According to Salmond the theory of sovereignty may be reduced to the following three fundamental propositions. He regards the first of these propositions as correct and the second and third without any solid foundation.
The three propositions are as under:
1. Essentiality:
ADVERTISEMENTS:
Sovereign power is essential in every state. Every political society involves the presence of a supreme power whose will ultimately prevails within that community.
That power may even be semi-sovereign and dependent for according to Salmond,
“there is nothing to prevent sovereignty which is thus essential from being wholly or partly external to the stale. In all cases sovereign power is necessarily present somewhere, but it is not in all cases to be found in its entirety within the borders of the state itself.”
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2. Indivisibility:
Sovereign power is indivisible. Every state necessarily involves not merely sovereignty, but a sovereign, that is to say, one person or one body of persons in whom the totality of sovereign power resides. Austin observes that in each state there is one person or defined group which is politically supreme, and one only.
It has, however, been criticised on the ground that the rule does not hold good in the case of England, where sovereignty is divided into legislative sovereignty (the Crown and the two Houses of Parliament) and the executive sovereignty (the Crown); before the Parliament Act, 1911, there was also judicial sovereignty (the House of Lords).
3. Illimitability:
Sovereign power is unlimited and illimitable. Not only is sovereign power uncontrolled and unlimited within its own jurisdiction, but that jurisdiction is infinite in extent.
ADVERTISEMENTS:
It is true that sovereignty cannot be subordinated to any other power; but it would be incorrect to say that it is unlimited in its compass. There are de facto and dc jure limitations.
The power of the sovereign is limited by the extent of the physical force which he can command and is also limited to the extent to which the subjects are willing to submit to his dominion. It is possible that sovereign power may be legally controlled within its own sphere.
The courts of justice have the power to declare whether a certain action falls or does not fall within the scope of the Slate authority according to the Constitution, e.g., in India it is recognised on all hands that, subject to the provisions of the constitution, an enactment, whether provincial or central, cannot transgress the fundamental rights guaranteed by the Constitution of India.
Even in the United States of America neither Congress nor any state legislature possesses unrestricted powers. They are incapable of altering the constitution which has established them.
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The constitution can be amended only when a majority of three-fourths of the state legislatures ratify the amendment after the same has been proposed by a two-thirds majority of the Congress. The sovereignty as such does not vest in Congress; it is the composite body mentioned above which has absolute power to alter the constitution and possesses unlimited legislative power.
No Law Without a State and Sovereign Power:
A law in the proper sense of the term, observes Holland, is a general rule of human action, taking cognizance only of external acts enforced by determinate authority, which authority is human, and, among human authorities, is that which as paramount in a political society.
It is thus a general rule of external human action enforced by the sovereign political authority. All other rules for the guidance of human action are called laws merely by analogy; and any propositions which are not rules for human action are called laws by metaphor only.
The sovereign part of the Stale is omnipotent. It is the source of all law. In private law the State is indeed present, but it is present only as arbiter of the rights and duties which exist between one of its subjects and another. In public law the Slate is not only arbiter, but also one of the parties interested.
Holland observes that in legislation, both the contents of the rules are devised and legal force is given to it, by acts of the sovereign power which produce “written law”.
All the other law sources produce what is called unwritten law to which the sovereign authority gives its whole force, but not its contents, which are derived from popular tendency, professional discussion, judicial ingenuity, or otherwise, as the case may be.
Rules thus developed obtain the force of law by complying with the standard which the States exacts from such rules before it gives them binding force.
It rightly follows from the above that apart from the existence of State, and of a sovereign power within it, there can be no law.
Theory of Sovereignty in a Federal Constitution:
The English Parliament is the supreme power so far as its legislative functions are concerned. The Courts obey its legislation and there is no power which can override, curtail or prescribe its authority.
But in a federal constitution like that of the United States neither legislatures of the slates, nor the federal legislatures, nor the executives of slates, or federation, possess unrestricted power.
Their authority is defined in the constitution. The constitution is as such inanimate and can exert no power. The sovereignty can, therefore, not reside in the constitution. In the Australian sense, therefore, the sovereignty resides only in the amending body, which has uncontrolled and absolute authority and enjoys the power to change the constitution.
As such it may be said that in the United States the sovereignty is vested not in Congress but in a majority of three-fourths of the slate legislatures which can ratify the amendment after the same has been proposed by a two-thirds majority of the Congress.
It is the composite body which has absolute power to alter the constitution and possesses unlimited legislative power. Dr. Jethro Brown, however, offers a simple explanation by saying that the Stale, as a corporation, is sovereign, and it acts through a variety of agents to express its will.