9/01/2022

Types of Sovereignty

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Types or Forms of Sovereignty

We come across various interpretations of the nature of sovereignty and its nature or character in an attempt to find out where or in what sovereign rights are located in a state. These explanations point to the different types of sovereignty in the modern state; we are categorizing sovereignty as follows--

1. nominal or real sovereignty

Nominal and real sovereignty refers to the particular and actual state of the exercise of power. The term nominal sovereignty is used for a monarchical ruler of a state who was once actually sovereign but is no longer at present. Thus sovereignty is not exercised by the ruler but by his ministers or the parliament. His name does all government work, and by the constitution, he has all the administrative rights. The monarch of England is sovereign. There is no such distinction in the United States. The distinction between formal and real sovereignty is seen only in the parliamentary system of governance, not in the presidential system.

2. Legal and Political Sovereignty

Legal sovereign is a constitutional concept, which means legal sovereign is the authority that has the supreme power to make and enforce laws. There can be no doubt about the persons exercising the power of sovereignty in law. Legal sovereignty is absolute; it has sufficient powers to carry out its law and order. 

According to Garner, "The legal sovereign is that certain person who can manifest as law the highest orders of the state, the power to transgress the divine laws or principles of morality and the decrees of public opinion." 

In England, the monarch is the legal sovereign, including the parliament. In contrast, the concept of political sovereignty is vague and confusing. It is said that behind the law sovereign lies the political sovereign, which is presided over by the legal sovereign.

Diacy has clarified this position, saying, "Behind the legal sovereign, there exists another sovereign before whom the legal sovereign has to bow down. The second sovereign is the political sovereign. Political sovereignty is not recognized by law. Its identity is a very difficult task. It influences and controls the legal sovereign.

3. Popular Sovereignty

The theorists of the Middle Ages who were opposed to the king's power propounded the popular sovereignty theory. The French philosopher Rousseau rendered it very strongly in the eighteenth century. The propagation and development of this theory started along with the development of democracy in the nineteenth century. If statutory sovereignty is the will of the people and opposes the will of the people, then it cannot function for long and is quickly abolished. The people obey the orders of the statutory sovereignty because their orders are according to the people's will. Professor Ritchie openly supported public sovereignty; according to him, the people directly exercise sovereignty by election and indirectly exercise sovereignty through pressure, etc., by the right to rebel, physically in the hands of the people. There is force, and by that, it can overthrow the government.

4. Legitimate and de facto sovereignty

Sometimes in a state, there may be two rulers or rulers. There is a real ruler in these, whose orders are obeyed by the people. According to Lord Bryce, "A person or a group of persons who can get his will done, whether according to law or against the law, he is the real ruler", and the second ruler is one from whom power has been taken away, but he considers himself to be the real ruler, this is the legal sovereign. Sometimes when the legal sovereign ceases to exist, the real ruler becomes the legal ruler."

In the words of Garner, "The sovereign who manages to retain his power becomes the legitimate sovereign in no time. This action is either by the people's consent or by the state's re-organisation. It is, in fact, something like ``It is, as in private law, the fundamental right assumes the form of legitimate ownership by antiquity."

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