The sovereignty of the state may be viewed from two points of view i.e., Legal Sovereignty and Political Sovereignty. Legal sovereignty represents the lawyer’s conception of sovereignty. It is associated with the supreme law-making authority in the state.
The body which has the power to issue final commands in the form of laws is the legal sovereign in a state. This power may be vested in one person or a body of persons. It may be a king or dictator or parliament. Under absolute monarchies, it was the king who was vested with the power of making laws.
A dictator makes laws under a dictatorship as was the case in pre-war Germany and Italy. The courts recognize only such laws as are made by a sovereign. In England, Parliament is the legal sovereign which enjoys unlimited powers of law making.
In the words of Dicey it can adjudge an infant of full age, legitimize an illegitimate child or if it thinks fit, may make a man judge in his own case. The following are the characteristics of a legal sovereign:
1.A legal sovereign is definite and determinate. It may be a person as in the case of an absolute monarchy or a body of persons as in the case of the British Parliament.
2. Legal sovereignty is definitely organized and re-organized by constitutional law.
3. Legal sovereign alone has the power to declare in legal terms the will of the state.
(b) Political Sovereign:
The concept of political and popular sovereign is very confusing. In the modern democratic state, a distinction, all the same, has come to stay between legal sovereign and political sovereign.
Legal sovereign is defined as that person or body of persons that makes law and whose law is final and is recognized by courts and is enforced by the executive.
However above the legal sovereign is the political sovereign, As Dicey says, “Behind the legal sovereign that the lawyer recognizes, there is another sovereign to whom the legal sovereign must bow.
” This is the political sovereign. In democracies, the legal sovereign receives its authority from the electorate, whatever be the basis of the right of vote, and is answerable to it for the exercise of its powers.
Legal sovereign is subject to be changed by the mandate of the electorate at regular intervals. Even during the term of Parliament, in the cabinet system of government, legislature may be dissolved and fresh mandate from the electorate sought.
The legislature makes laws on the basis of the policy approved by the electorate. So we may say that the electorate is political sovereign.