereignty as if it were a claim about where political or moral authority truly lies.
Classical foundations: Bodin and Hobbes
The modern concept of sovereignty was first given systematic shape by the French jurist Jean Bodin (1530–1596) in his Six Books of the Commonwealth (Les Six Livres de la Republique, 1576). Writing against the bloody backdrop of the French Wars of Religion, Bodin argued that lasting peace required a single supreme authority and defined sovereignty as the absolute, perpetual and indivisible power of the commonwealth — the power to make law without the consent of any superior or equal. Crucially, Bodin's sovereign, though not bound by the civil or positive law of his own making, remained subject to the law of God and the law of nature, so that his absolutism was legal rather than moral.
The English philosopher Thomas Hobbes (1588–1679), shaped by the English Civil War, carried the idea further in Leviathan (1651). For Hobbes, individuals in a savage state of nature surrender all their rights to a sovereign in exchange for security, and the sovereign so created must be absolute, undivided and beyond challenge, for a divided sovereignty is no sovereignty at all and an invitation to renewed civil war. Hobbes thus supplied a powerful psychological and moral justification for the unitary supreme power that Bodin had described in juristic terms. Both writers fixed in the European mind the idea that sovereignty is by its nature absolute and indivisible — an assumption that Austin would later inherit and that the pluralists would eventually attack.
Austin's theory: law as the command of the sovereign
The most influential legal account of sovereignty is that of John Austin (1790–1859), the founder of the analytical or imperative school and author of The Province of Jurisprudence Determined (1832). For Austin, law properly so called is the command of a sovereign backed by a sanction, and the sovereign is therefore the indispensable centre of the whole legal universe. Austin's positive law has three characteristic features: it is a species of command; it is laid down by a political sovereign; and it is enforced by a sanction. A command is a wish, expressed by a rational being to another, that the latter shall do or forbear, coupled with the power and purpose to inflict an evil if the wish is disregarded. Only general commands — rules of conduct addressed to the community at large — amount to law; the sovereign's particular orders, such as a direction to a servant to close a door, are mere desires, not law.
Austin defined the sovereign in a famous double-limbed formula. In a given political society, the sovereign is a determinate person or body of persons who receives habitual obedience from the bulk of the population, and who in turn is not in the habit of obeying any other determinate human superior. The two marks are essential: positive habitual obedience by the subjects and negative independence of the sovereign. From this Austin derived the orthodox attributes — sovereignty is absolute and unlimited (the sovereign cannot be legally limited, for that would imply a superior), indivisible (there can be but one sovereign in a society) and illimitable. Whatever the sovereign commands is law, however unjust, for the existence of law is one thing and its merit or demerit another. This severance of law from morality is the analytical positivist's defining move and the natural counterpoint to the natural-law tradition explored elsewhere on this hub. Readers should study Austin's full apparatus in the dedicated note on the analytical and imperative school.
Criticisms of Austin's sovereign
Austin's theory, for all its rigour, has been heavily criticised, and many of the objections strike directly at his conception of sovereignty. First, the theory cannot easily accommodate customary law, which is treated as law by every developed system even though no sovereign ever commanded it. Second, it cannot explain international law, for there is no world sovereign issuing commands to States; Austin was driven to dismiss international law as mere ‘positive morality’, a conclusion that few jurists accept and that the source notes correctly identify as contrary to reality. Third, much of every legal system consists not of commands but of power-conferring rules — the rules that enable a person to vote, marry, contract or make a will — which impose no duty and threaten no sanction, as H.L.A. Hart would later emphasise in his account of law as the union of primary and secondary rules.
Fourth, and most damaging for the concept of sovereignty itself, in a modern State with a written constitution it is often impossible to find Austin's determinate, illimitable, single sovereign. Constitutional provisions limit the legislature, fundamental rights restrain it, and entrenched clauses place some matters beyond its reach altogether. As the source notes observe, in India the doctrine of the basic structure means that some provisions cannot be changed even by constitutional amendment, so that the Indian Parliament is plainly not an Austinian sovereign in the unlimited sense. Fifth, Austin loses sight of popular sovereignty — the modern democratic idea that the ultimate source of all authority is the people, not a determinate human superior. These difficulties prepared the ground for the pluralist revolt.
The pluralist critique: Laski, Krabbe and Duguit
The sharpest twentieth-century attack on the monistic, indivisible sovereign came from the pluralists, above all Harold J. Laski. Laski argued that the legal theory of sovereignty — the notion of a single, absolute, all-competent supreme power — is a ‘legal fiction’ and a ‘barren concept’ that does not correspond to political reality. In real societies authority is shared among many associations — churches, trade unions, universities, corporations, local bodies — many of which are prior to and independent of the State and command the genuine loyalty of their members. Sovereignty, Laski insisted, is neither absolute nor a unity but is in fact pluralist, constitutional and responsible; he went so far as to say that it would be a lasting benefit to political science if the whole concept of sovereignty were surrendered.
The Dutch jurist Hugo Krabbe reinforced this by locating supremacy not in any person but in the law itself, rooted in the community's sense of right, so that the State too is subordinate to the legal order. Leon Duguit, building on a sociological foundation akin to that of the sociological school, replaced the metaphysical sovereign with the principle of social solidarity: public power is legitimate only so far as it serves the social interest, and is itself bound by an objective rule of law. The pluralist current thus dissolves the unitary Austinian sovereign into a web of competing authorities, and although it can be criticised for blurring the necessary distinction between the State and other associations, it correctly exposes the unreality of treating sovereignty as absolute and indivisible in a complex constitutional democracy.
Sovereignty under the Indian Constitution
The Indian Constitution opens with the declaration that India is a Sovereign Socialist Secular Democratic Republic, and the word ‘sovereign’ in the Preamble has been the subject of judicial elaboration. The Indian scheme is best understood as a synthesis: the State is sovereign in the external sense of being free from foreign control, while internally sovereignty is distributed and limited by the Constitution rather than concentrated in any single Austinian organ. Legislative power is divided between the Union and the States under the Seventh Schedule; the legislature is constrained by enforceable fundamental rights; and the judiciary, through the power of judicial review, may declare even a sovereign legislature's enactments void. India therefore presents a textbook illustration of why Austin's indivisible sovereign cannot be located in a federal, rights-based, constitutionally limited polity — a point the source notes make when they observe that under judicial review the courts can declare law null and void, which the imperative theory is inadequate to explain.
Where, then, does ultimate sovereignty reside in India? The dominant answer is popular sovereignty: the people of India, who in the words of the Preamble gave themselves the Constitution, are the ultimate political sovereign, while the Constitution itself is supreme as the fundamental law. This reading aligns India with the modern democratic critique of Austin rather than with his monistic model.
Sovereignty and territory: In re Berubari Union
The clearest judicial engagement with the territorial aspect of sovereignty is the advisory opinion in In re The Berubari Union and Exchange of Enclaves, AIR 1960 SC 845, delivered on 14 March 1960. The President had sought the Supreme Court's opinion on whether the agreement to transfer part of the Berubari Union to Pakistan could be implemented by ordinary executive or legislative action. The Court held that the cession of Indian territory to a foreign State is not within the executive power of the Government of India and that any such alteration of India's boundaries can be effected only by a constitutional amendment under Article 368, read with the necessary change to Article 1 and the First Schedule. As a direct consequence Parliament enacted the Constitution (Ninth Amendment) Act, 1960, to authorise the transfer.
For the concept of sovereignty the decision is doubly important. First, it treats territorial integrity as so fundamental an attribute of the sovereign State that it can be surrendered only through the highest constituent process, not by the executive will alone. Second, in the course of the opinion the Court famously held that the Preamble is not a part of the Constitution and is not a source of enforceable power — a proposition later qualified in Kesavananda Bharati. Berubari thus demonstrates that in India sovereignty over territory is exercised within, and subject to, the constitutional framework.
Sovereignty as basic structure: Kesavananda Bharati
The decisive statement that sovereignty in India is constitutionally entrenched came in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461, decided on 24 April 1973 by a 13-judge bench — the largest in the Court's history — by a narrow majority of 7:6. The Court upheld Parliament's power to amend the Constitution under Article 368 but held that this power does not extend to altering the basic structure or essential features of the Constitution. Among the features identified by various judges as part of that inviolable core were the sovereignty of India, the democratic and republican character of the polity, the unity and integrity of the nation, secularism, the federal structure and judicial review.
The jurisprudential significance for our theme is profound. By placing the sovereignty and democratic character of the Republic beyond the reach of even the constituent amending power, the Court confirmed that no organ of the Indian State — not Parliament, not the executive, not the judiciary — is an Austinian sovereign possessed of unlimited, illimitable power. Sovereignty in the deepest sense rests with the people and is expressed through a supreme Constitution whose fundamental features are themselves protected against destruction. Kesavananda is therefore the strongest constitutional refutation in Indian law of the monistic theory and the most powerful vindication of the limited, constitutional sovereignty championed by the pluralists.
Sovereign power and the regulatory State: Synthetics & Chemicals
That sovereignty also carries concrete fiscal and regulatory consequences is shown by Synthetics & Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109 : AIR 1990 SC 1927, decided on 25 October 1989 by a nine-judge Constitution Bench. The dispute concerned whether the States could levy a vend fee or excise duty on industrial (non-potable) alcohol, which turned on the scope of Entry 8 of List II and on the older theory that the State enjoyed an exclusive sovereign privilege over intoxicating liquor. The Court held that the State's regulatory power over industrial alcohol was limited, that it could not levy a tax in the guise of a fee without a corresponding service, and that the doctrine of the State's exclusive privilege could not be stretched to justify the imposts in question.
For the jurisprudence of sovereignty the case is instructive because the Court was compelled to examine the meaning and limits of the sovereign power of the State, including the conception of sovereignty reflected in the Preamble, and to hold that even a sovereign State's regulatory and taxing power is hedged about by the constitutional distribution of legislative competence. Sovereignty, in other words, is not a licence to levy or regulate at will; it is a power that exists only within and is disciplined by the constitutional scheme. The case neatly bridges the abstract theory of sovereignty and the everyday reality of cooperative federalism.
Sovereignty and international law
The concept of sovereignty also explains the peculiar status of international law within analytical jurisprudence. Austin, reasoning that there is no determinate sovereign issuing commands to the community of States, concluded that international law is not law properly so called but a branch of positive morality. The source notes rightly treat this conclusion as out of step with reality: international law consists of rules that govern sovereign States in their relations with one another, drawing variously on natural law, custom, conventional agreement and the force of international opinion.
The modern view reconciles the two by distinguishing the internal and external faces of sovereignty. Internally each State remains supreme over its own territory; externally, States are juridically equal and independent, and they voluntarily accept rules — through treaty, custom and consent — that bind them in their mutual dealings. Sovereignty here is not abolished but pooled and limited by agreement, much as the pluralists predicted. International law thus occupies a middle ground: it lacks a world legislature, compulsory courts of general jurisdiction and a centralised enforcement machinery, yet it is far more than mere morality. The persistence of this debate is itself the strongest evidence that the rigid Austinian conception of sovereignty cannot capture the legal life of a world of many independent States.
Monistic and pluralistic theories compared
It is useful to draw the threads together by contrasting the two great families of sovereignty theory. The monistic theory, descending from Bodin and Hobbes and given its sharpest legal form by Austin, holds that in every independent political society there must be a single, determinate, supreme authority that is absolute, indivisible and illimitable, and from whose commands all law derives. Its virtues are clarity and the firm distinction it draws between law and morals, between a legal rule and a merely just or moral rule; its vice is that it does not describe any actual modern constitutional democracy.
The pluralistic theory, advanced by Laski, Krabbe, Duguit and the figures of the English political-pluralist movement, holds that authority is in fact divided among the State and the many associations of civil society, that sovereignty is constitutional and responsible rather than absolute, and that the supreme power, if it exists at all, is limited by law, by rights and by the competing loyalties of citizens. Its virtue is realism — it fits federal, rights-based polities such as India far better than the monistic model; its vice is that, pressed too far, it dissolves the unity of the State and makes it hard to explain why the State's law should prevail when associations conflict. The mature position, reflected in Indian constitutional practice, accepts that the State remains the supreme legal order within its territory while insisting that this supremacy is exercised through, and limited by, a constitution that itself answers to the sovereignty of the people. Students wishing to see how these positions grew out of the wider tradition should also consult the notes on the historical school and the natural-law school, and may return to the jurisprudence hub for the full sequence of topics.
Frequently asked questions
What are the four elements of a State in jurisprudence?
A State is constituted by four elements: population (a body of people), territory (a defined area), government (the agency that formulates and enforces the State's will through legislature, executive and judiciary) and sovereignty (the supreme power to make and enforce law, free from external control). The first three are physical and institutional; sovereignty is the distinctively legal attribute that converts a community into a State.
What is Austin's definition of sovereignty?
Austin defined the sovereign as a determinate person or body of persons who receives habitual obedience from the bulk of a political society and who is not in the habit of obeying any other human superior. Sovereignty so defined is absolute, indivisible and illimitable, and law is simply the command of this sovereign backed by a sanction. The theory is set out in The Province of Jurisprudence Determined (1832).
How did Laski criticise Austin's theory of sovereignty?
Harold Laski rejected the monistic theory of an absolute, indivisible sovereign as a 'legal fiction' and a 'barren concept'. He argued that authority is in reality shared among many associations — churches, unions, corporations, local bodies — that are often prior to and independent of the State, so that sovereignty is pluralist, constitutional and responsible rather than absolute. He even suggested it would benefit political science if the concept of sovereignty were surrendered altogether.
What did In re Berubari Union decide about sovereignty over territory?
In In re Berubari Union, AIR 1960 SC 845, the Supreme Court held that cession of Indian territory to a foreign State is not within the executive power of the Government of India and can be effected only by a constitutional amendment under Article 368. The opinion treats territorial integrity as a fundamental attribute of sovereignty surrenderable only through the highest constituent process. It also held that the Preamble is not a part of the Constitution — a view later qualified in Kesavananda Bharati.
Where does sovereignty reside under the Indian Constitution?
India is declared a Sovereign Republic in the Preamble. Externally the State is free from foreign control; internally, sovereignty is distributed and limited by the Constitution through federalism, fundamental rights and judicial review, so no single organ is an Austinian sovereign. Ultimate sovereignty rests with the people, who gave themselves the Constitution, while the Constitution is the supreme law — a position confirmed by the basic-structure doctrine in Kesavananda Bharati v. State of Kerala (1973).
What is the difference between monistic and pluralistic theories of sovereignty?
The monistic theory (Bodin, Hobbes, Austin) holds that every State must have a single, determinate, absolute and indivisible supreme authority from whose commands all law flows. The pluralistic theory (Laski, Krabbe, Duguit) holds that authority is divided among the State and the many associations of society, so that sovereignty is constitutional, limited and responsible. The monistic view offers clarity but does not fit modern constitutional democracies; the pluralistic view is more realistic but risks dissolving the unity of the State.