Apart from the existence of a state and of a sovereign power within it there can be no law, Discuss

  1. 1.      INTRODUCTION:

Implementation of the law in our country becomes an issue today. Perhaps we could not realize whether the law enforcement agencies works for the citizen or treat them for the illegal power act practice. The government, the intimate part of a state rules the people to establish its norms of the political party. The rival parties engaged in the battle among them to sustain the empowerment in the government term by turn. The independent of this country comes after great sacrifice of liberation war. The lives of the general people help to earn the sovereignty of Bangladesh. But still after 4o years of independent the state is under the question of practicing sovereignty power by government and the independent practice of the law by the judicial body. We have the law in our land but that does not work for our general people. Law is only for those who have muscle and money. We could not build a law perfectly practice for us. We just forget that now we are independent, no longer under British or Pakistani. Even if we think we lost our sovereignty under direct access of foreign power we could not have any formulated policy for us. This is indeed a characteristic fear about loss of sovereignty. Can it be lost without abandoning popular self government? Can it be lost without breaking faith with democracy? Could we advance in peace and prosperity without losing popular democracy? Could the losing sovereign power threaten our judiciary? Could the independency of the judiciary or legitimacy concern over the government decision under loss of sovereignty of the state? The questions are burning issues such a way of our coexistence of all bodies; people, government, judiciary under a common system and structure of the state.

  1. 2.      THE STATE AND LAW

The existence of state depends on four individual factors such as a geographical region enclosed a determined boundary, population within that boundary, sovereignty power within it and government of that state. On the other hand law is a system of rules and regulation impose on a society to ensure peaceful circumstances. It is the command of the sovereign authority, accompanied by sanction and sources of the sovereign authority. So it is clearly observed that the existence of each body is very integrated. The law can only make for the people of a state who certainly enjoyed the sovereignty power. No external super impose power could govern the people of a state if the government of that state realize their sovereign power. So if the sovereign state is a democratic state, concern about sovereignty is apt to present itself as concern for democracy.

Once the concept of “the nation” was legitimated, the concept of “the people” became an abstraction. This was the price “the people” had to pay for declaring themselves to be “sovereign.” As Boroumand observes: “If ‘the people,’ as an objective reality, cannot be admitted to  the sphere of national sovereignty, which is a metaphysical entity par excellence, then their metamorphosis into an ideal entity allow them to participate in the logic of national sovereignty without endangering the transcendent existence of ‘the nation’ incarnated in representation.”[1] In other words, “the people” are perceived to be a manifestation of the principle of unity and indivisibility, but without any presupposition of them being composed of particular communities and distinct entities. The idea of a nation as a unitary and transcendent entity, whose unity and indivisibility are necessarily independent of any external principle, ended by reestablishing the notion of a people jusqu’à s’y substitute.


The concept of sovereignty is one of the most critical concepts in political science, with many definitions. [2]Usually, sovereignty is supreme public power, which has the right and, in theory, the capacity to impose its authority in the last instance. In other words sovereignty to the holder of legitimate power, who is recognized to have authority it? When national sovereignty is discussed, the first concept applies, and it refers in particular to independence, understood as the freedom of a collective entity to act. When popular sovereignty is discussed, the second definition applies, and sovereignty is associated with power and legitimacy.

According to Black’s Law Dictionary Sixth edition, Sovereignty is the supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.

The power to do everything in a state without accountability, –to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.

Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The necessary existence of the state and that right and power which necessarily follow is “sovereignty.” By “sovereignty” in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of “sovereignty” is will or volition as applied to political affairs.


According to Bouvier’s Law Dictionary 1856 edition, Sovereign State is one which governs itself independently of any foreign power. The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Abstractedly, sovereignty resides in the body of the nation and belongs to the people. But these powers are generally exercised by delegation. When analyzed, sovereignty is naturally divided into three great powers; namely, the legislative, the executive, and the judiciary; the first is the power to make new laws, and to correct and repeal the old; the second is the power to execute the laws both at home and abroad; and the last is the power to apply the laws to particular facts; to judge the disputes which arise among the citizens, and to punish crimes.

The Ernst Kantorowicz medievalist describes in his classic, The King’s Two Bodies (1957), a profound transformation in the concept of political authority over the course of the Middle Ages. The change began when the concept of the body of Christ evolved into a notion of two bodies — one, the corpus naturale, the consecrated host on the altar, the other, the corpus mysticum, the social body of the church with its attendant administrative structure. This latter notion — of a collective social organization having an enduring, mystical essence — would come to be transferred to political entities, the body politic. Kantorowicz then describes the emergence, in the late Middle Ages, of the concept of the king’s two bodies, vivified in Shakespeare’s Richard II and applicable to the early modern body politic. Whereas the king’s natural, mortal body would pass away with his death, he was also thought to have an enduring, supernatural one that could not be destroyed, even by assassination, for it represented the mystical dignity and justice of the body politic. The modern polity that emerged dominant in early modern Europe manifested the qualities of the collectivity that Kantorowicz described — a single, unified one, confined within territorial borders, possessing a single set of interests, ruled by an authority that was bundled into a single entity and held supremacy in advancing the interests of the polity. Though in early modern times, kings would hold this authority; later practitioners of it would include the people ruling through a constitution, nations, the Communist Party, dictators, juntas, and theocracies. The modern polity is known as the state, and the fundamental characteristic of authority within it, sovereignty.

On the international level, sovereignty means independence, i.e., noninterference by external powers in the internal affairs of another state. International norms are based on the principle of the sovereign equality of independent states; international law excludes interference and establishes universally-accepted rules. Thus, sovereignty is eminently rational, if not dialectical, since the sovereignty of a state depends not only on the autonomous will of its sovereign, but also on its standing vis-a-vis other sovereign states. From this perspective, one can say that the sovereignty of any single state is the logical consequence of the existence of several sovereign states.[3] It is thus a serious mistake to assume that sovereignty is possible only within the framework of the classic type of state, i.e., a nation-state, as do representatives of the “realist” school, such as Alan James and F. H. Hinsley, or neo-Marxist theoreticians like Justin Rosenberg.[4] One should not confuse the concepts of nation and state, which do not necessarily belong together, or assume that the concept of sovereignty was formulated clearly only in terms of the theory of the state. Closer to the truth is John Hoffman’s assertion that “sovereignty has been an insoluble problem ever since it became associated with the state.”[5] Even though a concept of sovereignty did not exist before the 16th century, it does not follow that the phenomenon did not exist in political reality, and that it could not have been conceptualized differently. For example, Aristotle does not mention sovereignty, but the fact that he insists on the necessity for a supreme power shows that he was familiar with the idea, since any supreme power — kuphian aphen with the Greeks; summum imperium with the Romans — is sovereign by definition. Sovereignty is not related to any particular form of government or to any particular political organization; on the contrary, it is inherent in any form of political authority. The problem with sovereignty appeared at the end of the Middle Ages, when the question posed was no longer only about the best form of government or the limits of political authority, but about the relation between the government and the people, i.e., the relation between ruler and ruled in a political community. This is the question that Jean Bodin (1520-1596) attempted to answer in La Republique, published in 1576.5 Bodin did not invent sovereignty, but he was the first to make a conceptual analysis of it and to propose a systematic formulation. He did not initiate this project by observing a real state, but by attempting to restore public order, which had been damaged by the religious wars, and by legitimating the emancipation of French kings from the Pope and the emperor. This is why Bodin’s doctrine naturally constituted the ideology of territorial realms seeking to gain independence from the empire, and to transform the power that had obtained in royal dominance over feudal lords.

An explicit call to revise the concept of sovereignty so as to allow for internationally sanctioned intervention arose with The Responsibility to Protect, a document written and produced in 2001 by the International Commission on Intervention and State Sovereignty, a commission that the Government of Canada convened at the behest of U.N. Secretary General Kofi Annan. The document proposes a strong revision of the classical conception by which sovereignty involves a “responsibility to protect” on the part of a state towards its own citizens, a responsibility that outsiders may assume when a state perpetrates massive injustice or cannot protect its own citizens. Responsibility to Protect has garnered wide international attention and serves as a manifesto for a concept of sovereignty that is non-absolute and conditional upon outside obligations.

Jhon H Jackson writes about the sovereignty and the allocation of power in his Sovereignty-Modern: A New Approach to an Outdated Concept that the recognizing  almost no perceptive observer or practitioner is prepared to sign on to the full import of the traditional Westphalian notion of sovereignty, what can be said in favor of modified or “evolving” sovereignty concepts?[6] Many, if not most, of the critics of the older sovereignty notions recognize, with varying degrees of support, some of the important and continuing contributions that the sovereignty concepts have made toward international discourse, stability, and peace. For example, Ambassador Richard Haass, formerly director of policy planning at the United States Department of State, noted in January 2003:

Sovereignty has been a source of stability for more than two centuries. It has fostered world order by establishing legal protections against external intervention and by offering a diplomatic foundation for the negotiation of international treaties, the formation of international organizations, and the development of international law. It has also provided a stable framework within which representative government and market economies could emerge in many nations. At the beginning of the twenty-first century, sovereignty remains an essential foundation for peace, democracy, and prosperity.[7]

As indicated at the outset of this article, sovereignty is deeply interwoven into the fabric of international law, and to abandon, wholesale, the concept of “sovereignty” requires very serious thought about a substitute that could efficiently fill the gaps left by its absence. An anecdote serves as a good introduction to this section.[8] Testifying in 1994 before a U.S. congressional committee hearing on the massive Uruguay Round trade agreement and the World Trade Organization was the well-known Ralph Nader, who opposed congressional approval of that agreement.[9] While I do not accept some of the assumptions and details of his statements, there are intriguing aspects that merit respect, including the following:

A major result of this transformation to a World Trade Organization would be to undermine citizen control and chill the ability of domestic democratic bodies to make decisions on a vast array of domestic policies from food safety to federal and state procurement to communications and foreign investment policies.

Most simply, the Uruguay Round’s provisions would preset the parameters for domestic policy-making of legislative bodies around the world by putting into place comprehensive international rules about what policy objectives a country may pursue and what means a country may use to obtain even GATT-legal objectives, all the while consistently subordinating non-commercial standards, such as health and safety, to the dictates of international trade imperatives.

Decision-making power now in the hands of citizens and their elected representatives, including the Congress, would be seriously constrained by a bureaucracy and a dispute resolution body located in Geneva, Switzerland that would operate in secret and without the guarantees of due process and citizen participation found in domestic legislative bodies and courts.[10]

This and other concerns have led me to take a somewhat different tack in the analysis of sovereignty, rejecting the older Westphalian notions, while recognizing different important aspects of sovereignty.

Broadly, one could see the “antiquated” definition of “sovereignty” that should be “relegated” as something like the notion of a nation-state’s supreme absolute power and authority over its subjects and territory, unfettered by any higher law or rule (except perhaps ethical or religious standards) unless the nation-state consents in an individual and meaningful way.

It could be characterized as the nation-state’s power to violate virgins, chop off heads, arbitrarily confiscate property, torture citizens, and engage in all sorts of other excessive and inappropriate actions. Today, no sensible person would agree that this antiquated version of sovereignty exists. A multitude of treaties and customary international law norms impose international legal constraints (at the least) that circumscribe extreme forms of arbitrary actions even against a sovereign’s own citizens.

So what does “sovereignty,” as practically used today, signify? I offer a hypothesis: most (but not all) of the time that “sovereignty” is used in current policy debates, it actually refers to questions about the allocation of power; normally “government decision-making power.”


Law is a system of rules & regulation and guidelines which are enforced through social institutions to govern behaviour. Laws are made by governments, specifically by their legislator body such as Member of Parliament in the parliamentary democratic system. The formation of laws themselves may be influenced by a constitution and the rights encoded therein. It means he 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. It is the function of the State to enforce these rules by a government.

Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.

To implement and enforce the law and provide services to the public, a government’s bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.

Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security.

Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. “In its majestic equality”, said the author Anatole France in 1894, “the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” Writing in 350 BCE, the Greek philosopher Aristotle declared, “The rule of law is better than the rule of any individual.”

In a presidential democracy, the constitution is sovereign and the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an executive who is accountable. In parliamentary systems, the legislature is sovereign and appoints one of its members as the executive (often called the prime minister). The judicial branch is under the parliament.

According to Jhon  H Jackson the legitimization in the power allocation analyze that By some important fundamental principles of legal and normative legitimization are relevant to the power allocation analysis. Arguably, almost the entire analysis of power allocation outlined in this part so far could be based on traditional sovereignty and nation-state-consent principles. The detailed questions on power allocation leave open perhaps the most important question, Who (what entity) should decide the power allocation? It is possible (and probable) that today many will say that the nation-state will decide in each case, for itself, whether it is willing to allocate “its own sovereign power” either up the scale or downward. (In the latter case certain checks are likely to be retained in the hands of the sovereign.) After all, for any treaty-based rule, it is plausible to say that each nation will decide, and if it decides to accept the treaty obligations, its consent has legitimized its obligation.

The issue of customary international law is more ambiguous, of course, and thus, often more controversial.[11]  ertainly, rather extravagant claims are frequently made about what new customary norms have come into being, as compared with the traditional international rules of such norm formation (e.g., practice plus opinio juris), which more strongly emphasize state consent. Questions arise in either case. Is the ultimate decision about allocation put in the hands of an international juridical or diplomatic institution? Does such an institution have certain biases or conflicts of interest? To pursue this line of analysis as a basis for a new allocation of power, however, may stretch some of the traditional international law concepts of state consent. Some examples of the outer limits of consent include:

(1) A nation finds that its trade or financial welfare requires it to accept a major complex treaty because most of the rest of the world has done so (e.g., via the WTO or IMF).

2) The UN or other major charter is deemed so fundamental that its interpretation of obligations (considering treaty rigidity constraints against amendment) “evolves” or is influenced by developing “practice under the agreement” in unexpected (or impossible to expect) ways. Specific decisions of the institution may “validate” this evolution, either explicitly or impliedly, although the decisions may not always be broadly accepted (or acceptable), or could in fact be “bad policy” by relatively objective standards. Elites may weigh heavily in certain of these processes, as certain special interest groups (business or no business, sometimes with single-issue objectives).

(3) Voting rules and procedures may result in anomalies that lead to decisions that do not reflect a membership as a whole. Various pressures may be placed upon voting nations through favors or “vote buying.” An individual nation-state may have no particular interest in the vote on an issue, and thus be willing to “hold out” (ransom its vote) or swap its vote on this issue for one on some completely different and irrelevant issue. The votes of many small nations may control in a situation of little interest to them. Votes of nations belonging to certain groups may be controlled or guided by single institutional mechanisms, which thereby have great weight. The European Union, for example, has fifteen (going on twenty-five) votes in the WTO, and many more that it can influence through pressures related to its association agreements.

In reflecting on the experience of many national or international human institutions, one finds there is nothing new in the examples mentioned above. What is new, however, is the degree to which these international institutional circumstances have an impact on nation-state governments trying to deliver the fruits of their important achievements to their constituents.

The other side of these considerations is that they may be outweighed by the “coordination” benefits realized through the cooperative action of international institutions. Indeed, in this context scholars and other observers have argued that the nation-states participating in such institutions have enhanced their sovereignty by leveraging it through joint action.[12]

Clearly, in some cases, however, the “state consent” theory extended in the above paragraphs will not carry the legitimization far enough to be broadly persuasive. This limitation could apply in particular to issues of humanitarian intervention (especially in cases of inaction by relevant international institutions), and potentially to some issues regarding terrorism and weapons of mass destruction. A core of cases is being recognized by world leaders and scholars as not satisfactorily solved by “consent doctrines.” This is where the sovereignty revisionist theories have teeth, and where, in this author’s opinion, confusion and uncertainty reign, and possible

“auto-determination” by overreaching unilateral nation-state decisions poses a serious risk to some traditional concepts of sovereignty, as well as to “rule-based” objectives for international relations.

  1. 6.      CONCLUSION

Law in the state means a governed entity such as country or sub-entity such as an autonomous territory of a country. So, from the above details discussion and reference of many social scientists we could understand the law is make by the people or group of the people who are determinate by the people and they implement and govern by the constitution, which is also amend by the proper authority, legislature. The law is enforced by the government of a state. And the sovereignty is that power which uses as tools to implement the law is for the people. Moreover, the sovereignty of the state is a supreme power which helps the citizen to earn the independent for betterment of mankind. So, without the existence of the state it is not thinkable to develop a concept of any law.

Sovereign power in a state gives the complete structure of a state. Without the sovereignty no nation could smell the flavour of the independent. Law by people for the people, so whenever the intimate body of the state could not be accepted by political science, we could not hope any law could be made or implement for the people correctly.


  1. Bartelson, J., 1995. A Genealogy of Sovereignty, Cambridge, UK: Cambridge University Press.
  2. Bodin, J., 1992. On Sovereignty: Four Chapters From Six Books of the Commonwealth, Cambridge, UK: Cambridge University Press.
  3. Figgis, J. N., 1907. From Gerson to Grotius 1414–1625, 2nd edition; reprinted, Cambridge, UK: Cambridge University Press, 1916.
  4. Fowler, M. R. and J. M. Bunck, 1995. Law, Power, and the Sovereign State, University Park, PA: Penn State Press.
  5. Grotius, H., 1625. The Rights of War and Peace, London: M. Walter Dunne, 1901.
  6. Hinsley, F. H., 1986. Sovereignty, second edition, Cambridge, UK: Cambridge University Press.
  7. Hobbes, T., 1651. Leviathan, Harmondsworth, UK: Penguin, 1968.
  8. International Commission on Intervention and State Sovereignty: Report. 2001. The Responsibility to Protect, International Development Research Centre Publications [Preprint available online].
  9. Alen de Benoist, What is Sovereignty? Translated by Julia Kostova from “Qu’est-ce que la souveraineté? in Éléments, No. 96 (November 1999), pp. 24-35.
  10. Neil MacCormick, Sovereignty: Myth and Reality, Scottish Affairs, no.11, Spring 1995,
  11. John H. Jackson*, SOVEREIGNTY-MODERN: A NEW APPROACH TO AN OUTDATED CONCEPT, Hersch Lauterpacht Memorial Lectures delivered November 5, 6, & 7, 2002, at Cambridge University.

[1] Ladan Boroumand, La guerre des principes, op. cit., pp. 165-166.

[2] Cf. Charles Merriam, History of the Theory of Sovereignty since Rousseau (New York: Columbia University Press, 1900); Perry Anderson, Lineages of the Absolute State(London: New Left Books, 1974); Jens Bartelson, A Genealogy of Sovereignty (Cambridge:Cambridge University Press, 1995); Bertrand de Jouvenel, De la souveraineté(Paris: Génior, 1955); In Defense of Sovereignty, ed. by W. J. Stankiewicz (London: Oxford University Press, 1969); Joseph Camillieri and Jim Falk, The End of Sovereignty? (Aldershot: Edward Elgar, 1992); A. H. Chayes, The New Sovereignty (Cambridge: Harvard University Press, 1995); State Sovereignty as Social Construct, ed. by Thomas J. Biersteker and C. Weber (Cambridge: Cambridge University Press, 1996); Bertrand Badie, Un monde sans souveraineté. Les États entre ruse et responsabilité (Paris: Fayard, sovereignty to animals (“Ecology and Animal Rights. Is Sovereignty Anthropocentric?” in Laura Brace and John Hoffman, eds., Reclaiming Sovereignty [London: Pinter, 1997]).




[3] This is the starting point of the debate between the classic “realist” school, which defines sovereignty as “centralized power, exercising its authority over a territory” (Hans J. Morgenthau, Politics among Nations. The Struggle for Power and Peace (New

York: Alfred A. Knopf, 1948)), and the so-called “dependalist” school.

[4] Alan James, Sovereign Statehood (London: Allen & Unwin, 1986); F. H. Hinsley, Sovereignty (Cambridge: Cambridge University Press, 1986); Justin Rosenberg, The Empire of Civil Society (London: Verso, 1994).

[5] John Hoffman, Sovereignty (Buckingham: Open University Press, 1998), and Beyond the State (Cambridge: Polity Press, 1995). See also, Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), p. 32.


[7] Haass, supra note 17, at 3.

[8] I admit that in many ways this incident considerably influenced my thinking about sovereignty. I also testified at this hearing. Jackson, The Great Sovereignty Debate, supra note 6, at 174 n.31.

[9] The Uruguay Round of the General Agreement on Tariffs and Trade: Hearing Before the Senate Comm. on Foreign Relations, 104th Cong. (1994), 1994 WL 266499.

[10] Id. (prepared statement of Ralph Nader).

[11] See, for example, the powerful criticisms of customary international law by Bradley & Goldsmith, supra note 5;Goldsmith & Posner, supra note 5; Kelly, supra note 5.

[12] Brus, supra note 9, at 18; see also ICISS, supra note 43, SUPPLEMENTARY VOLUME, at 129.