According to Austin, sovereignty is distinguished by two characteristics, the one positive and the other negative.
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To satisfy the positive test the bulk of the given society must render habitual obedience to a common superior. It is not necessary that all the members of the society need not render obedience nor it is necessary that the bulk of them need render obedience all the time; but there must be habitual obedience by the bulk.
ADVERTISEMENTS:
The superior must be a human being and same may be a person or a body of persons. The negative mark is that the common superior must not be in the habit of rendering obedience to another determinate human superior. This aspect distinguishes a sovereign from a private person or political subordinate. Sovereignty is a matter of fact, not of theory.
State:
Woodrow Wilson defines “state” as “a people organized tor law within a definite territory”, whereas Salmond defines “state” as,
“an association of human beings established for the attainment of certain ends by certain means, the ends being defence against external enemies and the maintenance of peaceable and orderly relations within the community itself.”
A more elaborate definition is given by Holland: “A slate is a numerous assemblage of human beings, generally occupying a certain territory, amongst which the will of the majority, or of an ascertainable class of persons, is by the strength of such a majority, or class, made to prevail against any of their number who oppose it.”
It was observed by the Supreme Court of the United States in Chisholom v. Georgia (2 Dallas 456):
“A suite is a body of free persons, united together for the common benefit, to enjoy peaceably what is their own, and do justice to others.”
ADVERTISEMENTS:
It is clear from the above that a state must consist of the following elements: primarily a state should consist of a definite portion of this earth which is in its exclusive control; secondly, there must be an organized community of people occupying that territory; and lastly, the object of such an organization is the maintenance of law and order for which purpose alone the state exists.
Genesis of State:
There are different theories which explain the origin and development of State. In the primitive societies the only grouping or congregation that could be found was around the family. The Matriarchal theory holds that kinship among private grounds be traced only through the woman, the matriarchal society being the oldest form of social organization everywhere. In this society the relation of mother and son was a permanent feature.
Patriarchal Theory:
Later, the father, by virtue of his ascendancy in the family and his capacity for leadership acquired supremacy within the family group. The eldest male parent reigned supreme in his household and his dominion extended in an unqualified manner over his children and wife. This is the famous patriarchal stale of society.
Sir Henry Maine developed the patriarchal theory according to which the state is an aggregation of the family. He said that the elementary group is the Family, connected by common subjugation to the highest male ascendant.
ADVERTISEMENTS:
The aggregation of families forms the Gens or House. The aggregation of Houses makes the tribe. The aggregation of Tribes constitutes the Common-wealth or Stale. The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions. According to Maine, the unit of an ancient society was the family and not the individual as in modern times and the paternal control of family is the beginning of Government and social control.
Herbert Spencer has criticized Maine’s Patriarchal theory by observing that it cannot be accepted as a final solution of the origin of
Government as societies were originally organized on a matriarchal’ and not on a patriarchal model. But there is no proof that at any period the material system held any exclusive possession of the human race.
“Nor is it correct to say the primitive society was everywhere of the patriarchal type or that one type was derived from the other. The form of social organization everywhere is to some extent moulded by social and economic environments.”
The next stage in the development of state is that sub-families established by the sons on the death of their father continue to remain united for certain common ends like agricultural or mutual defence. Such larger families from a common ancestor are clans, whose strength is depleted by the loss of daughters on their marriage and augmented by process of adoption whereby a stranger is fictitiously associated with the common ancestor. There finally emerge into a stage when a number of clans associate for common political ends, e.g., defence against external aggression.
Social Contract Theory:
Expounders of the theory of Social Contract are Hobbes, Locke, Rousseau and Kant. According to this theory the origin of States is due to general agreement freely entered into by equal and independent individuals living in a state of nature to form themselves into a community and obey a government established by them for the protection of their natural rights.
Hobbes maintained that in primitive natural state there is the law of nature the essence of which is self-preservation. Men living without a common power set over them continually live in a state of war; and the only way to peace is for men to give up so much of their natural rights as to institute a supreme coercive power.
Locke stressed the freedom and preservation of all men and emphasized that without the state or political society man’s enjoyment of rights is very insecure. Rousseau developed this theory in his Contract Social (1762) by pointing out that man is essentially good and sympathetic, but with the introduction of private property and growth of numbers, quarrels arise and without a form of association with the whole common force protecting person and property of each associate, security is not possible.
In this way he develops a community which is sovereign. The sovereign is obeyed so long as lie fulfils his part of the bargain, that is, so long as he exercises the powers conferred upon him for the welfare of the community.
The above theory cannot stand the test of scrutiny for there is hardly any historical evidence available showing that any political organization had been established in this manner.
Sir Henry Maine contends that the theory of an original state of nature is historically false and that when we investigate the primitive condition of mankind we do not find any trace of state of nature but derive ample evidence which tends to show that men were in primitive times distributed in perfectly isolated groups held together by obedience to the eldest male parent and it was by the extension of these single facilities into larger bodies of real or supposed kindred that primitive communities were formed and not by any social compact as contemplated by Locke and other theorists.
Such a compact was impossibility as society in primitive limes was not a collection of individuals but an aggregation of families. The unit of an ancient society was the family and not the individual as in modern times, and the paternal control of the family is the beginning of Government and social control.
The next theory is that of divine origin, according to which the state has been established by an ordinance of God.
The theory of force ascribes the emergence of the state to the subjugation of the weaker by the stronger. A state is founded when a leader with his force gets permanent control of a defined territory.
Finally, the evolutionary or historical theory discards the state either as a divine institution or as a deliberate human contrivance, but lies down that the State is evolved as the result of natural evolution.
Characteristics of a State:
“The true functions of a state,” says Hebert Spencer, “are to protect against external enemies and to suppress internal anarchy.” To the same effect are the observations of Sir John Salmond when the defines a state as a society of men established for the maintenance of peace and justice within a definite territory by way of force.
The stale has to perform two essential functions, viz., defence against external enemies and the maintenance of peaceable and orderly relations within the community itself. It follows that the central authority of the political society must be powerful enough to demand obedience of its subjects and must be able to withstand external aggression.
John Austin calls the above two essential characteristics as the positive and negative marks of the slate. It may also be termed as the internal and external sovereignty of the political society. In its positive or internal aspect the supreme political authority must habitually receive obedience from the bulk of its subjects.
It is not necessary that the bulk of the subjects must always obey; it is enough if the bulk habitually obeys. In its negative or external aspect the supreme political authority should not be in the habit of obedience to any other political superior.
In other words, it should be externally independent. Here, again occasional deference to the wishes of another sovereign will not militate against the sovereignty of the deferring State. The only condition is that such deference must not be habitual.
Austin sums up by saying that a sovereign power is not in the habit of obedience to any determinate human superior, while it is itself the determinate and common superior, to which the bulk of a subject society is in the habit of obedience.
The essential characteristics of a stale may, therefore, be summed up as follows:
(1) T he state is an association of persons for welfare. “The state exists,” says Aristotle, “that man may lead a good life.”
(2) It consists of a definite portion of the earth which is in its exclusive control.
(3) There is a supreme political authority which habitually receives obedience from its members and is not in the habit of obeying any other political superior. In other words, it is “paramount over all actions within” and “independent of all control from without.”
(4) The object of such an organization is the defence against external enemies, and the maintenance of peaceable and orderly relations within the community itself.