c

  



    ; 1.Natural law 2. Analytical   
 
 

 
     



School of Analytical Positivism;3.HistoricalSchool(a)Anthropological 
  
 

c  
Approach(b)Economic Approach 4.Sociolocal School 5.Realist !  



 
 


School(a)American Realists(b)Scandinavian Realists According to salmond the theory of sovereignty may be reduced to
6.ComparitiveSchool. the following three fundamental propositions. He regards the first of
 these propositions as correct and second and third without any
        
      solid foundations. The three propositions are as under.
  1. Essentiality- Sovereign power is essential in every state. Every

  In order to correctly answer this question it is political society involves the presence of a supreme power whose
necessary to understand the true implication of the terms will ultimately prevails within that community. That power may even
³Sovereign´ and ³state´. According to Austin, sovereignty is be semi-sovereign and depends for according to Salmond, ³there is
distinguished by two characteristics, the one positive and the other nothing to prevent sovereignty which is thus essential from being
negative. To satisfy the positive test the bulk of the given society wholly or partly external to the state. In all cases soverign power is
must render habitual obedience to a common superior. It is not necessarily present somewhere, but it is not in all cases to be
necessary that all the members of the society need render found in its entirety within the borders of the state itself.
obedience nor it is necessary that the bulk of them need render 2. Indivisibility- Sovereign power is indivisible, Every state
obedience all the time; but there must be habitual obedience by the necessarily involves not merely sovereignty, but a sovereign, that is
bulk. The superior must not be in the habit of rendering obedience to say, one person or one body of persons in whom the totality of
to another determinate human superior. This aspect distinguish es sovereign power resides. Austin observes that in each state there
a sovereignty is a matter of fact, not of theory. is one person or defined group which is politically supreme, and
State; Woodrow Wilson ddefines ³state´ as ³a people organised for one only. It has, however, been criticised on the ground that the
law within a definite territory´, whereas Salamond defines ³state´ as rule does not hold good in the case of England, where sovereignty
³an association of human beings established for the attainment of is divided into legislative sovereignty(the crown and the two houses
certain ends by certain means, the ends being defence against of parliament) and the executive sovereignty(the crown); before the
external enemies and the maintenance of peaceable ans orderly Parliament Act 1911, there was also judicial sovereignty (the house
relations with in the community itself. ³A more elaborate definition is of Lords).
given by Holland: ³A state is a numerous assemblage of " #    $% overeign power is unlimited and illimitable. Not
humanbeings, generally occupying a certain territory, amongst only is sovereign power uncontrolled and unlimited within its own
whom the will of the majority, or of an ascertainable class of jurisdiction, but that jurisdiction is infinite in extent. It is true that
persons, is by the strength of such a majority, or class, made to sovereignty cannot be subordinated to any other power; but it
prevail against any of their number who oppose it.´ would be incorrect to say that it is unlimited in its compass. There
It was observed by the Supreme Court of the United States in are de facto and de jure limitations. The power of sovereign is
Chisholom v.Georgia(2 Dallas 456): limited by the extent of the physical force which he can command
³A State is a body of free persons, united together for the common and is also limited to the extent to which the subjects are willing to
benefit, to enjoy peaceably what is their own, and do justice to submit to his domination. It is possible that sovereign power may
others. be legally controlled within its own sphere. The courts of justice
It is clear from the above that a state must consist of the following have the power to declare whether a certain action falls or does not
elements: primarily a state should consist of a definite portion of fall within the scope of the State authority accordingly to the
this earth which is in its exclusive control; secondly, there must be Constitution, e.g. in India it is recognized on all hands that, subject
an organised community of people occupying that territory; and to the provisions of the constitution, an enactment, whether
lastly the object of such an organisation is the maintenance of law provincial or central, cannot transgress the fundamental rights
and order for which purpose alone the state exists. guaranteed by the constitution of India. Even in The United states
 of America neither Congress nor any state legislation possesses
     
  

         unrestricted powers. They are incapable of altering the constit ution
   

 which have established them. The constitution can be amended
There are different theories which explain the origin and only when a majority of three-fourths of the state legislatures ratify
development of state. In the primitive societies the only grouping or the amendment after the same has been proposed by a two-thirds
congregation that could be found was around the family. The majority of Congress. The sovereignty as such does not vest in
matriarchal theory holds that kinship among private grounds be Congress; it is the composite body mentioned above which has
traced only through the woman, the matriarchal society being the absolute power to alter the constitution and possesses unlimited
oldest form of social organisation everywhere. In this society the legislative power. 
relationship of mother and son was permanent feature. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  &(#  
  
 



  

 &'

 


$(!

 ) 

         

    *     * 
  

  
  
   *     
      
     
 
   /
 
 
   

012
%  
%+
  

 ,
 An. 2
 
%
A law in the proper sense of the term, observes Holland, is a Man, according to Hobbs, is an altogether selfish animal. He is
general rule of human action, taking cognizance only of external anything but a social animal; indeed he find nothing but grief in the
acts enforced by determinate authority, which authority is human, company of his fellows, and lives in continual fear of danger of his
and among human authorities is that which as paramount in a life. Therefore, man is driven by evident necessity to join some
political society. It is thus a general rule of external human action authority to protect himself. According to him, it is men and arms
enforced by the sovereign political authority. All other rules for the that are responsible for the maintenance of law and order in the
guidance of human action are called laws merely by analogy; and State. According to this theory, law has its source not in custom,
any propositors which are not rules for human action are called not in consent but in the will and power of him, who in a
laws by metaphore only. commonwealth beareth not the sword in vein. Both Kant and
The sovereign part of the State is omnipotent. It is the source of Saviny make the function of law to be the preservation from
all law. In private law the State is indeed present, but it is present interference of the freedom of the will. The conception is purely
only as arbiter of the rights and duties which exist between one of negative as it excludes the operation public as well as of private
its subjects and another. In public law the state is not only arbiter, law, The end of the law is, according to Locke, not to abolish or
but also one of the parties interested. restrain but to preserve or enlarge freedom. Law is not all coercive.
Holland observes that in legislation, both the contents of the The object of the law is to secure the ends of justice and it is to
rules are devised and legal force is given to it, by acts of the reach this end that courts of law, according to Holland, are the
sovereign power which produce ³written law´. All the other law creation and protection of legal rights. The idea of right and justice
sources produce what is called unwritten law to which the is as essential as the idea of force. Law is not right alone or might
sovereign authority gives its whole force, but not its contents, which alone, but the perfect union of the two.
are derived from popular tendency, professional discussion, judicial 
ingenuity, or otherwise, as the case may be. Rules thus developed  &#  
 
 

  
   

obtain the force of law by complying with the standard which the     
 

  
*
  



 

 
States extracts from such rules before it gives them binding force.   




 
1 %c  
It rightly follows from the above that apart from the existence of Answer :  3 

state, one of a sovereign power within it, there can be no law. Law accordingly to Savigny (a follower of Historical School) is a
 & -) 
    


 
    .
 rule of human action and conduct sanctioned by national usage. It
'
  
 is always based on popular support and approval. He held that all
 



  .'
  
 early law was customary, and the function of legislation is merely to
The English Parliament is the supreme power so far as its supplement and refine customary law as an expression of the
legislative functions are concerned. The Courts obey its legislation general consciousness of right and not by virtue of the sanction of
and there is no power which can override curtail or prescribe its legislature. According to him the nature of law can be traced to
authority. But in federal constitution like that of the United States history and social function.
neither legislatures of the states, nor the federal legislatures, nor Numerous criticisms have been levelled against Savigny¶s
the executives of state or federation possess unrestricted power. conception of law. In the first place, national consciousness alone
Their authority is defined in the constitution the constitution is as cannot make law, inasmuch as every custom has not the force of
such inanimate and can exert no power. The sovereignty can law. Before it assumes the form of law, it must be immemorial and
therefore, not reside in the constitution. In the Austinian sense, obligatory and should not be contrary to law or public morality. The
therefore, the sovereignty resides only in the amending body, which final authority is, therefore, the State and the sovereign and not he
has uncontrolled and absolute authority and enjoys the power to people and there national consciousness.
change the constitution. As such it may be said that in United In the second place, statue law overrides custom in the
States the sovereignty is vested not in Congress but in majority of sense that the former can modify or repeal the latter. Statute law
three-fourths of the state legislatures which can ratify the and customary law are, therefore, not co-ordinate in authority or
amendment after the same has been proposed by a two-third based on the national consciousness of the people.
majority of Congress. It is the composite body which has absolute In the third place, statue law overrides custom in the
power to alter the constitution and possess unlimited legislative sense that the former can modify or repeal the latter. Statue law
power. Dr. Jethro Brown, however, offers a simple explanation by and customary law are, therefore, not co-ordinate in authority or
saying that the State, as a corporation, is sovereign, and its acts based on the national consciousness of the people.
through a variety of agents to express its will. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

  & !  *    
 

   *   


  

  
* 4  
 5



)  

      
 *  
 
     
   
  *   
  
 
  
 01  
! 2
3   

 # % Holland defines positive law as ³a
general rule of human action, taking cognizance only of external
acts, enforced by a determinate authority, which authority is
human, and among human authorities, is that which is paramount
in a political society.
An analysis of the above definition reveals that law is a general
rule of human action, Laws, the author and upholder of which is
superhuman, are not within the scope of the term law as
understood here. They are within the province of quite a different
science. The use of the term µlaw¶ here does not express the
uniformities of the physical world, but is confined to the world of
human beings.
Law as a rule of human action is a general rule. A rule
applicable to a particular individual commanding has obedience is
not law within the definition of Holland.
The term law as defined by Holland is again distinguishable
from morality. We have seen above that law is a general rule of
human action. Such general rule of human action is again external.
Law is not concerned with thoughts, motives and inner feelings as
such unless they are manifested in external actions. Law, therefore,
deals with a general rule of external human action-Such actions
which are exhibited externally. In this sense law is quite distinct
from morality, which considers what a man thinks and feels along
with what he does.
The such general rules of external human action are enforced
by a determined authority. Law is thus distinguished not only from
all rules which, like the principles of morality and the socalled laws
of honour and of fashion, are enforced by an indeterminate
authority, but also from all rules enforced by a determinate
authority, which is either on the one hand superhuman, or on the
other hand, politically subordinate, such determinate authority is
human, who is sovereign political authority. Rules set by such an
authority alone properly called law.