The history of Sovereignty

Sovereignty

Sovereignty, in political theory, the ultimate overseer, or authority, in the decision-making process of the state and in the maintenance of order. The concept of sovereignty—one of the most controversial ideas in political science and international law—is closely related to the difficult concepts of state and government and of independence and democracy. Derived from the Latin superanus through the French souveraineté, the term was originally understood to mean the equivalent of supreme power. However, its application in practice often has departed from this traditional meaning. History

In 16th-century France Jean Bodin (1530–96) used the new concept of sovereignty to bolster the power of the French king over the rebellious feudal lords, facilitating the transition from feudalism to nationalism. The thinker who did the most to provide the term with its modern meaning was the English philosopher Thomas Hobbes (1588–1679), who argued that in every true state some person or body of persons must have the ultimate and absolute authority to declare the law; to divide this authority, he held, was essentially to destroy the unity of the state. The theories of the English philosopher John Locke (1632–1704) and the French philosopher Jean-Jacques Rousseau (1712–78)—that the state is based upon a formal or informal compact of its citizens, a social contract through which they entrust such powers to a government as may be necessary for common protection—led to the development of the doctrine of popular sovereignty that found expression in the American Declaration of Independence in 1776. Another twist was given to this concept by the statement in the French constitution of 1791 that “Sovereignty is one, indivisible, unalienable and imprescriptible; it belongs to the Nation; no group can attribute sovereignty to itself nor can an individual arrogate it to himself.” Thus, the idea of popular sovereignty exercised primarily by the people became combined with the idea of national sovereignty exercised not by an unorganized people in the state of nature, but by a nation embodied in an organized state. In the 19th century the English jurist John Austin (1790–1859) developed the concept further by investigating who exercises sovereignty in the name of the people or of the state; he concluded that sovereignty is vested in a nation’s parliament. A parliament, he argued, is a supreme organ that enacts laws binding upon everybody else but that is not itself bound by the laws and could change these laws at will. This description, however, fitted only a particular system of government, such as the one that prevailed in Great Britain during the 19th century.

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Jean Bodin, 16th-century engraving.

Courtesy of the Bibliothèque Nationale, Paris

Thomas Hobbes

Thomas Hobbes, detail of an oil painting by John Michael Wright; in the National Portrait Gallery, London.

Austin’s notion of legislative sovereignty did not entirely fit the American situation. The Constitution of the United States, the fundamental law of the federal union, did not endow the national legislature with supreme power but imposed important restrictions upon it. A further complication was added when the Supreme Court of the United States asserted successfully in Marbury v. Madison (1803) its right to declare laws unconstitutional through a procedure called judicial review. Although this development did not lead to judicial sovereignty, it seemed to vest the sovereign power in the fundamental document itself, the Constitution. This system of constitutional sovereignty was made more complex by the fact that the authority to propose changes in the Constitution and to approve them was vested not only in Congress but also in states and in special conventions called for that purpose. Thus, it could be argued that sovereignty continued to reside in the states or in the people, who retained all powers not delegated by the Constitution to the United States or expressly prohibited by the Constitution to the states or the people (Tenth Amendment). Consequently, the claims by advocates of states’ rights that states continued to be sovereign were bolstered by the difficulty of finding a sole repository of sovereignty in a complex federal structure; and the concept of dual sovereignty of both the union and the component units found a theoretical basis. Even if the competing theory of popular sovereignty—the theory that vested sovereignty in the people of the United States—was accepted, it still might be argued that this sovereignty need not be exercised on behalf of the people solely by the national government but could be divided on a functional basis between the federal and state authorities.

Another assault from within on the doctrine of state sovereignty was made in the 20th century by those political scientists (e.g., Léon Duguit, Hugo Krabbe, and Harold J. Laski) who developed the theory of pluralistic sovereignty (pluralism) exercised by various political, economic, social, and religious groups that dominate the government of each state. According to this doctrine, sovereignty in each society does not reside in any particular place but shifts constantly from one group (or alliance of groups) to another. The pluralistic theory further contended that the state is but one of many examples of social solidarity and possesses no special authority in comparison to other components of society.

Harold Joseph Laski, 1946.

The Press Association Ltd.

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Sovereignty And International Law

Although the doctrine of sovereignty has had an important impact on developments within states, its greatest influence has been in the relations between states. The difficulties here can be traced to Bodin’s statement that sovereigns who make the laws cannot be bound by the laws they make (majestas est summa in cives ac subditos legibusque soluta potestas). This statement has often been interpreted as meaning that a sovereign is not responsible to anybody and is not bound by any laws. However, a closer reading of Bodin’s writings does not support this interpretation. He emphasized that even with respect to their own citizens, sovereigns are bound to observe certain basic rules derived from the divine law, the law of nature or reason, and the law that is common to all nations (jus gentium), as well as the fundamental laws of the state that determine who is the sovereign, who succeeds to sovereignty, and what limits the sovereign power. Thus, Bodin’s sovereign was restricted by the constitutional law of the state and by the higher law that was considered as binding upon every human being. In fact, Bodin discussed as binding upon states many of those rules that were later woven into the fabric of international law. Nevertheless, his theories have been used to justify absolutism in the internal political order and anarchy in the international sphere.

This interpretation was developed to its logical conclusion by Hobbes in Leviathan (1651), in which the sovereign was identified with might rather than law. Law is what sovereigns command, and it cannot limit their power: sovereign power is absolute. In the international sphere this condition led to a perpetual state of war, as sovereigns tried to impose their will by force on all other sovereigns. This situation has changed little over time, with sovereign states continuing to claim the right to be judges in their own controversies, to enforce by war their own conception of their rights, to treat their own citizens in any way that suits them, and to regulate their economic life with complete disregard for possible repercussions in other states.

During the 20th century important restrictions on the freedom of action of states began to appear. The Hague conventions of 1899 and 1907 established detailed rules governing the conduct of wars on land and at sea. The Covenant of the League of Nations, the forerunner of the United Nations (UN), restricted the right to wage war, and the Kellogg-Briand Pact of 1928 condemned recourse to war for the solution of international controversies and its use as an instrument of national policy. They were followed by the UN Charter, which imposed the duty on member states to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” and supplemented it with the injunction that all members “shall refrain in their international relations from the threat or use of force” (Article 2). However, the Charter also stated that the UN is “based on the principle of sovereign equality of all its Members.”