Sovereignty and the Concept of Law
What the exam tests
Sovereignty and law are paired because law is commonly defined as a command of the sovereign. Expect questions on internal and external sovereignty, Austin's command theory, pluralist criticism and the sources of law.
Core rules and concepts
- Sovereignty: supreme and final authority within a territory (internal) and independence from outside control (external).
- Kinds: legal sovereignty (law-making authority), political sovereignty (ultimate popular power), popular sovereignty (the people), de jure (lawful) and de facto (actual).
- Austin: law is the command of a determinate sovereign backed by sanction; international law is only 'positive morality' for him.
- Pluralists such as Laski and Duguit argue that sovereignty is limited by associations, religion, morality and international law.
- Sources of law: custom, legislation, precedent and equity; natural law is a higher moral law.
Worked example
'Does a UN Security Council resolution automatically bind Indian citizens?' Reason: India is sovereign; international law becomes enforceable domestically only when incorporated by legislation or accepted constitutional practice. So the resolution may bind India internationally, but it does not automatically create domestic criminal liability. The distinction between external obligation and internal application is the mark.
Traps
Do not equate sovereignty with physical power or with government. Do not say Austin denied all law beyond the state; he denied international law the status of true law. Do not reduce law to statutes: custom and precedent are sources. Do not call de facto authority lawful.