“Law has a sovereign authority and there cannot be a law without sovereign authority.”-illustrate & explain
Introduction
Historically, the concept of law enforcement and sovereignty has been interrelated. Law, as it is, is the command of the Sovereign. It means:
Ø Law has its source in sovereign authority,
Ø Law is accompanied by sanctions, and
Ø 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 the quality of having ultimate, independent authority over a geographic area, such as a territory[1]. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided. In theoretical terms, the idea of “sovereignty”, historically, from Socrates to Thomas Hobbes, has always necessitated a moral imperative on the entity exercising it.
A Constitution of a country is a set of written rules which will say how the government should go about operating the country. It gives the government the power to make amendments and modify things around the country.
“The concept of constitution is concerned with the role and powers of the institutions within the state and the relationship between the citizen and the state.”
“Constitution is something which gives legitimacy to the government and defining the powers under which a government may act.”
Discussion and Classifications:
Sovereignty can be both internal and external.
Internal sovereignty describes the relationship between a sovereign power and the subjects of that power. A nation is said to have internal sovereignty, only when it has a democratic government that was elected by the general people and has the popular legitimacy. Internal sovereignty shows how effectively the internal affairs of a state are managed and thus, is very important for maintaining peace and order inside a country.
External Sovereignty refers to the relationship between a sovereign power and other nations. External sovereignty brings upon the questions relevant to international law, that is, under what conditions, if ever, intervention by one country into another’s territory, is allowed. Moreover there are several criterions by which other states recognize a political entity as having sovereignty over a specific territory. The criterions are:
1. There must be a clearly defined piece of land
2. There must be people
3. There must be a government
The sovereignty of the state may be viewed from two points of view i.e., Legal Sovereignty and Political Sovereignty. Legal sovereignty represents the lawyer’s conception of sovereignty. It is related with the supreme law-making authority in the state.
The body which has the power to issue final commands in the form of laws is the legal sovereign in a state. This power may be vested in one person or a specified group of people. It may be a king or dictator or parliament. Under absolute monarchies, it was the king who was vested with the power of making laws.
A dictator makes laws under a dictatorship as was the case in pre-war Germany and Italy. The courts recognize only such laws as are made by a sovereign. In England, Parliament is the legal sovereign which enjoys unlimited powers of law making.
In the words of Dicey it can adjudge an infant of full age, legitimize an illegitimate child or if it thinks fit, may make a man judge in his own case. The following are the characteristics of a legal sovereign:
1. A legal sovereign is definite and determinate. It may be a person as in the case of an absolute monarchy or a body of persons as in the case of the British Parliament.
2. Legal sovereignty is definitely organized and re-organized by constitutional law.
3. Legal sovereign alone has the power to declare in legal terms the will of the state.
On the other hand, the sovereignty of the people is the political principle that the legitimacy of the state is created by the will or consent of its people, who are, after all the source of all political power. Sovereignty of the people expresses a concept and does not necessarily reflect or describe a political reality. To speak of the sovereignty of the people is to place ultimate authority in the people[2]. There are a number of ways in which sovereignty may be expressed. It may be immediate in the sense that the people make the law themselves, or mediated through representatives who are subject to election and recall; it may be ultimate in the sense that the people have a negative or veto over legislation, or it may be something much less dramatic. In short, sovereignty of the people covers various institutional possibilities. In each case, however, sovereignty of the people assumes the existence of some form of popular consent, and it is for this reason that every definition of republican government implies a theory of consent.
Although, the Constitution tells the Government of the country how to carry out rules and regulations across the nation, the Government holds the right to make amendments to the Constitutional rulebook in order to keep it updated to the modern course of time. It’s the Government’s job to make sure that the Constitutional laws are up to date with the modern culture and regulations in order for it to be properly applicable. The Constitutional law also must allow for timely revision when the underlying social and political circumstances have changed. The world keeps moving forward, bringing about changes at every step of the way, hence the Constitutional law must walk hand in hand with the passage of time in order for it to be fully effective on the country’s policies.
The statement saying, “Law has a sovereign authority and there cannot be a law without sovereign authority”, suggests that, the regular people make the Constitution itself. This statement is true in its sense that, the citizens of a democratic country are the people who cast their votes for a particular party/group to be elected as the governing body of the country. Once a governing body is elected through the voting system of the country, it is the government’s job to look into the Constitution and make sure that it is up to date, and if it is written with reasonable clarity to avoid any form of unfair enforcement. Hence, according to the statement, it implies that it is the general people who are electing a particular government are the ones indirectly enforcing the Constitution of the country.
In a democratic country such as Bangladesh, the government is elected according to the maximum number of people voting for a particular party. They cast their votes on the basis that the particular party will carry out some specific tasks that they promise, which will benefit the people of the country. Hence, the votes are the individual decisions of people who believe that the party in question will be able to implement proper constitutional rules and regulations in order to maintain peace and prosperity in the country.[3]
Although, at the same time, the Government that gets elected does not always change everything, or anything for that matter, from the Constitutional law if they deem that the law is fine the way it already is. It is not possible for the government to fulfill the needs of each and every individual in the country, as such, they tend to prioritize upon the needs of the many compared to those of the few. In such cases, there will be some desires which will remain unfulfilled. If such cases occur, the argument may arise stating that the sovereignty of the Constitution does not lie with the people, but contradictory to the fact that the government works for the benefit for the society as a whole, and not just individuals, the statement declaring that the sovereignty lies with the people holds firm and strong.
The constitutional law must aim to bring equality among all the people under the government’s jurisdiction. The rule of law says that every person in the society, irrespective of their status and rank in the society should be subjected to law. The law holds the same for everyone and no one is to be treated any differently. The emphasis on the rule of law is used as a yardstick for measuring both the extent to which government acts under the law and the extent to which individual rights are recognized and protected by the law.
The rule of law is the ultimate justification for the existence of a legitimate political system. It is a necessary ingredient to provide a governmental system with a moral justification of its laws. The rule of law is a system that has been designed to protect the rights of the citizens of the people from any misuse of government power. As a result, the foundation of the rule of law is such strong that there is no room for any sort of discrimination as it is the same for everyone in the society. Although, there are a certain few exceptions to the practice of the rule of law when it comes to people with Diplomatic Immunity; High Court Judges; Parliament Privilege; Special Powers; Homosexuality.
In a democratic country, in which everyone has an equal say towards all the decisions that the government makes which might affect the lives of the people, the government needs to make sure that the constitution does not have any flaws in the rules and regulations. As every person needs to be treated equally, it must be made sure that people do not get the opportunity to raise questions concerning any kind of discrimination in the effectiveness of the law from one person to another.
There are several varieties of democracy, some of which provide better representation and more freedom for their citizens than others. However, if any democracy is not structured so as to prohibit the government from excluding the people from the legislative process, or any branch of government from altering the separation of powers in its own favor, then a branch of the system can accumulate too much power and destroy the democracy, while ruining the sovereignty of the legal system as well.
The government of a country is usually selected on the basis of the “majority wins” rule in which case, the most number of people who had voted for a particular party will make that party win. However, the needs of the minority should not be oppressed by the majority, or the government per say, as the opinions of both the majority and minority is what makes the country as a whole. An important factor that comes into play during such times is the competitiveness of the elections that are held. That way, people get know decide on who the better leader can be for the country. On the other hand, the political parties also need to have the freedom of political expression, freedom of speech, and the freedom of media coverage so that the people across the country are well informed about the political parties standing for the election and then they can vote in accordance to their best interest as they see them to be.
CONCLUSION
Hence, as stated before, the Constitution is the ancestor of the government and the government is just a mere creature of a Constitution. The government must abide by the laws written in the Constitution, albeit, the government reserves the right to make any necessary changes needed to the Constitutional laws.
As sovereignty lies within the people and the constitution declares it, it means that the law in a sovereign authority exists for protecting the rights of the people of that country. It also implies that no one is above the law, irrespective of power, position, wealth, race, gender or social class. Therefore, to conclude, since command of authority can only come through a sovereign authority, no law in any nation can exist without having an appropriate sovereign authority.
Bibliography
Barak, Aharon. The judge in a democracy. Princeton, N.J.: Princeton University Press, 2006.
Cole, John Young, Henry Hope Reed, and Herbert Small. The Library of Congress: the art and architecture of the Thomas Jefferson Building. New York: Norton, 1997.
Nicaea and sovereignty: Constantine’s Council of Nicaea as an important crossroad in the development of European state sovereignty. Canada: University of British Columbia, 2011.
McKean, Erin. The new Oxford American dictionary. 2nd Ed. New York, N.Y.: Oxford University Press, 2005.
Thomson, Janice E..Mercenaries, pirates, and sovereigns: state-building and extraterritorial violence in early modern Europe. Princeton, N.J.: Princeton University Press, 1994.
[1] “sovereignty (politics)”. Britannica Online Encyclopedia. Retrieved 5 August 2010.
[2] Bateman, C.G. (February 15, 2011). Nicaea and Sovereignty: Constantine’s Council of Nicaea as an Important Crossroad in the Development of European State Sovereignty. University of British Columbia. pp. 54–91
[3] A. Barak, The Judge in a Democracy, Princeton University Press, 2006, p. 40, ISBN 069112017X,Google Books link