Theories of Sovereignty and Their Relevance to Law and Order in Modern Australia

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Theories of Sovereignty and Their Relevance to Law and Order in Modern Australia

Introduction

Broadly speaking, sovereignty refers to a nation-state's legitimate powers to exercise control over a given territory, typically a country. The concept is commonly applied to domestic and international law to describe a nation-state's relationship with citizens and other nation-states, highlighting the state’s legitimate claim to rule or enforce law and order within its territory. More importantly, sovereignty distinguishes nation-states from other political and civil groups by emphasizing the former’s supremacy and independent authority over a specific territory, as well as the authority to create and enforce laws. Ultimately, sovereign entities act both as negotiators for and guardians of justice to the citizens.

Political and legal thinkers have proposed two broad theories to explain the nature and role of sovereignty in domestic affairs and international relationships. This paper examines the relevance of Monistic and Pluralistic theories of sovereignty in relation to the enforcement of law and order in contemporary Australia. Borrowing from notable theorists like Thomas Hobbes, H.L.A. Hart and Moreton-Robinson, the paper critically looks at the legitimacy of Australia’s exercising of sovereignty over its national territories, more especially over indigenous tribes who had occupied the continent since the precolonial period. One issue that this analysis highlights is the legitimacy of the Australian government to claim sovereignty over the indigenous communities, considering that the latter had their own system of governance before they were forcefully colonized by White settlers. As Moreton-Robinson puts it, the modern state of Australia’s sovereignty is contestable since it was acquired through illegitimate use of force to displace native inhabitants from their ancestral lands, destroy their cultures and eventually colonize them.

The concept of sovereignty was first coined by the French philosopher Jean Bodin in the 16th century to justify the French King’s use of force to pacify feudal lords who had challenged his rule. This recognition of the King’s sovereign powers facilitated the transition of feudal states to national states, giving rise to the modern nation-states. Thomas Hobbes broadened the concept’s meaning to capture its application to emerging nation-state in the 17th century. Hobbes argued that every true state had a person or persons who exercised ultimate and absolute power to prevent the state from relapsing into anarchy, which he characterized as the human state of nature. He maintained that diluting sovereign power, for example by dividing it, would compromise the state’s unity by allowing smaller factions to rise and challenge the ruler’s power.

In this regard, it is arguable that Hobbes viewed sovereignty as a necessary condition for the continued survival of the state and ultimately, the maintenance of law and order in human societies. Later philosophers, notably John Locke and Jean-Jacques Rousseau, theorized that the state was a product of a compact (social contract) between the citizens and the government. This view is the basis of the modern idea of popular sovereignty, used to describe the legitimacy of democratic governments. This notion suggests that governments have no power of their own, but exercise power on behalf of the people.

This idea was used to challenge the authority of the monarchy after the French Revolution, when the French Constitution’s framers stated that “Sovereignty is one, indivisible, unalienable and imprescriptible; it belongs to the Nation; no group can attribute sovereignty to itself nor can an individual arrogate it to himself.” In relation to the legitimacy of democratic governments, this definition of sovereignty asserts the people’s role as the source of legitimacy.

Types of Sovereignty

Legal Sovereignty: This type of sovereignty refers to a sovereign entity’s power to create and enforce laws. It suggests that moral and natural laws are irrelevant since the sovereign is supreme, implying that its exercising of power is not limited by natural or moral laws. In addition, the sovereign-made laws are to be observed by all citizens, further emphasizing the supremacy of a legal sovereignty in people’s affairs. This conception vests power in a nation’s constitution and constitutional entities such as the courts, which interpret and validate laws. In the context of the modern state of Australia, legal sovereignty is vested in the High Court of Australia, which is the apex court with jurisdiction on matters specified in the country’s constitution.

Political Sovereignty: Political sovereignty refers to the powers vested in political entities, such as Congress and the Presidency. This sovereignty is derived from the people through the election of political representatives. In addition, political sovereignty works in close cooperation with legal sovereignty, for example, through the division of power between the Executive and Legislative Arms of government. This scenario undermines Hobbes’s conceptualization of sovereignty since he argued that sovereignty cannot be divided or be shared between different entities.

Popular Sovereignty: Popular sovereignty refers to the powers vested in the citizens but exercised through democratically elected leaders. This form of sovereignty implies that political bodies such as Congress or the courts are not the supreme centers of power. This view of sovereignty is the defining feature of democratic societies, exemplified by the people’s power to vote elected leaders out of office.

Theories of Sovereignty

Monistic Theory of Sovereignty

The monistic theory attributes authority to a sovereign being, the highest power in a state considered to be above moral and natural laws. The theory was proposed by Jean Bodin, who argued that the sovereign was both the maker and master of the laws that governed the common citizens. When sovereignty resides in one person, that person is considered to be above the law and to command the obedience of the people. At the same time, Bodin acknowledged that sovereignty can reside in several individuals who collectively wield supreme authority.

Thomas Hobbes extended this theory by arguing that citizens may surrender all powers and rights into the hands of one individual or governing body, who then becomes the sovereign. The main defining feature of the Monistic theory is its assertion that whatever the sovereign individual or body commands is law, and that there can be no law without the sovereign. The sovereign’s command becomes the state’s law, obliging subjects to obey it at the risk of punishment. Moreover, sovereignty is not divisible since doing so is to limit its authority and weaken the state.

However, the Monistic theory of sovereignty has been criticized due to its failure to take into consideration the functioning of modern democracies such as Australia, where power is shared between various entities—suggesting that sovereignty is divisible. Under the Australian Constitution, no single entity has the power to control all the laws that govern the nation. For instance, the federal government does not control all the laws in the commonwealth, where the states have the power to make and enforce their own laws. At the same time, there is separation of power between the Executive, the Judiciary, and Parliament, implying shared sovereignty.

However, the three levels of government can exercise absolute sovereignty when they work in unity to enforce a specific law. Even then, the people’s right to reject an unpopular law through a referendum limits the extent of a sovereign entity’s powers.

The monistic theory is clearly limited in explaining the enforcement of law and order in modern nation-states, especially in light of the existence of international bodies that restrict the extent to which nation states may use force even on domestic affairs. For instance, bodies such as the United Nations and the International Court of Justice can intervene to stop a state from enforcing unjust laws or from abusing its powers. This situation suggests that no state in the modern context enjoys absolute sovereignty since it is subject to external control by the international community.

Pluralistic Theory of Sovereignty

The pluralistic theory of sovereignty is a counter view to the monistic perspective, designed to capture the political realities of modern times and contemporary nation-states. The theory states that the state is not a unique entity, but part of other entities that are equally important in the exercising of sovereignty. Thus, the state is incapable of enforcing its will in practice against the will of other groups within the state.

Further, the theory asserts that all the groups within the state enjoy equal rights, suggesting that the state cannot exercise supreme authority on its own. In addition, proponents argue that the state can only exercise power through the goodwill of other groups, and it cannot destroy these groups since it did not create them. This theory suggests that the state lacks the power to enjoy the privilege of a true sovereign as envisioned under the monistic theory.

Nevertheless, the pluralistic theory is also limited since it fails to account for the state’s ability to enforce its will even against the opposition of other groups. A notable example is the historical displacement of indigenous tribes from their ancestral lands. Even with the native tribes’ opposition, the federal government of Australia has been able to annex land territories for development purposes.

While the intentions of such actions may be noble, it does not excuse the fact that the state’s actions undermine indigenous tribes’ rights. At the same time, the state may use instruments of power such as the police to coerce citizens to obey laws, even when such laws violate the rights of certain groups.

Hobbes’s interpretation of the monistic theory highlights some aspects of the modern state of Australia’s enforcement of law and order, which support the claim that law is what the sovereign commands. The mistreatment of certain minority groups while protecting others demonstrates the state’s ability to exercise sovereign power as it wishes even in the face of opposition.

For instance, the federal government seems silent on the mistreatment of Aboriginal people, a minority in Australia, but is proactive in protecting the rights of gay individuals. In 2015, an Aboriginal man died while in police custody after being held down by prison guards. The officers involved were not charged or punished despite public protest and years of petition by Aborigine activists.

The government’s failure to act suggests tolerance of injustice. Although no law explicitly supports such mistreatment, failure to take action implies implicit approval. Conversely, the Australian Parliament recently passed legislation protecting gay students from school discrimination. These contrasting actions demonstrate selective enforcement of law and order.

H.L.A. Hart also emphasized that even social-contract laws are essentially commands backed by force. This means the state enforces laws aligned with its agenda and overlooks those unfavorable to its interests. In Australia’s context, punishing police brutality against racial minorities could empower indigenous activism, which the state wishes to minimize. Therefore, enforcement patterns reveal strategic governance rather than fairness.

Thus, while modern democracies appear pluralistic, states still find ways to exercise monistic sovereignty—especially through coercive instruments and selective enforcement. Although separation of powers exists, cooperation between arms of government can create de facto absolute sovereignty.

Moreton-Robinson further challenges the pluralistic theory, arguing that Australia is socially constructed as a white possession. Indigenous sovereignty was overwritten through colonization, land dispossession, and political exclusion. Although indigenous groups once held full sovereign rights to the continent, these rights were replaced by British and later Australian sovereignty—gained by invasion, not consent.

The Australian experience illustrates the limits of pluralistic sovereignty. While democracy suggests shared power, indigenous Australians remain marginalized politically, socially, and culturally. Their lack of meaningful representation and ongoing dispossession contradicts the idea that sovereignty is shared among all groups.

Conclusion

The idea of sovereignty is significant to understanding the role and functioning of modern nation-states. Generally, sovereignty refers to a nation-state’s control over a given territory including its inhabitants. There are different forms of sovereignty, which reflect various aspects of governance and political organization of modern states. These include legal, political, and popular sovereignty, which describe the source of legitimacy for governments to exercise power over a given territory.

However, legal theorists recognize two distinct ways through which sovereignty is exercised, explained through the monistic and pluralistic theories. The monistic perspective emphasizes the sovereign powers of a single individual or group who stand above natural and moral laws. This perspective is more relevant to feudal contexts and less aligned with modern democracies.

Yet, the lived experience of indigenous tribes in Australia demonstrates that monistic practices still exist, especially when the state uses coercion, allows selective enforcement, or ignores injustices. Meanwhile, the pluralistic theory—which describes sovereignty as shared among groups—fails to reflect the exclusion of indigenous Australians from political influence and self-determination.

The tension between these theories illustrates that while Australia functions as a democracy, it still exhibits monistic characteristics in areas concerning marginalized groups. Sovereignty remains unequally distributed—highlighting ongoing challenges in achieving true pluralistic sovereignty in contemporary Australia.

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