Sovereignty

Sovereignty

Analysis of “sovereignty” brings one into contact with nearly all the major problems in political philosophy. At least seven related concepts may be distinguished:

(1) A person or an institution may be said to be sovereign if he or it exercises authority (as a matter of right) over every other person or institution in the legal system, there being no authority competent to override him or it. For some writers, though not for all, this concept also implies unlimited legal competence; for, it is said, an authority competent to determine the limits of its own competence must be omnicompetent.

(2) Difficulties arising from the first concept have led some writers to ascribe sovereignty to a constitution or basic norm from which all other rules of a system derive validity. (3) Sovereignty is sometimes ascribed to a person, or a body or a class of persons, said to exercise supreme power in a state, as distinct from authority, in the sense that their wills can usually be expected to prevail against any likely opposition.

legal system

The state itself is often said to be sovereign. This may mean any of at least four distinct (though possibly related) things: (4) that the state as an organized association will in fact prevail in conflict with any person or any other association in its territory; (5) that the rights of all such associations and persons derive from the legal order that is supported by the state or that (according to Hans Kelsen) is the state;

(6) that the state is a moral order with claims to obedience and loyalty which have precedence over all others; (7) that the state is autonomous vis-à-vis other states; according to some theories, the state has only such obligations, whether in law or in morals, as it chooses to recognize.

Classical and Medieval Theories

Aristotle regarded legislative authority as supreme in a state and classified states according to whether it was located in a monarch, in an oligarchical assembly, or in an assembly of the whole people.

Classical and Medieval

But to speak of a “supreme legislative authority” is a little misleading here; for the Greeks, legislation was the local application of a divinely ordained order, rather than the authoritative creation of new laws. The Roman concept of imperium was nearer sovereignty: The princeps (ruler) personally embodied the supreme authority of the Roman people.

He was legibus solutus (not bound by the laws), at least in the sense that no one could question his enactments. Still, there were strong elements of natural law in Roman jurisprudence; the emperor was supreme because his function was to command what was right and for the public good.

There was rather less room for sovereignty in medieval political thought. According to Thomas Aquinas, for instance, the king was not only subject to divine and natural law but for most purposes to the custom of his realm as well.

Hans Kelsen

Medieval statutes commonly purported to restore laws that had been abused, rather than to innovate. In Thomas’s view the Roman maxim Quod principi placuit legis habet vigorem (What pleases the prince has the force of law) was valid only if the prince’s command was reasonable.

According to Henry de Bracton, “the king ought to have no equal in his realm ... [but] he ought to be subject to God and the law, since law makes the king ... there is no king where will rules and not the law” (De Legibus et Consuetudinibus Angliae, edited by G.Woodbine, New Haven, CT, 1915–1942, Vol. II, pp. 32–33).

Similarly, the plenitudo potestatis ascribed to the pope usually meant that supreme ecclesiastical authority was undivided, or that he held a reserve jurisdiction in secular matters—not that he was legibus solutus.

Thomas Aquinas

Alongside the doctrine of royal supremacy was another that derived royal authority from the people corporately. According to Marsilius of Padua, supreme authority rested in the legislator, which was either the whole organized community or an assembly (not necessarily elected) that spoke for it. Marsilius’s stress on legislation as the will of a supreme authority brought him closer than his predecessors to Jean Bodin and Thomas Hobbes.

Bodin: Paradox of Lawful Sovereignty Egoism

Bodin’s Six livres de la république (1576) is generally considered the first statement of the modern theory that within every state there must be a determinate sovereign authority. Writing during the French religious wars, he insisted that an ordered commonwealth must have a sovereign competent to overrule customary and subordinate authorities.

Sovereignty is “a supreme power over citizens and subjects unrestrained by law”; it is “the right to impose laws generally on all subjects regardless of their consent.” Law is “nothing else than the command of the sovereign in the exercise of his sovereign power.” Accordingly the sovereign could be subject to no one else, for he makes the law, amends it, and abrogates it for everyone.

Bodin: Paradox of Lawful Sovereignty Egoism

Nevertheless, he is subject to the laws of God and of nature. For instance, he may not seize his subjects’ property without reasonable cause and must keep his promises to them. Moreover, he must respect the fundamental laws of the constitution, like the succession law, for sovereignty, as a legal authority, stems from these.

In defining sovereignty as a supreme power unrestrained by law, while yet admitting these limitations, Bodin is not as inconsistent as he is commonly said to be. Within the legal system, sovereignty may be unlimited; yet the sovereign may be bound in morals and religion to respect the laws of God and nature.

Bodin’s suggestion that sovereignty can be limited by constitutional laws raises more serious difficulties; for if “law is nothing else than the command of the sovereign, in the exercise of his sovereign power,” how can any law be beyond his power to amend? The qualification, “in the exercise of sovereign power,”may be important.

Marsilius of Padua

Constitutional laws seem to be what H. L. A. Hart calls “rules of recognition” (see his Concept of Law), that is, they are rules that lay down the criteria of validity for rules of substance; they constitute the sovereign office, designate who shall occupy it, and identify his acts as those of a sovereign authority. For the sovereign to interfere with them, Bodin said, would be for him to undermine his own authority.

If the acts of the sovereign are those done “in the exercise of sovereign power,” that is, in accordance with the rules of recognition, it would be logically impossible to act in a valid sovereign way inconsistently with these rules. Nevertheless, the sovereign could still amend them so long as he used the unamended procedures to do so.

Yet Bodin regarded the rules constituting the sovereign office as unamendable in principle; should the prince infringe them, “his successor can always annul any act prejudicial to the traditional form of the monarchy since on this is founded and sustained his very claim to sovereign majesty” (all quotations from Six Books, Bk.I,Ch.8).

H. L. A. Hart

Bodin’s reasoning, though confused, bears closely on certain twentieth-century constitutional controversies in the United Kingdom and Commonwealth countries, which have hinged on the contention that a sovereign legislature, though admittedly competent to prescribe its own powers and procedures, must yet do so only by the procedures currently laid down. Such procedures, it is argued, are among the criteria for identifying the legislature and for determining what constitutes one of its acts.

Bodin’s analysis of sovereignty also suggests how an omnicompetent authority like the British Parliament can yet limit its omnicompetence, as it purported to do in the Statute of Westminster of 1931. In that statute it renounced supreme authority over the dominions by making their advice and consent part of the procedure for any future legislative acts affecting them.

Hobbes: Sovereignty and Supreme Power

Where Bodin was concerned mainly with supreme legal authority, Hobbes was more concerned to show a necessary relation between order, political power, sovereign authority, and political obligation. Hobbes argued that since no man can safely rely on his own strength or wits alone, men’s obligations under the law of nature to forbear from harming one another must be subject to mutual guarantees; otherwise, for anyone to forbear in the competitive struggle would be to endanger his life.

Hobbes: Sovereignty and Supreme Power

There is no reliable guarantee unless all parties agree not to exercise their “natural right to all things,” but to submit unconditionally to a sovereign authorized to act on behalf of each of them, with the power to make them keep their agreements. Mutual forbearance would then be a duty. Sovereignty, therefore, is necessary for a social order among equals.

Sovereignty cannot be made effectively subject to conditions without depriving it of its point; for on whom could be conferred the authority to judge whether such conditions had been violated? If on the individual subjects, no one individual could rely on the submission of any other.

If on the sovereign, the conditions themselves would be merely formal. And there could be no independent arbiter, for any independent arbiter who could impose his ruling would himself be sovereign. Sovereignty is likewise indivisible, for if anyone had the power to mediate effectively in conflicts of authority, he would be sovereign.

Statute of Westminster

The united strength of all is therefore the sovereign’s to use as he thinks fit. His duties under God and natural law are strictly God’s business. The subject, having freely surrendered the right to interpret the law of nature for himself, must accept the sovereign’s pronouncements on what is right and wrong.

He could, however, be under no obligation to take his own life or to submit willingly if the sovereign should seek to kill him. Both commitments would be unnatural, being contrary to the supreme end, which is to avoid sudden death; and having no sanction in reserve, the sovereign would have no way of enforcing either obligation.

 The sovereign remains one only so long as “the power lasteth, by which he is able to protect” his subjects. The purpose of submission is protection; protection requires overwhelming power; so overwhelming power is the actual condition for supreme authority. Conversely, supreme authority, brooking no rivals, commanding the power of everyone, wields supreme power.

supreme end

Further, natural law enjoins us to keep our covenants, above all the covenant establishing the civil order. In its concrete political expression, natural law is identical with the command of the sovereign and therefore with the civil law. So the sovereign authority is also the supreme moral authority.

John Austin and the Imperative Theory of Law

The imperative theory of law expounded by Hobbes was developed by Jeremy Bentham to disarm opponents of legal reform who treated natural law and morality as built-in justifications of the unreformed common law. For if, as Bentham argued, law were simply whatever the sovereign commanded, or, in the case of the common law, what he chose not to rescind, then it might be reformed by command in accordance with rational principles of utility.

In the hands of Bentham’s disciple John Austin the theory of sovereignty became a tool for juristic analysis. “Law properly so-called” was distinguished from rules of other kinds as a “rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

John Austin

Within any legal system there must be one supreme power, “a determinate human superior, not in a habit of obedience to a like superior (receiving) habitual obedience from the bulk of the society” (Province). His will was the ultimate validating principle of law; otherwise the quest for validity would lead to an infinite regress. Austin avoided it by resting sovereignty on the sociological fact of obedience.

The English Parliament, which is subject to legal limitation or restraint by no other authority is, prima facie, the paradigm of a sovereign legislature. Yet if its will is law, that is because law makes it so. Moreover, it is the law that defines the conditions for determining what that will is.

For an institution has a will only by analogy; it is constituted by the decisions of individuals playing roles defined by rules. A change in the rules might change the will, though the individual decisions remained the same. Austin himself falters, admitting that to identify the members of the sovereign Parliament would require a knowledge of the British constitution.

supreme power

Habitual obedience, in short, may be rendered not to determinate individuals but to an institution, which is a legal creation. In the United States supreme legislative authority rests in the constitutional amending organ—composed of the two houses of Congress, each acting by a two-thirds majority, plus three-quarters of the states, acting through their legislatures or by conventions.

So complex, discontinuous, and impersonal an authority cannot enjoy habitual obedience; its authority, like its very being, presupposes the law. To say that the law is what it commands, simply because it is formally competent to annul any rule, is to use “command” in a very strained sense.

In any case, there could be a constitution without an amending organ that nevertheless could allocate areas of competence to a number of organs. All authorities would then be limited. If one could still speak of sovereignty, it would be divided among them, with no “determinate human superior”; each would be supreme in its own sphere. The notion that sovereignty must be indivisible and omnicompetent is a corollary, then, of the false theory that every law is an enforceable command.

omnicompetent

Federal states retain their character not because their component institutions obey a sovereign authority able to enforce its will but because there is a general disposition to conform to accepted rules and in cases of dispute to accept the arbitration of the courts. The latter, however, being formally incompetent to legislate, cannot themselves be the requisite Austinian common superior.

The imperative theory was in part an attempt to determine the conditions that a legal system must satisfy if rules valid within the system are to be identifiable and conflicts of rules resolved. An alternative answer, however, is that every system must have what Hans Kelsen called a Grundnorm (a basic law), which is “the supreme reason of validity of the whole legal order” and which gives it its systematic unity. In these schematic analyses of legal systems, the basic law (usually a constitution) and the Austinian sovereign have very similar functions.

Some writers indeed have transferred the concept of sovereignty from rulers to constitutions, thus abandoning the imperative theory. This either leaves a purely structural analysis of a legal order or it substitutes for Austin’s “habitual obedience” respect for the constitution as the sociological starting point.

Jeremy Bentham

Sovereignty and Political Power

As Austinian analyses of sovereignty became metalegal and remote from political facts, attempts were made to split, not indeed the sovereign, but the concept of sovereignty into two types: legal and political (or practical).

The first would be attributable to the supreme legislature; the second to the class or body in the society that “could make [its] will prevail whether with or against the law” (James Bryce) or “the will of which is ultimately obeyed by the citizens” (A. V. Dicey). In a democracy this would normally be the people, or the electorate.

The notion of sovereignty as supreme power in the latter sense, however, suggests certain problems. First, one must generally take account not only of what one can do by oneself but also of other people’s possible resistance or cooperation.

Sovereignty and Political Power

No one can ever do just what he wants; even the supreme army commander must keep the troops loyal. Every social choice is between only those alternatives that the powers of other men leave open. Political decisions reflect not only actual pressures but also those that might be anticipated were things decided differently.

Again, a group may exercise very great power in that policy sphere in which it has an interest as a group; but in others its members’ interests may be diverse and conflicting, and there may be quite different configurations of interests and pressures.

This does not mean that there could never be a particular group strong enough to get its way regardless of counterpressures, and with group interests spanning most of the important areas of policy. Even so, many political scientists see decisions emerging not from the domination of any one particular will or group interest but rather from an interplay of interests and pressures.

group interests

In their view, the concept of supreme power simply suggests the wrong model. At best the concept would mean that in the search for explanations one need not look outside the internal politics of the supreme group; other groups could safely be ignored.

Sovereignty as Moral Supremacy: Rousseau

The transposition of the concept of sovereignty from the context of seventeenth-century and eighteenth-century despotisms to the modern, popularly based state accounts for many of the perplexing features of the concept. The sovereign was then a king by divine right who at his strongest was subject to very few restraints and no legal limitations and to whom, it was said, his subjects owed unconditional obedience as a moral and religious duty.

James Bryce

Jean-Jacques Rousseau shifted sovereignty from the king to the people, which was now to exercise supreme power, somewhat paradoxically, over itself. For Rousseau, the citizens of a state had put themselves freely but unconditionally “under the supreme direction of the general will.”

And he radically altered the emphasis of the old doctrine that the people is the source of supreme authority by suggesting that the general will would be authentic and binding only if every citizen participated equally in expressing it. Moreover, since its object was the common good, there could be no higher claim on the citizen; he realized his own highest ends in total submission to it.

Sovereignty as Moral Supremacy

As a legislating participant and a beneficiary of the moral order sustained by the general will, he attained freedom, not in the unrestricted slavery of impulse and appetite, but in obedience to a moral law that he prescribed to himself. It is true that Rousseau did not identify the will of all with the general will.

The latter would be expressed only if the citizens addressed themselves to the question Wherein does the common good lie?, not to the question What would suit me personally? Democracy, too, can be corrupt, and the state in decay.

Rousseau

From Rousseau on, to ascribe sovereignty to the people was not (or not only) to state a political fact or a legal theory but to make a moral claim. Moreover, Rousseau reshaped the whole conceptual order of politics when he wrote that “the public person” created by the act of political association “is called by its members State when passive, Sovereign when active, and Power when compared with others like itself.

Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the state” (Social Contract, Bk. I, Ch. 7).

selfish sectional interests

It was the citizen, not the king, who might say, henceforth, L’état, c’est moi. Consequently, the object of the state, if not corrupted by tyrants or by selfish sectional interests, was a good in which all its members might participate on terms of justice and equality. Its sovereignty amounted to a claim to override, in the name of the public interest, all lesser associations and interests.

The State of Hegelian Idealism

Rousseau was hostile to sectional associations as rivals to the general will; G. W. F. Hegel accepted them as partial expressions of, or vehicles for, the more inclusive Idea that was the state. The state’s sovereignty lay in its moral preeminence over all other forms of human association. As the highest stage in the moral evolution of man, the state embodied concretely, as a living institution, man’s autonomous, rational will.

A. V. Dicey

Man progressed dialectically through the conflict of states, the most vigorous and forward-looking state taking the leadership of humanity from the aging and debilitated and setting its own mark on a new age. The state was sovereign, therefore, in its relations with other states because it owed them nothing; its highest moral commitment was to its own survival as the agent of history, which alone could judge its works.

CRITICS. The Hegelian view of sovereignty was challenged early in the twentieth century by political and legal theorists and historians, such as Otto von Gierke, Hugo Krabbe, Léon Duguit, F.W. Maitland, J. N. Figgis, and H. J. Laski.

The State of Hegelian Idealism

They substituted a pluralistic for the monistic model of the state. They held that state and society must be distinguished; that society is made up of many associations, each serving its own range of human needs and interests.

They denied that the state’s moral purpose, whether ideal or actual, gives it a special claim on the allegiance of its members, overriding the churches’ claim on those of them who are believers, or the unions’ on those of them who are workers.

special claim

In a given situation, a church might mean even more to believers than the state. Moreover, the suggestion that the corporate legal status and existence of associations depends on state recognition was vigorously repudiated. Associations came into existence to fulfill needs the state could not satisfy.

According to Duguit, the existence and corporate rights of associations and, indeed, law itself were social facts that the state simply registered; it did not create them. According to Figgis and Laski, the state’s claim to regulate the constitutions, aims, and internal relations of other associations was an invasion of their corporate moral autonomy.

Hugo Krabbe

Each was strictly sovereign in its own sphere. The pluralists conceded that the state must continue, but as an umpire, maintaining the minimal conditions of order, determining conflicts of jurisdiction, and protecting members of one association from the encroachments of another.

Hobbes would certainly have interpreted this as an admission of the need for a single sovereign authority; for as arbiter, the state must have the power to judge what is an encroachment and therefore the powers of review and disallowance.

F.W. Maitland

Enjoying an overriding authority, the state could not be merely one among others. Despite Duguit, the law must ultimately be determined by state officials. For Kelsen, who identified state and law, corporations are necessarily subsystems within the state system, since their rules have legal effect only by the state’s extending recognition to them.

But, of course, the same could conceivably be said, in reverse, of other associations. For instance, the state could just as well be seen from a religious standpoint as encapsulated within the greater religious and moral order sustained by the church.

religious standpoint