The sovereignty of the State may further be looked at from two points of view: legal and political. Legal sovereignty is the conception of sovereignty in terms of law, and it refers to that person or body of persons who, by law, have the power to issue final commands.
In every State there must be some authority which is determinate and visible in the sense that it should command all and the people may appeal to it as the final authority. Such an authority is known as the legal sovereign and the authority of the legal sovereign is supreme and final over all individuals and associations.
No individual or group of individuals has the legal right to act contrary to the decisions of the sovereign power, even if such decisions override the prescriptions of divine law, the principles of morality, or the mandates of public opinion. The courts recognize and apply only that law which emanates from the legal sovereign and disobedience to such a law is accompanied by punishment.
The authority of the legal sovereign is absolute and its will is illimitable, indivisible and inalienable. Law is simply the will of the sovereign. There is no one to question its validity. Within the sphere of law, there is, as Hobbes bluntly said, no such thing as an unjust command. The authority of the sovereign being unlimited, he has the legal right to will whatever he may happen to desire.
All rights enjoyed by citizens are granted and enforced by the legal sovereign and there can be no rights against him. This implies that if the legal sovereign can grant rights, he can take them back or even annul them.
In Britain, King-in-Parliament is the legal sovereign. In the United States the legal sovereign consists of the combination of authorities that have the power to amend the Constitution Conventions, or two-thirds majority in each House of Congress which may propose amendments, and State Legislatures or State Conventions which may ratify them. It is, thus, the interaction of specified individuals and institutions according to specified rules of procedure.
This analysis is the lawyer’s view of sovereignty. A lawyer is not concerned with the content of law, that is, its welfare content or the value component of law. He is only concerned with the legal source from which it emanates.
According to Ritchie, “The legal sovereign is the lawyer’s sovereign qua lawyer, the sovereign beyond which lawyers and courts refuse to look.” But behind the legal sovereign there is another power which is unknown to law. It is the political sovereign, unorganized and incapable of expressing the will of the State in the form of legal command, but to whom the legal sovereign must ultimately bow.
The following characteristics of legal sovereignty may be noted:
1. The legal sovereign is always definite and determinate.
2. Legal sovereignty may reside either in the person of a monarch as in an absolute monarchy, or it may be vested in a body of persons as in a democracy; King or Queen and Parliament in Britain.
3. It is definitely organized, precise and known to law.
4. It alone has the power to declare in legal terms the will of the State.
5. Disobedience to the imperatives of the legal sovereign means physical punishment.
6. All rights emanate from the legal sovereign and it can take them back or even annul them.
7. The authority of the legal sovereign is absolute, illimitable and supreme. It is subject to no control within and without the State.
