Attacks Upon the Doctrine of Sovereignty

Attacks Upon the Doctrine of Sovereignty. Doctrines of state sovereignty tend to become salient in periods of acute political conflict and rapid social change. This is clearly evident in the attention given to the idea of sovereignty by writers of the sixteenth and seventeenth centuries.

The necessity of Sovereignty Denied:-

Many writers on political science and international law, especially among the Germans, while not denying the reality of sovereignty or the sovereign state’s existence, maintain that sovereignty is not an essential constituent element in the make-up of the state. States, they assert, may or may not be sovereign. In short, states and sovereign states me not necessarily identical.

The test of statehood, they argue, is not sovereignty. (Souveriinitfit), the power of a community determines the limits of its own competence, but Staatshhezeit, Hohe Utrecht, H erfschaft, the right to govern, command and enforce obedience, etc.

Thus Laband, who denies that sovereignty is an essential element in the conception of the state, distinguishes between sovereignty as the supreme power above which there can be no other power that can give legally binding orders, and the power of domination, that is, the power of a collectivity to command and rule in virtue of its own right.

It is the latter rather than the former, which is the true distinctive mark of a state. Jellinek, likewise, denies the necessity of sovereignty as an element of the state. Sovereignty, he says, is not an absolute category but a historical category. A study of its origin and history will show incontestibly that there were states in earlier times that lacked it. In fact, the medieval state was not a sovereign state, nor were the Hanseatic cities, although they Were regarded as states.

The natural-law writers of the sixteenth and seventeenth centuries recognized the existence of non-sovereign states, and the contemporary world furnishes examples of political formations which have their own constitutions and organizations, their own independent spheres of political action, and their magisterial rights and which perform the functions of states although they do not possess sovereignty. They are, consequently, two sorts of states: sovereign states and sovereign states. The essential characteristic of the state is not sovereignty but state power. The power to command, a power that is not derived from any other authority and which exists and is exercised in its own right.

Every community which may exercise the power of domination conformably to an order which is its own, in virtue of original power and by original means of constraint, is a state. Both Laband and Jellinek, therefore, concluded that members of federal unions such as the German Empire might be properly regarded as states, though, of course, not sovereign states, since “they may organize themselves with their own constitutions based exclusively on their own will and not that of the Empire.

Jellinek added that Switzerland’s cantonal constitutions and those of the American federal union’s particular states are constitutions of states, properly speaking, since they rest exclusively upon these states’ laws and not upon the will of the federal state superordinated to them. He admitted that the particular states are subject to certain federal restrictions in forming their constitutions, but these constitutions retain their exclusive character as fundamental state laws.

On the contrary, a group or community which, having the power of domination, receives its organization and derives its power from a state superior to it and, in virtue of this latter state’s law, is not a state. For example, such would be the case of a commune, a territory like Alsace-Lorraine from 1871 to 1918, the British colonies, and others.

Many other German writers and a few French and American writers likewise deny the necessity of sovereignty. Therefore, they do not hesitate to attribute the quality of states to the particular members of federal unions. Among them may be Rehm, Georg Meyer, Von Mohl, LeFur and Posener, Schulze, Brie, Bluntschli, Michoud, Lapradelle, and Rosin. Among American writers who were partisans of this view was the late Woodrow Wilson.

He admitted that members of federal unions do not possess the full power of self-determination concerning their law as a whole or concerning their competence. Nevertheless, they are still states. Their powers are original and inherent, not derivative because their political rights are not also legal duties. They can apply to their commands the full imperative sanctions of the law.

Criticism of the Theory of the Non-Sovereign State:-

The theory of Laband, Jellinek, and others that sovereignty is not an essential element of the state but that the real test or mark of state existence is the original, underived right to command, dominate, or govern, has been attacked by many able writers. In the first place, they point out that if the power to command and enforce obedience original, underived, and independent, then that power is nothing less than sovereignty itself.

In the second place, they point out the difficulty of drawing the line of demarcation between states and the territorial and political subdivisions of states, such as provinces, communes, municipalities, etc. The latter has the right to command and govern within their respective spheres equally with the members of federal unions, to which Laband, Jellinek, and others attribute the quality of states.

As Carre de Malberg points out, the communes of various European states have rights that historically are anterior to those of which they are apart. On the theory that the true test of statehood is the power of a collectivity to govern in its own right, they too would be entitled to be regarded as states.

Conversely, the criterion laid down by Laband is inapplicable to the members of federal unions like Brazil and Mexico, which, originally unitary states, were transformed into federal states by process of unilateral decentralization rather than by the process of the union. Therefore, the members of such unions have only such rights as were conceded to them by the unitary state; they never were independent states. Hence, their rights are not original and underived.

Even as to federal unions like the United States (and the former German Empire), which were formed by the union of independent states, it is hardly true that the rights of the individual member states are underived since, in fact, they have their legal source in the federal constitution. They embrace only such rights as are reserved to them by the instrument which diStributes the powers between them and the federation.

Therefore, it can hardly be said that the powers left to them belong to them as of right. Certainly, they are not free to determine the limits of their own competence; they are not entirely free, as Jellinek himself admitted, to determine their own constitutions and forms of government. In the United States, the constitutions of the individual states must-not conflict with the federal constitution, and in both the United States and Germany, the individual states are not free to establish any other form of government than the republican system; both Laband and Jellinek were manifestly in error when they asserted that no other will than their own bounds members of federal unions in all such unions they are in fact and in law subject to a higher will which limits their freedom and competence. The criteria that these writers adopted based on the distinction between states and subdivisions of the state: when applied to the members of federal unions, would therefore exclude them from the category of states.

After all, the answer to whether sovereignty is an essential constituent element of the state depends largely upon one conception of the thing itself and its nature. If we accept the German distinction between the theory of the divisibility of sovereignty and the distinction between perfect and imperfect states, we need have no scruple in accepting the doctrine that a political entity Which lacks some of the elements of sovereignty may nevertheless be regarded for all practical purposes as a state.

On the other hand, if we adopt the contrary notions of sovereignty and the state and hold that it is sovereignty and sovereignty alone Which distinguishes the state in essence from all other human associations and organizations, we shall be obliged to deny that any association or community which lacks this element can, strictly speaking, be regarded as a state. This latter view is held by the great majority of jurists and writers on political science.

Nevertheless, there would seem to be no practical reason why the members of federal unions like that of the United States, whose members were originally independent states, which have retained the name of states, and which have constitutions and governments the character of which they are almost entirely free to determine for themselves, may not be regarded as states, even though they are neither sovereign nor independent and not free to determine the limits of their own competence.

Similarly, the great self-governing dominions of Great Britain, which now have an autonomy amounting almost to independence and even a recognized international status, may justly claim to be regarded as states. They now possess every characteristic and power of states except theoretical constitutional independence, and even this they virtually have in practice.

Not even the most orthodox analytical jurist would go to the length of calling the member states of the American federal union administrative districts or the British self-governing dominions provinces or colonies; on the other hand, he dislikes to speak of them as states because they lack that constituent element which he considers essential to a state. Perhaps, as Willoughby suggests, the better alternative is for the analytical jurist to abandon his insistence upon strict scientific precision of terminology, adopt the common usage, and where necessary employ the qualifying adjectives, sovereign, part sovereign, non-sovereign, etc., to secure accuracy of expression.

The Existence of State Sovereignty Denied:-

While most jurists and political writers accept the theory of the sovereign state as well-established in law and fact, an increasing number of recent writers have pronounced it as a useless fiction that no longer corresponds with the facts of the present day. Professor A. D. Lindsay of Oxford University, after arguing that the state is only one of several other associations or organizations which possess a corporate personality and wills of their own and which are occupied with the performance of various public services analogous to those performed by states, concludes that if we look at the facts, it is clear enough that the theory of the sovereign state has broken down.

Professor Ernest Barker of the same university expresses substantially the same. Opinion No political theory, he says, has become more arid and unfruitful other jurists who hold essentially the same view is Professor Krabbe of the University of Leyden, who declares that the notion of sovereignty is no longer recognized among civilized peoples and should be expunged from political theory.

Professor Laski of the London School of Economics, who declares that the theory of the unlimited and irresponsible state is incompatible with the interests of humanity and that the sovereignty of the state will pass, as the divine rights of kings, had its day and the late M. Duguit, an eminent professor of law in the University of Bordeaux, Who says the concept of sovereignty is fiction without value and reality and should be banished from the literature of public law. In fact, he says, the sovereign state is dead or is on the point of dying.

We deny, he adds, the sovereignty of the state. We affirm that those who govern have no right to command because an individual will always be equal to another individual. After all, no man has a right to command another man.

Again, referring approvingly to the Opinion of Charles Benoist  that the notion of the sovereign state is an antiquated mystical and theological idea, false in its origin, further falsified by history, and all things considered, useless, worse than useless-dangerous,

August concludes: there is no sovereignty. There is no commanding and superior will of the state. Duguit’s doctrine, however, has found little favor among his fellow jurists of France. Esme in after an examination of his theory, pronounces it to be a chimera anarchist and declares that it could lead to but one result, namely, the reign of force.

Harris characterizes it as doctrinal anarchy and refers to its distinguished author as an anarchist of the chair. Michoud similarly pronounced it anarchic and incompatible with social necessities. Other French jurists have pronounced similar judgments.

Duguit, defending himself later from these attacks, pointed out that his theory differed essentially from the doctrine of the anarchists since he did not deny the necessity or the fact of government but, as Hauriou and Carre de Malberg have observed, his theory leaves only an appearance and a shadow of government since it takes from the government that which constitutes its strength and the utility-the principle of authority.

These attempts to disparage and discredit the theory of the sovereign state have, for the most part, been made by a group of Writers as part of a plea for a larger autonomy of the various Voluntary associations into which humanity is organized, and the assert that these associations in the total of their collective action are of almost equal importance with the state and that they should therefore be recognized as a co-partners with the state and Sharers of the sovereignty of which it has heretofore Claimed an exclusive monopoly.

However, that a sovereign arbiter would still be necessary for adjusting conflicts between them, protecting some against encroachment by others, and defending their individual members against the possible oppression of their governing bodies has already been emphasized earlier in this book.