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 Sovereignty
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Sovereignty is the exclusive right to control a government, a country, a people, or oneself. A Sovereign is the supreme lawmaking authority.
Lassa Oppenheim, an authority on international law, has written that "There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon."[1]
An important attribute of sovereignty is its degree of absoluteness. A sovereign power (whether an individual or an assembly such as a parliament) has absolute sovereignty if it has the unlimited right to control everything and every kind of activity in its territory. This means that it is not restricted by a constitution, by the laws of its predecessors, or by custom, and no areas of law or behaviour are reserved as being outside its control; for example, parents are not guaranteed the right to decide some matters in the upbringing of their children independently of the sovereign power, municipalities are not guaranteed freedom from its interference in some local matters, etc. Theorists have diverged over the necessity or desirability of absoluteness. Historically, it is doubtful whether a sovereign power has ever claimed complete absoluteness, let alone had the power to actually enforce it. This last point raises, in passing, the important distinction between de jure and de facto sovereignty. De jure, or legal, sovereignty is the theoretical right to exercise exclusive control over one's subjects. De facto, or actual, sovereignty is concerned with whether control in fact exists. It can be approached in two ways:
1. Does the governing power have sufficient strength (police, etc.) to compel its subjects to obey it? (If so, a type of de facto sovereignty called coercive sovereignty exists.)
2. Are the subjects of the governing power in the habit of obeying it?
Another distinction is between external and internal sovereignty. External sovereignty concerns the relationship between a sovereign power and political bodies outside itself, such as other nation states. The central question is, under what conditions do nation states recognise a political entity as having sovereignty over some territory? The following criteria, used by Britain in regarding other powers, are typical:
“ "Sovereignty." A government which exercises de facto administrative control over a country and is not subordinate to any other government in that country is a foreign sovereign state.
(The Arantzazu Mendi, [1939] A.C. 256) ”
— Strouds Judicial Dictionary
External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country onto another's territory permissible?
Internal sovereignty is the relationship between a sovereign power and its own subjects. A central concern is legitimacy: by what right does a political body (or individual) exercise authority over its subjects? Possible answers are, by divine right, by natural right, or — the consentual or contractarian hypothesis — that each of its subjects has actually or tacitly transferred to it that right.
History
Classic
Ideas about sovereignty have changed over time. The Roman jurist Ulpian observed that:
• The imperium of the people is transferred to the Emperor,
• The Emperor is not bound by the law,
• The Emperor's word is law.
Ulpian was expressing — although he did not use the term — the idea that the Emperor exercised a rather absolute form of sovereignty. Ulpian's statements were known in medieval Europe but sovereignty was not an important concept in medieval times. Medieval monarchs were not sovereign, at least not strongly so, because they were constrained by, and shared power with, their feudal aristocracy. Furthermore, both were strongly constrained by custom.
Medieval
During the medieval period, sovereignty existed as the de jure rights of nobility and royalty, and in the de facto right and capability of an individual to make their own choices in life.
Around c. 1380-1400, the issue of feminine sovereignty was addressed in Geoffrey Chaucer's Middle English collection of Canterbury Tales, specifically in The Wife of Bath's Tale.[2]
A later English Arthurian romance, The Wedding of Sir Gawain and Dame Ragnell (c. 1450)[3], uses much of the same elements of the Wife of Bath's tale, yet changes the setting to the court of King Arthur and the Knights of the Round Table. The story revolves around the knight Sir Gawain granting to Dame Ragnell, his new bride, what is purported to be wanted most by women: sovereignty.
We desire most from men,
From men both rich and poor,
To have sovereignty without lies.
For where we have sovereignty, all is ours,
Though a knight be ever so fierce,
And ever win mastery.
It is our desire to have master
Over such a sir.
Such is our purpose.
—The Wedding of Sir Gawain and Dame Ragnell (c. 1450), [3]
Reformation
Sovereignty reemerged as a concept in the late 1500s, a time when civil wars had created a craving for stronger central authority, when monarchs had begun to gather power into their own hands at the expense of the nobility, and the modern nation state was emerging. Jean Bodin, partly in reaction to the chaos of the French wars of religion; and Thomas Hobbes, partly in reaction to the English Civil War, both presented theories of sovereignty calling for strong central authority in the form of absolute monarchy. In his 1576 treatise Six livres de la république ("Six Books of the Republic") Bodin argued that it is inherent in the nature of the state that sovereignty must be:
a) Absolute. On this point he said that the sovereign must not be hedged in with obligations and conditions, must be able to legislate without his (or its) subjects' consent, must not be bound by the laws of his predecessors, and could not, because it is illogical, be bound by his own laws.
b) Perpetual, not temporarily delegated as to a strong leader in an emergency or to a state employee such as a magistrate. He held that sovereignty must be perpetual because anyone with the power to enforce a time limit on the governing power must be above the governing power: impossible if the governing power is absolute.
Bodin rejected the notion of transference of sovereignty from people to sovereign ; natural law and divine law confer upon the sovereign the right to rule. And the sovereign is not above divine law or natural law. He is above (ie. not bound by) only positive law, that is, laws made by humans. The fact that the sovereign must obey divine and natural law imposes ethical constraints on him. Bodin also held that the lois royales, the fundamental laws of the French monarchy which regulated matters such as succession, are natural laws and are binding on the French sovereign. How divine and natural law could in practice be enforced on the sovereign is a problematic feature of Bodin's philosophy: any person capable of enforcing them on him would be above him.
Despite his commitment to absolutism, Bodin held some moderate opinions an how government should in practice be carried out. He held that although the sovereign is not obliged to, it is advisable for him, as a practical expedient, to convene a senate from whom he can obtain advice, to delegate some power to magistrates for the practical administration of the law, and to use the Estates as a means of communicating with the people.
With his doctrine that sovereignty is conferred by divine law, Bodin predefined the scope of the divine right of kings.
Age of Enlightenment
Hobbes, in Leviathan (1651) introduced an early version of the social contract (or contractarian) theory, arguing that to overcome the "nasty, brutish and short" quality of life without the cooperation of other human beings, people must join in a "commonwealth" and submit to a "Soveraigne Power" that is able to compel them to act in the common good. This expediency argument attracted many of the early proponents of sovereignty. Hobbes deduced from the definition of sovereignty that it must be:
a) Absolute, because conditions could only be imposed on a sovereign if there were some outside arbitrator to determine when he had violated them, in which case the sovereign would not be the final authority.
b) Indivisible: that is, the sovereign is the only final authority in his territory; he does not share final authority with any other entity. Hobbes held this to be true because otherwise there would be no way of resolving a disagreement between the multiple authorities.
Hobbes' hypothesis that the ruler's sovereignty is contracted to him by the people in return for his maintaining their safety, led him to conclude that if the ruler fails to do this, the people are released from their obligation to obey him.
Bodin's and Hobbes's theories 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. Niccolò Machiavelli, Thomas Hobbes, John Locke and Montesquieu are also key figures in the unfolding of the concept of sovereignty.
The second book of Jean-Jacques Rousseau's Du Contrat Social, ou Principes du droit politique (1762) deals with sovereignty and its rights. Sovereignty, or the general will, is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and always right, determined and limited in its power by the common interest; it acts through laws. Law is the decision of the general will in regard to some object of common interest, but though the general will is always right and desires only good, its judgment is not always enlightened, and consequently does not always see wherein the common good lies; hence the necessity of the legislator. But the legislator has, of himself, no authority; he is only a guide who drafts and proposes laws, but the people alone (that is, the sovereign or general will) has authority to make and impose them.
Rousseau, in his 1763 treatise Of the Social Contract[4] 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."
The 1789 French Revolution shifted the possession of sovereignty from the sovereign ruler to the nation and its people.
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.
Different Views
There exist vastly differing views on the moral bases of sovereignty. These views translate into various bases for legal systems:
A fundamental polarity is between theories that assert that sovereignty is vested directly in the sovereign by divine right or natural right ; and theories that assert it is vested in the people. In the latter case there is a further division into those that assert that the people transfer their sovereignty to the sovereign (Hobbes), and those that assert that the people retain their sovereignty (Rousseau).
The European theorists of the 1500-1750 period generally insisted that sovereignty must be absolute, perpetual, and indivisible (or exclusive). Their definitions of absoluteness, however are not always the most stringent possible. Later theorists have often held that absoluteness may be considerably limited, for example by a constitution. The above points are treated more fully in the History section of this article.
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