The origin of State has been a favourite subject of speculation. The Greeks organised city-states which according to them had a divine origin. And sovereignty is one of the chief attributes of statehood. This term was for the first time introduced by the French political thinker Jean Bodin on Sovereignty.
Salmond defines State as “an association of human beings established for the attainment of certain ends by certain means”. A state is the most important of all associations and is distinguished from all of them by its functions. The chief ends for which human beings associate state are :
(i) to prevent war
(ii) for the administration of justice
The means employed to attain these ends is the physical force of the State.
According to Holland, “A State is a political society. He further writes society means a natural unit of a large number of human beings united together by a common language and by a common language and by similar customs and opinions resulting from common ancestry, religion and historical circumstances.”
Grotius defines States as “the complete union of freemen who join themselves together for the purpose of enjoying law and for the sake of public welfare.”
ORIGIN AND EVOLUTION OF THE STATE
The origin of State has been a favourite subject of speculation. The Greeks organised city-states which according to them had a divine origin.
Later speculators were not convinced with the divine origin of States, explain the rise of political society by the hypothesis of an “original contract” theory of which Hugo Grotius was the main supporter.
However, this theory was later proved as superfluous and untenable by subsequent thinkers.
ESSENTIAL ELEMENTS OF STATE
It may be reiterated that a State is nothing but an independent political society which is made for the maintenance of peace and administration of justice amongst its population. A state has the following elements :
1. Population: It implies a considerable group of human beings living together in a community since the State comes into existence for the people, the population is one of the essential elements of the State. There is no fixed number of persons to constitute a State, but it must be a considerable number.
2. Territory: No people can constitute a State if they are not permanently settled on a fixed territory. The territory of a State includes land, water and airspace. More than one state cannot be located on the same territory. The size of the State is not materialistic.
3. Government: It is the important machinery or agency by means of which the State maintains its existence, carries on its functions and formulates, expresses and realizes its policies and objectives. It is regarded as indispensable because without it the state cannot exist.
4. Sovereignty: Sovereignty of a State implies that it is free from any kind of external control and commands habitual obedience from the people within its territory. It confers upon the state two things namely internal supremacy and external independence. It can also be defined as supreme and unfettered authority within a state.
It has been generally accepted that for an administration of justice, are the two main functions of the State. The functions of the State are divided into two categories which are Primary and Secondary.
The primary functions of a State are war and administration of justice. The fundamental purpose and end of political society is a defence against external enemy and maintenance of law and order within the country. These are also called the constituent functions as they are necessary for the very existence of the State. Herbert Spencer also supported the view that the primary functions of the State include defending the country against external aggression and to maintain internal law and order.
A State may exist without discharging these functions as they are not essential. These functions are mostly related to welfare activities of the State. The main secondary functions of the State are legislation and taxation.
There are also two theories of the State – socialism and individualism. Under the former theory, the state assumes itself an unlimited variety of functions and the in the latter theory, the state leaves the individuals free.
THEORIES OF THE STATE
THE DIVINE THEORY
This is the oldest theory of the origin of the State. The Jews believed that God appointed the king, deposed him and even killed bad rulers. The king of the Jews was therefore looked upon as the agent of God and was regarded as responsible to him.
The theory of divine creation leads to the theory of divine right of Kings. Not only is the state a divine institution, it is also ruled by the king who acts as the agent and representatives of God. This aspect of the theory was fully developed during the 16th and 17th centuries.
The leaders of the reformation movement used this theory to support and justify the Institution of absolute monarchy. King is like a father compared with his children or like the head as compared with the body, without him, there can be no Civil Society. Today no one believes in this theory because it is based on faith and not reason.
THE SOCIAL CONTRACT THEORY
The most famous exponents of the social contract theory are Hobbes, Locke and Rousseau. The substance of the social contract theory is that the state was created by men, by means of a contract.
In the earlier times, there was no state and no man-made laws as men regulated their conduct on the basis of the laws prescribed by nature but there was no human agency to formulate and enforce the laws of nature. Men entered into an agreement and created the state.
According to Hobbes, man is selfish By Nature. According to Locke, man is social by nature and according to Rousseau, human nature is made up of 2 elements: self-preservation and sympathy for others. The theory plays an important role in the people struggle against absolute monarchy.
According to this theory, the state is the natural extension of the family. The early family was patriarchal. Descent in the family was traced through males and the eldest male parent exercised Supreme authority over all members of the family.
According to this theory, the early society was matriarchal. The Institution of the family did not exist. People lived in groups. The descent was traced through the mother. The matriarchal society evolved into a patriarchal society which ultimately led to the emergence of the state.
The state is not an invention; it is a growth and evolution the result of the gradual process running throughout the known history of man. It is now commonly agreed that four factors particularly influence the process of evolution of the state.
Whether the primitive form of society was patriarchal or matriarchal, is a subject of controversy but there is no doubt that kinship of blood relationship was the first and the strongest bond of social organization. It was blood relationship that was the fundamental bond of union everywhere in primitive societies.
Religion was another element that welded together families and tribes. Religion was linked with kinship. All the members of the family or group worshipped together their ancestors. It may be said that religion plays an important role in primitive Social Organisation.
CLASS STRUGGLE AND WAR
Class struggle and war were important factors in the origin and development of the state. Reorganization of primitive communities was very simple there was no need for organized forced to maintain unity and discipline.
Political Consciousness was another important factor that contributed to the emergence of political power. It may be described as the innate feeling among men that they have certain aim and objects which they cannot achieve without living under an organized authority.
It may be reasonably concluded that the origin of the state cannot be assigned to a particular point of time or one particular factor it has evolved gradually with certain specified factors playing an important role in its growth and development these factors are kinship religion war and political consciousness.
Sovereignty is one of the chief attributes of statehood. This term was for the first time introduced by the French political thinker Jean Bodin. The word sovereignty is derived from the French word ‘soverain’ which in its own turn was derived from the Latin word ‘suprifus’ which meant a supreme authority having no other authority above it.
The term sovereignty also means Supremacy on right to command obedience. A Sovereign state is one which is not subordinate to any other state and is Supreme over the territory under its control.
Its commands are necessary to be opened by all men and associations within its territory. Thus in a modern sense, the sovereign is that person or body which is the supreme legislative authority in a given state.
CONCEPT OF SOVEREIGNTY
The concept of sovereignty was unknown in the ancient world. It is an essential outcome of the medieval period when there were renaissance and reformation in Europe. It was Machiavelli who developed the concept of state absolutism, that is this state is absolute and an end in itself and there cannot be restraints on its powers.
The term sovereignty was for the first time introduced by French jurist Jean Bodin in his famous work Republic which appeared in 1577.
The great law reformer Jeremy Bentham of England also supported the absolute power of the sovereign but he justified it on the utilitarian principle of hedonism.
According to him, the sovereign had the authority to make laws but this should be in conformity with the principles of utility. He believed that sovereign power can be subjected to certain legal restrictions.
He also defined ‘sovereign’ as a person or group of person to whose will a political community are supposed to be in a disposition to pay obedience in preference to any other person.
Lord Lloyd defined sovereignty as a practical device of law and politics whereby the effect is given to the practical need in any community for some final ultimate authority.
AUSTINIAN THEORY OF SOVEREIGN
“If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society and the society, includes superior is the society political and independent. To that determinate superior, the other members of the society are dependent. The position of its other members towards the determinate superior is a state of subjection or a state of dependence, the mutual relations which subsist between that superior and then maybe styled the relation of sovereign and subject or the relation of sovereignty and subjection.”
SALMOND’S THEORY OF SOVEREIGNTY
Like Austin, Salmond also believes that sovereign power is determinate, that is, in every political society, there must be a sovereign authority. He also points out that it is not necessary that sovereignty in all cases should be found in its eternity within the confines of the state itself and it may wholly or partly be external to the state.
He also suggested that the sovereign power is divisible. It may be divided into three organs of the state namely legislative, executive, and Judiciary being free and uncontrolled in its own sphere.
He also observed that the theory of sovereignty is founded on three fundamental propositions namely
Thus Salmond has asserted that sovereignty is indivisible, essential and illimitable.
It cannot be subordinated to any other person because the sovereign is limited to the extent to which the subjects are willing to submit to his domain.
STATUS OF SOVEREIGNTY IN INDIA
India does not agree with the view that sovereignty is an absolute and unlimited power. Here, the Constitution is supreme which vests the executive sovereignty in the president and legislative sovereignty is vested in the Parliament as well as the state legislature. There is nothing like judicial sovereignty.