Sovereignty: Theories & Nepal Law
Exam Snapshot
Sovereignty is a core concept in Constitutional Law and Jurisprudence. For the TU LLB entrance, expect MCQs on its definitions, key proponents (Bodin, Austin), characteristics, and comparison with modern pluralist views, particularly as anchored in Nepal's constitutional provisions (e.g., Article 2).
Core Concept
Sovereignty is the supreme, ultimate, and legally unrestrained power of a State to govern itself and its people within its territory. It represents the highest authority, from which all other powers derive. It has two main aspects:
- Internal Sovereignty: The State's supreme authority over all individuals, groups, and institutions within its borders.
- External Sovereignty: The State's independence from external control or interference by other states.
Nepal Law Anchors
Nepal's Constitution (2015) strongly affirms popular sovereignty:
- Article 2: Sovereignty and State Authority: "The sovereignty and the State authority of Nepal shall be vested in the Nepali people." This explicitly adopts a popular sovereignty model.
Classical Theories of Sovereignty
Jean Bodin (1576): Absolute and Indivisible
- Key Work: Six Books of the Commonwealth.
- Core Idea: Sovereignty is perpetual, absolute, and indivisible.
- Limitations: Despite calling it absolute, Bodin acknowledged non-legal limitations like divine law, natural law, and fundamental laws of the realm.
John Austin (1832): Monistic/Legal Theory
- Key Work: The Province of Jurisprudence Determined.
- Core Idea: The sovereign is a determinate human superior who habitually receives obedience from the bulk of a given society and does not habitually obey any other human superior.
- Characteristics: Determinate, unlimited legal power, habitual obedience.
Pluralist Theory: Shared and Distributed
- Core Idea: Power is not concentrated in a single entity but is distributed among various associations (trade unions, churches, families).
- Key Proponents: Harold Laski, G.D.H. Cole, Ernest Barker.
Comparison Table: Theories of Sovereignty
| Feature | Bodin (Absolute) | Austin (Monistic) | Pluralist (Shared) |
|---|---|---|---|
| Nature | Absolute, perpetual | Determinate, illimitable | Distributed, limited |
| Source | State/Monarch | Determinate human superior | Social groups |
| Limitations | Divine, natural laws | No legal limits | Claims of other associations |
MCQ Traps
- Popular Sovereignty vs. Absolute Sovereignty: Nepal upholds popular sovereignty, contrasting with the absolute sovereignty of a monarch.
- Austin's "Determinate Superior": The sovereign must be identifiable, not an abstract concept. Think of Parliament, not "the people" as an abstract.
Example
In Nepal, the Parliament (as the determinate superior representing the people) enacts laws. Under the Pluralist view, the effectiveness of these laws depends on various groups (NGOs, community groups) whose interests influence compliance.
Memory Hook
- Bodin: Big Old Dictator Is No-nonsense (Absolute but has limits).
- Austin: All Under Single Total Individual Nothing-Else (Determinate, legally unlimited).
- Pluralists: Power Lies Under Radiating Associations (Power shared).
Quick Revision
- Sovereignty: Supreme State power.
- Nepal (Article 2): Popular Sovereignty.
- Bodin: Absolute, perpetual, indivisible.
- Austin: Determinate human superior, habitually obeyed.
- Pluralists: Power distributed among multiple associations.