Without a sovereign authority there would be no party responsible to facilitate the laws or oversee whether laws are being obeyed or not.-illustrate & explain
Introduction
According to the definition of law, Law is the command of the sovereign.This means that,
· Law has its source of sovereign authority
· Law is accompanied by sanctions
· The command of the law should compel a course of conduct.
As the definition suggests, we can gather that law by itself will not help govern a country. It is important that laws are present but it is also essential that there is a higher authority that would be responsible to enforce and execute the law. By saying higher authority we mean sovereign authority that will be responsible to impose the law within its jurisdiction and use such laws to regulate human behavior. Without a sovereign authority there would be no party responsible to facilitate the laws or oversee whether laws are being obeyed or not.
History of Law
Since the beginning of civilization, laws have helped shape and guide human behavior and played a major role in the development of civilization. Ancient Egyptian law dates back to 3000 BC. Their laws had a civil code embedded into twelve books. Then there is also the Greek history of law. The people of the civilization of Ancient Greece are considered the most energetic, enterprising, versatile, ingenious, artistic, literary, philosophical, and cultured in all the departments of human knowledge. The language of the Greeks was called Hellenes. If we take look into the cultural, scientific, and literary aspects, we can find similarities. In other words the civilization of Hellenes is a reflection of modern civilization. Over time, it has been observed that we have followed the same course of law of Hellenes, and have had a similar experience in jurisprudence. The civilization of the Hellenes is the source of a salutary lesson in jurisprudence and statesmanship. Apart from these there is also history of civil law in Rome, history of English law and the list goes on. So by observing all these examples we can gather that laws have been in effect for quite a long time indeed. And as mentioned before we understand why laws have been introduced in the first place. If we consider human beings for instance, the history of law actually goes side by side with the history of the human race. In other words in the entire history of mankind there was never and there will never be any form of society that has not been influenced or has not been regulated by law. At times, an individual may not be comfortable as a law that benefits the greater good may come at the expense of his comfort, so he/she may be in rebellion against some of the provisions of law. This act of rebellion is embedded in man’s nature and is a necessity of his being. So we can come into accordance that the very existence of the human society is reliant upon law being enacted and put into effect by a superior power known as sovereign authority.
Law Defined
According to John Austin, “Law is the command of the sovereign and is accepted due to fear of sanction”. This means that law is a command that compels a person to follow a course of conduct. It has been facilitated by a political sovereign and is enforceable via sanction. Austin was a follower of legal positivism as illustrated in his book “The Province of Jurisprudence Determined (1832).” According to Austin, positive law has three fundamental characteristics4:
I. Command
II. Sovereign
III. Sanction
Command: Austin explains commands as expressions of desire handed to inferiors by their superiors.
Sovereign: Austin expresses sovereign as a person or body of persons, whom everyone in a political society obeys.
Characteristics of Sovereign:
· Source of laws: Sovereign is the only source of law.
· Source of Power: The state contains a determinate authority that acts as the source of power.
· Indivisible Power: Sovereign power cannot be divided, it rests upon in one person or a body of persons
· Habitual obedience by People: At the end of the day the general masses are obligated to render obedience to the sovereign.
Sanction: As Salmond[2] explains, “Sanction is the instrument of coercion by which any system of imperative law is enforced.” For instance, state exercises physical force in the administration of Justice.
Sovereignty
Black’s Law Dictionary
Sovereignty as explained by the Black’s Law Dictionary, “The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.” It is also explained “The power to do everything in a state without accountability, –to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.” From the definitions provided, we can understand that sovereignty is the party responsible in providing directions and orders about what is to be done by citizens living in a country. It is a power above which no higher authority exists, and for the existence of the state it is imperative that the state remains the sovereign authority. ‘Sovereignty’ in its largest sense means absolute, uncontrollable power, and the absolute right to govern.
Bouvier’s Law Dictionary
Sovereign State has been defined as “One which governs itself independently of any foreign power.” Sovereignty has been explained as “The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Abstractedly, sovereignty resides in the body of the nation and belongs to the people. But these powers are generally exercised by delegation. When analyzed, sovereignty is naturally divided into three great powers; namely, the legislative, the executive, and the judiciary; the first is the power to make new laws, and to correct and repeal the old; the second is the power to execute the laws both at home and abroad; and the last is the power to apply the laws to particular facts; to judge the disputes which arise among the citizens, and to punish crimes.”5
Rights and Duties of States, the Restatement of the Law Third
“‘Sovereignty’ is a term used in many senses and is much abused. As used here, it implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there.”5
Sovereignty explained by notable authors
Jean Bodin (1530–1596)
According to Jean Bodin, sovereignty is the ‘absolute and perpetual power of the commonwealth’. He perceived that a state’s ultimate power must and should reside in the prince or some other appointed leader and it had to be single, limitless and absolute. According to classic theories the notion presented by Bodin is valid as because law is made by the sovereign, there cannot be any questions asked regarding its validity. In short, law and sovereignty are effectively merged i.e. the sovereign enacts the law and that is the end of it. The relation between determinacy of law and sovereignty is noticeable in the classical theories. Bodin compares and contrasts law and sovereignty such that ‘this same power of making and repealing law includes all the other rights and prerogatives of sovereignty, so that strictly speaking we can say that there is only this one prerogative of sovereignty, inasmuch as all the other rights are comprehended in it’. Bodin’s illustration of sovereignty has similarities with the command theory in the sense that ‘law is the command of the sovereign affecting all the subjects in general’. However the question remains ‘What is the source of this power?’ Is it a political reality or a moral title? As mentioned before, ‘Sovereignty is the absolute and perpetual power of a commonwealth; different civilizations define it in different ways. Latins call it maiestas; the Greeks call it akra exousia, kurion arche, and kurion politeuma; and the Italians named it segnioria, a word they use for private persons as well as for those who have full control of the state, while the Hebrews call it tomech shevet – that is, the highest power of command’. This in fact highlights the veracity of power. At other times he explains sovereignty as an office of government under a right to govern in the name of the political society.
John Austin (1790-1859)
John Austin was a notable English jurist who belonged to the classical school of thought.[3] He brought upon perfection to the theory of sovereignty. He was responsible for branding sovereignty a legal concept. In his book “Province of Jurisprudence Determined,” he explains the following,
· “If a determinate human superior not in the habit of obedience to a like superior receives habitual obedience from the bulk of a given society, that determinate human superior is sovereign in that society, and the society is political and independent.
· “Law is the command of a determinate human superior to an inferior, i.e., a command of the sovereignty to the subject. The essence of law is the coercive force of the state.”
Apart from the two above, Austin believes that his views will help bring about the following distinctive features of sovereignty and law.9
1. Every state must be sovereign, and should bear a distinct sovereign authority. It can be in the form of one or many persons. Legal sovereign should be precise and determinable. He also exclaims that an individual has the right to say who the legal sovereign in a particular state is. Sovereign can take the form of a king or a dictator or the parliament but care must be taken that it is definite and particular.
2. Sovereign has absolute, unlimited and indivisible authority. Internally, it is expected of the general masses to obey the sovereign and inability to do so will result in punishment. Externally, sovereign is supreme and does not need to submit to the authority.
3. Law is the command of the sovereign. This is the basic fundamental of John Austin. This explains that sovereignty is the ultimate power and whatever sovereignty dictates is the law. As a result, courts recognize and facilitate only those laws that the legal sovereign has accepted. Sovereign is not limited to law-making authority.
4. Essence of law is the coercive power of the sovereign. Failure to comply or infringement of laws is likely to result in penalty.
Austin explicates law as a simple pattern of conduct, not a pattern of beliefs or a type of concept. Bodin concurs with Austin regarding the issue ‘we must assume the term law’, used without qualification, signifies the just command of the person or persons who have full power over everyone else without excepting anybody, and no matter whether the command affects subjects collectively or as individuals, and excepting only the person or persons who made the law’. Sovereignty, as a matter of fact takes into account that laws belong to the same legal system through a specific procedure that happens to dominate. The thing laws have in common is their factual origin or authorship: commands that can only be connected to the actual sovereign are laws. Any other force or claim to authority does not constitute or create a law. On a final note Austin explains “The bulk of the given society are in a habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual persons… That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior”.
Conclusion
Sovereign authority is responsible for upholding the law. Without sovereign authority it is difficult to impose law. Sovereign authority is the source of law and therefore there cannot be any law without sovereign authority.
Bibliography/References
A careful study of Austin’s theory of legal sovereignty. (n.d.). PreserveArticles.com: Preserving Your Articles for Eternity. Retrieved from http://www.preservearticles.com/201106248496/a-careful-study-of-austins-theory-of-legal-sovereignty.html
Austin, J., Austin, S., & Austin, J. (1861). In The province of jurisprudence determined: Being the first part of a series of lectures on jurisprudence, or, the philosophy of positive law (pp. 37-38). London: J. Murray.
Bradgate, R., & Savage, N. (1991). Commercial law. London: Butterworths.
Classical school. (n.d.). In Wikipedia, the free encyclopedia. Retrieved February 21, 2013, from http://en.wikipedia.org/wiki/Classical_school
Definition of Sovereignty. (n.d.). HAWAII – INDEPENDENT & SOVEREIGN. Retrieved from http://www.hawaii-nation.org/sovereignty.html
Eleftheriadis , P. (n.d.). LAW AND SOVEREIGNTY. Legal Sovereignty, 4-7.
Eleftheriadis, P. (n.d.). LAW AND SOVEREIGNTY. Legal Sovereignty, 1.
Held, D. (2003). The Changing Structure of International Law: Sovereignty Transformed? 162.
History of law. (n.d.). Retrieved from http://historyoflaw.info/
John Salmond (New Zealand). (n.d.). In Wikipedia, the free encyclopedia. Retrieved February 21, 2013, from http://en.wikipedia.org/wiki/John_William_Salmond
Sen, A. K., & Mitra, J. K. (1966). In Commercial and industrial law (p. 1). Calcutta: World Press.
Sen, A. K., & Mitra, J. K. (1966). In Commercial and industrial law (p. 1). Calcutta: World Press.
[2] John Salmond (New Zealand). (n.d.). In Wikipedia, the free encyclopedia. Retrieved February 21, 2013, from http://en.wikipedia.org/wiki/John_William_Salmond
[3] The Classical school of thought was premised on the idea that people have free will in making decisions, and that punishment can be a deterrent for crime, so long as the punishment is proportional, fits the crime, and is carried out promptly. Classical school. (n.d.). In Wikipedia, the free encyclopedia. Retrieved February 21, 2013, from http://en.wikipedia.org/wiki/Classical_school