“Law has a sovereign authority and there cannot be a law without sovereign authority.” illustrate &explain
According to the definition of the law, law has a sovereign authority and there cannot be any law without the sovereign power. A nation or a state is a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength. But person that has passed under the dominion of another is no longer a state, and cannot longer avail itself directly of the law nations. The law of nation is the law of sovereigns, that is free and independent states are moral persons, whose rights and obligations we are to establish in this treatise. Law is imposed by the highest authority of any country to regulate the human and social right for the betterment of living. There is a superior power or the state is authority to impose the law on human behavior. If there is no sovereign authority law cannot be imposed or there will be no law. Law has a sovereign authority and there cannot be a law without sovereign authority. Before explanation, we have to understand about the concept of Law and Sovereign authority.
The Concept of Law:
In earlier times certain classless and individuals possesses special privileges and were judged by special law. The modern view is to apply the same law over all persons in the state and to give all persons equal rights and for the protection of their human liberties. Democracy can remain only in a society of equals.
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 the portion of the established habit and thought of mankind which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the power of government”
“Law is a rule of external human action enforced by the sovereign political authority.” From this 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 being.
3. Law is enforced by the State.
Rules regarding human conduct necessity for peaceful living as well as for progress and development. Anson observes as follows: “The object of law is Order, and the result of order is that men are enabling to look ahead with same sort of security as 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 firstly by guaranteeing them legally and secondly providing a means for redresser where violations occur. Punishments awarded in such cases also serve a as deterrent against further abuse.
The rule of law requires a respect for the processes by which laws and decisions are made. In the draft manifesto for the rule of law with which JUSTICE launched its 50th anniversary year,
Seven principles to be upheld:
1) Adherence to the rule of law as a cornerstone of domestic and foreign policy.
2) A right of equality for all before and under the law.
3) A right of access to justice for all
4) Protection for due process and the right to a fair trial
5) Independence of judiciary and legal profession
6) Greater power of Parliamentary scrutiny
7) Greater protection for the rights of individuals within the European Union.
The main distinction among “rule by law” and “rule of law” is important. Under the rule by law, law is a tool of 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 ann independent legal order. In rule of law, 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 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 meaning.
First, it is a regulator of government power, Second equality before law and last procedural and formal justice.
The concept of equality of all persons before law is the basis of what is called the Rule of Law. The rule was summarized by A. V. Dicey as follows:
The rules of law states that, “no man is punishable or can be lawfully made to suffer in body or good expect for a distinct breach of law established in the ordinary legal manner before the ordinary courts. (Dicey).
In the second place, rule of law means that, “no man is above law”. Every man whatever has rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals. “What is law legal obligation for me-most hold equally as such for all citizens? (Dicey).
In the third place, the rule of law is the result of statutes and judicial decisions determining the right of privet persons. Thus the constitutional law of country follows from the ordinary law of land.
The concept of rule of law has gradually developed through different philosophers’ like-
· Karl Marx
· Joseph Raz and
· A.V. Dicey
Sovereignty is commonly associated with Thomas Hobbes, a 15th century English philosopher. In his 1651 book Leviathan, Hobbes advocates form of exclusive, absolute monarchy to remove humans from the state of nature. Without a sovereign authority to rule over a population, people’s lives would be “nasty, brutish, and short.” Leviathan has been met much controversy over the years, but considered one of the funding works in social contract theory.
There are two different senses of sovereignty, legal sovereignty refer to the theoretical claim of a governing body to rule over its subject. These rules are typically codified in a set of law. Actual sovereignty, on the other hand, is the degree to which a governing body is actually able to control its subject. If people do not generally follow an authority that claims to be sovereign, little actual sovereignty exists.
Sovereignty is classically defined as supreme legal authority. The concept was formulated by sixteenth century legal philosopher Jean Boding and elaborated by many theorists since then. One basic controversy has been whether to trace supreme authority to the people or to a “divine digit” of rules. Another has been about the relation between legal authority and political-economic power which may influence or dominate law. The definition of sovereignty in federal Indian law partakes of both ancient controversies. An ambiguous concept from the start, surrounded by disagreement, sovereignty is perhaps most cryptic in federal Indian law. The history of sovereignty can be understood through two broad movements, manifested in both practical institutions and political thought.
The first is the development of a system of sovereign states, culminating at the peace of Westphalia in 1648. The concept of sovereignty has been discussed and debated through the history. The definition has been changed many times but the basic principles are-
· Territorial integrity
· Border inviolability
· Supremacy of the state
· A sovereign is the supreme law making authority within the jurisdiction
Sovereignty can be internal or external.
Internal: Internal sovereignty is the relationship between a sovereign power and its own subject. A state that has internal sovereignty is one with a government that has been elected by the people and has the popular legitimacy.
External: external sovereignty concerns the relationship between a sovereign power and other states. External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country onto another’s territory permissible.
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 country. The government is the representative of people of the country to dictate the people in a right way of constitution.
How the Sovereign Authority Maintains Itself
The sovereign, having no force other than the legislative power, acts only by means ot the laws; and the laws being solely the authentic acts of the general will, the sovereign cannot act save when the people is assembled. The people in assembly, I shall be told, are a more chimera. It is so to=day, but two thousand years ago it was not so. Has man’s nature changed?
The bounds of possibility, in moral matters, are less narrow then we imagine: it is our weakness, our vices and our prejudices that confine them. Base souls have bo belief in great men; vile slaves smile in mockery at the name of liberty.
Let us judge of what can be done by what has been done. I shall say nothing of the republics of ancient Greece; but the Roman republic was to my mind, a great town. The last census showed that there were in Rome four hundred thousand citizens capable of bearing arms, and the last computation of the population of the empire showed over four million citizens, excluding subjects, foreigners, women, children and slaves.
What difficulties might not be supposed to stand in the way of the frequent assemblage of the vast population of this capital and its neighborhood? Yet few weeks passed without the roman people being in assembly, and even being so several times. It exercised not only the rights of sovereignty, but also a part of those of government. It dealt with certain cases, and this would people where found in the public meeting-place hardly less often as magistrates than as citizens.
If we want back to the earliest history of nations, we should find the most ancient governments, even those of monarchical form, such as the Macedonian and Frankish, had similar councils. In any case, the one incontestable fact I have given is an answer to all difficulties; it is good logical to reason from the actual to the possible.
Law and Arbitrary Use of Power:
The government is liable for imposing the law and maintain according to the constitution of Bangladesh. Sovereignty lies with the highest authority of the state. Now the question is can the government violate the power? According to Bangladesh constitution “the people” is 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 must not misuse the power for their own will. Law are refrains them from using the arbitrary power, because the sovereign power or authority is the people of country.
It is discussed the relation between a sovereign power and the subjects who are ruled by that sovereign power. The relation between a sovereign power and the subjects… and civil laws, because it embodies the power of many individuals who have by… In which there is no sovereign authority to regulatory competing interests.
Rule of law has its own strength for protecting human right, resolving dispute and establishing a peaceful society. The helps people to feel that there is always an invisible friendly hand who act as a shield against the inequalities they face in their daily life. But it establishment is very much dependent on the sovereign authority of the state. If they fail to make the law equal to everyone, deprived citizen will then feel that law of their state is a tyranny for them. A government should enforce those laws which will go with the public interest, not for authorities’ own illegal purpose, not against the public sentiment. Because they have to know that law has a wide array of implications in every layer of the society.
Sovereign authority is the ultimate power of the state which regulates law. If there is no sovereign authority law cannot be imposed. The law is sourced by the sovereign authority and it is the command of authority. So there cannot be any law without sovereign authority.
a. Leviathan, or the Matter, from, and Power of a Common wealth, Ecclesiastical and Civil (1651) is a treatise by Thomas Hobbes (1588-1679) on the origin, nature, and forms of a commonwealth, and is an explanation of the functions of commonwealth in protecting human liberty and providing security for its people.
b. The Social Contract or Principles of Political Right.
c. Joseph C. ‘Sovereignty and the internal order” retrieved from http://science.jrank.org/pages/9931/Law-Sovereignty-International-Ordes.html
d. Wheare.K.C (1996), “Modern Constitution”. Oxford University Press.
e. Zahir.m (2009) “Eroding democratic value and constitution” retrived from www.lawinbd.com
f. Gordon. Scott (1999)”Control The State” Harvard University Press.
g. “Sovereignty Explained”(online source) retrieved from http://one-heaven-court.org/content_law_philosophy/sovereignty.asp
i. http://wwwpublishyour articles,net/eng/articles/define-law-and-discuss-the-theory-of-rule-of-law.html