Sovereign authority is the source of law and therefore there cannot be any law without sovereign authority-illustrate & explain
1. Introduction
Sovereignty is the quality of having autonomous authority over a geographic area, such as a country. It can be found in a authority to rule and make laws that rests on a supporting fact for which no pure legal description can be provided. Law has a sovereign authority and there cannot be a law without sovereign authority. Before explaining this we have to firs understand the concept of law and Sovereign authority.
The coordination of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. Law is accompanied by sanctions and the command to be a law should force a course of conduct. Being a command the law must flow from a determinant person or group of person with the threat of discontentment if it is not obeyed. Law has its source of sovereign authority.
Being a command the law must flow from a determinant person or group of persons with the threat of discontent if it is not obeyed. Sovereign is, however only a part of state .So emanates from the state. Thus the term Law is sued to denote rules of conduct emanated from and obligatory by the state. People living in an organized society have to follow certain peaceful living is impossible.
2. History
If we research on a history of law with sovereign authority we can see there is four stage of history.
In classical history Roman jurist observed that the emporium of the people is transferred to the Emperor and the emperor’s word is law. Ulpian was expressing the idea that the Emperor exercised a rather absolute form of sovereignty, although he did not use the term expressly.
Another stage was Medieval. In this time monarchs ware not sovereign because they were forced by, and shared power with, their feudal aristocracy moreover, both were strongly controlled by tradition. Sovereignty existed during the Medieval Period as the de jure rights of dignity and crowned heads, and in the de facto capability of individuals to make their own choices in life.
When civil wars formed a desire central authority, monarch’s hade power on hands presented theories of sovereignty calling for strong central authority in the form of absolute monarchy. This is the reformation stage.
• Absolute: on this stage sovereign must not take two positions when there is any obligation.
• Perpetual: if the government power is absolute and enforce in a time limit it would be limited power for sovereign.
In the age of Enlightenment the thought of sovereignty gained authorized and ethical as the Western description of the connotation and power of a state. In this stage sovereign must be
• Absolute: because circumstances could only be obligatory on a sovereign if there were some external judge to violate them, then the sovereign would not be the final authority.
• Indivisible: The sovereign is the only final authority in his territory; he does not contribute to final authority with any other individual.
3. Definition and type:
“There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. it is an indisputable fact that this conception, form the moment when it was introduced into political science unit the present day, has never had a meaning which was universally agreed upon”
– Lassa Oppenheim, an authority on international law.
3.1 Absoluteness: A sovereign power has absolute sovereignty when it is not restricted by a constitution, by the laws of its predecessors, or by custom and no areas of law or policy is reserved as being outside its control.
3.2 Exclusivity: A key element of sovereignty in a legalistic sense is that of exclusivity of jurisdiction. Specifically, the degree to which decisions made by a sovereign entity contradicted by another authority.
3.3 De jure and de facto: sovereignty concerns the expressed and institutionally recognized right to exercise control over a territory.
3.4 Sovereignty and independence: State sovereignty is sometimes viewed synonymously with independence; however, sovereignty can be transferred as a legal right whereas independence cannot transfer.
4. Sense of sovereign:
There are two different senses of sovereignty, legal and factual. Legal sovereignty refers to the theoretical state of a governing body to regulation over its subjects. These rules are in general codified in a set of laws. Actual sovereignty, on the other hand, is the degree to which a governing body is actually able to control its subjects. If people do not generally follow an authority that claims to be sovereign, little actual sovereignty exists.
Legal vs. actual sovereignty can be illustrated in the case of the People’s Republic of China (PRC) and the Republic of China. Around 1990, both governing bodies claimed legal sovereignty over mainland China and the island of Taiwan. In put into practice, the PRC only exerted actual control over mainland China and the Republic of China only controlled Taiwan. These two governing bodies had the same legal sovereignty, but their real sovereignty differ.
Over the past two hundred years each of these contribution in different ways to the ongoing consolidation of the circumstances and the development of its particular form of sovereignty. But now it would appear that the modern state is itself undergoing renovation, though there is little accord as to what, how, or why. What might be agree is that one marker of these changes is a transfer in relations between state and non-state actors with respect to the exercise of political authority.
5. Sovereign authority, Law , people and limits:
As sovereignty deceit with about people and the constitution declares it, which means the sovereign authority is for the people’s constitutional rights and any law can’t break human privileges of the people of the country. The government is the ambassador of people of the country to order the people in a right way of constitution.
If the State or city is nothing but a moral person, the life of which consists in the combination of its members, and if the most vital of its cares is that of self-protection, it needs a universal and compulsive force to move and dispose every part in the manner most expedient for the whole. Nature gives every man a complete authority over all his limbs, the social agreement gives the body politic a complete power over all its members; and it is this same authority which, when heading for by the general will, bears, as I said, the name of sovereignty.
The sovereign power, absolute, sanctified, and unbreakable as it is, does not, and cannot, pass the limits of general conventions, and that every man can fully dispose of what is left to him, of his property and liberty by these conventions, so that the sovereign never has a right to burden one subject more than another, because then the matter becomes particular and his power is no longer competent.
6. Acquisition and sovereign:
A number of modes of acquisition of sovereignty are presently or have previously been recognized by international law as lawful methods by which a state may gain sovereignty over region. The categorization of these modes first introduce by Roman property law. The modes are
• Cession is the transfer of territory from one state to another usually by means of agreement.
• Occupation is the acquisition of territory that belongs to no state, or terra nulls
• Prescription is the effective control of territory of another acquiescing state.
• Operations of nature are the acquisition of territory through natural processes like river accretion or volcanisms.
• Adjudication and
• Conquest
7. How the sovereign authority is maintained:
the sovereign, having no other power than the lawmaking power, acts only through the laws; and the laws being nothing but genuine acts of the general will, the sovereign can act only when the people are assembled.
The restrictions of the potential in moral things are less narrow than we think; it is our weaknesses, vices, prejudices, that contract them. Squalid souls do not believe in great men vile slaves smile with a contemptuous air at the word LIBERTY.
The ancient republics of Greece; but the Roman Republic was, it seems a great State, and the city of Rome a great city. The last census in Rome showed that there were 400,000 citizens’ demeanor arms, and the last details of the Empire showed more than 4,000,000 citizens, without estimate subjects, foreigners, women, children, and slaves.
There would be in assembling repeatedly the huge population of the capital and its hinterland. Yet few weeks passed without the Roman people being assembled, even several times. Not only did they implement the rights of sovereignty, but a part of the functions of government. They discussed certain affairs and judged certain reason, and in the public assembly the whole people were almost as often judges as citizens.
By going back to the premature times of nations, we should find that the greater part of the ancient governments, even monarchical ones, like those of the Macedonians and the Franks, had similar councils. Be that as it may, this single irrefutable fact solves all problems; inference from the authentic to the probable appears sound.
people are legally assembled as a sovereign body, the whole jurisdiction of the government ceases, the executive power is balanced, and the person of the meanest citizen is as blessed and unbreakable as that of the first magistrate, because where the represented are, there is no longer any spokesperson. Most of the tumults that arose in Rome in the comitia proceeded from unawareness or abandon of this rule. The consuls were then only presidents of the people and the tribune’s simple orators the governing body had no power at all.
These intervals of deferment, in which the Prince recognizes or ought to recognize the presence of a greater, have always been dreaded by that authority; and these assemblies of the people, which are the guard of the body politic and the restrain of the government, have in all ages been the fright of the chief men; hence such men are never wanting in consideration, objections, obstacles, and promises, in the effort to make the people appalled with the assemblies. When the latter are rapacious, spineless, spineless, and more desirous of repose than of free will, they do not long hold out against the repeated efforts of the government; and thus, as the resisting force constantly increases, the sovereign authority at last disappears, and most of the States decay and expire before their time.
8. Conclusion:
Sovereign authority is the eventual control of the state which regulates law. If there is no sovereign authority law cannot be obligatory. The law is sourced by the sovereign authority and it is the control of authority. So there cannot be any law without sovereign authority
9. Reference:
Sovereign. (n.d). Retrieved from http://en.wikipedia.org/wiki/Sovereignty#Absoluteness
Rousseau J.J,More.S.S,Bacon.S.F,Campanella.T.Ideal Empires and Republics. Retrieved from http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2039&chapter=145518&layout=html&Itemid=27
David Held. (2003) . The changing structure of international law: sovereignty transformation?.Retrieved from http://www.polity.co.uk/global/pdf/GTReader2eHeld.pdf
Stanford encyclopedia of philosophy. (2010) . Sovereign. Retrieved from http://plato.stanford.edu/entries/sovereignty/ (original work published 2003)
What makes country sovereign? (n.d). Retrieved from http://www.wisegeek.com/what-makes-a-country-sovereign.htm
Terra nlls, land belonging to no one, http://en.wikipedia.org/wiki/Terra_nullius
See Oxford Dictionary to http://oxforddictionaries.com/definition/english/law.
“The sovereign is not bound by the laws.”(Principal legibus solutes est.)
Absolute monarchy is a monarchical form of government, http://en.wikipedia.org/wiki/Absolute_monarchy