The primary normative aim of law is the sustenance of peace where force is not used in relations to individuals-Discuss
Sovereignty
Sovereignty is a concept with multiple definitions (Merriam, 1900). Generally two definitions can be derived. The first refers to supreme public power, which has the right and, in theory, the capacity to impose its authority in the last instance. The second definition refers to the holder of legitimate power, who is recognised to have authority. When national sovereignty is discussed, the first definition applies, and it refers in particular to independence, understood as the freedom of a collective entity to act. When popular sovereignty is discussed, the second definition applies, and sovereignty is associated with power and legitimacy. Since, on the international realm, sovereignty means independence without non-interference by external powers, therefore, sovereignty of a state depends on the autonomous will of the sovereign, as well as on its standing vis-a-vis other sovereign states (Morgenthau, 1948). Even though the concept of sovereignty did not exist before the 16th century, it does not necessarily mean that the phenomenon did not exist in political reality. For instance, Aristotle does not discuss sovereignty but he insists on the necessity of a supreme power since any supreme power is sovereign by definition. However, in the middle Ages, issues start to arise concerning the relation between rulers and ruled in a political community which Jean Bodin tries to answer (Bodin, 1962).
Jean Bodin and Hobbes
In La Republique, Bodinguides that sovereignty and its base is a privilege of authority, being itself one of the presumptions of politics. According to him, a government’s strength lies in its legitimacy. He extends his idea that the source of sovereign power lies in the law, and that only the sovereign can make and break laws (Bodin, 1962). Sovereignty is the “absolute and perpetual power of a republic” (Bodin, 1962). It is absolute in the sense that the sovereign is not subject to law, however, he may declare and withdraw laws at will. The ability to make laws requires sovereignty to be absolute because the power to legislate is indivisible. Bodin’s ideology gives the king the role of the sole legislator and it grants the state an unlimited and original authority. The state must be one and indivisible because it represents the legislative monopoly of the sovereign. Religious foundations can be found in Bodin’s doctrine, that is, political power is merely anirreligiousreversal of the absolute way God and the Pope. Exercise power over Christians. Bodincondemns the medieval are concept of power as merely a delegation of God’s authority (Bodin, 1962). Bodin’s concept of sovereignty so far restricts the idea of sovereign to theological or monarchic roots which undermines the very notion of rule of law. Bodin fails to take into account the supremacy of law itself and the notion that even the king is not above the law. It is essential to note that even at the absence of a supreme authority or sovereign (that is, a king), rule of exists. As a result, it would be irrelevant to consider the role of a sovereign in times of the imposition of law. Therefore, Bodin’s ideology fails to prove that law requires a sovereign authority.
Hobbes was the first to raise a social contract based on the rationality of individuals. According to him, individuals have decided to enter society and to place themselves under the authority of a king in order to end the “war of all against all”, which is characteristic of the “state of nature”. Since the power of the sovereign derives from the rational will of all, the sovereign has the right to require total obedience from everyone. There is a difference between tyranny and sovereignty due to the rationality of individuals (Hobbes, 1651, King, 1974). In critique of Hobbes, Van Mills states that “Perhaps the most enduring of Hobbes’ political philosophy is that it provides for an absolute sovereign that poses a great threat to individual freedom” (Mill, 2002). Since Hobbes’ idea of sovereign stems from human rationality, then it becomes necessary to prioritise individual human freedom which is ultimately at risk if the sovereign is vested absolute power. It can be derived from this that if individual freedom is at threat due to the sovereign then rule of law is at risk consequently.
Ethical and Juridical Sovereignty by the Liberals
Law and politics are not one and the same. Thus, the concept of sovereignty can never be expressed entirely in juridical terms. On the one hand, and contrary to what is recognised today, what is morally right is not synonymous with what is politically admired. Julien Freund states, “Law has a specific sphere and so does politics, and they do not coincide, which is why conflicts between them ensue… No judicial system is able to abolish the ruler’s original and arbitrary political will. This reasoning is sufficient in itself to answer definitively the question of the juridical character of sovereignty…. The juridical reason stems from procedure, not from power, i.e., the ‘sovereignty of the law’ exists to legitimate power, not to constitute it”(Freund, 1965). However, Carl Schmitt is one of the main critics of the liberal concept of sovereignty, in which the state is subordinated to law, and decision is reached exclusively through discussion, while public life is strictly separated from a largely depoliticised “private sphere”. He exhibits that this concept is fundamentally anti-democratic, first, because it tends to reject democratic choices which might oppose current juridical and constitutional norms. He further asserts that legal sovereignty, based on a collection of norms and procedures, is, by definition, unable to indicate who should decide in a state of exception” (Hirst, 1999). This is a matter of who decides whether a state of exception exists, and who decides in that particular situation. Freund and Schmitt only outlines the loopholes in constituting ethical and juridical sovereignty raising doubts in the co-existence of law and the sovereign. This is supported by Chantal Delsolwho states, “todayBodin’s sovereignty is only surface deep. In fact, it has neither a concrete existence nor a traceable legitimacy” (Delsol, 1992). The idea of nation-state, which reined in Europe from the Peace of Westphalia until the first half of the 20th century, is today reaching its end; two world wars have revealed its limits. The erosion from both the top and the bottom of the nation-state signifies the end of modernity; in political terms, the end of the Westphalian Age (Lyons and Mastanduno, 1995).
Criticism
According to Kelsen, sovereignty represents the fundamental disorder to the full comprehension of the rule of law. He believes no such concept as sovereignty is necessary for theoretical explanation of the imperative character of law and for locating the ultimate source of validity of legal norms. The dualism of law and sovereignty makes room for the uncontrollable exercise of political authority. For him, sovereignty represents a relic of absolutism and a disguised autocratic claim to power which can justify disrespect for existing positive law. The pure theory of law is designed deliberately to bypass the concept of sovereignty and thus to advance legal and political development toward the formal rule of law which finally displaces subjectively from political governance and confines arbitration of personal authority in a system of objective legal norms (Janzen, 205).
The principal problem inherent in the concept of sovereignty is that it works with the duality of law and power. Hobbes’ sovereignty was defined as the supreme authority present in one person who has the absolute and unlimited power to make law by his command. Since Hobbes, it has been assumed that sovereignty represents power in the sense of pure facticity. The dichotomy of law and power is theoretically illogical since the political authority of the state is conceived prior to the law and potentially dangerous since the ability to act without legal authorisation is considered the essential element of statehood. In the eye of jurisprudence, the concept of sovereignty is not attainable. There are two arguments regarding this. Firstly, the idea of the sovereignty as the ultimate source of law and the introduction of the concept of the basic norm; secondly, power as the explanation of the coercive character of law and the introduction of the concept of legal efficacy (Kelsen, 1992).
The concept of sovereignty is not required for the explanation of legal validity. It is because they are compatible with moral values or because they are commanded by the sovereign. The more accepted view that sovereignty is the ultimate source of law which is placed somewhere above the law is wrong. It is an unacceptable personification of law and the state which continues to plague legal and political theory well into the twentieth century. No source of power can be found which would be original, highest and entirely self-sustaining. To have the highest power in the social context means that a person has the authority to act as a superior. However, this authority can only be exercised within the framework of some normative order. Sovereignty understood as the highest power distinct from the legal is not a proper notion (Kelsen, 1992).
Law does not need a source such as a sovereign. Legal science cannot accept the source of the validity of legal norms to be a proper phenomenon. Law can only be regarded as valid when created in accordance with a definite rule. Any origin of legal validity emanating from the concept of sovereignty as the highest political authority prior to the law is implausible and redundant. Furthermore, sovereignty represents the phenomenon of power back of the law, that is, the coercive violence which sustains the imperative nature of norms. The power behind law typically refers to the authorised power which is the right or a capability derived from a norm. It can only be described as the value of the order regulating the conduct of individuals. The element of compulsion which is essential to law’s efficacy consists not in physicality, but in certain approv alswhich forms the legal order. A legally sanctioned violence is not the power in a true sense of the meaning, but a legally defined competence. Violence can by no means sustain the efficacy of legal norms (Kelsen, 1992).
Law is undeniably a strong order which obliges to social conduct through the threat of sanctions. However, the primary normative aim of law is the sustenance of peace where force is not used in relations to individuals. Consequently, to establish peace, law dominates the exercise of force in the hands of the state leaving the uses of coercive force in society not authorised by the law legally impermissible delict. The simple norm, the final source of validity of all legal norms in a system safeguards that coercive force is applied in accordance with the norms authorised by it. Yet, it has nothing to do with the sovereign power which is a nonsensical notion, jurisprudentially as well as empirically. Thus, law need not have a sovereign authority.
References
Bodin, Jean, (1962).The Six Bookes of a Commonweale, Cambridge: Harvard University Press.
Delsol, Chantal, (1992).L’Étatsubsidiaire, Paris: Presses Universitaires deFrance, pp 2-34.
Freund, Julien, (1965). L’Essence du Politique, Paris: Editions Sirey, Pp. 125. Frs. 55.
Hirst, Paul, (1999). Carl Schmitt’s Decisionism, Chantal Mouffe, ed., The Challenge
of Carl Schmitt,(London: Verso, pp. 7-17.
Hobbes, Thomas, (1651). Leviathan.
<http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html>
Janzen, Henry (1937). Kelsen’s Theory of Law,The American Political Science Review 31:2,
205–226.
Kelsen, Hans (1992). Introduction to the Problems of Legal Theory. A Translation of the
First Edition ofthe ReineRechtslehre or Pure Theory of Law.Translated and edited
by Stanley L. Paulson andBonnie Litschevski Paulson. Oxford: Oxford University
Press.
King, Preston, (1974). Ideology of Order. A Comparative Analysis of Jean Bodin and
Thomas Hobbes,London: Frank Cass, p. 79.
Lyons, Gene and Mastanduno, Michael, (1995).Beyond Westphalia?,Baltimore:
John Hopkins University Press.
Merriam, Charles, (1900). History of the Theory of Sovereignty since Rousseau, New
York: Columbia University Press.
Morgenthau, Hans, J, (1948). Politics among Nations.The Struggle for Power and Peace, New York: Alfred A. Knopf.
Van Mill, David, (2002). Civil Liberty in Hobbes’s Commonwealth”, Australian Journal of
Political Science, Volume 37, Number 1, 1 March 2002, pp. 21-38.