Enlightenment philosopher Jean-Jacques Rousseau, in his 1762 treatise Of the Social Contract argued, "the growth of the State giving the trustees of public authority more and means to abuse their power, the more the Government has to have force to contain the people, the more force the Sovereign should have in turn in order to contain the Government," with the understanding that the Sovereign is "a collective being of wonder" (Book II, Chapter I) resulting from "the general will" of the people, and that "what any man, whoever he may be, orders on his own, is not a law" (Book II, Chapter VI) – and furthermore predicated on the assumption that the people have an unbiased means by which to ascertain the general will. Thus the legal maxim, "there is no law without a sovereign."
A more formal distinction is whether the law is held to be sovereign, that is, whether it is above political or other interference. Sovereign law constitutes a true state of law, meaning the letter of the law (if constitutionally correct) is applicable and enforceable, even when against the political will of the nation, as long as not formally changed following the constitutional procedure. Strictly speaking, any deviation from this principle constitutes a revolution or a coup d'état, regardless of the intentions.
In constitutional and international law, the concept also pertains to a government possessing full control over its own affairs within a territorial or geographical area or limit, and in some contexts to various organs possessing legal jurisdiction in their own chief, rather than by mandate or under supervision. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute.
Jean Bodin (1530-1596) is considered to be the modern initiator of the concept of sovereignty, with his 1576 treatise Six Books on the Republic which described the sovereign as a ruler above human law and subject only to the divine or natural law. He thus predefined the scope of the divine right of kings, stating "Sovereignty is a Republic's absolute and perpetual power " . Sovereignty is absolute, thus indivisible, but not without any limits: it exercises itself only in the public sphere, not in the private sphere. It is perpetual, because it does not expire with its holder (as auctoritas does). In other words, sovereignty is no one's property: by essence, it is inalienable.
These characteristics would decisively shape the concept of sovereignty, which we can find again in the social contract theories, for example, in Rousseau's (1712-1778) definition of popular sovereignty (with early antecedents in Francisco Suárez's theory of the origin of power), which only differs in that he considers the people to be the legitimate sovereign. Likewise, it is inalienable – Rousseau condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarchy or representative democracy are founded. Machiavelli, Hobbes, Locke and Montesquieu are also key figures in the unfolding of the concept of sovereignty.
Carl Schmitt (1888-1985) defined sovereignty as "the power to decide the state of exception", in an attempt, argues Giorgio Agamben, to counter Walter Benjamin's theory of violence as radically disjoint from law. Georges Bataille's heterodox conception of sovereignty, which may be said to be an "anti-sovereignty", also inspired many thinkers, such as Jacques Derrida, Agamben or Jean-Luc Nancy.
The key element of sovereignty in the legalistic sense is that of exclusivity of jurisdiction.
Specifically, when a decision is made by a sovereign entity, it cannot generally be overruled by a higher authority. Further, it is generally held that another legal element of sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. ("No de jure sovereignty without de facto sovereignty.") In other words, neither claiming/being proclaimed Sovereign, nor merely exercising the power of a Sovereign is sufficient; sovereignty requires both elements.
For instance, in theory, both the People's Republic of China and the Republic of China considered themselves sovereign governments over the whole territory of mainland China and Taiwan. Though some foreign governments recognize the Republic of China as the valid state, most now recognize the People's Republic of China. However, de facto, the People's Republic of China has jurisdiction only over mainland China but not Taiwan, while the Republic of China has jurisdiction only over Taiwan and some outlying islands but not mainland China. Since ambassadors are only exchanged between sovereign high parties, the countries recognizing the People's Republic often entertain de facto but not de jure diplomatic relationships with the Republic by maintaining 'offices of representation', such as the American Institute in Taiwan, rather than embassies there.
Sovereignty may be recognized even when the sovereign body possesses no territory or its territory is under partial or total occupation by another power. The Holy See was in this position between the annexation in 1870 of the Papal States by Italy and the signing of the Lateran Treaties in 1929, when it was recognised as sovereign by many (mostly Roman Catholic) states despite possessing no territory – a situation resolved when the Lateran Treaties granted the Holy See sovereignty over the Vatican City. The Sovereign Military Order of Malta is likewise a non-territorial body that claims to be a sovereign entity, though it is not universally recognized as such.
Similarly, the governments-in-exile of many European states (for instance, Norway, Netherlands or Czechoslovakia) during the Second World War were regarded as sovereign despite their territories being under foreign occupation; their governance resumed as soon as the occupation had ended. The government of Kuwait was in a similar situation vis-à-vis the Iraqi occupation of its country during 1990-1991.
In federal systems of government, such as that of the United States, sovereignty also refers to powers which a state government possesses independently of the federal government; this is called "clipped sovereignty."
The question whether the individual states, particularly the Confederate States of America, remained sovereign became a matter of debate in the U.S., especially in its first century of existence:
Likewise, according to the theory put forth by James Madison in the Federalist Papers "each State, in ratifying the Constitution, was to be considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution [was to be] a federal, and not a national constitution." In the end, Madison likewise compromised with the Anti-federalists to modify the Constitution to protect state sovereignty: At the 1787 constitutional convention a proposal was made to allow the federal government to suppress a seceding state. James Madison rejected it saying, "A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."Rives, William (1866). History of the Life and Times of James Madison.
In his Report on the Virginia Resolutions, James Madison wrote that "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.” Madison even made a dire prediction of what would happen if this was denied, stating that “If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared."
During the first half-century after the Constitution was ratified, the right of secession was asserted on several occasions, and various states considered secession (including, for example, the Hartford Convention after the War of 1812) in response, not a single state objected on the grounds that such was unlawful. It was not until later, c. 1830, that Andrew Jackson, Joseph Story, Daniel Webster and others began to publish the theory that secession was illegal, and that the United States was a supremely sovereign nation over the various member-states. These writers inspired Lincoln's later declaration that "no state may lawfully get out of the Union by its own mere motion", based on the premise that "the Union is older than the Constitution or the even states," in effect an assertion that the 1781 confederation had consolidated the states into a single nation.
Opponents of Lincoln's claim argue that the states, in forming the union of the Constitution, each seceded from the prior Confederated union of 1781, thereafter nine of them joined in Constitutional union on June 21, 1788 – when New Hampshire became the ninth state to ratify the Constitution, thereby establishing it among those nine states as per Article VII; meanwhile other states refused to ratify until various conditions were met – including the addition of the Bill of Rights, ultimately ratifying by 1790. Therefore, their argument proceeds, both unions continued to exist in perpetuity between 1788 and 1790 (whereupon the final state of Rhode Island likewise joined the Constitutional union, thus ending the original confederated union. For this reason, the United States could not have been a single sovereign nation at any time prior to the Constitution, if ever.
An underdeveloped aspect of sovereignty is individual sovereignty meaning the ability of individuals to have effective control over their everyday lives. Individuals have no genuine sovereignty unless they have secure income sufficient to satisfy basic need and rare is the politics or economics, such as binary economics, which consciously upholds individual sovereignty by guaranteeing that income.
Thus from 22 June, 1934, to 29 May, 1953, (the title "Emperor of India" was dropped as of 15 August, 1947, by retroactive proclamation dated 22 June, 1948), the King of South Africa was styled in the Dominion of South Africa: "By the Grace of God, of Great Britain, Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India and Sovereign in and over the Union of South Africa." Upon the accession of Elizabeth II to the Throne of South Africa in 1952, the title was changed to Queen of South Africa and Her other Realms and Territories, Head of the Commonwealth, parallel to the style used in almost all the other Commonwealth Realms. The pope holds ex officio the title "Sovereign of the Vatican City State" in respect to Vatican City.
The adjective form can also be used in a Monarch's full style, as in pre-imperial Russia, 16 January, 1547 – 22 November, 1721: Bozhiyeyu Milostiyu Velikiy/Velikaya Gosudar'/Gosudarynya Tsar'/Tsaritsa i Velikiy/Velikaya Knyaz'/Knyaginya N.N. vseya Rossiy Samodyerzhets "By the Grace of God Great Sovereign Tsar/Tsarina and Grand Prince/Princess, N.N., of All Russia, Autocrat"