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Concept of Sovereignty

14 min readUpdated Nov 2, 2026

Sovereignty is the core concept of the State, and it is among the most important subjects in jurisprudence and political theory. A State without sovereignty is hard to imagine, because sovereignty gives the State its legal personality, authority and independence. Through it, the State makes laws, enforces obedience, punishes violations and regulates social order.

In jurisprudence, sovereignty explains why laws bind, why obedience is compulsory, and why the State has coercive authority. It is therefore the link between law, State and political authority.

Meaning of Sovereignty

Word originThe word comes from the French souverain, which means supreme or highest. The French word itself comes from the Latin superanus, which means one who is above others.
Sovereignty

In its modern sense, the supreme and final authority within a State, which is not subject to any higher power.

e.g.India makes its own laws and conducts its own foreign affairs, and no outside power can command it.
InternalSupreme authority over all persons and associations within the territory
ExternalIndependence of the State from foreign control or interference
Sovereignty has two aspects
Lord BryceDescribed legal sovereignty as

Legal sovereignty lies in the authority, whether a person or a body, whose expressed will is law and whose commands are habitually obeyed.

Bryce described legal sovereignty in terms of authority.

  1. Sovereignty therefore implies four things. These are supremacy, independence, the authority to command, and the power to enforce obedience.

Evolution of the Concept of Sovereignty

Absence of Sovereignty in the Ancient and Medieval Periods

  1. In ancient Greece and Rome, sovereignty did not exist in its modern sense. Authority was divided among assemblies, customs, traditions and religious institutions. The idea of a single supreme authority was missing.
  2. In the medieval period, political power was split among several holders. These were kings, feudal lords, the Church, and customs and guilds. The Church had spiritual supremacy, and kings had temporal authority. Since no one authority was supreme, a unified and absolute sovereign power was unknown.

Machiavelli

  1. Niccolò Machiavelli prepared the ground for modern sovereignty. He is regarded as the first thinker to do so. He argued for State absolutism, which means that the State must have unlimited power to keep stability and order.
  2. His main ideas were three.
    • The State is an end in itself.
    • Political power should not be restrained by morality or religion.
    • The ruler must use all means needed to preserve the State.
  3. He did not define sovereignty clearly. His contribution was to assert the complete political authority of the State, independent of the Church and of moral law.

Bodin

Jean BodinDefined sovereignty as

Sovereignty is the absolute and perpetual power of a commonwealth.

From Six Books of the Republic (1576). Bodin was the first jurist to define sovereignty in a systematic way.

  1. For Bodin, sovereignty has three features.
    • It is absolute, so it is not subject to any other authority.
    • It is perpetual, so it continues whatever changes occur in the government.
    • The sovereign is the ultimate law-giver.
  2. However, Bodin accepted a moral limit. The sovereign is bound by divine law and natural law, though in law it remains supreme.

Hobbes

  1. Thomas Hobbes gave sovereignty a stronger and more rigid form. In Leviathan (1651), he said that life in the state of nature was "solitary, poor, nasty, brutish and short". To escape this chaos, people made a social contract and surrendered all their powers to a sovereign.
  2. Hobbes's sovereign is absolute, indivisible, unlimited and cannot be challenged.
  3. The sovereign controls even religion and the Church. Hobbes held that peace and security are impossible without unquestioned authority.

Bentham

  1. Jeremy Bentham accepted the supremacy of the sovereign but justified it by utility. The sovereign has authority to make laws, and the laws should promote the greatest happiness of the greatest number.
  2. Bentham defined the sovereign as a person or group of persons whose commands the political community habitually obeys.
  3. He allowed that the sovereign's power may be restrained by law and by practical limits. He therefore softened the rigid absolutism of Hobbes.

Austin

John AustinDefined the sovereign as

A sovereign is a determinate human superior who receives habitual obedience from the bulk of society, and who does not habitually obey any other human superior.

Austin, the founder of Analytical Jurisprudence, defined sovereignty in precise legal terms.

  1. His sovereign has three characteristics.
    • Determinateness: the sovereign must be clearly identifiable.
    • Legal unlimitedness: the sovereign is the source of law.
    • Indivisibility: sovereignty cannot be divided.
  2. Criticism: The theory does not fit modern constitutional systems.
    • It does not fit federal States, where power is divided.
    • It ignores the supremacy of the Constitution.
    • It neglects public opinion.
    • It overstresses coercion.

Salmond

  1. Salmond accepted that sovereignty is essential, but he rejected Austin's view that it is unlimited and indivisible.
  2. He made three points.
    • Sovereignty may be legally limited.
    • Limitation is different from subordination. A sovereign that is limited by law is still not under another human superior.
    • Sovereign power may be divided among the organs of the State.
  3. He held that sovereignty has legally fixed bounds, especially in constitutional States.
  4. Criticism: Some jurists say that Salmond weakens the classical idea of sovereignty by limiting it too much.

Pluralist and Modern Theories

  1. Pluralist and modern thinkers rejected the classical idea of absolute sovereignty given by Bodin, Hobbes and Austin. They said that sovereignty is not unlimited, not indivisible and not concentrated in one authority. Society is complex, and power is shared among many institutions.
  2. Laski:

    The State is not the only supreme authority in society. Harold Laski pointed to the family, the Church, trade unions, political parties and corporations. They command real loyalty and obedience from people. Individuals belong to many associations, and the State cannot destroy or ignore them. Laski therefore said that sovereignty is plural, and not single. If the State passes a law against workers, trade unions protest. If it interferes with religious freedom, religious bodies resist.

  3. Duguit:

    Sovereignty is a myth, and authority comes from social solidarity. Léon Duguit defined social solidarity as the mutual dependence of individuals in society. Farmers depend on workers, workers on employers, employers on consumers, and the government on the people. For Duguit, the State is only a provider of public services, and if it fails in its social functions, it loses legitimacy. Law rests on social needs, and not on State command.

  4. Krabbe:

    Law is sovereign, and not the State. Hugo Krabbe argued that law comes from people's sense of right and wrong. The State only declares and enforces it, and the State is itself bound by law. If Parliament passes an unjust law, courts can strike it down and citizens can oppose it. This shows that law and justice stand above State authority.

  5. The Marxist view:

    Sovereignty serves the dominant economic class. Marxists say that the State represents the interests of the ruling class, and that law and sovereignty protect its property and power. A Marxist critic would point to laws and courts that protect property rights as evidence. In a classless society, there would be no exploitation, so the State would become unnecessary, and sovereignty would wither away. This is a political theory, and it has been strongly disputed.

Comparision
ThinkerMain ideaMain criticism
MachiavelliThe State has unlimited power, free from morality and the ChurchDid not define sovereignty
BodinSovereignty is absolute and perpetual, but limited by divine and natural lawHard to reconcile absolute power with moral limits
HobbesAbsolute, indivisible, unlimited sovereignLeads to tyranny
BenthamThe sovereign rules by utility, and may be restrainedUtility is vague
AustinA determinate human superior who is legally unlimitedDoes not fit federal or constitutional States
SalmondSovereignty may be limited and dividedWeakens the classical idea
LaskiSovereignty is plural, shared with social bodiesHard to say who finally decides
DuguitSovereignty is a myth, and the State serves societyDenies a practical reality
KrabbeLaw is sovereignWho declares what law is?
MarxistSovereignty serves the ruling class and will wither awayA disputed political theory

Sovereignty in Modern Constitutions

Modern constitutional States have rejected the idea of absolute and unlimited sovereignty. Experience has shown that absolute sovereignty leads to tyranny, abuse of power and denial of individual liberty. Modern States have therefore adopted constitutional sovereignty, where power is regulated, limited and controlled.

Written Constitution

  1. The Constitution is the supreme law, and sovereignty is expressed and regulated through it. It fixes the structure of the State, the powers of the organs, the rights of citizens and the limits on government.
  2. No authority can act beyond what the Constitution permits. Sovereignty is therefore institutional and legal, and not personal or arbitrary.

Separation of Powers

  1. Modern Constitutions distribute sovereign power among three organs. These are the legislature, the executive and the judiciary.
  2. Each organ has its own functions and checks the others. This prevents the concentration of power in one authority, which was the basis of absolute sovereignty.

Fundamental Rights

  1. Fundamental rights limit sovereign power. The State cannot use its authority to violate basic rights such as equality, liberty and freedom of speech.
  2. Sovereignty today is therefore subject to individual liberty and human rights.

Judicial Review

  1. Judicial review is one of the strongest limits on sovereignty. Courts can examine the validity of laws, declare unconstitutional acts void and protect fundamental rights. In Marbury v. Madison (1803), the US Supreme Court first claimed this power.
  2. Through judicial review, the judiciary ensures that sovereign power is used within constitutional bounds.
  3. Britain shows a different position. Parliament is the legal sovereign, and the courts cannot question the validity of an Act. In Pickin v. British Railways Board (House of Lords, 1974), the court refused to look into how an Act had been passed. Even so, British sovereignty has been limited by choice. In R v. Secretary of State for Transport, ex parte Factortame (No. 2) (1991), the House of Lords set aside an Act of Parliament to the extent that it conflicted with European Community law.
The modern viewSovereignty is limited, divided, controlled and accountable. It is constitutional, and not absolute, and legal, and not arbitrary.

Kinds of Sovereignty

Jurists classify sovereignty into different forms, based on how it works and what it is.

Kinds of sovereignty
KindMeaningExample
Legal sovereigntyThe authority that the law recognises as having the power to make and enforce laws. It is definite and legally identifiable.In Britain, Parliament is the legal sovereign. In India, Parliament is a legal sovereign, subject to the Constitution.
Political sovereigntyThe real power behind the legal sovereign. It is the will of the people, expressed through public opinion, the electorate and political pressure. It is not legally enforceable, but it is very influential.A government that loses an election
Internal sovereigntyThe supreme authority of the State over all persons and associations in its territoryLaws bind all citizens, and private bodies must work within them
External sovereigntyIndependence of the State from foreign controlA State is free to conduct its foreign affairs
Popular sovereigntyUltimate authority rests with the people, and governments get their power from the consent of the governedPeople elect representatives, and governments are accountable to citizens
  1. Dicey is the source of the distinction between legal and political sovereignty. Legal sovereignty is concerned with law-making power. Legal sovereigns often act according to political sovereignty to keep their legitimacy.
  2. Membership of international organisations does not destroy external sovereignty. Participation is voluntary. Article 2(1) of the Charter of the United Nations is based on the sovereign equality of its members.
  3. Popular sovereignty is the foundation of modern democracy. Authority flows upward from the people.

Sovereignty under the Indian Constitution

India follows the modern constitutional concept of sovereignty, and it rejects absolute sovereignty.

  1. Supremacy of the Constitution: The Constitution is supreme, and not Parliament, the executive or the judiciary. All organs of the State get their authority from the Constitution and must work within its limits. This is constitutional sovereignty.
  2. Limited government: No organ of the State has unlimited authority. Government powers are defined, authority is restricted, and excessive use of power is prohibited. In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court held that Parliament cannot give itself unlimited power to amend the Constitution, because the limit on that power is itself a part of the basic structure.
  3. Judicial review: It is a basic feature of the Constitution. The Supreme Court and the High Courts can strike down unconstitutional laws, protect fundamental rights and enforce constitutional supremacy.
  4. Federal structure: Sovereign power is divided between the Union and the States. India is a strong federation, but neither the Centre nor the States have absolute sovereignty. Both work within constitutional limits. In State of West Bengal v. Union of India (1963), the Supreme Court held that the States are not sovereign. In S.R. Bommai v. Union of India (1994), it held that federalism is part of the basic structure.
  5. Separation of powers: India does not follow it in a strict form, but each organ has its own sphere. In Ram Jawaya Kapur v. State of Punjab (1955), the Supreme Court held that the Constitution does not recognise a rigid separation of powers, but that one organ cannot take over the essential functions of another.
  6. The Kesavananda Bharati case: Even the highest law-making body is not sovereign in the absolute sense. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament's power to amend the Constitution is limited by the basic structure doctrine.
  7. Judicial sovereignty: India does not recognise it. The judiciary is the guardian of the Constitution, and not a sovereign authority. Courts themselves are bound by the Constitution. Sovereignty in India therefore lies neither with Parliament nor with the courts, but with the Constitution itself.
  8. The people are the source of the Constitution. The Preamble begins with "We, the People of India", and it declares India a sovereign republic. This is popular sovereignty at the root of constitutional sovereignty.

Leading Case Laws

Kesavananda Bharati v. State of Kerala (1973)
FactsConstitutional amendments on property were challenged.
Decision and principleParliament's amending power is limited by the basic structure. No organ is sovereign in the absolute sense.
Minerva Mills Ltd. v. Union of India (1980)
FactsAn amendment gave Parliament wide power to amend the Constitution.
Decision and principleParliament cannot make its own power unlimited. Limited power is a basic feature.
State of West Bengal v. Union of India (1963)
FactsA State challenged a law that let the Union acquire coal-bearing land.
Decision and principleThe States are not sovereign. The Union has overriding powers.
S.R. Bommai v. Union of India (1994)
FactsState governments were dismissed under Article 356.
Decision and principleFederalism is part of the basic structure, and the use of Article 356 is subject to judicial review.
Ram Jawaya Kapur v. State of Punjab (1955)
FactsA challenge to the State's power to run a textbook business.
Decision and principleThe Constitution has no rigid separation of powers, but each organ has its own sphere.
Marbury v. Madison (US Supreme Court, 1803)
FactsA commission to serve as a justice of the peace was withheld.
Decision and principleCourts can declare a law void if it conflicts with the Constitution.
Pickin v. British Railways Board (House of Lords, 1974)
FactsA person challenged an Act on the ground that Parliament had been misled.
Decision and principleCourts cannot question the validity of an Act of Parliament. Parliament is the legal sovereign.
R v. Secretary of State for Transport, ex parte Factortame (No. 2) (House of Lords, 1991)
FactsSpanish fishermen challenged an Act that limited their fishing rights.
Decision and principleAn Act was set aside to the extent that it conflicted with European Community law. Sovereignty can be limited by choice.

Conclusion

The concept of sovereignty has moved from absolute monarchic power to constitutional democratic authority. Modern sovereignty works within legal, moral and social limits. In India, sovereignty ultimately rests with the Constitution and the people, which keeps a balance between authority and liberty.

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