Positivist View. There are two views on this question. According to the Positivist jurists, the law is made and enforced by the State, and therefore cannot be above it. Law owes its origin to the State and exists only so long as the State can enforce it. The State is both the source and the guardian of the law. Enforcement by the government is its distinctive feature. The State possesses the monopoly of coercive power and only those rules can be called laws which are sanctioned by its coercive power. Hence law can not be above the State.
Pluralist View. On the other hand, the Pluralists, like Duguit, Krabbe and Laski, hold that the law is above the State. Duguit contends that the sanction behind the law is not the coercive power of the State but the psychological awareness among normal people that they must observe certain rules if they are to preserve and promote the common benefits derived from the life in society. Krabbe declares that law is obeyed because it embodies the sense of right of the majority of the people.
Laski also holds that law is above the State. According to him, the real source of law is not the command of the State but the consenting mind of the individual. “Law”, he says, “is not merely a command, it is also an appeal. It is a search for the embodiment of my experience in the rule it imposes”. This is possible only when I am consulted before the law is made, because I alone can inform what my experience is. In this way law is successfully related to the consenting minds of the individuals. This makes the State inferior to law. Thus, the Pluralists conclude, the law is above the State and that the State itself must obey it.
Conclusion
In spite of the useful light which the Pluralists have thrown on the nature of law and State, the fact remains that the State is above the law. No doubt, it must obey the law itself. But it is superior to law because it emanates from it. If there is no coercive power, it will cease to exist. It is, however, good that it is moulded and influenced by public opinion, by the sense of social justice and is based on the consent of the individuals. But, in the final analysis, law is based on the authority and force of the State. State is, therefore, above the law.