Comment: “The discovery of Sovereign in a federal state is an impossible adventure.” (Laski) (2005)
The remark comes from Harold J. Laski‘s pluralist critique of sovereignty in his writings of 1917–25. Its target is John Austin‘s sovereign: a determinate human superior, habitually obeyed and obeying no one. Laski’s point is that a federation contains no such body.
Why the Sovereign Cannot Be Found
- Divided competence. A federal constitution gives the centre and the units separate, enumerated spheres. Neither is legally supreme, and an act outside its sphere is void. Austin’s single, unlimited will has nowhere to sit.
- Constitution and court. The supreme law is a document, not a person. A. V. Dicey (Law of the Constitution, 1885) wrote that federalism means legalism, the predominance of the judiciary. Judges arbitrate but do not command.
- Austin’s own difficulty. Facing the United States, Austin placed sovereignty in the states’ governments forming one aggregate body. That is the amending authority, which needs two-thirds of Congress and three-quarters of the states under Article V. It acts rarely and indeterminately.
- The pluralist conclusion. Legal sovereignty, for Laski, is a fiction. Authority is shared among governments, courts, parties and associations, and obedience rests on consent, not command.
The Counter-view: Sovereignty Relocated
- Constituent power. Sovereignty can be placed in the people as authors of the constitution, as “We, the People” in India’s Preamble declares.
- Competence over competence. German federal theory located sovereignty in whoever holds Kompetenz-Kompetenz, the power to redraw the division of powers. In India that is Parliament under Article 368. Amendments touching federal provisions also need ratification by half the state legislatures, so the amending sovereign is itself composite.
- The exception. Carl Schmitt (Political Theology, 1922) held that the sovereign is he who decides on the exception. India’s Constitution lets the federation turn almost unitary: under a national emergency (Articles 352 and 250) Parliament may legislate on State subjects. In crisis, the sovereign surfaces.
- Limits on the finder. In Kesavananda Bharati v. State of Kerala (1973) the Supreme Court held that even the amending power cannot destroy the basic structure, and S. R. Bommai (1994) counted federalism within it. The final word lies in a constitution as courts interpret it, which comes close to Laski.
Contemporary Evidence
In Learning Resources, Inc. v. Trump (20 February 2026) the US Supreme Court held 6–3 that the International Emergency Economic Powers Act does not authorise tariffs, and the administration shifted to other statutes. Even a president’s emergency power met a legal umpire; no organ spoke with Austin’s unlimited voice.
Evaluation
- Laski is right that no determinate commander exists in a normal federation, whose practice runs on negotiation.
- He overstates if he means that no final legal authority exists. H. L. A. Hart (The Concept of Law, 1961) replaced Austin’s person with a rule of recognition, the accepted rule that identifies valid law. That keeps legal finality while conceding Laski’s point against Austin.
Conclusion
The adventure is impossible only if one hunts for Austin’s person. In a federation sovereignty is distributed in ordinary times and located in the people’s constituent power, exercised through amendment and guarded by courts. Laski dissolved monistic sovereignty, not the need for final authority.