Law is obligatory by the highest authority of any country to regulate the human and social rights for the determinants of living.-Discuss
1.0 Introduction:
in constitutions, legislation, judicial opinions, and the like, which is used to govern a society and to control the behavior of its members, so I think Law is a formal mechanism of social control, and legal systems are particular ways of establishing and maintaining social order. John Austin said about law is, A rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”[1]Professor Hart says that, hart defined law as a system of rules, which is a union of primary and secondary rules,
Sovereignty is the quality of having supreme and independent authority over a territory. It can be also found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided.[2] From here we can see that law has a sovereign authority or sovereignty and there cannot be any law without the sovereign power. So, law is imposed by the highest authority of any country to regulate the human and social rights for the betterment of living.
2.0 What is Law?
“I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.” (Robert A. Heinlein)
Law is the philosophy and strategy established in a community by some authority and applicable to its people in the form of legislation or of custom and policies recognized and enforced by judicial decision. It can be also described as a written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution. Compare bylaw, and statute law.Oliver Wendell Holmes says that, the prophecies of what the courts will do that what I mean by the law. By Plato and Aristotle law is an embodiment of Reason, whether in the individual or the community.
· History of law:
The history of law is extremely connected to the growth of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was broken into twelve books. It was based on the concept of Ma’at, characterized by belief, speech, social equality, and impartiality.By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, consisted of casuistic statements. It was around 1760 BC; King Hammurabi further developed Babylonian law, which is codifying and inscribing in stone. Hammurabi placed different copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to follow; this was well-known as the Codex Hammurabi. The intact copy of these stelae was discovered in the 19th century by British Astrologists, and has since been fully transliterated and translated into different languages, including English, German, and French.
The Old Testament dates back to 1280 BC, takes the form of moral imperatives like recommendations for a good society. The small Greek city-state, ancient Athens, from about the 8th century BC was the first society that based on broad inclusion of its citizenry, not including women and the slave class. However, Athens had no legal science and single word for law, relying instead on the three-way distinction between divine law, human ruling, and custom. An ancient Greek law contained major constitutional innovations in the development of democracy.
3.0 What is sovereignty?
Sovereignty is the authority to govern or rule a nation or group of people.
i. Expanded definition
Sovereignty is the exclusive right to exercise supreme political. For example: legislative, judicial, and executive authority, over a geographic region, group of people, or oneself. From the Latin supremacy, in a democracy, sovereignty is considered to reside with the individual citizens.
ii. Commentary on the Rights of Man
Man does not have rights, but instead one right, the birthright, to have everything. If plurality of rights appears that means privileges, the privilege of use licenses. Privilege sometimes does not mean privilege of the rich. Sovereignty means soul reign where if man has an eternal soul, it reign within him and should in physical life. We have many people and many sovereigns may seem different problems. And leadership appears amongst sovereigns. It is necessary for order. However, today we do not have sovereignty in the market place as the polity forgot in history how to grant it. However, people are sovereign not land or things, “As of grace by the sovereign himself.”
iii. History of sovereign:
To start with the history of sovereignty in international law, it is almost identical with the full-scale history of international law itself.[3] The Peace of Westphalia brought the Thirty Years’ War to an end in 1648 added a new chapter of State sovereignty to the new history of international law. Before the Thirty Years’ War, which was kind of a religious war, the European world of Christendom was largely a diarchic one of pope and emperor. But as a result of its defeat,[4] the Holy Roman Empire was dissolved hundreds of relatively independent authorities with almost equal sovereignty over their populations and territories, which theoretically marked the birth of the modern nation-Statesystem. This meant the authorities taking over the religious power in the political world of Europe, where a common European international public law prevailed among the sovereign Christian European States.
4.0 Types of sovereignty
There are two types of sovereignty, and they are
1. Internal
2. external
· Internal sovereignty:
Internal sovereignty is the relationship between a sovereign power and its own subjects. There is a central concern is legitimacy: by what right does a government exercise authority? And the claims of legitimacy might refer to the divine right of kings or to a social contract itself.
With Sovereignty meaning holding supreme and independent authority over a region or state, Internal Sovereignty refers to the internal relations of the state and the location of supreme power within it.[5] A state that has internal sovereignty is one with a government that has been selected by the people of that state and has the popular legitimacy. The internal sovereignty examines the internal affairs of a state and how it operates. And I think it is important to have strong internal sovereignty in relation to keeping order and peace.
· External sovereignty:
External sovereignty concerns the relationship between a sovereign power and other states. For example, the United Kingdom uses the following ways when deciding under what conditions other states recognize a political entity having sovereignty over some territory.
| “Sovereignty.” A government which exercises de facto administrative control over a country and is not subordinate to any other government in that country or a foreign sovereign state.” | |
| Following the Thirty Years’ War, a European religious conflict embroiled much of the continent, the Peace of Westphalia in 1648 established the notion of sovereignty as a norm of noninterference in the affairs of other nations, even though the actual treaty itself reaffirmed the multiple levels of sovereignty of the Holy Roman Empire. I think This resulted as a natural extension of the older principle of cuius regio, eius religio (Whose realm, his religion), leaving the Roman Catholic Church with ability to interfere with the internal relations of many European states. It is a myth, however, that treaties of Westphalia created a new European order of equal sovereign states.
5.0 State “The State which would provide everything, absorbing everything into itself, would ultimately become a mere bureaucracy incapable of guaranteeing the very thing and the suffering person—every person—needs: namely, loving personal concern. The Church is one of those living forces.” While the terms country, state, and nation are often used interchangeably, there is a difference. A State with a capital “S” is a self-governing political entity. The term State can be used as interchangeably with country. A nation, however, is a tightly-knit group of people which can share a common culture. And a nation-state is a nation which has the same borders as a State. To be legitimately recognized as a state, it must satisfy these four criteria: 1. There must be a territory for where this state will be located, or need land. 2. The territory must be inhabited by a population, or need people. 3. The populated territory must be recognized by the international community. 4. The populated territory must be sovereign from other states. Like not a colony of another country, not already ruled by another governing body that is not the UN. 5. Only if once these four criteria are met can an inhabited territory be considered a State on the international stage. I. States and Independent Countries Here start with what defines a State or an independent country.
There are currently 196 independent States around the world. Territories of countries or individual parts of a country are not countries in their own right. For examples of entities that are not countries include: Hong Kong, Bermuda, Greenland, Puerto Rico, and most notably the 6.0The Problem with Sovereignty: The Modern State’s Collision with the International Law Movement constituent parts of the United Kingdom. A “state” with a lower-case “s” is usually a division of a federal State such as the states of the United States of America. II. Nations and Nation States: Nations are culturally homogeneous groups of people, larger than a single tribe or society, which shares a common language, institutions, religion, and historical experience. When a nation of people has a State or country of their own, it is also called a nation-state. Places like France, Egypt, Germany, and Japan are excellent examples of nation-states. There are some States which have two or more nations, such as Canada and Belgium. And even with its multicultural society, the United States is also referred to as a nation-state because of the shared American culture. There are also nations without States. For example, the Kurds are stateless people. III. Constitution: A constitution is a set of fundamental principles or a established precedents according to which a state or other organization is governed. These rules together make up constitute, what the entity is. Whenever these principles are written down into a single collection or set of legal documents, those documents may be said to comprise a written constitution. Constitutions concern various levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution, where it would define how that organization is constituted. Within states, whether sovereign or federated, a constitution always defines the principles in which the state is based, the procedure upon which laws are made and by whom. The Constitution of India is the longest and largest written constitution of any sovereign country in the world, containing 448 articles,[6] 12 schedules and 100 amendments, with 117,369 words in its English language version, while the United States Constitution is the shortest written constitution, at 7 articles and 27 amendments. IV. Sovereign State: A sovereign state is a political organization which has a centralized government that has supreme independent authority over a geographic area. It has a permanent population, a government, and the capacity to make a relation with other sovereign states. For the sake of goodness and love, man shall let death have no sovereignty over his thoughts (Thomas Mann).[7] The word “country” is often used to refer to sovereign states, although it means, originally, only a geographic region, and subsequently its meaning became extended to the sovereign polity which can controls the geographic region. A family on the throne is an interesting idea. It brings down the pride of sovereignty to the level of petty life (Walter Bagehot).[8] Legalization might be one of the most profound changes occurring in international relations today. Yet, “the move to law”, as Goldstein, Kahler, Keohane and Slaughter say it, cannot be said to compromise state sovereignty. Changing in the conceptions of the modern state inevitably provoke conflicting views of sovereignty. Even some argue that the growing impact of cosmopolitan norms and transnational-based governance are weakening state sovereignty, on the other hand others claim that the concept is merely being redefined. However, the latter group even includes proponents of global governance, who argue that state sovereignty can actually be strengthened rather than weakened by the transfer of power to the supranational level. Which side of the fence you are on when contemplating this issue, it seems clear that increasing attempts to regulate international relations via legal means has had a impact on traditional concepts of state sovereignty. To Judith Goldstein, Miles Kahler, Robert O. Keohane and Anne-Marie Slaughter, for example, legal instruments have accrued political utility over time, but they argue this process is neither irreversible nor as ubiquitous as most of us might think. Steven Haines claims that the international legalization of nation-state politics is not ‘garnish on a plate’. The regulatory power of the law is delivering the sovereign power of the state, and thus points to one of the most profound changes occurring in international relations today. · Causes of International Legalization · While international legalization had its roots in a post-1945 international order, the actual proliferation of global legal norms cannot pick up true momentum until the fall of the Berlin Wall. As it stands, we now have an abundance of international organizations, especially courts and tribunals such as the International Criminal Court, which develop international law relatively free from state interests. Legal internationalists have not been the only impetus behind this development. · But what do the relative decline of the American Great Sheriff and the rising global powers increasingly mean for international legalization? Will the likes of China and India use more legal mechanisms merely to blunt U.S. policies and norms? Haines argue. Instead, emerging powers can use international legalization to invigorate multipolarity, and therefore introduce greater equity into the international system. (In a multipolar system, after all, weaker states can instrumentalist international law in order to make with stronger actors, and thus overcome disparities in power. · Yet Kahler, also rely upon functionalist idea to explain the development of international law. Governments properly regard international legal mechanisms as a cost-effective way of solving problems via collective action. And as a result of this, international law provides a degree of predictability in an otherwise complex and unpredictable international system. In short, a form of high politics. · Consequences of International Legalization Kahler, not only describe the benefits that international legalization provides, they also identify several consequences of the state’s interaction with its mechanisms. The improvement of international law, may not only lead to greater political equity and more cost effective ways of solving problems, it may also change – to cite just one example – the conception of state sovereignty. The rational part of state actors, after all, can learn to operate within the confines of the international law movement · The Impact of Legalization on Three Notions of Sovereignty Indeed, the flourishing of international legalization resonates with the idea that the concept of sovereignty becomes subject to clarification and interpretation. The Stanford Encyclopedia of Philosophy distinguishes between internal and external sovereignty. Where internal sovereignty describes the relationship between the state and its people, including the monopoly on the use of force, external sovereignty describes the relationship between several states, with the principle of non-interference. Krasner (1999) identifies four different conceptions of sovereignty: interdependence sovereignty; domestic sovereignty, which corresponds to internal sovereignty; international legal sovereignty and finally Westphalia sovereignty, corresponds to external security. As potentially helpful as these distinctions are, if we want to analyze the effects of international legalization on state sovereignty, it may be best to distinguish the role the latter plays in three different contexts – · 1)in the context of international relations theory, for example, sovereignty is used as an analytical concept, · 2)in the context of international law, sovereignty is a legal norm, which defines rights and duties of states, and · 3) In the context of political debate, sovereignty is used to assess the freedom of action of a government. I. Firstly, sovereignty as an analytical concept is fundamental to understanding the composition of an anarchic international system; according to Waltz’s theory of structural realism, state sovereignty is saved because states are not subject to a higher or superior authority. That allows states to act freely so long as they are not restrained by other states. And the multitude of global legal mechanisms and norms does not affect the validity of sovereignty as an analytical concept as long as legalization falls short of bringing about a world government. In fact, a stereotypical Realist would argue that legalization does not change anything about world politics because laws only perpetuate the power of the already powerful. II. Secondly, sovereignty as an international legal norm arose with the Treaty of Westphalia’s (1648) formalized emphasis on its internal and external forms. External sovereignty, for example, safeguarded against outside interference in the internal affairs of states was free to regulate the relationship between themselves and their people without external interference. On the other hand internal sovereignty meant that a ruler enjoyed a monopoly of power. The concept of sovereignty changed as monarchies were overthrown and replaced by republics and democracies. Sovereignty became conditional in electoral processes and national consensus. III. Thirdly and final meaning of sovereignty is that of a measure of political practice. Sovereignty is about states acting independently and autonomously. Sovereignty in this context is difficult to quantify. Sovereignty is often used in political discourse, like, to determine whether a state or society has gained or lost autonomy of action. One can argue that while international politics is being legalized, states have lost autonomy. 7.0 The rule of power and use of power “When the Rule of Law disappears, we are ruled by the whims of men.” (Tiffany Madison) |
The rule of law is a theme that unifies LexisNexis across the sphere and is one that is fervently supported by the company’s people. LexisNexis is devoted to actively working to advance the rule of law, through its day-to-day business, products and services, and its measures as a corporate citizen.
More specifically, LexisNexis promotes the rule of law by:
- Providing products and services that enable customers to excel in the observe and business of law, and that help justice systems, governments and business to occupation more effectively, proficiently and transparently.
- Documenting local, national and international laws and making them available in print and online to citizens and professionals in the public and private division.
- Partnering with governments and non-profit organizations to make impartiality systems more proficient and transparent.
- Supporting corporate citizenship initiatives that build up civil society and the rule of law across the globe.
8.0 Conclusion
we believe arbitrary abuse of power means you have a lot of power when the law isn’t controlling what you use your power for.we also think it means abusing your rights to do something for you own personal will or reasons. So no one should abuse their power. And the sovereign authority is the main power of a nation which builds the law. Without a sovereign authority law cannot be created or developed. Law is the command of a sovereign authority. So we can say that law has a sovereign authority and there cannot be any law without the sovereign power.
|
9.0 References
Constitution/Laws/books/articles:
a. A Bright Future for International Law? , Steven Haines, GCSP Policy Paper, 2010.
b. Heywood, Andrew. <href=”#page=108″>”Political Theory”. pg. 92. Palgrave MacMillian. Retrieved 25 June 2011.
c. Kashyap, Subhash. Our Constitution-An introduction to India’s Constitution and Constitution Law. National Book Trust, India. p. 3. ISBN 978-81-237-0734-1.
d. Lalonde, Suzanne (2002). “Notes to pages”. Determining boundaries in a conflicted world: the role of uti possidetis. McGill-Queen’s Press – MQUP. p. 181. ISBN 978-0-7735-2424-8.
e. Pylee, M.V. (1997). India’s Constitution. S. Chand & Co.. pp. 3. ISBN 81-219-0403-X.
f. Rethinking the Nation-State: The Many Meanings of Sovereignty , Joseph Joffe, Foreign Affairs, Nov/Dec 1999.
g. Sarkar, Siuli. Public Administration In India. PHI Learning Pvt. Ltd.. p. 363. ISBN 978-81-203-3979-8.
h. Sovereignty, in the Stanford Encyclopedia of Philosophy
i. Sovereignty and International Law, MIYOSHI Masahiro, Professor Emeritus of International Law, Aichi University, Japan.
j. Territories – An Overview of Territories of the World
k. The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.
l. Wheaton, Henry (1836). Elements of international law: with a sketch of the history of the science. Carey, Lea & Blanchard. p. 51. “A sovereign state is generally defined to be any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers.”
Others:
b. http://sixthformlaw.info/01_modules/other_material/law_and_morality/0_what_is_law.htm
c. http://dictionary.reference.com/browse/law
d. http://geography.about.com/cs/politicalgeog/a/statenation.htm
e. http://wiki.answers.com/Q/What_are_the_Four_criteria_to_be_considered_a_state
f. <href=”#zBwZwP0Ui12A8jex.99″>http://www.brainyquote.com/quotes/keywords/sovereignty.html#zBwZwP0Ui12A8jex.99
g. http://www.goodreads.com/quotes/tag/law
i. http://simple.wikipedia.org/wiki/Sovereign_state
j. http://www.lexisnexis.com.au/en-au/about-us/rule-of-law.page
k. Jasentuliyana, Nandasiri, ed. (1995). Perspectives on international law. Kluwer Law International. p. 20. “So far as States are concerned, the traditional definitions provided for in the Montevideo Convention remain generally accepted.”
l. Robson, W.A. 1951. Justice and Administrative Law.
m. Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 178. “Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most widely accepted formulation of the criteria of statehood in international law. It note that the state as an international person should possess the following qualifications: ‘(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states'”
n. “sovereign”, The American Heritage Dictionary of the English Language (Houghton Mifflin Company), 2004, retrieved 21 February 2010, “adj. 1. Self-governing; independent: a sovereign state.”
o. <href=”#v=onepage&q&f=false”>Sovereignty: Organized Hypocrisy , Stephen D Krasner, 1999.
p. “sovereign”, The New Oxford American Dictionary (Oxford: Oxford University Press), ISBN 0-19-517077-6, “adjective … [ attrib. ] (of a nation or state) fully independent and determining its own affairs.
q. “The powers of external sovereignty on the part of the State do not depend on the affirmative grant of this in the Constitution. … The State would not be completely sovereign if it did not have in common with other members of the family of nations the right and power in the field of international relations equal to the right and power of other states. These powers of the State include the power to declare war or to participate in a war, to conclude peace, to make treaties, and maintain diplomatic relations with other states.” — Crotty v An Taoiseach [1987] IESC 4 (9 April 1987).
r. Takwani, Thakker,C.K. Lectures on Administrative Law. 1980, Third edition, Reprinted-2008. Eastern Book Company, Lucknow. ISBN” 978-81-7012-988-2.
s. The Daily Star, 20 June 2004.
t. Www.ais-dhaka.net/School_Library/senior%20Projects/04_Hadley_judiciary.pdf.
[1] John Austin (English jurist born 1790) “Province of Jurisprudence Determined”
[2]en.wikipedia.org/wiki/Sovereign authority
[3] Steinberger, Helmut, “Sovereignty”, in Bernhardt, R. (ed.), Encyclopedia of Public International Law, Vol. IV (Amsterdam, etc.: Elsvier, 2000), at 501.
[4]The Peace of Westpahlia also meant the defeat of the Catholic authority as it provided for a juxtaposition of Catholics and Lutheran-Calvinist protestants. When Pope Innocent X, by the bull Zelo domus Dei, declared the tolerance and other clauses, the core of the Peace, “null, void, invalid, inequitable, unjust, condemned, reprobated, frivolous, of no force or effect” (Dumont, Corps universel diplomatique, etc., II(1), 463), the treaty was carried out in all its parts. Nussbaum, Arthur, A Concise History of the Law of Nations, rev. ed. (New York: The Macmillan Company, 1954), at 116.
[5] Heywood, Andrew. <href=”#page=108″>“Political Theory”. pg. 92. Palgrave MacMillian. Retrieved 25 June 2011.
[6] Sarkar, Siuli. Public Administration In India. PHI Learning Pvt. Ltd.. p. 363. ISBN978-81-203-3979-8.
[7]<href=”#zBwZwP0Ui12A8jex.99″>http://www.brainyquote.com/quotes/keywords/sovereignty.html#zBwZwP0Ui12A8jex.99
[8]<href=”#zBwZwP0Ui12A8jex.99″>http://www.brainyquote.com/quotes/keywords/sovereignty.html#zBwZwP0Ui12A8jex.99