“LAW HAS A SOVEREIGN AUTHORITY, THERE CAN NOT BE ANY LAW WITHOUT SOVEREIGN AUTHORITY”
The definition of law describes that law has a sovereign authority and there cannot be any law without the sovereign power. It is a clear indication that law is imposed by the highest authority of any country to regulate the human and social rights for the betterment of living. 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 imposed or there will be no law.
History of law and sovereign authority:
If we take a look at the history of law enforcement we can connect law with sovereign authority. If we take a look at the Greek history of law-The civilization of the Hellenes is our civilization. Their science, their art, and their literature are the basis of our science, art and literature. Equally are we concerned with their laws and their political economy, for here also the Hellenes have traveled the same course over which we are traveling, and have had a similar experience in jurisprudence? They had to fight the same battle which we are fighting – the never ending contest between freedom and privilege. Law and legislation were their favorite topics; and from their earliest to their latest day the statesmen and the philosophers of the heroic race were ever busily engaged in the application of the problem of human happiness in organized society.
1.”legal definition of law”, retrieved from www.lectlaw.com,2010
2. Amos, “Science of Law”,1885.
3. Chari,Murali;”The importance of law and order”,pp-154-156
They can offer us many a salutary lesson in jurisprudence and statesmanship. The mythological history is making it clear that from the very first of human existence the sovereign authority is controlling law. On the other hand as we can take a look at background of law in different nations of the world it is clear that after being a sovereign nation they could create the law as per their philosophy.
Sovereignty is classically defined as supreme legal authority. The concept was formulated by sixteenth century legal philosopher Jean Bodin and elaborated by many theorists since then. One basic controversy has been whether to trace supreme authority to the people or to a “divine right” of rulers. 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.
4. The new Oxford American Dictionary. Second ed. Erin Mckn.
5.”sovereignty”,Britannica online encyclopedia
6. retrieved from http://people.mcgill.ca/files/evan.fox-decent/FiduciaryNatureStateLegalAuthority.pdf
The first is the development of a system of sovereign states, culminating at the Peace of Westphalia in 1648. Contemporaneously, 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 began in 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 corresponding political thought occurs in the writings of critics of sovereignty like Bertrand de Juvenile and Jacques Martian.
The concept of sovereignty has been discussed and debated throughout 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.
7. Retrieved from http://plato.stanford.edu/entries/schmitt/
8. Retrieved from http://www.umass.edu/legal/derrico/sovereignty.html
9.Wilson.J.retrieved from www.rightsandwrong.com.au
Sovereignty can be internal or external.
Internal: internal sovereignty is the relationship between a sovereign power and its own subjects. A state that has internal sovereignty is one with a government that has been elected by the people and has the popular legitimacy. 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. External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country onto another’s territory permissible?
State, Sovereignty and the constitution:
To become a state there must be three criteria to be fulfilled-
? There must be piece of land
? Certain number of people
? There must be a government
10. Zahir.m”Eroding democratic values and constitution” retrieved from www.lawinbd.com
11. Retrieved from http://one-heaven-court.org/content_law_philosophy/sovereignty.asp
Government is the representative of people of the state and runs the country according to the constitution. Where as 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 courts 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 extraordinary assemblies which unforeseen events may require, it is necessary that there should be fixed and periodical ones 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 summons.
But, excepting these assemblies which are lawful by their date alone, every assembly of the people that has not been convoked by the magistrates appointed for that duty and according to the prescribed forms, ought to be regarded as unlawful and all that is done in it as invalid, because even the order to assemble ought to emanate from the law.
As for the more or less frequent meetings of the lawful assemblies, they depend on so many considerations that no precise rules can be given about them. Only it may be said generally that the more force a government has the more frequently should the sovereign display itself.
This, I shall be told, may be good for a single city; but what is to be done when the State comprises many cities? Will the sovereign authority be divided? Or must it be concentrated in a single city and render subject all the rest.
I answer that neither alternative is necessary. In the first place, the sovereign authority is simple and undivided, and we cannot divide it without destroying it. In the second place, a city, no more than a nation, can be lawfully subject to another, because the essence of the body politic consists in the union of obedience and liberty, and these words, SUBJECT and SOVEREIGN, are correlatives, the notion underlying them being expressed in the one word citizen.
I answer, further, that it is always an evil to combine several towns into a single State, and, in desiring to affect such a union, we must not flatter ourselves that we shall avoid the natural inconveniences of it. The abuses of great States cannot be brought as an objection against a man who only desires small ones. But how can small States are endowed with sufficient force to resist great ones? Just in the same way as when the Greek towns of old resisted the Great King and as more recently Holland and Switzerland have resisted the House of Austria.
If, however, the State cannot be reduced to proper limits, one resource still remains; it is not to allow any capital, but to make the government sit alternately in each town, and also to assemble in them by turns the estates of the country.
People the territory uniformly, extend the same rights everywhere, spread everywhere abundance and life; in this way the State will become at once the strongest and the best governed that may be possible. Remember that the walls of the towns are formed solely of the remains of houses in the country. For every palace that I see rising in the capital, I seem to see a whole rural district laid in ruins.
Sovereignty and the Modern State
There are a number of generic characteristics common to all modern states. As
Summarized by Raphael (1988, pp. 42-43) these are
• A defined and internationally recognized geographical territory
• Universal and compulsory jurisdiction within specifically recognized
• A legitimate monopoly of force/violence
These characteristics abstract from the historical processes in which particular
Constellations of political power gradually co-opted, disarmed and subjugated those whose interests might pose challenges to its capacity to rule. These historical processes were often bloody and violent but the net result was a modern form of sovereignty that ‘connected political authority to territory’ .The result has been that the modern state claims oversight of its own specific
Geographical area and by which it is identified, and within which its authority is accepted as legitimate and undisputed. Of interest for this paper is the third characteristic.
12. Retrieved from http://sovereignthink.wordpress.com/
13. Retrieved from http://en.wikipedia.org/wiki/Supranational_law
Whereby the ‘state is considered the sole source of the “right” to use violence’ (Weber 1957, p. 78). In Weber’s view this ‘right’ arises because the state not only creates the ‘legal order’ and ‘is regarded as its sole creator’, it also has the
means, whether ‘by virtue of mandate or permission’, namely its monopoly on the use of physical force, ‘to compel … respect for those rules’ (Weber 1968, p. 904). Of considerable importance here is the ongoing ability of the state ‘to compel … respect for the rules’, to ensure that all powers within its boundaries remain subordinate to its authority. Hence the legal, political and social order (regardless of historical specificities and particulars) and their legitimacy ultimately rest on the systematic use of violence and terror, an iceberg-like presence in everyday existence. It is this capacity that enables the state to establish and enforce both its authority and legitimacy. And beyond the state there is no higher legitimate political authority. For modern states this is the core meaning of their sovereignty. This contrasts with the idea of sovereignty and the organization of territorial space and political authority in pre-modern social formations.
This did not mean that those within reach were necessarily neighbors in a geographical sense. Political sovereignty was mostly fragmented, and often dispersed and exercised in 5 non-contiguous territories. While particular monarchs demanded political, economic and military allegiance from others less powerful than themselves such allegiances were not simply a matter of military superiority (though often this was the case) but the precarious outcomes of diplomatic and marital alliances. As Anderson has noted, [political sovereignty was shared between a wide variety of secular and religious institutions and different levels of authority—feudal knights and barons, kings and princes, guilds and cities, bishops, abbots, the papacy resulting in different levels of overlapping sovereignty [that] typically constituted nested hierarchies and people were members of higher level collectivities not directly but only by virtue of their membership in lower level bodies.
Similarly Spurt 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, p. 36).In the pre-modern period independent military forces were common. Not only did the nominal sovereigns, monarchs or princes, have their own armies, so too did other feudal powers such as nobles, churches, guilds and cities. Mercenary forces were commonplace and were often ‘the dominant armed instrument of the State’. However, by the late eighteenth and early nineteenth century mercenaries were replaced largely by standing armies.
This was a necessary concomitant of the state’s monopoly of violence that had two causally related effects. First, the creation of standing armies gave the sovereign authority greatly enhanced power over their domestic population and consequently ‘the chances of effective resistance’ to the centralizing tendencies ‘on the part of the national population declined’. Second, with the rise of standing armies the status of the professional soldier came to be bestowed on them, relegating the status of the soldier for hire to the shadowy and disreputable realm of ‘soldier of fortune’. Much more could be said about the complex transformation from pre-modern to modern sovereignty. For example, one could focus on the rise of nationalist sentiments that simultaneously created a common weal of imagined community and serving to constrain or dissipate radical, largely working class, attempts to democratize sovereign authority. Or one could emphasize the role of the state as a ‘moral regulator’ that ‘“regulates” and “disciplines” social relationships in that territorial space over which it claims sovereignty’.
Over the past two hundred years each of these has contributed in various ways to the ongoing consolidation of the modern state and the development of its particular form of sovereignty. But now it would appear that the modern state is itself undergoing transformation, though there is little agreement as to what, how or why. What might be agreed is that one marker of these changes is a shift in relations between state and non-state actors with respect to the exercise of political authority. For some scholars this is best captured by the concept of ‘governance’.
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 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 of 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 mere 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 than we imagine: it is our weaknesses, our vices and our prejudices that confine them. Base souls have no 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 State, and the town of Rome 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 matters, and judged certain cases, and this whole people were found in the public meeting-place hardly less often as magistrates than as citizens.
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.
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” 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 government 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.
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.
Joseph C. “Sovereignty and the international order” retrieved from http://science.jrank.org/pages/9931/Law-Sovereignty-International-Order.html
Wheare.,K.C(1996), “Modern Constitution”. Oxford University Press.
Zahir.m(2009) ”Eroding democratic values and constitution” retrieved from www.lawinbd.com
Ean.F. “The fudiciary nature of state legal authority” retrieved from http://people.mcgill.ca/files/evan.fox-decent/FiduciaryNatureStateLegalAuthority.pdf
“Sovereinty Explained”(online source) retrieved from http://one-heaven-court.org/content_law_philosophy/sovereignty.asp
The new Oxford American Dictionary. Second ed. Erin Mckn(editor),may 2005,Oxford University press.
Black’s Law Dictionary (sixth edition)
Hobbes. Thomas; retrieves from http://legal-dictionary.thefreedictionary.com/Thomas+Hobbes
Gordon.Scott(1999)”Control The State” Harvard University Press.