Sovereignty

Nature of Sovereignty: The relation of state to state, of a state to its citizens, and of one citizen to another can be understood only after a further discussion of that characteristic which distinguishes the state from all other organizations, its sovereignty. Such discussion leads naturally to the corollary of state sovereignty, namely, individual liberty. At first sight these seem mutually contradictory, but further analysis will show their proper relation. Another topic to be considered is the nature of law since in that form the sovereignty of the state manifests itself.

The concept of sovereignty is the basis of modern political science. It underlies the validity of all law and determines all international relations. It may he briefly outlined as follows. The state comes into being when an independent group of people are organized by means of a government which creates and enforces laws. Within this group there must be supremacy of will and power. It must contain some person or body of persons whose commands receive obedience and who can, if necessary, execute those commands by means of force.

Such person or body of persons exercises sovereignty, and such commands are called laws. Evidently there can be no legal limit to sovereignty , since that would imply a higher lawmaking body, and that in turn would be the sovereign. Such a body cannot legally limit itself, since such limitations could be removed at its pleasure. The state, therefore, is legally sovereign. There can be no legal limit to the lawmaking power of the supreme lawmaking association .

Since sovereignty is a legal concept, the facts set forth above result inevitably from the definition of the state. Other associations may formulate Opinions and lay down rules, but it is the peculiar characteristic of the state that its will overrides, in case of conflict, all other wills, either of persons or of associations within it. Its law is the final word on such matters as it chooses to bring under its control.

While possessing unlimited legal power, the state usually exercises but a small part of its authority. It granite certain rights and privileges to individuals, and it voluntarily sets bound to its own activities. All these have, how ever, no legal force against the state, since it may change or destroy them at its will. There have always been certain activities which the state has permitted freely to individuals, not because the state could not interfere, but because it did not deem it expedient to. A state may grant a large measure of autonomy to its colonies or may give extensive powers to its local divisions and still retain sovereignty if it can legally with haw these delegated powers at any time.

A distinction is usually made between internal and external sovereignty. Writers, especially in international law, speak some times of internal sovereignty as the power to make and enforce law over all persons in the territory of a suite, and of external sovereignty us the power to carry on relations with other states, including the power to declare war and make peace. This conception of external sovereignty is objectionable because it implies that a state possesses sovereign powers in the territory of other states, which is not true.

By other writers external sovereignty is viewed as the freedom of the state from subjection or control by another state. Treaties or the rules of international law by which states agree to certain limitations on their complete freedom of action do not destroy their sovereignty, since there is no superior legal compelling authority to enforce them. If a state is internally sovereign, it must of necessity be legally independent externally. Sovereignty, properly speaking, deals with the internal relations of a state to its inhabitants it is a term of constitutional law rather than. of international law. It is a legal concept and deals with positive law only.

It would be conducive to clearness of thought and would avert much controversy if the term “sovereignty” were applied only to what is usually called internal sovereignty, and the term “independence” were used for what is sometimes called external sovereignty. What is called external sovereignty is in reality the totality of rights by which internal sovereignty manifests itself in its dealings with foreign states.

In the last analysis, sovereignty rests upon either force or consent, or a combination of force and consent. Men obey because they must or because they agree that it is desirable to do so. In despotic states authority rests upon force or the threat of force. Men obey through fear, either of bodily punishment or of the divine wrath of the gods, whose authority is believed to support the power of the rulers. In democratic states the majority of men obey through consent, since they believe that the government is created by themselves and that the laws represent the general will of the people. Force is necessary only for the few who refuse to obey. For this purpose the state maintains a police force to coerce the criminal, and a military force to put down riots or rebellions if a considerable number refuse to give voluntary obedience.

Even consent, therefore, implies the existence of potential force, since the mass who agree are usually m a position to coerce, if necessary, those who refuse to give consent if an internal issue is put to the test of force, civil war follows, and the successful outcome of this contest, resulting from the superior force of one party, will decide the disputed question. It is this possession of force to Support its commands. and to compel obedience that distinguishes the state from all other associations and that makes it sovereign.

In a well organized state the use of force is seldom needed. Intelligent recognition of common interests creates a feeling of unity, and laws represent a general consensus of opinion. When, how ever, disputes among states arise that cannot be settled by agreement, the nature of the state as organized force immediately becomes apparent, and the issue, in case of war, is decided by the Superior force of the victorious state.

Characteristics of Sovereignty:

The characteristics of sovereignty may be summarized as follows:

1. Absoluteness. There can be no legal power within the state superior to it, and there can be no legal limit to the supreme lawmaking power of the state.

2. Universality. The sovereignty of the state extends over every person and every association of persons in the state. The apparent exception in the case of diplomatic representatives is an international courtesy which the state may at any time remove.

3. Permanence. The sovereignty of the state continues as long as the state itself exists. Those who exercise it may changer and the whole state may be reorganized but sovereignty, Wherever located, persists. Only by the destruction of the state itself can sovereignty be destroyed.

4. Indivisibility. There can be but one sovereignty in a state. To divide sovereignty is to destroy it. The exercise of its powers may he distributed among various governmental Organs, but sovereignty is a unit, just as the state is a unit. There must be as many states as there are sovereignties. A divided sovereignty is a contradiction in terms.

The theory of the indivisibility of sovereignty has been attacked from various points of view. Writers on international law speak of part sovereign. states, such as protectorates, but they are concerned with the external aspects of sovereignty, where the independence of states is a relative matter and may be more or less complete. In the years following the adoption of the Constitution of the United States the theory of divided sovereignty was held by most American thinkers.

In order to explain the nature of the new Federal system and to avoid the necessity of settling the issue of whether sovereignty was left to the former states or transferred to the new union, most writers adopted the theory of a dual sovereignty. They viewed the United States as sovereign as to the powers conferred upon the national government, and the states as sovereign as to those powers reserved to them .

The nation was sovereign in its sphere, and the states were sovereign in theirs. This theory was revived by German writers at the time of the formation of the German Empire, but it has now been generally abandoned. What is divided in a federal system is not sovereignty, which resides as a unit in the state as a whole, but the exercise of its various powers, which are distributed in accordance with a constitutional system among various governmental organs.

More recently the theory of divided sovereignty has been revived by the pluralists who deny that the state alone is sovereign and who hold that other associations in the State, such as churches or economic groups, are sovereign over their particular interests. This would divide sovereignty into fragments and distribute it among the state and other associations. The result Would disintegrate the state, and would probably lead in the end to confusion and anarchy, or to a reorganization of a new unified sovereignty, since a final authority must lie somewhere.

Development of the Idea of Sovereignty:

While the term “sovereignty” was not used until the fifteenth century, the idea tan be traced bark to Aristotle, who wrote of the supreme power at the state. Roman lawyers and medieval writers spoke of the fullness of power of the state . Ancient and medieval Writers, however, had a somewhat vague and confused idea of the nature of sovereignty.

In the Middle Ages the state in the modern sense did not exist. Feudalism was a governmental System based on personal allegiance. Coexistent with feudalism Were the antagonistic claims of Church and Empire, leading to the much disputed question whether temporal or spiritual power was supreme. Further confusion was added by the general belief in a law of nature, to which all human law must mutton.

The belief that the Holy Roman Empire was universal and the claims of the Papacy to headship in temporal affairs, prevented the existence of independent states. On the other hand the divided authorities of feudalism and the belief in a law of God or of nature, superior to all human laws, made impossible the modern idea of the unlimited and indivisible sovereignty of the state over all its citizens. Such concepts of sovereignty as existed were a mingling of concepts of tribal allegiance and of universal empire. From the standpoint of the second, the king was lord of his people from that of the second some authority must exist supreme over all kings.

Toward the end of the medieval period a number of causes combined to create new political ideas. The feudal nobles were weakened by the Crusades and by their own quarrels. Commerce and towns destroyed their monopoly of wealth new methods of warfare destroyed their military supremacy. Taking advantage of their weakness, the king increased his power and importance until he became supreme iii the state. This process was aided by the old traditions of the Roman Empire and by the revived study of Roman law.

Feudalism, by joining governing power with landholding, had developed the idea of territorial sovereignty and as the intermediate authorities between king and people were removed, the state was unified, and thee king stood forth as sovereign of his state. Later, as men began to realize that government was an agent rather than a mastery sovereignty was applied to the state itself instead of to the king.

It was the struggle between the rising national state and its various internal and external rivals the feudal lords, the Papacy, and the Holy Roman Empire that gave rise to the modern doctrine of sovereignty. This struggle assumed fiercest proportions in France, and French jurists came to the aid of their king, with a legal theory to justify the unity of the state and the royal claim to supremacy. Jean Bodin in the sixteenth century, was the first writer to discuss at length the nature and characteristics of sovereignty.

The state was recognized as supreme over all its citizens and free from external compulsion. Sovereignty was defined as the absolute and perpetual power of the state. Its chief function was the making of law, but the sovereign was not bound by the laws thus made. The idea of sovereignty was further developed by Hobbes, who justified its absolute power on the basis of an original and irrevocable agreement of the people to surrender their natural rights to its authority. Rousseau’s agreed that sovereignty was absolute and unlimited, although he located it in the general will of all the people, rather than in the ruler.

Finally, in the writings of John Austin, the legal theory of sovereignty received its most elaborate analysis. He held that in every state there must be a determinate body which possesses sovereign power, that its authority is indivisible and legally unlimited, and that its commands alone create law. The fundamental principles of this theory, though attacked by many writers, still serve as the basis for modern jurisprudence.

Legal and Political Sovereignty:

A distinction is sometimes made between legal and political sovereignty. The former represents sovereignty as supreme lawmaking power. The legal sovereign, therefore, is that authority which is able to express in legal form the supreme commands of the state. It is always a Part of the governmental organization of the state, and no legal limitations restrict its power to express the state’s will. The laws created by it are those which are recognized by the courts of the state. behind the legal sovereign, however, in modern democracies is the electorate whit it creates and to a large degree control the legal sovereign.

Still farther back are the vague and indeterminate influences which create public opinion and to which, in practice, the legal sovereign will usually conform, These form what is sometimes called the political sovereign. It is incapable of expressing its will in the form of a legal Command yet its will can usually be made to prevail.

In a direct democracy political and legal sovereignty would practically coincide the expression of political sovereignty would be equivalent to the creation of the supreme law. In modern representative democracies the concept of political sovereignty represents the view of the ordinary citizen who sees sovereignty residing in those persons who can make their will prevail in the state. The concept of legal sovereignty represents the juristic point of view, which requires a more definite conception and which knows no sovereign except that to whose commands the law attributes legal force.

Where the will of the legal sovereign and the political sovereign conflict, the former takes precedence, since only those laws which have been enacted in legal form will be recognized by courts. If the political sovereign is unable to control the legal sovereign, it may either create a new and more subservient one by the legal process provided for this purpose, or it may, by revolution, illegally overthrow the existing legal sovereign and reorganize the state.

The problem of good government is largely one of the propel relation between the legal and the ultimate political sovereignty. The will of the legal sovereign should be the authorized manifestation of the will of the political sovereign that is, law should conform to public opinion properly expressed. Legal and political sovereignty should be different manifestations of the same sovereignty through different channels.

While the student of political science must give attention to the influences that create political sovereignty and to its relation to the legal sovereign, nevertheless it is the latter which, for purposes of scientific analysis, must be viewed as exercising the sovereign of the state. It is unfortunate that the same term, “sovereignty,” would be applied to two forces so radically different. It seems Preferable to limit the term “sovereignty” to its purely legal application and to call the extra legal forces behind it “public opinion” or “general will.”

Location of Sovereignty:

One of the most difficult question! in political theory is that of the location of sovereignty in the state. Granted that sovereignty is the essence of the state, that it implies the external independence of the state from other states, and that it involves the legal supremacy at the state over me persons composing it, the question still remains. What person or body of persons within the state ultimately expresses the state’s will and enforces the state’s authority? In other words, where within the state, is its sovereignty located? Various solutions to this vexing problem have been offered.

1. Sovereignty of the monarch:

Originally sovereignty was viewed as an attribute, not of the state, but of the thing. It was natural that sixteenth century writers should identify the sovereignty of the state with the power of the monarch, since the struggle that gave rise to the conception of sovereignty was carried on by the king in order to establish his personal independence and supremacy. As he triumphed over his rivals in the struggle, sovereignty was ascribed to him. The king was the sovereign and could even say. “I am the state.” This theory made the king the source of all law and authority, he could do no wrong passive obedience must be given by all subjects. This theory was destroyed by the revolution that created modem democracies but its traces survive in the use of the term “sovereign,” in a nominal sense to refer to kings (as in England) who have become, in fact, comparatively unimportant parts of the government.

2. Sovereignty of the people:

The theory that sovereignty resides in the people was put forward in general terms by writers m the early Roman Empire. Influenced by Stoic doctrines of natural law and human equality, Cicero taught that ultimate Political authority lay in the people of the state as a whole. Though traces of this doctrine survived, it was generally super Ned in the Roman Empire by the principle that the will of the Emperor has the force of law and later by the belief that the ultimate source of authority was divine and that God delegated supreme power on earth to a single head, either Pope of Emperor.

Still later the theory of divine right was added to uphold the sovereign power of the kings of the rising national states. in its modern form the theory of popular sovereignty Was revived by the anti monarchists of the sixteenth and seventeenth centuries. They attacked the prevailing system of absolute monarchy and defended the sovereignty of the people on the basis of the law of nature and an original social contract. Locke, in England, put forward the theory to justify the revolutionary movements of the seventeenth century. The chief impetus to the adoption of this theory was given by the writings of Rousseau and Jefferson, and by its adoption as the basis of the French and American revolutions. After that time it was generally accepted as the logical foundation of democratic government.

Several objections, however, arise the moment one attempts to analyze this concept and to give it a definite and legal meaning. The people as an indeterminate mass cannot exercise sovereignty. Unorganized public opinion, however powerful, is not an expression of sovereignty. Sovereign power can be exercised only by those upon whom the law conifers the right to take part legally in expressing the will of the state through governmental machinery. In this sense the sovereignty of the people at its best would be only “political” sovereignty that is, the general will which influences the action of the state, or the general consent to submit to authority and law.

At its worst the sovereignty of the people would mean the potential power of the mass and the possibility that, by revolution, they might overthrow the existing legal organization of the state and create one more to their liking. In any case, neither the influence of their public opinion nor the might of their potential power of revolution is sovereignty.

If the idea of popular sovereignty is taken in a more limited sense to mean the sovereignty of that part of the population who are given the right to vote, it means nothing more than the fact that in a state where suffrage is widespread the majority of voters are in a position to make their will prevail, in the long run, through legal channels. By electing representatives or officials who will carry out their policies, or sometimes by expressing sing their will in a referendum, the voters Shane legally in the exercise of sovereignty.

But even in this sense not more than two fifths of the population in the most democratic states possess the right to vote. And in closely contested elections the majority would form little more than one fifth of the population. Hence the sovereignty of the people would mean the sovereignty of an indeterminate number comprising a small minority of the whole population of the state.

The theory of popular sovereignty destroys the value of sovereignty as a legal concept. If a state consists of a people organized by means of a government which makes and enforces law, some organization and some method of government is the legal one otherwise no state exists. Any attempt to make or enforce law except by legal means is nut an act of the sovereign, but is an illegal revolt.

The people can exercise sovereignty only through legal channels, in which case most of them cannot exercise it at all, and most of those who can will exercise very little or they must exercise it through revolution, in which case sovereignty is being relocated and will reappear in another form, since continuous revolution would destroy the state. Hence the sovereignty of the people is, in time of peace, nothing more than public Opinion in case of a contest, only the “might of revolution” not a legal power but a revolt against the existing sovereign.

Popular sovereignty could be exercised only by a constant series of revolution or by a constant system of referendums, practically impossible in modern large states, Sovereignty of the people is, in fact, by the very definition of the state a contradiction in terms.

At the same time the concept of popular sovereignty contains several valuable ideas. The tendency in modem states is to organize the state and locate sovereignty in such a way as to enable public opinion to express itself in a legal way as readily as possible. This development is ordinarily called the growth of democracy and some of its most important devices am written constitutions, a wide electorate, representative legislatures frequent elections, local self government, responsibility of government to the majority party, and the use of initiative and referendum and of direct primary nominations.

By they and similar means a satisfactory relation is maintained between the mass of the people and the government, and the danger of revolution is minimized. Constitutional government is valuable, since it prescribes definite legal ways by which the state will exercise its sovereign power, thus protecting citizens from arbitrary action, such action being illegal. Popular government is valuable, since it provides means through which the wishes of the people may be known, with the probability that these wishes will be considered by the state.

In modern constitutional, democratic states the contacts between public opinion and sovereignty are numerous, though legally they are quite distinct. The moral influence of public opinion must not be confused with the legal power of the state to create law.

A modified form of the popular sovereignty theory arose in France at the time of the French Revolution. It held that sovereignty raided in the nation, which was viewed collectively as a corporate person. This theory represented the strong influence exerted at that time by the idea of nationality. It was also intended to oppose the theory of Rousseau that sovereignty was divided equally among all the individuals in the state.

It was desired to combine the democratic background of popular sovereignty with the concept of the state as the nation personified and united. This theory was, of course, an abstraction, since sovereignty can be exercised only by persons acting through governmental organs, and not by the nation as a Collective whole. The nation has no personality or will distinct from those of the individuals that compose it.

3. Sovereignty as constitution making power:

After the theory of popular sovereignty had successfully accomplished  work of overthrowing royal sovereignty and of establishing democratic government, it was reexamined in an effort to find more definite and legal location of the sovereign power. This was the work of a number of jurists in the nineteenth century who reached the conclusion that sovereignty is located in that body of persons who make the constitution of the state or who, once the constitution is made, possess the legal power to amend it.

This theory, which is essentially juristic in nature, reasoned as follows. The supreme law in a state is its constitution. This body of principles creates the framework of government, out guess its powers, and adjusts the relation of the state to its citizens. Hence the government is limited in its powers by the constitution, and is inferior in authority to the body that may create or change this fundamental law.

Whoever create the constitution make the supreme law of the state and express its direct will therefore they are sovereign. In some states the national legislature exercises this power in others a special organ or a special method procedure is required for constitution making.

This theory avoids the vagueness of the popular sovereignty doctrine, and at first sight seems logical and satisfactory, since it locates supreme authority in a definite organ that seems to, possess final legal authority. Nevertheless, serious objections may be urged against it. The sovereignty of the state is being, constantly exercised yet in those states which provide a special organ for amending the constitution, that body acts intermittently and at infrequent intervals.

It seems scarcely logical to consider sovereignty, the life and essence of the state, as lying dormant in a body that seldom comes into existence. Sovereignty, as a matter of fact, lies in the organs Which express the state’s will now, not in the original body, often revolutionary, which created the constitution in the past, nor in the body which, on occasion, may change that document by the legal process of amendment.

A more serious objection strikes at the mot of the apparent legality of this theory. The constitution amending organ does not possess the legally unlimited power that is the essence of sovereignty. It cannot make any law that it chooses nor exercise the actual power of government. It can legally do one thing and one only that is, amend the constitution. Any attempt to go beyond this power and to make any other law would be an illegal usurpation of power.

We thus have the contradiction of the sovereign body‘s being legally limited to the exercise of Single and specific function. The constitution making body therefore is not sovereign it is merely a part of the government, possessing the legal power to exercise the limited, though important, function of redistributing the total exercise of sovereign power among the various other organs of government. It has no further power, and it must act only in the legal manner prescribed by the constitution of the state.

This distinction is not readily apparent in states like Great Britain, Where the national legislature may amend the constitution as well as make ordinary law but it is obvious in states like the United States. where the legal power to amend the constitution demands a special procedure and may even, utilize special organs of government created for the purpose. Such as a national convention or conventions in: the several states. Such bodies, if created, would not possess full sovereign power, but merely the legally limited power of doing one specific thing that is, of amending the constitution.

4. Sovereignty of the Lawmaking power:

This theory locates sovereignty in the sum total of all the lawmaking bodies in the government, if these act within the scope of their legal competence and in the legal manner provided by the constitution and laws of the state. Since the expression of the state’s will is its highest manifestation of power, all those bodies that share legally in expressing that will are exercising sovereign power.

These would include not only the representative legislatures, national and local, but the courts, in so far as they create law the administrative official who possess discretionary powers the electorate, when deciding issues by referendum or elections and the special organs, if any, that may amend the constitution. This theory considers the state as a unit and its government as a unit. Sovereignty resides in the state and is exercised by its government.

Sovereignty as a whole is a unit, but the exercise of its various powers may be distributed among numerous organs of government, the aggregate of these bodies being the depository in which the state’s sovereignty is located. Some of these bodies possess a large share some, a small share. It must be remembered that each organ must exercise such powers an must proceed in such manner only as the constitution and laws of the state prescribe, though these may be changed in a legal way and sovereign powers redistributed, if desired.

It is, of course, true that the laws of the state will not always be perfectly executed or obeyed, but this discrepancy results from defects in human nature or from defective organization of the state, and does not destroy the legal nature sovereignty.

In many respects this is the most satisfactory solution to the difficult problem of locating legal sovereignty within the state. It combines the strong points of the popular  sovereignty theory with the legal definiteness of the constitution making theory, and it adheres most closely to actual facts.

Like the popular sovereignty theory, it recognizes that in modern democratic states sovereign powers are widely distributed and exercised by a large number of the state’s citizens. Like the constitution making theory, it recognizes that sovereignty is a legal concept and can be exercised only through legal channels and in a legal manner. It avoids the vagueness and loose thinking of the first point of view at the same time it steers clear of the legal abstraction which in the second, by pushing sovereignty :too far back, almost destroys its existence.

It corresponds with the facts in that it conceives of sovereignty as exercised by those organs of government that are constantly, yet legally, engaged in framing and giving efficacy to the state’s will. Sovereignty resides in the state, but only through the laws made and administered by its government can its sovereignty be manifested.

De Facto and De Jure Sovereignty:

The distinction between de facto (on actual) sovereignty and de jure (or legal) sovereignty becomes important in case of revolution. A revolution may be defined as a successful, though illegal, relocation of sovereignty. An unsuccessful attempt at revolution is a rebellion. Revolutions may be of two kinds:

(1) internal, where the aim is to overthrow by other than legal methods the existing distribution of sovereign powers within the state.

(2) external, where a part of a state attempts to break away and set itself up as an independent and sovereign state.

The French Revolution was an example of the former type the American Revolution, of the latter. The attempt of the Southern State secede from the American union was a rebellion. While revolutions may be morally justifiable, they are never legal The emailed “right of revolution” is not a legal right.

While a revolution is in progress, there are two rival claim am of sovereignty the former, legal, or de jure, sovereignty. and the new, illegal, and revolutionary aspirant to supremacy If during the revolution the new group is actually able to govern and to make its will prevail, it becomes de facto sovereign. The authority exercised by Cromwell in England, by Napoleon in France, and by the Bolshevist group in Russia after 1917 were examples of de facto sovereignty in internal revolutions.

The American colonies during the American Revolution and the Southern Confederacy during the Civil War exercised de facto sovereignty in external revolution. The temporary occupation of part of the territory of a state by a hostile army whose commander displaces the local authority and demands obedience from the inhabitants is another example of de facto sovereignty.

If the attempted revolution ultimately fails, the de facto sovereignty never becomes de jure, and is considered legally never to have been a sovereignty. If, however, the revolution succeeds, the de facto sovereign becomes the de jure sovereign. Success and the lapse a reasonable period of time would be sufficient to give the new sovereign a legal basis, but it usually adds a more formal sanction.

In the case of an internal revolution this might be secured by some expression of acquiescence by the people in the case of an, external revolution, by the formal recognition by other states of the independence of the new state. Men naturally dislike a power which rests only on force, and the establishment of a legal basis for the actual sovereignty strengthens its moral claim to the obedience of it! subjects.

When the de facto sovereign succeeds in becoming de jure, it dates the beginning of its sovereignty not from the day when it was recognized as do fun: but from the day when it established itself as de facto. For example, the American states date their sovereign independent from 1776, when they declared themselves de facto independent and not from 1785

when their independence was recognized by England. Had the southern states succeeded in their attempted secession, they would date their independence from 1861. Since they failed, may were never legally sovereign, though they actually governed themselves and were de facto sovereign from 1861 to 1865.

Revolutions may be sudden or gradual, violent or peaceful. The essential characteristic of a revolution is the fact that the relocation of sovereignty which results takes place ,by a process other than the one legally recognized by the constitution and laws of the state concerned. In a sense the conquest and annexation of one state by another or the federation of several sovereign states into one state is a revolution, since each involves the destruction of a previously existing sovereignty.

The fact that de jure, or legal, sovereignty may be created by successful revolution or by successful war is an illustration of the principle that sovereignty rests ultimately on force or on the consent of a sufficient number of persons to imply potential force.

While the terms “de facto” and “de jure” are usually applied to sovereignty, it would be more strictly scientific if they were applied to government. By its definition sovereignty is a legal concept, and there can be but one legal sovereignty in the state. The de jure sovereignty alone is sovereign in this sense, and the so called de facto sovereignty does not become sovereignty until it becomes de jure. An unlawful sovereignty is a contradiction in terms.

A de facto government may exist in a state during a period of revolution, and may, in fact, exercise the full power that are associated with sovereignty. Not, however, until it acquires legal status does it exercise, in a legal sense, sovereign powers. It is obvious that in a well organized state the de jure sovereignty should also be de facto that is, it should correspond with the actual location of power, should be supported by the consent of the people, and should be able to make its will effective.

When such a condition does not exist, revolution is likely, for the purpose of creating a de jure sovereignty that will correspond to the existing conditions. Political expediency demands that sovereignty shall possess a legal status and at the same time be able to maintain itself by actual force.

Limitations on Sovereignty:

While sovereignty, the supreme power of the state cannot be legally limited, there at in practice certain limitations which may or should limit the full exercise of its powers. in the first place, the sovereign cannot do what is impossible. A law forbidding the sun to rise would be within the legal scope of the sovereign’s power, but would he obviously ridiculous. Similarly, a law forbidding persons to hold certain opinions would be perfectly legal, butt would be impossible of enforcement unless those opinions were written or spoken. It is useless for the sovereign to forbid  what it cannot discover or control.

1. Moral limitations:

Many early writers argued that sovereignty was limited by divine law, by natural law, or by moral t law. The generally accepted principles of religion, morality, and justice undoubtedly influence the exercise of sovereignty. But the laws of God and of nature must be interpreted by human agencies they exercise no sovereignty of themselves. They are not legal limits, but a part of the intellectual atmosphere in which laws are made. They limit sovereignty only in the sense that a wise state will not enact laws contrary to generally accepted ideas of morality and justice, because of the opposition such laws would arouse, leading to difficulties in enforcement or even to revolution.

Only such laws as are supported by a general consensus of opinion can be successfully administered. The most despotic of sovereigns would encounter difficulties if they attempted to interfere with the religious beliefs or the long standing customs and traditions of their subjects. The fact that sovereignty is legally unlimited does not imply the moral right or the expediency of regulating all the interests and activities of the people. In modern states many aspects of life are exempt from governmental interference and any state which attempted to exercise its legal power to interfere in certain relations of human life would soon be overthrown by revolution.

2. Constitutional limitations:

Some writers have argued that sovereignty is limited by the constitution of the state. They make a distinction between fundamental, or constitutional, law and the ordinary laws made by the government, holding the former to he the higher law, and the latter to be valid only if they accord with the former. To this point of view two objections may be urged. The sovereignty of the state is not limited by the constitution, since the state may legally amend its constitution whenever it desires. A limitation self imposed and removable at pleasure is not a real or a legal limitation.

What is limited by the constitution is not the state or its sovereignty, but the government of the state. The various organs of government must keep within the constitutional sphere of their powers and must act in the legal method prescribed, if their acts are to be legal. But this provision or a legal distribution of the exercise of its sovereign powers places no limitation of sovereignty itself. Even the method which the state legally prescribes for the amendment of its constitution may be changed by the state, and is in no sense a legal limitation on its sovereignty.

In the second place, there is no such thing as a higher law and a lower law. Laws may differ in the importance of the questions with which they deal but the so called lower law either is not law at all, in case it is made by a body that had no legal right to make it, or it is law, in case it is legally made by a body possessing the legal authority and acting in the legal manner. In the first case it is an unconstitutional or illegal law therefore not a law at all. In the second case it is law, equal legal validity with the highest law.

A law made by a subordinate lawmaking body, provided it has the legal right to make that particular law, is as truly law as the law made by the constitution amending body itself. Both are exercising that share of the sovereign power of the state which its legal system of organization allots to them. The constitution differs from other law in nature and in purpose, but not in legal validity. Like other law, it is an expression, of the sovereign will of the state and not a limitation upon it.

3. International limitation:

many writers today hold that the sovereignty of a state is limited by the rules of international law and by the treaties and conventions into which it enters With other states. According to the strict juristic theory of Sovereignty these restrictions are not legally binding. They are Voluntary limitations, self imposed, which a state may legally repudiate, and no legal authority exists to enforce them. Sovereign states must be, in the last analysis, the judges of their rights and obligations to other states.

They may repudiate their repudiate, refuse to be bound by the accepted rules of international law, and declare war in defense of their interpretation of their international rights. International law is not law in the sense that it is the will of a sovereign, enforceable on subjects.

Nevertheless, the legal theory of the complete external sovereignty, or independence, of states is not in accord with the facts of present day international life. The development of international good faith and the complex interrelations among states make it undesirable, and in many cases impossible, for each state to be its own interpreter of international obligations or to fix its own standards of international conduct.

A state which is injured by a violation of international law may demand reparations for such injury or may use force to defend its international rights. Only when the offending state is so strong that no one dares to resist can it exercise complete freedom of action in international affairs. The concept of external sovereignty has done much harm in preventing the development of international law and international solidarity.

It is a legal fiction, no longer corresponding to the facts of international life, and should be abandoned. As pointed out before, the term “sovereignty”, applies properly to the internal legal supremacy of a state over its Own subjects. Externally, states possess a certain degree of independence, but the rules of international law are acquiring a legal basis which, in fact, places limits on the external independence of action of each state in its dealings with other states.

If, as some writers believe, the present tendency is toward the development of an international organization with unified control the result would be a World sovereign State with the right to create and enforce law. In that case, what we now call international law would become law, but would cease to be international being the unified will of a world state. What is now called external sovereignty would cease to exist, being wallowed up in the internal sovereignty of the world system.

Most writers, however, believe that it is more feasible, under present conditions, to develop internationalism on the basis of sovereign national states. If this is to be done, the traditional theory of the external sovereignty and equality of states must be modified to permit a certain degree of international control.

Attacks on the Theory of Sovereignty:

The concept of internal sovereignty as the essence of the state has been attacked from several points of view. One group of writers denies the existence of sovereignty or argues that it is not necessary to state existence. Another group denies that sovereignty is the source of law, holding that law exists outside the state and is superior to its sovereignty. Still another group denies that sovereignty is the exclusive possession of the state, and argues for a plurality of sovereignties possessed by various associations.

1. Sovereignty not necessary:

Many writers have argued that sovereignty is not essential to statehood, holding that states may be partly sovereign, and that the test of statehood is the right to govern, the power to command not derived from any other authority. This doctrine was put forward especially by writers in Germany, Switzerland, and the United States or the purpose. of claiming statehood for the members of a federal union. This theory would hold that the members of the German Empire, the Swiss cantons, and the commonwealths of the American Union Were states, even though not fully sovereign.

It would apply today to the self governing British dominions, which possess almost complete autonomy, and even an international status. All these political bodies possess constitutions of their own and governments whose character they are almost entirely free to determine, though they are not fully sovereign nor free to determine the limits of their own competence.

Members of a federal union have their legal status only in the union, and have such powers only as its constitution gives or reserves to them. While it is true that such political units are much more than mere administrative districts or provinces of states, nevertheless, in the Opinion of most jurists, the term “state” cannot properly be applied to them unless they are completely and legally sovereign. In the case of members of a federal union the tendency seems to be in the direction of diminishing their original powers.

In the case of the British dominions the tendency seems to be toward complete independence and state. hood Some writers go so far as to deny the existence of sovereignty, holding it to be only an outworn and useless fiction. They argue either that it is a futile doctrine that does not correspond with the facts of present day life, or that it is a dangerous doctrine that leads to an irresponsible and unlimited power, destructive of human rights and freedom. Some of these writers attack the idea of state sovereignty because of their desire to give full autonomy to other associations than the state others, because of their interest in individual freedom. In the latter case the theory shades off into anarchism.

While it is true that the theory of state sovereignty has been perverted for the purpose of glorifying the state at the expense of individual freedom, it is also true that in organized social life there must be somewhere a final authority which exercises social control by means of law In the modern world such control is exercised by the state. To ascribe to it legal sovereignty does not necessarily imply irresponsible and tyrannical power.

The state may be sovereign! and still realize that not all social relations need legal control: and that many other institutions may be permitted to exercise a large degree of control over their own interests. The attack on state sovereignty is valuable chiefly in pointing out certain defects in the governmental organization of modern states which impede or distort the proper exercise of sovereign power.

2. Sovereignty not the source of law:

Recently a group of jurists has attacked the orthodox, or Austinian, theory of state sovereignty as the supreme and only source of law. They argue that law is a system of rules resting upon social necessity or social solidarity and that it exists outside the state, anterior to its creation and independent of its will. The state itself is a subject of law, and is bound by the rules of law. Men possess rights which the state is legally bound to respect, and the law imposes legal limitations upon the sovereignty.

According to this theory the state has self determination only within the limits of a superior body of law, which has its source outside the state and independent of it. The law, therefore, becomes sovereign. Its sanction is not the power of the state, but social, approval, or approbation, resulting from the social sense of right and justice.

It will be observed that this theory is essentially a revival of the theory of natural rights and natural law under a different name, and that it has the defects inherent in that theory. The theory that the sovereignty of the state is legally limited by the principles of natural law cannot be accepted, since the state itself is the judge of what those principles are and the extent to which they ought to be observed. Such limitations would be only self limitations and not legally binding.

The theory that the state is limited by law confuses the meaning of the term “law” by applying it to influences that are not law. It also confuses state and government. In many cases, when persons assert that the state is limited by law, they really mean that the organs of government are limited by law, which is quite correct: but this is not a limitation on sovereignty.

3. Sovereignty not the exclusive possession of the state:

The pluralist school attacks the idea that there is but one sovereignty ht a state and that sovereignty is possessed by the state alone. They argue that man’s social nature finds expression in many groupings, performing various functions and pursuing various ends, social, religious, economic, political.

These groups arise naturally and spontaneously, they are not created by the state, nor are they dependent on its will for their existence, nor do they exercise only such powers as the state confers upon them. They compete with the state for men’s loyalties, and are sovereign in their respective spheres as the state is in its sphere, This point of view holds that the state’s claim to supreme authority is not in accord with actual facts in the complex world of today. They discredit the state, oppose the theory of a single and unified sovereignty, and demand for other agencies a large share of social control.

This attack on the sovereignty of the state came from various sources. It represented in part a reaction against the strong, centralized, and paternalistic state of the latter nineteenth century and aimed at decentralization of authority and greater individual freedom. It owed much to research in historical jurisprudence, and to a revival of the medieval theory of the real personality of corporations, possessing inherent rights of their own.

It received support from churchmen who desired to free the church from state control and to reassert its supremacy in the spiritual field. It was upheld by sociologists, who criticized the existing political structure on the ground that it does not represent adequately the present complex functional organization of society. In particular, it represents the growing importance of economic interests in the state and the desire of economic groups to control their own affairs, free from state interference

They argue for self-government in industry or even for the reorganization of the state on an economic basis, with authority distributed among the economic groups. The common element in all these attacks on the sovereignty of the state is the belief that in the state there are associations which evolved independently, which perform essential social functions, and which are better adapted than the state to serve certain social needs. Some of the pluralists would practically destroy the state others would reduce it to an equality with other associations others would retain it, with much reduced powers, as the final coordinating authority in case of disputes among the other groups.

Pluralism is the natural point of view of a period of conflicting interests and loyalties. In the Middle Ages, when church and state struggled for supremacy and when groups of various kinds exercised independent powers, pluralistic ideas flourished. For a considerable period after the adoption of the American constitution the theory of divided sovereignty was generally held.

The relation of the states to the Union had not yet been adjusted. It took a half century of political experience to develop a spirit of unity and a set of legal principles upon which a monistic theory of sovereignty for the American federation could rest. At the present time the growth of economic interests and the strength of economic associations have created conflicts of authority between them and the existing organs of government.

The state does not immediately adapt its organization and law to correspond with new conditions. At such a time the doctrine of the absolute and unlimited authority of the state seams to many dangerous and undesirable. Hence pluralistic doctrines again appear. It is probable that as the conflicts are adjusted, and the state gradually gives legal recognition to the new force in social life and remodels its organization to correspond more closely with the actual sources of power, pluralism will disappear.

Pluralists often confuse legal and moral ideas and fail to make a proper distinction between state and government. Their theory, in practice, would probably result in chaos and anarchy, followed by the reestablishment of some form of supreme authority.

The conflicting interests of numerous independent groups would intensify the need for a superior authority. At the same time their doctrines have made valuable contributions to political thought. Their emphasis on the fact that states, in spite of legal omnipotence, should be subject to moral restraints is a desirable reaction against the idealization of the state and the doctrine that the state is an end in itself, free from all moral restraint. The pluralists also make a timely protest against the rigid and dogmatic legalism of the Austinian theory of sovereignty.

They emphasize the necessity of studying the actual facts of political life in a rapidly changing social system. In this connection they point out the growing importance of nonpolitical groups, the danger of over interference by the state with the proper functions of such groups, and the desirability of giving to such groups greater legal recognition in the political system. Decentralization of government and the principle of group representation in legislative assemblies appeal to many as possible solutions.

Nevertheless, this is a problem of the proper internal organization of the State and of the propel scope of its activities, and does not imply the abandonment the theory of state sovereignty. Somewhere there must be an Organization of supreme legal control, and however much the state may limit its activities or reorganize its internal structure a sovereign state still remains.

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