Is the sovereign absolute? Many thinkers such as Bodin, Hobbes, ousseau, John .Austin, Dicey, Jellinek, have asserted that sovereignty is olute, unlimited, original and supreme power of the State and that, as the te is a unity, there can only be one supreme authority in it. But this ncept of monistic sovereignty is contested and rejected by others on rious grounds. They point out several limitations on it. We shall consider em one by one.
Moral limitations
Legally the State is competent to do everything, but in practice it cannot do many things. What is legally possible may be morally impossible In Britain, for instance, parliament is, “from the legal point of view”, the sovereign legislative power in the State. But it cannot make laws and the executive cannot enforce them, if- they violate the moral principles and values upheld by the British people “If the legislature decided that all blue¬eyed babies should be ‘ murdered”, said Leslie Stiphen, “the preservation of blue-eyed babies would be illegal, but legislators must go mad before they could pass such a law and subjects be idiotic before they could submit to, it”. However powerful and despotic or absolutely supreme a sovereign may be, he cannot be successful in flouting the moral or religious sentiments, beliefs and inclinations of his subjects.
Legally he is all-powerful, morally he is not so. “Legally an autocratic Tsar may shoot down his subjects before the Winter Palace in Petrograd, but morally it is condemnation that we utter”. There is, therefore, a vast difference between what Dean Pound had admirably called “law in books” and “law in action”. Hence a wise sovereign will not make laws which flout moral sentiments and convictions, violate religious beliefs, or interfere with long-established customs and traditions of people or their sense of justice and good. Otherwise, he would provoke opposition, bitterness and even revolt or revolution. On the contrary, laws are easily enforced when they conform to the generally accepted moral, religious and social ideas and customs of the people:
Natural limitations
The sovereign cannot do what is naturally impossible. For , instance, he cannot order the sun or the moon to rise, or make a law that the sun shall always rise at 6 o’ clock or from the south. If a sovereign would order so, he will be sent to the lunatic asylum. Such are the natural limitations on the absolute competence of the sovereign’s powers.
Constitutional limitations
Some writers also point out constitutional limitations on sovereignty. These limitations are, firstly, the written and rigid constitution, and, secondly, the provision of fundamental rights in the constitution, and such other provisions in the written constitution which the legislature or the government is expressly forbidden to change, such as the parity principle in federal constitutions. The structure of a State, with a written and rigid constitution, cannot change except by a long and difficult process of amendment, which is a check on its sovereignty. It is said that in such a State, there are two kinds of laws, the constitutional law and the ordinary law. The constitutional law is superior to- the ordinary law, which must conform to it or be declared null and void. So, the legislature which makes ordinary law, and cannot amend the constitution, is limited in its legislative power. Similarly, its power is limited by the other provisions of the constitution, such as the fundamental rights, etc.
These limitations are, however, no limitations on the sovereignty of the State. Firstly, the provisions of a constitution are limitations not on the State but on government. They require the government and its various organs to remain within these provisions, if their acts and laws are not to be declared unconstitutional. The State, that is, the people who can amend the constitution, remain as supreme as before, because they may amend it, if they so like. It is a self-imposed restriction and, therefore, not a limitation because it can be removed at any time. Moreover the distinction between the constitutional law and the ordinary law is not fundamental. The difference is procedural and not substantial.
Limitations of International Law
International law, conventions, agreements and treaties are regarded as another limitation on the sovereignty of the State. Bluntschli puts it in these words: “There is no such thing as absolute independence— even the State as a whole is not all-mighty, for it is limited externally by the rights of other States and internally by its own nature and the rights of its individual members”. But, like the “constitutional limitations, the international limitations are not legal limitations. They are merely self¬limitations which the Sovereign States observe in their intercourse with on another.
There is no international authority or law-court to interpret and enforce international laws. They are self-imposed and can be repudiated by the State any time. This is shown by such behaviour of the States as when they tear away treaties as mere scraps of paper or when international conventions and rules are violated, and, above all, when a war is declared. It proves that the State is free to abide or not to abide by the international law. International law is rightly regarded as not a law in the strict sense. It is merely a code of international morality which the States generally find it expedient to observe.