Nature of Sovereignty. The constituent element which distinguishes most fundamentally the state from all other human associations is sovereignty. The supremacy of will and power. In every fully independent stats there is some person, assembly or group (a.g the electorate) Who or which has the supreme power of formulating in terms of law, and of executing. the collective will: that it. the final power of command and enforce obedience to its authority. Other associations have collective wills and may formulate opinions, but it, is the peculiar characteristic of the state that its will alone dominates and overrides in case of conflict. all other wills. whether of persons or associations. To it all other wills are potentially subject. The will of the state once declared represents the last word regarding the matter upon which it has made a decision.1 It does not admit the right of any other body or association to exercise the power of sovereignty within its territory or even to share with it the exercise of that power.
The Idea and the Term Nature Of Sovereignty.
Although the term “sovereignty” is, modern, the idea goes back to Aristotle, who spoke of the “supreme power” of the state.2 The Roman jurists and the civilians throughout the Middle Ages likewise had the idea. for they frequently employed the terms summa potestas and plenitudo potestatis by which to designate the supreme power of the state. The modern terms “sovereign” and “sovereignty” (souvcrain, souverainete) were first used by the French jurists, notably by the Beaumanoir and Loyseau in the fifteenth century,3 and later they found their way into English. Italian, and German legal and political literature.4 Bodin in the sixteenth century was the tint writer to discuss at length in his “Six Books on the Republic” the nature and characteristics of sovereignty. In the Latin edition of his work be employed the term summa potestas and in the French edition the term souverainete.
While the ancient and medieval writers undoubtedly had some notion of the modern idea of sovereignty, it was more or less vague and confused, due in large part, no doubt, to the fact that the sovereignty of the state as we understand it today was largely non existent.5 It was the struggle between the rising national state and its various internal and external rivals the Holy Roman Empire, the papacy, and the feudal lords during the late Middle Ages which gave rise to the modern doctrine of the sovereignty of the state and which called forth the first literature dealing with the subject. It was especially in France that this struggle assumed the fiercest proportions. The French kings vigorously combated the pretensions of the emperor, the pope, and the feudal nobility, and asserted that they held their kingdoms by their swords and from God alone. “Le rois,” said the great Saint Louis, “na point de souvrains es choses temporieux.” French jurists came to the aid of their kings with a legal theory which served both as a weapon of defense and a justification of the royal claim to supremacy. This was the theory not so much of state sovereignty as it was of monarchical sovereignty. The king is sovereign above all, said Beaumanoir, and we name him when we speak of the sovereignty which belongs to him.
Originally, sovereignty was not conceived of as implying the total independence of the monarch as over against his various rivals, but before the end 0! the sixteenth century it came to be regarded as an absolute supremacy and therefore an indivisible power.
Sovereignty identified with the Monarch
Originally conceived as a personal attribute of the monarch, sovereignty came in the hand of Bodin to be regarded as a constituent element of the state although Bodin himself did not avoid confusion, for he identified sovereignty with the power of a particular organ of the state. In France this organ was the king, and to him Bodin attributed the right of sovereignty. Bodin and Other early writers also fell ion the error of confusing the sovereign power with the power of government. Thus he enumerated as true marks of sovereignty the power to make laws, to declare war and make peace, to Create offices, judge legal controversies, etc. In fact these powers do not result from the notion of sovereignty, but are nothing more than the usual prerogatives of particular organs of the government. It is not unnatural that the sixteenth century writers should have identified the sovereignty of the state with the power of the monarch, mainly because the struggle which gave rise to the conception of sovereignty was undertaken and sustained by the monarch himself in order to establish personal independence. As the king triumphed in the struggle, it was equally natural that sovereignty should have been regarded as belonging to him.6
Some Definitions of Sovereignty
Definitions of sovereignty, like definitions of the state, vary according to the Opinions of their authors. Bodin, the first writer to employ the term, defined it as the “summa in cives ac subditos legibusque soluta potestas” the supreme power of the state over citizens and subjects, unrestrained by law. Grotius, who wrote half a century later, defined it as the supreme political power vested in him whose acts are not subject to any other and whose will cannot be overridden.7 Black stone conceived it to be the supreme, irresistible, absolute, uncontrolled authority in which the jura summi imperii reside.8
Jellinek defined it as “that characteristic of the state in virtue of which it cannot be legally by any other power than itself.”9
Duguit says that sovereignty according to the dominant theory in France is the “commanding power of the state, it is the will of the nation organized in the state, it is the right to give unconditional orders. to all individuals in the territory of the state.”10
Burgess characterizes it as “original, absolute, unlimited power over the individual.subject and over all associations of subjects.”11
Again he calls It the underfunded and independent power to command and compel obedience.12
1.Compare Maine, “Early History of Institutions” (1875), P. 349. and Willoughby, “Nature of the State” (1896), p. 185.
2.See his “Politics,” bk. III, ch. 7.
3.Viollet. “Establishments de Saint Louis.” vol. II, p. 370. Carré de Malberg, “Theorie générale de létat,” vol. I. pp. 73-74.
4.It is somewhat singular that the Germans have no word which is the exact b equivalent of the English word “sovereignty.” They accordingly use a modified French term Sauveranitat. The German words Herrschaft Staatsgewalt, Obergewalt and Staatshoheit have reference rather to the power of the monarch, the power of the state, and the dignity or majesty of the state than to sovereignty. Jellinelc. “Recht des modernen Staates,” French translation. vol. II, p. 128. Bluntschli, “Theory of the State.” p. 494 and Carré de Malberg. 0p.cit.p.86
5.Jenks, “The State and the Nation” (p. 260), remarks that the heads of Cambridge colleges were designated as “sovereigns” in fifteenth century last report.
6.As to this and the origin of the conception of sovereignty see especially Cané de Malberg, op. cit, pp. 72-78. Duguit, “Létat,” vol. I, pp. 339 3. Rehm, “Allgemeine Staatslehre,” pp. 40 of Meyer, Lehrbuch des deutschen Staatsrechts (6th ed), eh. I and Jellinek, op. cit, (French translation), vol. II pp. 78 ff.
7.”De Jute Belli et Pacis,” bit I, ch. 3, Whewell’s ed., p. 112.
8.“Commentaries on the Laws of England,” Chase’s ed., p. 14. Justice Story of the United States Supreme Court defined it in almost the same language see his “Commentaries on the Constitution of the United States,” vol. I, sec. 207.
9.”Lehre von den Staatenverbindungen,” p. 34, also his “Recht des modStaates,” pp. 421 ff.
10.“Droit constitutionne,” vol. I, p. 113.
11.“Political Science and Constitutional Law,” vol. I, p. 52.
12.“Political Science Quarterly, vol. III. p. 128. Other definitions are the following : “Sovereignty is that power which is neither temporary nor delegated, nor subject to particular rules which it cannot alter, nor answerable to any other power on earth.” Pollock. “History of the Science of Politics,” p. 49
“Sovereignty is the supreme will of the state,” Willoughby, “Nature of the State,” 9. 280. Cure de Malberg (op. cit, vol. I, p. 70) says Sovereignty is not a “power” but rather a “quality” it is the supreme characteristic of a power supreme in that this power admits no other above it and no other to compete with it. Some gorge“ define it as supreme“ win others as supreme “power” and other both.
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