Nature of Sovereignty

Nature of Sovereignty. The constituent element that distinguishes the state from all other human associations is sovereignty the supremacy of will and power. In every fully independent stats, some person, assembly, or group (a.g, the electorate) or which has the supreme power of formulating in terms of the law and 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 it will dominate and override in 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.”2 The Roman jurists and the civilians throughout the Middle Ages likewise had the idea. They frequently employed the terms summa potestas and plenitude potestatis to designate the supreme power of the state. The modern terms “sovereign” and “sovereignty” (Louvain, souverainete) were first used by the French jurists, notably by the Beaumanoir and Loiseau 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 nonexistent.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 emperor’s pretensions, 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 souterrains es chooses temporieux.” French jurists came to aid their kings with a legal theory that served both as a defense weapon 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 monarch’s total independence as over against his various rivals. Still, before the end of the sixteenth century, it came to be regarded as absolute supremacy and therefore an indivisible power.

Sovereignty identified with the Monarch:

Originally conceived as a personal attribute of the monarch, sovereignty came in Bodin’s hand to be regarded as a constituent element of the state. However, 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 in the error of confusing sovereign power with the power of government. Thus he enumerated as true marks of sovereignty the power to make laws, declare war, make peace, 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 the government’s particular organs. It is not unnatural that the sixteenth-century writers should have identified the state’s sovereignty with the monarch’s power, mainly because the struggle which gave rise to the conception of sovereignty was undertaken and sustained by the monarch himself 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 gives ac subtitles 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 nation’s will 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 overall associations of subjects.”11

Again he calls It the underfunded and independent power to command and compel obedience.12

 

Reference:

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 to reference rather to the monarch’s power, the power of the state, and the dignity or majesty of the state than to sovereignty. Jellinek. 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) remark that Cambridge colleges’ heads were designated as sovereigns in the last report in the fifteenth century.

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. 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 state’s supreme will, 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 defines it as supreme win others as supreme power and other both.
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