De Jure and De Facto Sovereignty

A situation may arise when actual sovereignty may pass on to someone/a body of men/an assembly which is able to make its will prevail whether it has legal status or not though formally sovereignty rests with another person or body or assembly. This situation may arise in revolutions, depositions from power or temporary coups. To describe such a situation, a distinction is made between de jure and de facto sovereignty.

De jure sovereignty refers to the legal and formal sovereignty, which is entitled to the obedience of the people but which may be incapable due to deposition, expulsion, exile, a military soup etc. The de jure sovereign has the legal right to command obedience and is based on law. It does not seek some extraneous elements like force, religious influence or ideology to enforce its legitimacy. The legitimacy of the de jure sovereign is derived from law and its legal authority. It assumes that obedience will be enforceable.

On the other hand, de facto sovereignty refers to the power, which is actually able to make its will prevail though it may be without legal basis. While the de jure sovereign has a legal basis, the de facto sovereign may be based on physical force or religious influence or the result of revolution, etc. A de facto sovereign may be a self-appointed leader, a self-constituted assembly, a military dictator or even a priest or prophet. In many cases, a de facto sovereign would always seek to convert his acquired position into legal and de jure sovereignty. This eventually would enable a moral claim for obedience. Force may not always be the basis for obedience. As Bryce would say, there is a natural and instinctive opposition to submission to power which rests only on force.

Some of the historical examples of de facto sovereignty are Oliver Cromwell after he dissolved the English Parliament in 1649, Napoleon after he had overthrown the Directory the Bolshevik regime following the Russian Revolution of 1917, the sovereignty of the Peoples’ Republic of China after Chiang Kaishek was overthrown.

John Austin does not accept the distinction between de jure and de facto sovereignty as adjectives like ‘lawful’ and ‘unlawful’ cannot be applied to sovereignty. The only law (he says) by which a person or body of persons can be sovereign is its own law, its won command or will, and hence to say that a person or body is the de jure sovereign is tantamount to saying that it is legal because it declares itself so to be so. Austin stresses that the distinction between de facto and de jure may apply to governments but not to sovereignty.³⁸