Discuss the Law and the State which law is the Supreme authority
Discuss the Law and the State which law is the Supreme authority
The Concept of Law
Law, as it is, is the command of the Sovereign. It means,
1) law has its source in sovereign authority,
2) law is accompanied by sanctions, and
3) The command to be a law should compel a course of conduct. Being a command the law must flow from a determinate person or group of persons with the threat of displeasure if it is not obeyed.
Sovereignty is, however, only a part of the state. So, in ultimate sense, law emanates from the state. Thus the term Law is used to denote rules of conduct organized society have to follow certain common rules, otherwise peaceful living is impossible. It is the function of the State to enforce these rules.
Definition of Law by Various Personalities
“Law is the body of principles recognized and applied by the State in the administration of justice.’
“Law is that portion of the established habit and though of mankind which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government” This definition is practically the same as that of Holland.
Law is, “a rule of external human action enforced by the sovereign political authority”. From this definition it follows that there are three essential characteristics of law.
1. Law is a rule relating to the actions of human beings.
2. Law attempts to regulate the external actions of human beings.
3. Law is enforced by the State
Anson observes as follows: ‘The object of Law is Order, and the result of Order is that men are enabled to look ahead with some sort of security as to the future. Although human action cannot be reduced to the uniformities of nature, men have yet endeavored to reproduce by Law something approaching to this uniformity’.
Rule of Law
The rule of law is essential in any society where human rights are to be protected. It acts as a safeguard for human rights by two ways; firstly by guaranteeing them legally and secondly providing a means for redressed where violations occur. Punishments given in such cases also serve a as deterrent against further abuse.
In the draft manifesto for the rule of law with which JUSTICE launched its 50th anniversary year, seven principles are identified to be upheld:
· adherence to the rule of law as a cornerstone of domestic and foreign policy;
· a right of equality for all before and under the law;
· a right of access to justice for all;
· protection for due process and the right to a fair trial;
· independence of the judiciary and legal profession;
· greater powers of Parliamentary scrutiny;
· greater protection for the rights of individuals within the European Union.
The main distinction among “rule by law” and “rule of law” is important to understand. Under the rule “by” law, law is a tool of the government, and the government is superior by law. Under the rule “of” law, no one is superior to law, including the government as well. The foundation of “rule of law” is an independent legal order. Here the power of law does not depend so much on law’s influential capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and divides from other normative makeup such as politics and religion. As an independent legal order, rule of law has at least three meanings which are- it is a regulator of government power and secondly, equality before law & last procedural and formal justice.
The Concept of Sovereign Authority
Sovereignty is an entity whose actions have the legal force, and in whom resides the ultimate power to lay down, modify, and rescind the laws of the land. It is also called sovereign power.
Sovereignty also has a core meaning, supreme authority within a territory. It is a modern term of political authority. Historical variants can be understood along three dimensions — the holder of sovereignty, the absoluteness of sovereignty, and the internal and external dimensions of sovereignty. The state is the political institution in which sovereignty is embodied. Assembling states forms a sovereign states system.
The history of sovereignty can be understood through two broad movements showed in both practical institutions and political thought. The first is the development of a system of sovereign states at the Peace of Westphalia in 1648. Sovereignty became prominent in political thought through the writings of Machiavelli, Luther, Bodin, and Hobbes. The second movement is the circumscription of the sovereign state, which came to practice after World War II and has since continued through European integration and the growth and strengthening of laws and practices to protect human rights. The most prominent political thought occurs in the critical writers of sovereignty like Bertrand de Jouvenel and Jacques Maritain.
Law and Sovereignty
Bodin defined sovereignty as the ‘absolute and perpetual power of a commonwealth’. He thought that the power of the state had to be embodied in the prince or other appointed leader and had to be single, unlimited and absolute. Most legal and political philosophers now agree that these theories of sovereignty are all failures. They are certainly descriptive failures which fail to capture the fluidity and elusiveness of political power, which was as true in the early modern period as it is today. The classic theories of sovereignty are more vividly normative failures. Modern political theories, believe instead that all citizens ought to share equal rights and responsibilities and that the people appointed to offices of power are bound to respect the same rights.
Sovereignty idea continues to inform at least parts of the theory of law. Lawyers use expressions such as ‘popular sovereignty’, ‘parliamentary sovereignty’ and ‘national sovereignty’. These terms are central to constitutional law in many jurisdictions. Sovereignty still marks something like the unlimited power of a parliament, a people or a nation, an idea which is distinct from other, more ordinary, manifestations of power, such as the powers of a local authority or a magistrate.
The Law and the State/The Supreme Political Superior
In Thomas Hobbes’ and John Austin’s legal positivism, the state is perceived as the creator and enforcer of the law who is vested with the power to “inflict an evil or pain in case its desire is disregarded”. The law is the expression of the will of the state laying down the rules of action upheld by force. This does not mean that the state can do no wrong in the expression and enforcement of its will even if a wrong is done by the state, no right can be claimed against it. The exercise of the will of the supreme political superior by the government is not absolute. The majority members of the society may blunt, curb, or even deny by response the adverse governmental challenges when there is a deliberate and unrelenting disregard of the will of the supreme political superior in the exercise of governmental powers,
Two ways of manifesting the popular response of the people can be stated. Firstly by an electoral response (peaceable type), Electoral responses are set not too far apart nor too close to each other. The second type is the revolutionary response (uprooting type). The second type is not easily provoked. It happens only in situations or circumstances in which the people are having special difficulty and arouses them to engage in this kind of response in order to check and contain the excesses in the exercise by the government of the powers delegated to it. Depending on the intensity or graveness of the governmental challenge, they may decide to resort to this response or not.
State, Sovereignty and the Constitution
The three criterions of a state-
1. A piece of land is mandatory for a state
2. Certain number of people
3. A government
People appoint government as their representative and it runs the country according to the constitution. Constitution is a set of essential rules by which the state has to be governed. Constitution holds the sovereignty of a nation and the authority is given to the political power of the state.
How the Sovereign Authority Maintains Itself
The sovereign, having no other force than the legislative power, acts only through the laws; and the laws are authentic acts of the general will. The sovereign can act only when the people are assembled. Our weaknesses, vices, prejudices, contract the limitation of the possible moral things. Vile slaves smile with a mocking air at the word liberty.
The Roman Republic was a great State, and the city of Rome a great city. In Rome there were 400,000 citizens bearing arms, and the last enumeration of the Empire showed more than 4,000,000 citizens, without reckoning subjects, foreigners, women, children, and slaves in the last census.
What difficulties might not be supposed to obstruct in the way of frequently assembling the enormous population of the capital and its environs. Yet few weeks passed without the Roman people being assembled, even quite severally. Not only did they exercise the rights of sovereignty, but also as a part of the functions of government. They discussed certain affairs and judged certain causes, and in the public assembly the whole population was almost as often magistrates as citizens.
In the early times of nation’s histories, we find that the majority of the ancient governments, even monarchical ones, like those of the Macedonians and the Franks, had similar councils. It appears sound that this single incontestable fact solves all difficulties; inference from the actual to the possible.
Law and Arbitrary Use of Power
Anarchism is protected by law in a society. It is a set of rules that is established and enforced by the sovereign authority to ensure and maintain discipline and harmony in the society. Command proceeds from the supreme political authority of the state. Law helps the society, citizens to reside peacefully by setting a guideline on how to behave, act in social life and settle the conflict arising in different groups of people.
“Equality before law” and “avoiding use of power” are two important areas where the authority has to decide wisely on enforcing the law. In some cases, it can be seen that the constitution is having a conflicting position about the equity before law. For example- Bangladesh parliament gives the authority to provide indemnity to any state officer, which has a possibility to breach the equity before law because all citizens are not treated equally.
According to Bangladesh constitution, the people are the highest authority. They vote for the government and it makes changes as per necessity of people. The authority or government must not misuse the power. Arbitrary power is refrained by law from misuse because the ultimate authority lies on the people of the country.
We discussed the relation between a sovereign power and the subjects who are ruled by it. Rule of law has its own strength protecting human right, maintaining discipline, solving conflicts and establishing a harmonious society. A government should enforce those laws which will ensure these public interests.
Sovereign authority is the ultimate power of the state. No law can be imposed without a sovereign authority. The law is derived by the sovereign authority and command of authority. So, there cannot be a law without sovereign authority
Benedict Kingsbury, ‘Sovereignty and Inequality’ 9 European Journal of International Law
(1998) 599-625 and Neil MacCormick, Questioning Sovereignty (Oxford: Oxford University
Press, 1999) ch 8.
Bodin, J., 1992. On Sovereignty: Four Chapters From Six Books of the Commonwealth,
Cambridge, UK: Cambridge University Press.
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