“Law has a sovereign authority and there cannot be a law without sovereign authority”
Introduction:
The explanation of law indicates that law has a sovereign authority and there cannot be any law without the sovereign authority. It is clear indication that law is imposed by the highest authority of any country to control the human and social rights for the betterment of living people (Sovereign, n.d.). The history of law also indicates that there is a superior power or the state is the authority to impose the law on human behavior. If there is no sovereign authority law cannot be impose or there will be no law.
History of sovereign authority:
There is no single criterion that makes a country sovereign, but sovereignty in the modern world usually refers to a government’s ability to enforce laws over territory. The concept of sovereignty has been debated over the ages and no well accepted definition has since emerged. There is a difference between legal and actual sovereignty, but governments that are able to effectively enforce laws typically claim to be sovereign and are recognized by foreign countries as sovereign.
Other early modern philosophers, of course, espoused the doctrine of sovereignty explicitly, and are thus more familiarly associated with it. French philosopher Jean Bodin was the first European philosopher to treat the concept extensively. His concept of souveraineté featured as a central concept in his work, De la république, which he wrote in 1576, during a time when France was sundered by civil war between Calvinist Huguenots and the Catholic monarchy. He viewed the problem of order as central and did not think that it could be solved through outdated medieval notions of a segmented society, but only through a concept in which rulers and ruled were integrated into a single, unitary body politic that was above any other human law, and was in fact the source of human law. This concept was sovereignty. Only a supreme authority within a territory could strengthen a fractured community (Bodin, n.d.).
The English philosopher Thomas Hobbes also wrote during a time of civil war and also arrived at the notion of sovereignty as a solution. For Hobbes, the people established sovereign authority through a contract in which they transferred all of their rights to the Leviathan, which represented the abstract notion of the state. The will of the Leviathan reigned supreme and represented the will of all those who had alienated their rights to it. Like Bodin’s sovereign, Hobbes’ Leviathan was above the law, a mortal god unbound by any constitution or contractual obligations with any external party. Like Bodin, Hobbes also thought the sovereign to be accountable to God and most likely to the natural law in some form. Otherwise, though, law was the command of the sovereign ruler, emanating from his will, and the obligation to obey it absolute (Hobbes, 1651).
Both Bodin and Hobbes argued for sovereignty as supreme authority. The concept continues to prevail as the presumption of political rule in states throughout the globe today, including ones where the sovereign body of law institutes limited government and civil rights for individuals. Over the centuries, new notions of the holders of sovereignty have evolved. Rousseau, far different from Bodin or Hobbes, saw the collective people within a state as the sovereign, ruling through their general will. In constitutional government, it is the people ruling through a body of law that is sovereign. That is the version that commands legitimacy most commonly in the world today.
Sovereignty can be internal or external.
Internal:
Internal sovereignty is the relationship between a sovereign power and its object. A state that has internal sovereignty is one with a government that has been elected by the people and has the popular legitimacy (Lauri, 2001). Internal sovereignty examines the internal affairs of a state and how it operates. It is important to have strong internal sovereignty in relation to keeping order and peace.
External:
External sovereignty concerns the relationship between a sovereign power and other states. For example, the United Kingdom uses the following criterion when deciding under what conditions other states recognize a political entity as having sovereignty over some territory (Pogge, 1992). External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country onto another’s territory permissible?
The legitimate authority of international law:
International law rules and the rule of international law imply authority over its subjects. International law’s authority is justified or legitimate, however, only if it has ‘the right to rule’, i.e., the right to create duties to obey on the part of its subjects.
Sovereign states are the primary subjects of binding international law norms. Interestingly, one of the main challenges to the legitimacy of international law is that it allegedly fails to respect the sovereignty of states, intruding upon domains in which they should be free to make their own decisions. By analogy to individual autonomy, state sovereignty is often understood in international law as a competence, immunity, or power, and in particular as the power to make autonomous choices (so-called sovereign autonomy). Just as the legitimate authority of domestic law is often opposed to individual autonomy, the legitimate authority of international law is taken to contradict state sovereignty.
Legitimate authority and sovereign independence:
Interestingly, even when the conditions for the legitimate authority of international law over sovereign states are fulfilled, there could still be some matters over which it is more important for a sovereign state to be able to decide independently. This is by analogy to what applies to individuals: it is important that, in some cases at least, a person reaches and acts on her own decision, rather than take a putative authority’s directives as binding, even if doing the latter would result in decisions that, in other respects, better conform to reason.
In general, it is difficult, however, to distinguish those cases from cases where legitimate authority can apply, the incompatibility being at the most contingent and relative to certain circumstances. The contingency of the independence condition is even more clearly the case in international law. If states are deemed officials both qua law-makers and qua proxy-subjects of authority in the international legal order, their independence, as Waldron argues, cannot simply be equated with that of any of their domestic legal subjects. It is the product of those subjects’ autonomy as a political entity and the value of that autonomy itself which depends on that of the individuals of which it is constituted.
Considered in both its internal and external dimensions, a state’s sovereign autonomy is, says Waldron, a legal construct, not something the value of which is to be assumed as a first principle of normative analysis. In its internal dimension, the state works as a legal organization – it is the outcome of organizing certain rules of public life in a particular way. Its sovereignty is artificial and it is legally constructed for the benefit of those whose internal interests it protects. In its external dimension, the sovereignty and the sovereign autonomy of the individual state are equally artifacts of law. What a state’s sovereignty is and what it amounts to is not given as a matter of the intrinsic value of its individuality, but determined by the rules of the international legal order. Those rules define state sovereignty so as to protect the internal and external interests and values of a given political community qua sovereign equal to others, but also to protect the interests of their subjects.
State, Sovereignty and the constitution:
To become a state there must be three criteria to be fulfilled-
i. There must be piece of land
ii. Certain number of people
iii. There must be a government
Government is the representative of people of the state and runs the country according to the constitution. Whereas constitution is a set of essential rules according which the state is governed. Sovereignty lies in the constitution of a nation and the political power of the state becomes the authority may generally legislate on all matters within their territorial jurisdiction.
This “police power” does not arise from the constitution, but is an inherent attribute of the states’ territorial sovereignty. The constitution does, however, provide certain specific limitations on that power. For instance, a state is relatively limited in its authority regarding the regulation of foreign imports and exports or the conduct of foreign affairs. Further, states must respect the decisions of court of other states, and are limited in their ability to vary their territory without congressional permission. In addition, the Supreme Court has found that states are limited in their ability to burden interstate commerce.
It is not sufficient that the assembled people should have once fixed the constitution of the State by giving their sanction to a body of laws; it is not sufficient that they should have established a perpetual government, or that they should have once for all provided for the election of magistrates. Besides the extra ordinary assemblies which nothing can abolish or prorogue; so that, on the appointed day, the people are rightfully convoked by the law, without needing for that purpose any formal command.
Sovereignty and the Modern state:
There are a number of generic characteristics common to all modern states, such as:
· A defined and internationally recognized geographical territory
· Universal and compulsory jurisdiction within specifically recognized territorial bounds
· A legitimate monopoly of force or violence
H. Spruyt summarized the basic characteristics of pre-modern social formations in Western Europe as a ‘a fragmentation of political authority’ with ‘public power in private hands, and a military system in which an essential part of the armed forces is secured through private contracts’ (Spruyt, 1994)[1].
Sovereign authority, Law and people:
As sovereignty lies with about people and the constitution declares it, which means the sovereign authority is for the people’s rights and any law can’t violate human rights of the people of a country. The government is the representative of people of the country to dictate the people in a right way of constitution.
How the Sovereignty authority maintains itself:
If we went back to the earliest history of nations, we should find that most ancient governments, even those of monarchical form, such as the Macedonian and the Frankish, had similar councils. In any case, the one incontestable fact I have given is an answer to all difficulties; it is good logic to reason from the actual to the possible.
IT is not enough for the assembled people to have once fixed the constitution of the State by giving its sanction to a body of law; it is not enough for it to have set up a perpetual government, or provided once for all for the election of magistrates (Philpott, 2001). Besides the extraordinary assemblies unforeseen circumstances may demand, there must be fixed periodical assemblies which cannot be abrogated or prorogued, so that on the proper day the people is legitimately called together by law, without need of any formal summoning.
But, apart from these assemblies authorized by their date alone, every assembly of the people not summoned by the magistrates appointed for that purpose, and in accordance with the prescribed forms, should be regarded as unlawful, and all its acts as null and void, because the command to assemble should itself proceed from the law.
The greater or less frequency with which lawful assemblies should occur depends on so many considerations that no exact rules about them can be given. It can only be said generally that the stronger the government the more often should the Sovereign show itself.
Law and arbitrary use of power:
The government is liable for imposing the law and maintain according to the constitution of Bangladesh. “Sovereignty lays the state the highest authority of the state” (Pogge, 1992). Now the question is can the government violate the power? According to Bangladesh constitution “the people” are the highest authority of the country as same as the U.S.A. The British authority lies in the queen of parliament. Now the people of Bangladesh votes for the government and they make any kind of change needed as per the need of people. An authority or governments must not misuse the power for their own will. Law refrains them from using the arbitrary power, because the sovereign power or authority is the people of the country.
Conclusion:
Sovereign authority is the absolute power of the nation which regulates law. If there is no sovereign authority law cannot be imposed. The law is sourced by the sovereign and it is the command of authority. So there cannot be any law without sovereign authority.
References:
Bodin J. n.d, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, edited and trans.by Julian H. Franklin (Cambridge: Cambridge University Press, 1992) 1.
Hobbes T., 1651. Leviathan, Harmondsworth, UK: Penguin, 1968.
James A., 1999. The Practice of Sovereign Statehood in Contemporary International Society,Political Studies, 47(3): 457–473.
Lauri 2003. Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR. M. Nijhoff Publishers. p. 193. ISBN 9041121773.
Osiander A., n.d.. Sovereignty, International Relations, and the Westphalian Myth, International Organization Vol. 55 No. 2 (Spring 2001), pp. 251–287.
Pogge, T., 1992. Cosmopolitanism and Sovereignty, Ethics, 103: 48–75.
Philpott, D., 2001. Revolutions in Sovereignty: How Ideas Shaped Modern International Relations, Princeton, NJ: Princeton University Press.
Spruyt, H., 1994. The Sovereign State and Its Competitors, Princeton, NJ: Princeton University Press.
Laweyer and justice web blog. Retrieved February 07, 2013, Retrieved from https://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics/law-sovereign-authority-law-sovereign-authority/
[1]Spruyt, H., 1994. The Sovereign State and Its Competitors, Princeton, NJ: Princeton University Press.