Sovereignty refers to the supreme and ultimate source of authority that exists within any political unit or association. A sovereign power is deemed independent of all other authorities and it possesses no rivals within its jurisdiction. Thus, sovereignty has internal and external dimensions. Internally, it connotes the superior and final power to determine who shall rule and how rule shall occur. Externally, it involves an exclusive right to exercise power within fixed geographical boundaries without interference from or intervention by other authorities. Although the terminology of sovereignty is sometimes employed metaphorically, it is fundamentally a concept related to matters of governance. For instance, when the sixteenth-century Protestant Reformer John Calvin (1509–1564) referred to "God's sovereignty," he was seeking to explain the relationship between the divine and His worldly creation in a way that characterized the governmental dimension of heavenly rule over the earth and its inhabitants.
As an intellectual construct, sovereignty has often been assimilated to the rise of the nation-state in Europe during the early modern period. It is true that sovereignty as a theoretical or a practical precept is incompatible with tribal or feudal societies, where power is decentralized or parceled out into the hands of numerous lordlings, all of whom exercise governmental functions in overlapping and semi-autonomous forms. Yet societies that deified their supreme rulers, such as ancient Egypt or Japan, thereby sought at least implicitly to capture a salient element of sovereignty: that a unitary source existed from which flowed the validity of all lesser forms of command and rule.
Perhaps the political and legal system that most cogently expressed the aspiration to sovereign authority before the rise of the modern state system was the Roman Empire. (Of course, Roman ideas, especially those contained in its civil law, in turn exercised considerable influence on early modern thought.) The Roman doctrine of imperium, meaning the concentration of powers over the territories of the Empire in the hands of its Emperor, conveyed the unrivaled and unchallengeable supremacy invested in the ruler. To affront this imperium by word or deed constituted a grave crime against the Roman majesty, punishable by execution. When imperium is coupled with the legal doctrine that the Emperor is legibus solutus —a law unto himself answerable to no one—one arrives at a concept very nearly identical to that of sovereignty.
Although Roman law was widely disseminated in Europe during the postclassical period, and concepts such as imperium and legibus solutus were widely discussed, the conjunction of a feudal social structure with religious and ecclesiastical constraints on power rendered sovereignty functionally inapplicable to temporal government. The ecclesiological doctrine of the pope's "plenitude of power" (plenitudo potestatis ), according to which the papacy possesses final authority over the determination of matters of orthodox, however, does involve elements of a theory of sovereignty. Yet not even extreme papalists would claim that the pope is beyond error or "infallible" (in the meaning of that term as, in effect, spiritually sovereign, which was eventually proclaimed by the First Vatican Council in the nineteenth century).
Only near the end of the Middle Ages does the word sovereignty appear in the major vernacular languages of Europe, and its meaning during this time remains ambiguous. A particularly clear example of this ambiguity is afforded by the French law book Coutumes de Beauvaisis, compiled by Philippe de Beaumanoir (c. 1250–1296) during the later thirteenth century. Beaumanoir declared that "the king is sovereign (souverains ) above all others and by his rights has the general protection of the whole realm, because he can make all statutes for the common benefit and what he decrees must be followed." The assertion of binding legal authority sounds very familiar to modern ears. Yet Beaumanoir also blunts some of the impact of this sovereignty by insisting that "every baron is sovereign (souverains ) in his barony," meaning that each noble prince can do for his immediate territorial subjects precisely what the king does for the entire realm. Hence, an exclusive franchise is lacking from Beaumanoir's doctrine, which remains consonant with the multiple and overlapping jurisdictions typical of European feudalism. The key idea of "complete" sovereignty stemming from a unitary wellspring is absent.
The Western world was not alone in struggling with the meaning behind sovereignty. In the Persian-language treatise of political advice Mau'izah-i Jahangiri (1612–1613), written in Muslim-controlled India by Muhammad Baqir Najm-i Sani (d. 1637), the ruler is counseled to exercise his "sovereignty [ dawlat ] according to the injunctions of Islamic law." The word dawlat has a general meaning of "bliss" or "felicity" in Persian, as well as the more concrete connotation of supreme political authority. Given the intertwined personal, religious, and political overtones, it becomes difficult to specify with precision whether Baqir intended to conceive of the Emperor as fully sovereign or whether instead the ruler must subject himself to religious precepts that constrain his authority.
Early Modern Views: Absolutism
The real crystallization of the doctrine of sovereignty occurred in sixteenth-century Europe and, like so much else, in the context of the religious turmoil that accompanied the Reformation. In France, Germany, England, and the Low Countries, the salient issue driving affairs of state in external relations with their neighbors and internal dealings with their populations concerned the determination of religious confession. Regardless of whether toleration or establishmentarianism prevailed, it came to be recognized—theoretically as well as practically—that a single authority must be ceded the right to determine how inhabitants might worship. And this ultimate and supreme authority enjoyed sovereignty.
The classic statement of this position is ordinarily ascribed to the Six livres de la république (1576) by the French lawyer and humanist Jean Bodin (1530–1596). Bodin proposed a definition of sovereignty as absolute and indivisible, so that the ruling power possessed sole final authority over the legislative, judicial, administrative, and military functions associated with the state. In formulating this conception of sovereignty, Bodin explicitly challenged many of the central tenets of Aristotle's political science, such as the distinction between the governance of the family and the rulership of the state. Moreover, Bodin ridiculed as incoherent the idea that sovereignty could be shared between or mixed among different groups or institutions. The sovereign is answerable to no earthly authority and, while he is cautioned by Bodin to subject himself to divine and natural law, there is no temporal compulsion that he do so. Hence, Bodin's doctrine is generally described as "absolutism," since it posits the absolute and unchecked sovereignty of the monarch.
Another important advocate of absolutism was Thomas Hobbes (1588–1679), especially in his masterpiece, the Leviathan (1651). Like Bodin, Hobbes insisted that the only justifiable form of sovereign authority is absolute and indivisible. Hobbes ascribed to human beings natural liberty and equality, which licenses them to undertake any actions necessary in order to preserve themselves and to avoid pain. He believed that the pursuit of self-preservation by free and equal creatures left to their own devices (the "state of nature") logically leads to unceasing conflict and unremitting fear. Frustrated in their realization of their basic desires, human beings voluntarily exchange their chaotic natural freedom for peace and order by means of a social contract, the terms of which call upon the parties to renounce all liberties and rights they possess by nature (with the exception of self-preservation itself). Any contract that permits the retention of some rights, and thus a limitation on the sovereign's absolute authority, will fail to achieve the peace sought and will eventually slip its members back into the state of nature. In contrast with Bodin, Hobbes did not insist that the constitutional form of sovereign rule must be monarchy, although it is evident that he preferred royal government. Rather, Hobbes held that any type of regime—aristocracy (rule of the few) and democracy (the rule of the many) as well as kingship (the rule of one)—might meet the standard for sovereign authority so long as it commanded with an undivided and single voice.
Hobbes recognized that religion constituted an especially fertile source of political conflict and thus a particular threat to the maintenance of sovereign authority. To remedy the divisive consequences of religion, he offered a rather extreme solution in the second half of Leviathan, of strictly limiting the autonomy of ecclesiastical officials and offices and reinterpreting Christian theology in a manner consonant with his conceptions of human nature and sovereignty. While Hobbes's Erastian proposals were highly unusual, his comments about religion and public order demonstrate clearly how the emergence of the idea of sovereignty reflected deep concern about the corrosive effects of confessional dispute.
A further strand of absolutism may be associated with "patriarchal" ideas, such as were proposed by Sir Robert Filmer (c. 1586–1653). In his Patriarcha, Filmer drew a direct analogy between Adam, to whom God had entrusted the whole of the earth, and the kings who followed after him. Since Adam enjoyed unchecked sovereignty over both natural resources and over his family, so should his heir, the king, possess fatherly authority to dispose of his subjects and their goods as he saw fit, without the approval of a superior authority.
Early Modern Views: Popular Sovereignty
Alongside the view that absolute power was vested in a single governor (or group of governors) emerged the competing doctrine that the sole legitimate source of authority sprang from the people as a collectivity or joint body. Intimations of this idea can be discovered in medieval authors such as Marsilius of Padua (c. 1280–c. 1343), for whom all forms of legislative and executive power pertained in the first instance to the whole body of citizens. But Marsilius's theory possessed the same deference to the fragmented condition of authority in the Middle Ages that characterized Beaumanoir. Instead, the modern principle of popular sovereignty arose in response to the perceived excesses of absolutistic theories.
Writing in explicit opposition to Filmer (and perhaps also indirectly against Hobbes), John Locke (1732–1804) insisted that sovereignty is the creation of the people who contract with one another to form civil society and who only entrust executive authority to a government conditionally. In contrast with Filmer, Locke held that the natural condition of mankind was individual freedom, and no person—not even a man's own offspring—was entirely subject to arbitrary rule. Against Hobbes, Locke maintained the impossibility of renouncing one's natural rights of subjects to life, liberty, and estate in the process of creating sovereign power. Instead, a ruler who systematically violates human rights breeches the bond of trust that authorizes his office. Locke thus insists that no one is obligated to obey the commands of an illegitimate government. If the magistrate attempts to coerce their obedience, members of civil society may legitimately use force against him, just as they would in the case of robbery or assault, since they retain control of their rights individually and together.
Jean-Jacques Rousseau (1712–1778) extended the idea of popular sovereignty by means of an innovative marriage between Lockean and Hobbesian insights. Sovereignty for Rousseau cannot be exercised legitimately by any authority external to the body of citizens. The citizens alone are competent to renounce their natural liberty and bind themselves jointly and individually to laws and rulers. Hence, no matter what constitutional form of government is appointed—and Rousseau contends that kingship, aristocracy, and democracy may each be appropriate, depending on the scale of the territory to be governed—it remains only the executive of the general will of the community. Freedom reposes strictly and exclusively in the communal order in which the moral liberty of each person assumes the equal moral liberty of every person, guaranteed under the terms of the law and protected by the magistrates. Hence, Rousseau's free state is guided by the collective determinations of the people about how they wish to live—a clear statement of a system of popular sovereignty. Nor can the general will be judged errant or mistaken. Whatever the people decide is right and must be treated as obligatory.
The dispute between absolutistic and popular conceptions of sovereignty might seem highly polarized and irresolvable. Certainly, the violent upheavals of the French Revolution between the ancien régime and the advocates of popular rule seemed to presage a cataclysmic clash between two profoundly opposed visions of the location of supreme authority. But at times, efforts were made to find a common ground or bridge between the apparently incommensurable points of view.
The framers of the United States federal Constitution, ratified in 1789, afforded one strategy for resolving the conflict. The Constitution proclaimed in its preamble the sovereignty of the people as the source of the authorization of government and the execution of public duties. Toward this end, some officials were to be directly elected on the democratic principle of one vote assigned to each citizen. At the same time, other magistrates such as the President and Vice-President and senators were to be selected by intermediary bodies (the Electoral College and state legislatures, respectively, although the ratification of the Seventeenth Amendment in 1913 provided for senators to be directly elected), while still others (such as the judiciary) were appointed by essentially non-democratic means. The result was to create a system of checks and balances to diffuse the potential domination of any portion of the populace—especially, the poor and least educated (but numerically greater) segment of the people. The supporters of this vision articulated a set of theoretical principles supporting the constitutional design in the collection of occasional essays collected together under the title of The Federalist Papers (1788).
From a more philosophical perspective, the German thinker Georg Wilhelm Freidrich Hegel (1770–1831) in his Philosophy of Right (1821) endorsed a conception of the state that also sought to redress the divide between absolutism and populism. Hegel evinced considerable skepticism concerning the viability—let alone coherence—of unmitigated popular sovereignty such as that endorsed by Rousseau. Hegel instead posited a realm of civil society the members of which concerned themselves with their own narrow and partial interests. In order to ensure that these interests did not come into conflict, they received representation at the level of a legislative body and enforcement by a professionalized and disinterested civil service. But Hegel also insisted that an independent hereditary monarchy, unencumbered by any external constraints, was necessary to ensure that the laws governing the nation arose from an undivided and unimpeachable act of will. Hence, Hegel's king lacks constitutional restraints, in the sense that he is not obligated to defer to the popular determinations of the legislature, but his absolute power is limited to the ability to affirm or deny the statutes with which he is presented.
Obsolescence of Sovereignty?
Given the condition of the political map in the aftermath of the Treaty of Westphalia (1648), with its checkerboard of nation-states, sovereignty might seem to be a doctrine with global purchase, taken as universally efficacious and valid. Yet in many places the idea of sovereignty never really took hold, and in many contexts there may be good reason to declare its erosion or increasing irrelevance.
In certain cases, the spread of European political and legal values in the wake of colonialism often was received with indifference, if not hostility. New Zealand's early colonial history is instructive. When the British arrived to settle Aotearoa in the mid-nineteenth century, they entered into an agreement, the Treaty of Waitangi (1840), with some of the tribal elders of the Polynesian (Maori) population that ceded—or so the colonizers thought—"absolutely and without reservation all the rights and powers of Sovereignty" to the English Crown. The Treaty, set down in both English and Maori languages (of which the latter is the official version), takes as the equivalent for sovereignty the word kwanatanga, a term that means something like "trusteeship" in Maori. Indeed, it remains unclear whether the Maori had any vocabulary at the time that could plausibly be translated as "sovereignty," simply because their worldview, not to mention political and legal language, was so differently constituted than that of the Pakeha (Europeans). The consequences of this crucial failure on the part of the British to recognize the cultural specificity of "sovereignty" resonate into the twenty-first century, as the Maori and Pakeha populations of the country struggle to accommodate the tribal social, economic, and legal system that was never actually surrendered in the context of a representative democracy that claims the status of a sovereign state.
Another illustration of the breakdown of sovereignty derives from the appearance, especially since World War II, of transnational regimes in both the public and private spheres. Economic globalization, free trade zones, and the easy flow of capital across national borders obviously threaten the ability of sovereign states to make crucial decisions about the welfare of their citizens. Moreover, quasi-governmental and nongovernmental agencies and institutions such as the United Nations, the World Trade Organization, the International Monetary Fund, and the European Union have been granted (some say, usurped) many of the rights and powers customarily associated with sovereignty, whether in a legal, economic, military, or cultural sense. Little wonder that in a 1999 appraisal of the topic, Stephen Krasner refers to the very idea of sovereignty—in our own times, and perhaps even in the past—as "organized hypocrisy." The interdependence that ties together the international state system seems increasingly likely to relegate sovereignty to the dustbin of obsolete concepts.
At the same time, sovereignty throughout the world has come under direct challenge from subnational groupings as well. The rise of regional independence movements, often built around ethno-nationalist agendas, sets in question the basic principle that public power must derive from a single autonomous and supreme source. One encounters the demand for autonomy and sometimes secession even in highly developed nation-states with strong traditions of sovereign authority, such as the United Kingdom, Spain, and Canada. It is little wonder that some scholars during the last several decades of the twentieth century spoke about the "re-feudalization" or "re-tribalization" of the political scene globally.
See also Authority ; Monarchy ; Nation ; Power ; State, The .
Anderson, Perry. Lineages of the Absolutist State. London: NLB, 1974.
——. Passages from Antiquity to Feudalism. London: NLB, 1979.
Baqīr Najm-i Sānī, Muhammad. Advice on the Art of Governance: An Indo-Islamic Mirror for Princes: Mau'izah-i Jahāngīri. Translated by Sajida Sultana Alvi. Albany: State University of New York Press, 1989.
Beaumanoir, Philippe de. Coutumes de Beauvaisis. Trans. F. R. P. Akehurst. Philadelphia: University of Pennsylvania Press, 1992.
Bodin, Jean. On Sovereignty. Edited by Julian H. Franklin. Cambridge, U.K.: Cambridge University Press, 1992.
Filmer, Sir Robert. Patriarcha and Other Writings. Edited by Johann P. Sommerville. Cambridge, U.K.: Cambridge University Press, 1991.
Hobbes, Thomas. Leviathan. Edited by Richard Tuck. Cambridge, U.K.: Cambridge University Press, 1991.
Krasner, Stephen D. Sovereignty: Organized Hypocrisy. Princeton, N.J.: Princeton University Press, 1999.
Rousseau, Jean-Jacques. The Social Contract and Other Later Political Writings. Edited and translated by Victor Gourevitch. Cambridge, U.K.: Cambridge University Press, 1997.
Skinner, Quentin. The Foundations of Modern Political Thought. 2 vols. Cambridge, U.K.: Cambridge University Press, 1978.
Weston, Corinne Comstock, and Janelle Renfrow Greenberg. Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England. Cambridge, U.K.: Cambridge University Press, 1981.
Cary J. Nederman
Analysis of "sovereignty" brings one into contact with nearly all the major problems in political philosophy. At least seven related concepts may be distinguished:
(1) A person or an institution may be said to be sovereign if he or it exercises authority (as a matter of right) over every other person or institution in the legal system, there being no authority competent to override him or it. For some writers, though not for all, this concept also implies unlimited legal competence; for, it is said, an authority competent to determine the limits of its own competence must be omnicompetent. (2) Difficulties arising from the first concept have led some writers to ascribe sovereignty to a constitution or basic norm from which all other rules of a system derive validity. (3) Sovereignty is sometimes ascribed to a person, or a body or a class of persons, said to exercise supreme power in a state, as distinct from authority, in the sense that their wills can usually be expected to prevail against any likely opposition.
The state itself is often said to be sovereign. This may mean any of at least four distinct (though possibly related) things: (4) that the state as an organized association will in fact prevail in conflict with any person or any other association in its territory; (5) that the rights of all such associations and persons derive from the legal order that is supported by the state or that (according to Hans Kelsen) is the state; (6) that the state is a moral order with claims to obedience and loyalty which have precedence over all others; (7) that the state is autonomous vis-à-vis other states; according to some theories, the state has only such obligations, whether in law or in morals, as it chooses to recognize.
Classical and Medieval Theories
Aristotle regarded legislative authority as supreme in a state and classified states according to whether it was located in a monarch, in an oligarchical assembly, or in an assembly of the whole people. But to speak of a "supreme legislative authority" is a little misleading here; for the Greeks, legislation was the local application of a divinely ordained order, rather than the authoritative creation of new laws. The Roman concept of imperium was nearer sovereignty: The princeps (ruler) personally embodied the supreme authority of the Roman people. He was legibus solutus (not bound by the laws), at least in the sense that no one could question his enactments. Still, there were strong elements of natural law in Roman jurisprudence; the emperor was supreme because his function was to command what was right and for the public good.
There was rather less room for sovereignty in medieval political thought. According to Thomas Aquinas, for instance, the king was not only subject to divine and natural law but for most purposes to the custom of his realm as well. Medieval statutes commonly purported to restore laws that had been abused, rather than to innovate. In Thomas's view the Roman maxim Quod principi placuit legis habet vigorem (What pleases the prince has the force of law) was valid only if the prince's command was reasonable. According to Henry de Bracton, "the king ought to have no equal in his realm … [but] he ought to be subject to God and the law, since law makes the king … there is no king where will rules and not the law" (De Legibus et Consuetudinibus Angliae, edited by G. Woodbine, New Haven, CT, 1915–1942, Vol. II, pp. 32–33). Similarly, the plenitudo potestatis ascribed to the pope usually meant that supreme ecclesiastical authority was undivided, or that he held a reserve jurisdiction in secular matters—not that he was legibus solutus.
Alongside the doctrine of royal supremacy was another that derived royal authority from the people corporately. According to Marsilius of Padua, supreme authority rested in the legislator, which was either the whole organized community or an assembly (not necessarily elected) that spoke for it. Marsilius's stress on legislation as the will of a supreme authority brought him closer than his predecessors to Jean Bodin and Thomas Hobbes.
Bodin: Paradox of Lawful Sovereignty Egoism
Bodin's Six livres de la république (1576) is generally considered the first statement of the modern theory that within every state there must be a determinate sovereign authority. Writing during the French religious wars, he insisted that an ordered commonwealth must have a sovereign competent to overrule customary and subordinate authorities. Sovereignty is "a supreme power over citizens and subjects unrestrained by law"; it is "the right to impose laws generally on all subjects regardless of their consent." Law is "nothing else than the command of the sovereign in the exercise of his sovereign power." Accordingly the sovereign could be subject to no one else, for he makes the law, amends it, and abrogates it for everyone. Nevertheless, he is subject to the laws of God and of nature. For instance, he may not seize his subjects' property without reasonable cause and must keep his promises to them. Moreover, he must respect the fundamental laws of the constitution, like the succession law, for sovereignty, as a legal authority, stems from these.
In defining sovereignty as a supreme power unrestrained by law, while yet admitting these limitations, Bodin is not as inconsistent as he is commonly said to be. Within the legal system, sovereignty may be unlimited; yet the sovereign may be bound in morals and religion to respect the laws of God and nature. Bodin's suggestion that sovereignty can be limited by constitutional laws raises more serious difficulties; for if "law is nothing else than the command of the sovereign, in the exercise of his sovereign power," how can any law be beyond his power to amend? The qualification, "in the exercise of sovereign power," may be important. Constitutional laws seem to be what H. L. A. Hart calls "rules of recognition" (see his Concept of Law ), that is, they are rules that lay down the criteria of validity for rules of substance; they constitute the sovereign office, designate who shall occupy it, and identify his acts as those of a sovereign authority. For the sovereign to interfere with them, Bodin said, would be for him to undermine his own authority. If the acts of the sovereign are those done "in the exercise of sovereign power," that is, in accordance with the rules of recognition, it would be logically impossible to act in a valid sovereign way inconsistently with these rules. Nevertheless, the sovereign could still amend them so long as he used the unamended procedures to do so. Yet Bodin regarded the rules constituting the sovereign office as unamendable in principle; should the prince infringe them, "his successor can always annul any act prejudicial to the traditional form of the monarchy since on this is founded and sustained his very claim to sovereign majesty" (all quotations from Six Books, Bk. I, Ch. 8).
Bodin's reasoning, though confused, bears closely on certain twentieth-century constitutional controversies in the United Kingdom and Commonwealth countries, which have hinged on the contention that a sovereign legislature, though admittedly competent to prescribe its own powers and procedures, must yet do so only by the procedures currently laid down. Such procedures, it is argued, are among the criteria for identifying the legislature and for determining what constitutes one of its acts. Bodin's analysis of sovereignty also suggests how an omnicompetent authority like the British Parliament can yet limit its omnicompetence, as it purported to do in the Statute of Westminster of 1931. In that statute it renounced supreme authority over the dominions by making their advice and consent part of the procedure for any future legislative acts affecting them.
Hobbes: Sovereignty and Supreme Power
Where Bodin was concerned mainly with supreme legal authority, Hobbes was more concerned to show a necessary relation between order, political power, sovereign authority, and political obligation. Hobbes argued that since no man can safely rely on his own strength or wits alone, men's obligations under the law of nature to forbear from harming one another must be subject to mutual guarantees; otherwise, for anyone to forbear in the competitive struggle would be to endanger his life. There is no reliable guarantee unless all parties agree not to exercise their "natural right to all things," but to submit unconditionally to a sovereign authorized to act on behalf of each of them, with the power to make them keep their agreements. Mutual forbearance would then be a duty. Sovereignty, therefore, is necessary for a social order among equals. Sovereignty cannot be made effectively subject to conditions without depriving it of its point; for on whom could be conferred the authority to judge whether such conditions had been violated? If on the individual subjects, no one individual could rely on the submission of any other. If on the sovereign, the conditions themselves would be merely formal. And there could be no independent arbiter, for any independent arbiter who could impose his ruling would himself be sovereign. Sovereignty is likewise indivisible, for if anyone had the power to mediate effectively in conflicts of authority, he would be sovereign. The united strength of all is therefore the sovereign's to use as he thinks fit. His duties under God and natural law are strictly God's business. The subject, having freely surrendered the right to interpret the law of nature for himself, must accept the sovereign's pronouncements on what is right and wrong. He could, however, be under no obligation to take his own life or to submit willingly if the sovereign should seek to kill him. Both commitments would be unnatural, being contrary to the supreme end, which is to avoid sudden death; and having no sanction in reserve, the sovereign would have no way of enforcing either obligation.
The sovereign remains one only so long as "the power lasteth, by which he is able to protect" his subjects. The purpose of submission is protection; protection requires overwhelming power; so overwhelming power is the actual condition for supreme authority. Conversely, supreme authority, brooking no rivals, commanding the power of everyone, wields supreme power. Further, natural law enjoins us to keep our covenants, above all the covenant establishing the civil order. In its concrete political expression, natural law is identical with the command of the sovereign and therefore with the civil law. So the sovereign authority is also the supreme moral authority.
John Austin and the Imperative Theory of Law
The imperative theory of law expounded by Hobbes was developed by Jeremy Bentham to disarm opponents of legal reform who treated natural law and morality as built-in justifications of the unreformed common law. For if, as Bentham argued, law were simply whatever the sovereign commanded, or, in the case of the common law, what he chose not to rescind, then it might be reformed by command in accordance with rational principles of utility. In the hands of Bentham's disciple John Austin the theory of sovereignty became a tool for juristic analysis. "Law properly so-called" was distinguished from rules of other kinds as a "rule laid down for the guidance of an intelligent being by an intelligent being having power over him." Within any legal system there must be one supreme power, "a determinate human superior, not in a habit of obedience to a like superior (receiving) habitual obedience from the bulk of the society" (Province ). His will was the ultimate validating principle of law; otherwise the quest for validity would lead to an infinite regress. Austin avoided it by resting sovereignty on the sociological fact of obedience.
The English Parliament, which is subject to legal limitation or restraint by no other authority is, prima facie, the paradigm of a sovereign legislature. Yet if its will is law, that is because law makes it so. Moreover, it is the law that defines the conditions for determining what that will is. For an institution has a will only by analogy; it is constituted by the decisions of individuals playing roles defined by rules. A change in the rules might change the will, though the individual decisions remained the same. Austin himself falters, admitting that to identify the members of the sovereign Parliament would require a knowledge of the British constitution. Habitual obedience, in short, may be rendered not to determinate individuals but to an institution, which is a legal creation. In the United States supreme legislative authority rests in the constitutional amending organ—composed of the two houses of Congress, each acting by a two-thirds majority, plus three-quarters of the states, acting through their legislatures or by conventions. So complex, discontinuous, and impersonal an authority cannot enjoy habitual obedience; its authority, like its very being, presupposes the law. To say that the law is what it commands, simply because it is formally competent to annul any rule, is to use "command" in a very strained sense.
In any case, there could be a constitution without an amending organ that nevertheless could allocate areas of competence to a number of organs. All authorities would then be limited. If one could still speak of sovereignty, it would be divided among them, with no "determinate human superior"; each would be supreme in its own sphere. The notion that sovereignty must be indivisible and omnicompetent is a corollary, then, of the false theory that every law is an enforceable command. Federal states retain their character not because their component institutions obey a sovereign authority able to enforce its will but because there is a general disposition to conform to accepted rules and in cases of dispute to accept the arbitration of the courts. The latter, however, being formally incompetent to legislate, cannot themselves be the requisite Austinian common superior.
The imperative theory was in part an attempt to determine the conditions that a legal system must satisfy if rules valid within the system are to be identifiable and conflicts of rules resolved. An alternative answer, however, is that every system must have what Hans Kelsen called a Grundnorm (a basic law), which is "the supreme reason of validity of the whole legal order" and which gives it its systematic unity. In these schematic analyses of legal systems, the basic law (usually a constitution) and the Austinian sovereign have very similar functions. Some writers indeed have transferred the concept of sovereignty from rulers to constitutions, thus abandoning the imperative theory. This either leaves a purely structural analysis of a legal order or it substitutes for Austin's "habitual obedience" respect for the constitution as the sociological starting point.
Sovereignty and Political Power
As Austinian analyses of sovereignty became metalegal and remote from political facts, attempts were made to split, not indeed the sovereign, but the concept of sovereignty into two types: legal and political (or practical). The first would be attributable to the supreme legislature; the second to the class or body in the society that "could make [its] will prevail whether with or against the law" (James Bryce) or "the will of which is ultimately obeyed by the citizens" (A. V. Dicey). In a democracy this would normally be the people, or the electorate.
The notion of sovereignty as supreme power in the latter sense, however, suggests certain problems. First, one must generally take account not only of what one can do by oneself but also of other people's possible resistance or cooperation. No one can ever do just what he wants; even the supreme army commander must keep the troops loyal. Every social choice is between only those alternatives that the powers of other men leave open. Political decisions reflect not only actual pressures but also those that might be anticipated were things decided differently. Again, a group may exercise very great power in that policy sphere in which it has an interest as a group; but in others its members' interests may be diverse and conflicting, and there may be quite different configurations of interests and pressures. This does not mean that there could never be a particular group strong enough to get its way regardless of counterpressures, and with group interests spanning most of the important areas of policy. Even so, many political scientists see decisions emerging not from the domination of any one particular will or group interest but rather from an interplay of interests and pressures. In their view, the concept of supreme power simply suggests the wrong model. At best the concept would mean that in the search for explanations one need not look outside the internal politics of the supreme group; other groups could safely be ignored.
Sovereignty as Moral Supremacy: Rousseau
The transposition of the concept of sovereignty from the context of seventeenth-century and eighteenth-century despotisms to the modern, popularly based state accounts for many of the perplexing features of the concept. The sovereign was then a king by divine right who at his strongest was subject to very few restraints and no legal limitations and to whom, it was said, his subjects owed unconditional obedience as a moral and religious duty.
Jean-Jacques Rousseau shifted sovereignty from the king to the people, which was now to exercise supreme power, somewhat paradoxically, over itself. For Rousseau, the citizens of a state had put themselves freely but unconditionally "under the supreme direction of the general will." And he radically altered the emphasis of the old doctrine that the people is the source of supreme authority by suggesting that the general will would be authentic and binding only if every citizen participated equally in expressing it. Moreover, since its object was the common good, there could be no higher claim on the citizen; he realized his own highest ends in total submission to it. As a legislating participant and a beneficiary of the moral order sustained by the general will, he attained freedom, not in the unrestricted slavery of impulse and appetite, but in obedience to a moral law that he prescribed to himself. It is true that Rousseau did not identify the will of all with the general will. The latter would be expressed only if the citizens addressed themselves to the question Wherein does the common good lie?, not to the question What would suit me personally? Democracy, too, can be corrupt, and the state in decay.
From Rousseau on, to ascribe sovereignty to the people was not (or not only) to state a political fact or a legal theory but to make a moral claim. Moreover, Rousseau reshaped the whole conceptual order of politics when he wrote that "the public person" created by the act of political association "is called by its members State when passive, Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the state" (Social Contract, Bk. I, Ch. 7). It was the citizen, not the king, who might say, henceforth, L'état, c'est moi. Consequently, the object of the state, if not corrupted by tyrants or by selfish sectional interests, was a good in which all its members might participate on terms of justice and equality. Its sovereignty amounted to a claim to override, in the name of the public interest, all lesser associations and interests.
The State of Hegelian Ealism
Rousseau was hostile to sectional associations as rivals to the general will; G. W. F. Hegel accepted them as partial expressions of, or vehicles for, the more inclusive Idea that was the state. The state's sovereignty lay in its moral preeminence over all other forms of human association. As the highest stage in the moral evolution of man, the state embodied concretely, as a living institution, man's autonomous, rational will. Man progressed dialectically through the conflict of states, the most vigorous and forward-looking state taking the leadership of humanity from the aging and debilitated and setting its own mark on a new age. The state was sovereign, therefore, in its relations with other states because it owed them nothing; its highest moral commitment was to its own survival as the agent of history, which alone could judge its works.
The Hegelian view of sovereignty was challenged early in the twentieth century by political and legal theorists and historians, such as Otto von Gierke, Hugo Krabbe, Léon Duguit, F. W. Maitland, J. N. Figgis, and H. J. Laski. They substituted a pluralistic for the monistic model of the state. They held that state and society must be distinguished; that society is made up of many associations, each serving its own range of human needs and interests. They denied that the state's moral purpose, whether ideal or actual, gives it a special claim on the allegiance of its members, overriding the churches' claim on those of them who are believers, or the unions' on those of them who are workers. In a given situation, a church might mean even more to believers than the state. Moreover, the suggestion that the corporate legal status and existence of associations depends on state recognition was vigorously repudiated. Associations came into existence to fulfill needs the state could not satisfy.
According to Duguit, the existence and corporate rights of associations and, indeed, law itself were social facts that the state simply registered; it did not create them. According to Figgis and Laski, the state's claim to regulate the constitutions, aims, and internal relations of other associations was an invasion of their corporate moral autonomy. Each was strictly sovereign in its own sphere. The pluralists conceded that the state must continue, but as an umpire, maintaining the minimal conditions of order, determining conflicts of jurisdiction, and protecting members of one association from the encroachments of another. Hobbes would certainly have interpreted this as an admission of the need for a single sovereign authority; for as arbiter, the state must have the power to judge what is an encroachment and therefore the powers of review and disallowance. Enjoying an overriding authority, the state could not be merely one among others. Despite Duguit, the law must ultimately be determined by state officials. For Kelsen, who identified state and law, corporations are necessarily subsystems within the state system, since their rules have legal effect only by the state's extending recognition to them. But, of course, the same could conceivably be said, in reverse, of other associations. For instance, the state could just as well be seen from a religious standpoint as encapsulated within the greater religious and moral order sustained by the church.
Sovereignty in International Relations
Is state sovereignty consistent with international law? In Hobbes's view, states confront one another in the posture of gladiators—lacking a common superior, they could not be subject to any law. Austin regarded international law as a kind of positive morality; without a sovereign, it could not be "law properly so-called." Attempts have been made to get around this difficulty by what Georg Jellinek termed auto-limitation : International law is binding because sovereign states have imposed it on themselves. The relation between international law and a municipal legal order can be expressed, in Kelsen's terms, as follows: Seen from the standpoint of a municipal legal order, international law is validated in a self-subsistent municipal legal system by the Grundnorm of that system, in other words, by being received into the system. Kelsen repudiated this conclusion, however, because he wanted to maintain that there is one all-inclusive world of law and that international law itself provides the principles validating the laws of so-called sovereign states as subsystems. But one could as well describe the one world of law from the standpoint of any legal system one chose, on the condition that it recognized other legal systems. For each system could encapsulate the rest, including international law.
Article 2 of the United Nations Charter claims that the organization is based on the sovereign equality of all members. This must surely mean that states are sovereign if, unlike colonies or trust territories, they are not liable to have any binding obligations laid upon them by other states without their consent. If international law is really a legal system, however, it cannot mean that a state has obligations only if, and for as long as, it chooses. For then there is no law. The notions of unlimited competence or overriding authority associated with "sovereignty" in a state's internal relations are out of place here. A sovereign state in international law must therefore be a particular kind of legal personality, like corporations in municipal law, with characteristic powers, rights, immunities, and obligations, including those implied in the principle of equality—namely, freedom from interference in its domestic jurisdiction, and, in the absence of an international legislature, immunity from new obligations except by consent. Nevertheless, states are considered bound by the established law and custom of nations, and the obligations of new states date from their inception and do not wait upon any consent or deliberate act of acceptance.
Finally, the alleged equality of sovereign states is not, of course, equality in power. Sovereignty in law is consistent with a large measure of actual control over a state from outside, though a minimum of independence might be a qualifying condition for sovereign status. Even the most powerful state, however, cannot ignore altogether the need to placate its friends and to avoid provoking its foes to the point of inconvenient obstruction. Freedom to act is relative in international as in internal affairs.
See also Aristotle; Austin, John; Bentham, Jeremy; Bodin, Jean; Democracy; Hart, Herbert Lionel Adolphus; Hegel, Georg Wilhelm Friedrich; Hobbes, Thomas; Kelsen, Hans; Marsilius of Padua; Natural Law; Political Philosophy, History of; Social and Political Philosophy; Rousseau, Jean-Jacques; Society; State; Thomas Aquinas, St.
Dias, R. W. M. A Bibliography of Jurisprudence. London: Butterworth, 1964. A valuable annotated bibliography. For sovereignty, see Chs. 4 and 14.
history of the concept
Bennett, W. H. American Theories of Federalism. University: University of Alabama Press, 1964. Largely concerned with the concept of sovereignty in history of U.S. constitutional theories.
Cohen, H. E. Recent Theories of Sovereignty. Chicago: University of Chicago Press, 1937. Contains an extensive bibliography.
Galizia, Mario, Teoria della sovranità dal medioevo alla rivoluzione francese. Milan, 1951.
McIlwain, Charles H. The Growth of Political Thought in the West. New York: Macmillan, 1932.
Riesenberg, P. N. The Inalienability of Sovereignty in Medieval Political Thought. New York: Columbia University Press, 1956.
studies distinguishing types of sovereignty
Benn, S. I. "The Uses of 'Sovereignty.'" Political Studies 3 (1955): 109–122.
Bryce, James. Studies in History and Jurisprudence. Oxford: Oxford University Press, 1901. Vol. II.
Dicey, A. V. Law of the Constitution, edited by E. C. S. Wade, 10th ed. London: Macmillan, 1959.
Rees, W. J. "The Theory of Sovereignty Restated." In Philosophy, Politics and Society, edited by P. Laslett, first series. Oxford: Blackwell, 1956.
the concept in imperative theories of law
Austin, John. Lectures on Jurisprudence, edited by R. Campbell, 5th ed. London: J. Murray, 1885.
Austin, John. The Province of Jurisprudence Determined, edited with an introduction by H. L. A. Hart. London: Weidenfeld and Nicolson, 1954. First published in 1832.
Bodin, Jean. Six Livres de la république. Lyon, 1576. Translated and abridged by M. J. Tooley as Six Books of the Commonwealth. Oxford: Blackwell, 1955.
Burns, J. H. "Sovereignty and Constitutional Law in Bodin." Political Studies 7 (1959): 174–177.
Hart, H. L. A. Concept of Law. Oxford: Clarendon Press, 1961.
Hobbes, Thomas. Leviathan, edited with an introduction by M. Oakeshott. Oxford: Blackwell, 1946. First published in 1651.
Kelsen, Hans. General Theory of Law and State. Cambridge, MA: Harvard University Press, 1945.
Kelsen, Hans. Das Problem der Souveränität und die Theorie des Völkerrechts. Tübingen, 1920.
Marshall, G. Parliamentary Sovereignty and the Commonwealth. Oxford: Clarendon Press, 1957.
Spinoza, Benedict. "Tractatus Politicus." In his Opera Posthuma. Amsterdam, 1677. This work and the one above may be found in translation in Spinoza: The Political Works, edited by A. G. Wernham. London: Clarendon Press, 1958.
Spinoza, Benedict. Tractatus Theologico-Politicus. Amsterdam, 1670.
Warrender, Howard. Political Philosophy of Hobbes. Oxford: Clarendon Press, 1957.
sovereignty as moral supremacy
Bosanquet, Bernard. Philosophical Theory of the State. 4th ed. London, 1923. First published in 1899.
Green, T. H. Lectures on the Principles of Political Obligation. London: Longmans, 1941. First published in 1882.
Hegel, G. W. F. Grundlinien der Philosophie des Rechts. Berlin, 1821. Translated with notes by T. M. Knox as Hegel's Philosophy of Right. Oxford: Clarendon Press, 1942.
Rousseau, J.-J. Le contrat social. Amsterdam, 1762. Available in French in Political Writings of Jean-Jacques Rousseau, edited by C. E. Vaughn. Oxford, 1962. Translated and edited by F. Watkins in Rousseau: Political Writings. Edinburgh, 1953.
pluralist critics of sovereign-state theory
Duguit, Léon. Les transformations du droit public. Paris, 1913. Translated by H. J. Laski and F. Laski as Law in the Modern State. New York: B.W. Huebsch, 1919.
Figgis, J. N. Churches in the Modern State. London: Longmans, Green, 1913.
Gierke, Otto von. Das deutsche Genossenschaftsrecht. 4 vols. Berlin, 1868–1913. Part of Vol. III translated with an introduction by F. W. Maitland as Political Theories of the Middle Ages. Cambridge, U.K., 1900. Part of Vol. IV translated with an introduction by Ernest Barker as Natural Law and the Theory of Society, 1500 to 1800. Cambridge, U.K.: Cambridge University Press, 1934.
Krabbe, Hugo. Lehre des Rechtssouveränität. Groningen, Netherlands, 1906.
Krabbe, Hugo. Die Moderne Staats-Idee. The Hague, 1915. Edited and translated by G. H. Sabine and W. J. Shepard as The Modern Idea of the State. New York, 1922.
Laski, Harold J. The Foundations of Sovereignty and Other Essays. New York: Harcourt Brace, 1921.
Laski, Harold J. Grammar of Politics, 5th ed. London, 1948.
Stanley I. Benn (1967)
The concept of “sovereignty” implies a theory of politics which claims that in every system of government there must be some absolute power of final decision exercised by some person or body recognized both as competent to decide and as able to enforce the decision. This person or body is called the sovereign. The simplest form of the theory is the common assertion that “the state is sovereign,” which is usually a tautology, just as the expression “sovereign state” can be a pleonasm. For the concept of “the state” came into use at about the same time as the concept of sovereignty, and it served the same purpose and had substantially the same meaning. Both concepts provided secular symbols to replace the decayed religious basis for authority.
The theory of sovereignty purports to state an essential condition for political order. Political theory has perpetually oscillated between stressing one or the other of the two primal functions of government—survival and betterment. Sovereignty sees the world in the light of survival alone and is most appropriate as a theory when the world of settled expectations seems urgently threatened. The phenomenon and the concept of sovereignty are best understood historically since they originated as an expression of the search for a purely secular basis for authority amid the new state organizations in Europe of the sixteenth and seventeenth centuries.
Like all political theories, the theory of sovereignty has both a prescriptive and a descriptive element. It has been argued that different statesmen and philosophers just happened to emphasize one or the other of these elements; but one could also say that these are only differences of degree and that the theory necessarily claims both that sovereignty exists and that it is relevant to some favored purpose. For example, Blackstone asserted (1765-1769) that there is and must be in every state a supreme, irresistible, absolute, and uncontrolled authority, in which the jura summa imperil, or the right of sovereignty, resides. This supreme authority is by the constitution of Great Britain vested in King, Lords, and Commons. The claim has both an empirical and a logical character—“there is and must be in every. . . .” Plainly, Blackstone‘s claim was not an induction from widespread observation or the fruit of the application of comparative method; it was meant to be common sense, perhaps a “self-evident” truth, or rather something necessarily involved in the concept of the state. As an empirical proposition, it was obviously false. Jeremy Bentham devoted much of his Fragment on Government (1776) to exposing and ridiculing this claim. He asked whether Black-stone thought that the Swiss and the Germans had never known real government. Many states did not and do not possess such a unity, clarity, and effectiveness of command. Plainly, Blackstone thought that all governments ought to possess some clear sovereign power. The theory is much more plausible as a prescriptive proposition than as a descriptive one: States that lack sovereignty commonly find themselves in difficulties, both in defending themselves and in resolving internal conflicts.
By 1775 the former British colonists in North America had come not merely to regard the assertion of parliamentary sovereignty as tyranny but to equate the concept itself with tyranny. “Only the laws are sovereign,” said John Adams of the new Massachusetts constitution—a remark, which if taken literally, states an impossibility almost as obvious as the famous republican boast of “a government of laws and not of men” if rule by one sovereign was impossible or undesirable, so was rule by laws alone. Sovereignty to the American Whigs was not the minimum condition of any civilized order; it was the threat of intervention against an existing, traditional order. The theory of federalism was put forward to contradict that of sovereignty. For “federalism” was not just the name given to the peculiar arrangements by which 13 allegedly sovereign states associated themselves for certain specific or general purposes; it was also a theory of government (as the authors of Paper 39 in The Federalist argued at the time, and as Harold Laski did later in Studies in the Problem of Sovereignty ). And even in Britain there were those who argued that Parliament itself was bound by the “fundamental laws of the constitution.” This might seem implausible, but Lord Chatham, the elder Pitt, could argue that the Stamp Act was, quite simply, unconstitutional. He said that Parliament held sovereign power only over those who were represented by it—giving rise to the most telling slogan of the so-called American Revolution: “Taxation without representation is tyranny.”
Yet, on the other hand, it could be argued that the basic truth of the theory of sovereignty was demonstrated even amid the federalism and pluralism of the United States constitution of 1787. For after doing nearly everything possible to ensure that the president was both checked and balanced, the founding fathers nevertheless made the president the commander-in-chief of the armed forces and specifically gave him unlimited power to en-force the existing laws. The granting of the military power might appear to be due to exceptional circumstances—although a certain simplicity was revealed in thinking that the fear of war was exceptional; but the power to enforce the laws was no more and no less than what Hobbes meant in his famous epigram: “Covenants without the sword are vain.”
These two functions of government, the defense of the realm and the enforcement of law and order, show that there is at least a germ of truth in even the most extreme formulation of the theory of sovereignty. All the wiser opponents of the extreme view of sovereignty did, in fact, see the difficulty. Fortescue, for instance, described England in the mid-fifteenth century as regimen politicum et regale ( 1885, p. 119)—politicum in that the king could only declare what the law was after consulting with his peers, but also regale in that he was absolute in the task of enforcing the laws, punishing offenders, and defending the realm. Bracton in his De legibus et consuetudinibus Angliae (1569) had made a similar point almost two centuries before: There was a sphere of absolute royal prerogative, the gubernaculum, but there was also a sphere of absolute legal restraint, the jurisdictio—the king‘s duty was simply to declare and enforce the laws, and if he presumed to make new laws, the courts or Parliament could declare such acts illegal (see Mcllwain 1940). The great debate of the Renaissance and early modern period was between those who said that “the first business of a government is to govern” (and justified this by the theory of sovereignty) and those who said either that “all government rests on consent” (and tried to justify this by theories of pluralism or of individualism) or that all government is “under natural law” and man should not attempt to change it. Although it is clear that this debate is now exhausted, the theory of sovereignty in a full sense did fulfill a particular political need in the particular circumstances of Europe in the sixteenth and seventeenth centuries. Before Bodin the use of the concept of sovereignty is an anachronism, al-though a depressingly common one. It was unknown to the Roman tradition of politics. Even the most famous and extreme formulation of imperial authority, in the Institutes of Justinian, does not contain a conception of sovereignty as understood by Bodin, Hobbes, Austin, or Jellinek. Sed et quod principi placuit, legis habet vigorem—“what pleases the Prince has the force of law”—is immediately qualified by cum populus ei et in eum omne suum imperium et potestatem concessit—“for the people make over to him their whole power and authority” (Institutions, book 1, tit. 2, sec. 6). As a descriptive theory, this is plainly false. The people of Rome never did any such thing, nor were they ever in a position to do so. But the prescriptive argument is more substantial; it reminded even the heirs of Augustus Caesar that it was politically necessary for them to govern according to at least a myth of popularity, because even their power rested upon the consent of subjects who potentially had the power to overthrow the government.
The concept of sovereignty was also unknown to medieval Christendom. Disputes between popes and emperors often can be restated in terms of sovereignty; but if the two sides had understood this term, they would have had no dispute over it. As Christians, both recognized that some things were Caesar‘s and others, God‘s. The emperor held sovereign power over those things secular and the pope was sovereign over those things deemed to be divine. But to admit divided sovereignty is to make the concept almost meaningless. The papal-imperial controversies were not about sovereignty but about political predominance. Medieval political thought was inherently both constitutional and hierarchical. The rights and duties of kings were proper matters of dispute, but all agreed that they were bound by law—indeed, by different types of law: eternal, divine, natural, and positive law. Kings might claim to have the sole right to declare what the positive law was, but they could not claim to create it. The idea of creating new law by statute was an idea new to the Renaissance. To claim that the king was above the law would previously have been a kind of blasphemy; and to claim that “law” meant only what the king or sovereign body in fact enforced would have appeared a trivial cynicism.
Bodin. The theory of sovereignty that emerged from Bodin‘s Six Bookes of a Commonweale (1576) was a practical response to tension between the claims of church and state. He wrote as France was tearing itself to pieces in wars of religion. His patron, Francois, due d‘Alencon, was the official leader of the party of the politiques, who held that the state was primarily concerned with the maintenance of order and not with the establishment of true religion; therefore they sought, like the supporters of the “new monarchies” elsewhere in Eu-rope, to strengthen the crown against both the nobility and the church. Like Hobbes, Bodin saw civil war as the worst of all evils; he defined sovereignty so as to leave no possible room for any right of resistance (in an age when both Protestant and Roman Catholic theologians took turns, as circumstances varied, in producing learned justifications of tyrannicide). “It is clear that the principal mark of sovereign majesty .. . is the right to im-pose laws generally on all subjects regardless of their consent. .. . If he is to govern the state well, a sovereign prince must be above the law . . .” (1576, p. 32 in the 1955 edition). Thus, the essence of sovereignty was the power to command, and commands must proceed from a single will. Since law was simply the command of the sovereign, obligation could not be conditional upon the justice of the command, but followed simply from its authenticity. “Open, in the King‘s name!” was to be enough. Bodin thought he had found in the existence of this principle of sovereignty a universal recipe for political stability.
This formulation had obvious descriptive and prescriptive advantages over that of medieval political thought. But Bodin was careful to make reasonably clear that his sovereign is not absolute and that, like Aristotle‘s monarch, he is not to be confused with a tyrant. He is bound by the natural law and the laws declared by God. For instance, “God has declared explicitly in His Law that it is not just to take, or even to covet, the goods of another. Those who defend such opinions are even more dangerous than those who act on them. They show the lion his claws, and arm princes under a cover of just claims” (ibid., p. 35). He drew a curious distinction between law, which is a command by the sovereign, and right, which is a matter of equity and litigation, somehow apart from the sovereign. The founder of the theory of sovereignty was either too realistic descriptively or not ruthless enough prescriptively to make his sovereign completely secure. But he did make power the distinguishing mark of the ruler, rather than justice or the judicial function. He did not say, however, as did Hobbes, that there is no right or wrong until the sovereign makes laws creating such distinctions.
Hobbes . In Leviathan, Hobbes made the sovereign both morally and politically absolute. He at-tacked the whole Aristotelian tradition of moral philosophy and stated that “this private measure of good is a doctrine, not only vain, but also pernicious to the public state” (1651, p. 372 in 1914 edition). Only law creates the distinction of right and wrong, and law is the creation of the sovereign. The fundamental law of nature is self-preservation; only sovereign power can prevent men from destroying each other; and the only sovereign power to be obeyed is an effective one—obligation ceases at the moment when a sovereign power ceases to be able to protect the lives of his subjects. Here is a ruthlessly rational view of sovereignty. There is no room for loyalty in the world of Hobbes. Most theories of political obligation had pictured sacrifice for the true monarch as the height of glory, but for Hobbes such terms as “sacrifice,” “true monarch,” and “glory” (or “honor”) were metaphysical nonsense and, indeed, “baited hooks.” He is astonishingly modern. He even speaks up for tyranny, saying that “the name of Tyranny signifieth nothing more, nor less, than the name of Sovereignty. . . . I think the toleration of a professed hatred of Tyranny is a Toleration of hatred to Commonwealth in generall” (ibid., p. 388). Nothing is worse than the lack of sovereign power, that is, the state of nature; or the belief that power can be divided: “If there had not first been an opinion received of the greatest part of England, that these Powers were divided between the King and the Lords, and the House of Commons, the people had never been divided and fallen into this Civill Warre” (zM.,p. 95).
Both Hobbes and Bodin were preoccupied with the problem of civil war; their theories are appropriate to states of emergency. And in Hobbes‘s theory, too, although the sovereign is absolute, he is bound by the laws of nature. These are no longer moral matters: the law of self-preservation dictates that no one can be expected to take his own life. Therefore, although a man may be commanded as a soldier, he may properly purchase a substitute; and as for men who run away in battle, “when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonorably!” (ibid., p. 115). Thus, the germ of the nineteenth-century bourgeois is planted in a work that other-wise might seem to be a throwback to Renaissance tyranny. Sovereignty is once again passionately advocated—and yet limited.
Machiavelli . A negative question may throw some light on this paradox: Why did not Machiavelli, of all men, develop a doctrine of sovereignty? In one sense he did, implicitly, throughout The Prince. Then in The Discourses he said: “Those republics that cannot against impending danger take refuge under a dictator or some such authority will in serious emergencies always be ruined” (Chief Works . . ., vol. 1, p. 269). But by “republic” he meant a type of government in which there is a citizen body representative at least of the main social forces. Clearly, he thought, as did Aristotle, that this type of government is both the best and in the long run the most stable. But he realized that it is not always possible. And he was concerned not with a legalistic question but with the realistic question of the different needs during emergencies and under normal conditions. States that are threatened by external aggression or by severe internal conflict or that are in the process of being founded need princely (or sovereign) rule; those that have solved these difficulties need to spread power to ensure their stability through time, that is, to politicize themselves.
Machiavelli is perhaps more realistic than either Bodin or Hobbes in recognizing two archetypal situations, with different needs: normal politics (peace), which is republican, and states of emergency (war), which are dictatorial. This can be seen in the doctrine of “constitutional dictatorship” in the Roman Republic (see Rossiter 1948) and in later times in the assumption of emergency powers by Lincoln in the American Civil War and by Churchill in World War n. “Is there, in all republics,” asked Lincoln in 1861, “this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its people, or too weak to maintain its own existence?” (Speeches . . ., p. 176). If sovereignty is taken as a potentiality to be realized in what are recognized as times of emergency, and not as a day-to-day activity, then there is no contradiction between the theory of sovereign power and the theory of representative consent. The same way of resolving the problem of sovereignty is implied in Rousseau‘s famous aphorism that however strong a man is, he is never strong enough to remain master always unless he transform his might into right and obedience into duty.
There is a long history of the intricate and largely futile attempts to reconcile the theory of sovereignty with that of consent (see Merriam 1900). The problem has seemed at once more urgent and intractable since the political consequences of the industrial revolution have made it clear that strong governments can thrive only with the active participation of the masses—whether in the manner of totalitarianism or of political democracy. The almost meaningless rhetoric of “sovereignty of the people” long held sway both in the United States and in France. In the United States it disguised the actual location of the exercise of central power; in France it long helped to prevent its exercise at all; and in both cases it strengthened what both Alexis de Tocqueville and John Stuart Mill called “the tyranny of public opinion.”
The attempt to define a “sovereignty of Parliament” has nonetheless some considerable historical and philosophical interest. For it can be truly said that Britain lost any chance of conciliation with her North American colonies because of this dogma. To most men in Whitehall and Westminster, it seemed part of tradition, nature, and logic; to men in Boston, New York, and Williamsburg it seemed a specific threat. Even the promise not to exercise it for reasons of political prudence, such as Burke proposed, could not pacify the colonists when even Burke and the Rockingham Whigs, let alone the king‘s government, insisted on the retention of the theory as a necessary ultimate sanction. Burke himself had drafted the Declaratory Act of 1766, perhaps the high-water mark of the theory of sovereignty and certainly one of the strangest acts ever to appear in the statute book, for it added nothing to the law but only stated what was already clearly the case: that the power of Parliament was unlimited in law. But on both sides the question was, after all, not what could Parliament do but what was it likely to do, having in mind precedents and, still more, the traditions and habits of the people it had to govern. No wonder many so-called purely practical men appeared grossly doctrinaire on the point of sovereignty; and no wonder that many others felt torn between constitutional authority and sovereign power. A perplexed member of Parliament said during the debate on the repeal of the Stamp Act in 1766 that “two opinions, both equally true, (though carrying with them a seeming contradiction in this particular) were set before us. The one, that in all free countries no one can be taxed but by himself, or representative. The other, that there never was any country, since the Creation, where there was not somewhere lodged, for the superintendency of the whole, one supreme legislative authority, controlling, directing, and governing the whole” (Great Britain, Parliament 1813, vol. 16, cols. 108-109). “Seeming contradiction” was right. But for generations English lawyers stubbornly treated the doctrine of parliamentary sovereignty as if it were a political doctrine and not simply a legal doctrine.
Austin. Closely following Jeremy Bentham, John Austin argued that if a determinate human superior not in habit of obedience to a like superior receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent (1863, vol. 1, p. 227 in 1873 edition). And to Austin that sovereign in Britain was, of course, Parliament as a whole. But Parliament as a whole is an extremely legalistic concept, as is immediately apparent when the question is asked: Who receives habitual obedience in Parliament? Can we now say that the prime minister is sovereign? Yes, but then we must add, more explicitly than Hobbes, “while the going is good.” In a word, such power is political and cannot be defined in legalistic terms. For political power to exist at all there must be the potentiality of sovereign power, but a sovereign power constantly exercised appears to be invariably self-defeating.
Austin assumed, like Blackstone before him and A. V. Dicey afterward, that in every government there is a clear place where such absolute power resides. This is plainly false. The example of federal constitutions alone refutes it.
It may be true that federal systems are prone to run into difficulties in times of emergency when they cannot, or cannot readily, summon and assert sovereign power; but it is equally true that the British system does not normally use it. What the concept of the “sovereignty of Parliament” does explain is that there are no possible legal limitations on the sovereignty of Parliament. But this is a very formal matter. What is interesting is not what could be done but what is likely to be done politically. It is not telling much to say that no court or other body can challenge an act of Parliament or a proceeding in Parliament. This led A. V. Dicey to distinguish between “legal” sovereignty, exercised by the Queen-in-Parliament, and “political” sovereignty, exercised by the electorate. The one is what is possible; the other, what is likely. But this distinction is not as helpful as it seems. For plainly Parliament as well as the electorate plays a role in political influence; and everybody (including members of Parliament) forms part of an electorate, which is itself only to be defined in legal terms. The real distinction is between what people may do in legal and in political capacities; but this does not correspond to any precise distinction between institutions like Parliament and the electorate. They are, in fact, linked indissolubly by the political processes of party.
The concept of sovereignty is thus best reserved for the conditional assertion that all governments may face conditions of emergency in which normal constitutional rules have to be set aside if the state is to survive. The theory of sovereignty according to Bodin, Hobbes, and the English positivist lawyers can be given a meaning only as a contradiction to those normal political conditions in which it is recognized—and acted upon—that power is divided and that the business of government is creative conciliation. But this contradiction is at times necessary: it lies in events and not in theory. It has appeared more relevant to some epochs than to others—which accounts for the time of its emergence and its peculiar setting in civil wars. Sovereignty is relevant to emergency situations, as the potentiality of maintaining order in face of clear and present danger, and the justification of emergency powers by which all regimes must find a capacity for decisive, centralized, and, for a time, unquestioned action if a state is to survive. Politics, as Voltaire said of liberty, has no relevance to a city in a state of siege. The practical difficulties of deciding when a state of emergency exists are always great and open to abuse—but they are practical and procedural difficulties; they do not destroy the real distinction between the time of sovereignty and the time of politics.
[See alsoAuthority; Constitutions and Constitutionalism; Crisis Government; General Will; GOVERNMENT; International Politics; MONARCHY; Political Theory; RESPONSIBILITY; STATE; and the biographies ofAustin; BODIN; DICEY; HOBBES; MACHIAVELLI; ROUSSEAU.]
Austin, John (1832-1863)1954 The Province of Juris-prudence Determined and The Uses of the Study of Jurisprudence. London: Weidenfeld & Nicolson; New York: Noonday. → Two books reprinted in one volume.
Austin, John (1863) 1911 Lectures on Jurisprudence: Or the Philosophy of Positive Law. 5th ed. 2 vols. London: Murray.
Bentham, Jeremy (1776) 1951 A Fragment on Government. Edited by F. C. Montague. Oxford: Clarendon.
Blackstone, William (1765-1769) 1922 Commentaries on the Laws of England. 4 books in 2 vols. Edited by William Draper Lewis. Philadelphia: Bisel.
Bodin, Jean (1576) 1962 The Six Bookes of a Commonweale. Edited by Kenneth D. McRae. Cambridge, Mass.: Harvard Univ. Press. → A facsimile reprint of the English translation of 1606, corrected and supplemented in the light of a new comparison with the French and Latin texts.
Bracton, Henri De (1569)1915-1942 Bracton De legibus et consuetudinibus Angliae. 2 vols. New Haven: Yale Univ. Press. → Published posthumously.
Dicey, Albert V. (1885) 1961 Introduction to the Study of the Law of the Constitution. 10th ed. With an Introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins. → First published as Lectures Introductory to the Study of the Law of the Constitution.
Emerson, Rupert 1928 State and Sovereignty in Modern Germany. New Haven: Yale Univ. Press.
Fortescue, John (1714) 1885 The Governance of Eng-land: Otherwise Called the Difference Between an Absolute and a Limited Monarchy. Rev. ed. Oxford: Clarendon. → Published posthumously. First published as The Difference Between an Absolute and a Limited Monarchy.
Great Britain, Parliament 1813 The Parliamentary Debates. Volume 16: A.D. 1765-1771. London: Hansard.
Hamilton, Alexander; Madison, James; and Jay, John (1787-1788) 1961 The Federalist. Edited with introduction and notes by Jacob E. Cooke. Middletown, Conn.: Wesleyan Univ. Press.
Hobbes, Thomas (1651) 1958 Leviathan. With an Introduction by Herbert W. Schneider. New York: Liberal Arts.
Jouvenel, Bertrand De (1955) 1957 Sovereignty: An Inquiry Into the Political Good. Univ. of Chicago Press. → First published as De la souverainete: A la recherche du bien politique.
Laski, Harold J. 1917 Studies in the Problem of Sovereignty. New Haven: Yale Univ. Press.
Lincoln, AbrahamSpeeches and Letters of Abraham Lincoln, 1832-1865. Edited by Merwin Roe. London: Dent, 1919.
Machiavelli, NiccolÒChief Works and Others. 3 vols. Durham, N.C.: Duke Univ. Press, 1965.
Mcilwain, Charles H. (1940) 1947 Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, N.Y.: Cornell Univ. Press. → A paperback edition was published in 1958.
Marshall, Geoffrey 1957 Parliamentary Sovereignty and the Commonwealth. Oxford: Clarendon.
Meinecke, Friedrich (1924) 1962 Machiavellism: The Doctrine of Raison d‘État and Its Place in Modern History. New York: Praeger. → First published as Die Idee der Staatsrdson in der neueren Geschichte. A paperback edition was published in 1965.
Merriam, Charles E. 1900 History of the Theory of Sovereignty Since Rousseau. New York: Columbia Univ. Press.
Rees, W. J. 1956 The Theory of Sovereignty Restated. Pages 56-82 in Peter Laslett (editor), Philosophy, Politics and Society: A Collection. Oxford: Blackwell.
Rossiter, Clinton L. 1948 Constitutional Dictatorship: Crisis Government in the Modern Democracies. Princeton Univ. Press. → A paperback edition was published in 1963 by Harcourt.
Political scientists trace the conventional definition of sovereignty—supreme legal authority exercised over a particular territory and people—to the writings of European legal and political philosophers from the sixteenth to nineteenth centuries. Many view sovereignty as a defining feature of political modernity, and some critical and postmodern theorists regard sovereignty as a discursive practice and, as such, a central problem for contemporary politics, particularly world politics. It is argued that the discursive practice of sovereignty constructs and sustains the state as the supreme authority in a world in which human well being and social justice would be better served by finding ways of simultaneously holding states more accountable to people and by enlarging the role of global civil society. By some accounts, the sovereign state is the cause of war and international anarchy as well as the primary obstacle to the construction of a humane world order.
Writings on sovereignty over the past four centuries reflect two distinct views, one unlimited and absolute, the other restrictive and conditional. The works of Niccolò Machiavelli (1469–1527), Jean Bodin (1530–1596), Thomas Hobbes (1588–1679), and John Austin (1790–1859) fall into the first category. In Austin’s view law is “the command of the sovereign.” Machiavelli and Hobbes held that the recognition and exercise of sovereignty as supreme authority is necessary to the establishment of effective government. Bodin’s conception was so absolute that, in his view, elected officials could not be said to hold sovereign power at all. Such absolute sovereignty was mitigated when it passed historically from the “divine right of kings” in the sixteenth through the eighteenth centuries to the state or government. Though Hobbes and Austin did not deny a role for the people, their emphasis on the state as the locus of sovereignty is evident today, as there are no requirements that states be democratic in order to be recognized as possessing sovereign authority accountable to no higher authority, hence the criticism of state sovereignty by today’s human rights advocates. In contrast, John Locke (1632–1704) and Jean-Jacques Rousseau (1712–1778) argued for a shift in the locus of sovereignty from government to people.
Recent criticisms of sovereignty as a discursive practice stem largely from the work of the influential postmodernist Michel Foucault (1926–1984), who sought to unveil how sovereignty discourses both correspond to and constrain the way power is constituted in social relations in specific historical and cultural contexts. This exercise reveals the paradox of modernity, where sovereignty, said to reside within the individual, has a totalizing effect when exercised by the state. Philosopher Jacques Derrida (1930–2004) also notes the contradiction between, on the one hand, sovereignty understood as one group or individual exercising a superior power over others and, on the other, modernity’s promise of democracy and equality.
Sovereignty can be viewed within particular contexts such as international law, international political relations, or through a network of legal relations within a federal state, such as the United States. In international law, an absolute concept of sovereignty is less relevant than the “sovereign equality” of states. States freely enter into legally binding agreements through treaties, but in doing so, they in effect agree to a diminishment of sovereignty. An example is the optional clause to the Statute of the International Court of Justice, which imposes compulsory jurisdiction on all states signing the clause. Some argue that the members of the European Union give up some state sovereignty in favor of “pooled” sovereignty. A distinction is also made between de jure sovereignty, that is, the legal status of sovereignty, and de facto sovereignty, which allows a state to act sovereign as a practical matter even if not supported by de jure, or legal, recognition.
Sovereign equality is a legal attribute of states in their legal and political relations with another. New states “come into existence” as a result of being recognized by existing states. Thus the success of a people or a secessionist movement in seeking recognition as a sovereign state will ultimately depend on the political will of existing states. States may also experience diminished sovereignty as a consequence of violating international norms or as a result of the enforcement of international law by other states. Following their defeat in World War II (1939–1945), for instance, Germany and Japan formed postwar governments under the supervision of the international community, and their ability to maintain military forces was curtailed as a condition of their defeat. More recently, following the United Nations Security Council enforcement action in 1991, Iraq’s sovereignty was diminished by the International Atomic Energy Commission inspections and the U.N. designation of “no-fly zones.”
In a federal system such as the United States, sovereignty can be reserved or shared between the federal and state or provincial governments. Additionally, indigenous peoples within a state can exercise or assert indigenous sovereignty. Although the term indigenous has gained widespread use internationally, U.S. law refers to “tribal sovereignty,” while Canada and other settler states refer to “aboriginal” sovereignty. The history of tribal sovereignty in the United States has been troubled, uneven, and often inconsistent, in large part because U.S. law asserts congressional “plenary power” over indigenous peoples. U.S. law treats tribal sovereignty as a lesser or subordinate form of sovereignty. Though eroded through many of the court decisions during most of the twentieth century, in the later twentieth and early twenty-first centuries the right of self-determination has been strengthened as U.S. law recognizes that indigenous tribes and nations possess many attributes of sovereignty. A move toward international recognition of indigenous rights may further strengthen the legal and political basis of indigenous sovereignty, which indigenous peoples often regard as the ability to control one’s own political destiny.
Sovereignty has no intrinsic moral authority. As a legal doctrine or norm, sovereignty is said to have settled the church-state authority crisis of the sixteenth century. Its legitimacy, however, rested at that time on the notion of divine right, whereby authoritative uses of power were grounded in the moral claims of religious loyalty. With the rise of nationalism in the eighteenth century, the moral basis shifted from the church to the people in the form of the nation, so that divine right gave way to popular sovereignty. It soon became evident that nationalism was exclusionary, and as an ideology it could be used to justify heinous atrocities against “others” who did not belong to the national group controlling the state.
Sovereignty today is the subject of much debate, with some calling for the “deterritorialization” of sovereignty and others heralding the erosion of the sovereign state in favor of a combination of simultaneously more local and more global societal relations.
SEE ALSO Confederate States of America; Federalism; Monarchy; Totalitarianism
Austin, John. 1995. The Province of Jurisprudence Determined, ed. Wilfred E. Rumble. Cambridge, U.K.: Cambridge University Press. (Orig. pub. 1832).
Balke, Friedrich. 2005. Derrida and Foucault on Sovereignty. German Law Journal 6 (January 1). http://www.germanlawjournal.com/print.php?id=539.
Barker, Joanne. 2005. Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination. Lincoln: University of Nebraska Press.
Bartelson, Jens, ed. 1995. A Genealogy of Sovereignty. Cambridge, U.K.: Cambridge University Press.
Bodin, Jean. 1992. On Sovereignty: Four Chapters from the Six Books of the Commonwealth. Trans. and ed. Julian H. Franklin. Cambridge, U.K.: Cambridge University Press. (Orig. pub. 1576).
Foucault, Michel. 2003. The Essential Foucault, eds. Paul Rabinow and Nikolas S. Rose. New York: New Press.
Hobbes, Thomas. 1982. Leviathan, ed. C. B. McPherson. New York: Penguin Books. (Orig. pub. 1651).
Ivison, Duncan, Paul Patton, and Will Sanders, eds. 2000. Political Theory and the Rights of Indigenous Peoples. Cambridge, U.K.: Cambridge University Press.
Kamuf, Peggy. 1991. The Derrida Reader. New York: Columbia University Press.
Krasner, Stephen. 1999. Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton University Press.
Krasner, Stephen. 2001. Problematic Sovereignty. New York: Columbia University Press.
Machiavelli, Nicolo. 1984. The Prince. New York: Bantam Classics. (Orig. pub. 1532).
Machiavelli, Nicolo. 2003. The Art of War. Trans. Christopher Lynch. Chicago: University of Chicago Press. (Orig. pub. 1520).
Nelsen, Brent F., and Alexander Stubb, eds. 2003. The European Union: Readings on the Theory and Practice of European Integration. Boulder, CO: Lynne Rienner.
Philpott, Daniel. 2001. Revolutions in Sovereignty: How Ideas Shaped Modern International Relations. Princeton, NJ: Princeton University Press.
Porter, Robert Odawi. 2004. Sovereignty, Colonialism, and the Future of the Indigenous Nations: A Reader. Durham, NC: Carolina Academic Press.
Rousseau, Jean-Jacques. 1968. The Social Contract. Trans and ed. Maurice Cranston. New York: Penguin Books. (Orig. pub. 1762).
Slaughter, Anne-Marie. 2004. A New World Order. Princeton, NJ: Princeton University Press.
Trask, Haunani Kay. 1999. From a Native Daughter: Colonialism and Sovereignty in Hawaii. Manoa: University of Hawaii Press.
Weber, Cynthia. 1994. Simulating Sovereignty: Intervention, the State, and Symbolic Exchange. Cambridge, U.K.: Cambridge University Press.
Wilmer, Franke. 1993. The Indigenous Voice in World Politics. Newbury Park, CA: Sage.
Sovereignty is a species of authority, namely, political authority, the moral right of ultimate decision within a legitimately constituted state. Whether this supreme societal power is vested in the one, the few, or the many, it includes the right to direct by laws and other institutions and instrumentalities of government, not excluding that of physical coercion, the activities of persons, families, and other subordinate societies toward the attainment of the common good. It embraces legislative, executive, and judicial power, the right of life and death, of war and peace. On the international level it demands the juridical independence of the state and its acceptance as an equal in the community of nations. Ideas such as these embraced by the term are as old as the state itself,
and they were known to the Greek political philosophers and the Roman jurists, for example. However, sovereignty as a philosophical term came into use during postmedieval political developments, notably in the works of Jean Bodin (1530–96), alleged father of the term, Thomas hobbes (1588–1679), and Jean Jacques rousseau (1712–78).
Origin. Sacred Scripture, papal teaching, and Catholic philosophy declare that sovereignty ultimately derives its origin from God. St. Paul, instructing the faithful on human dignity and the duty to obey civil authority, wrote, "Let everyone be subject to the higher authorities, for there exists no authority except from God" (Rom 3.1–7;1 Pt 2.13–17 and Jn 19.9–11). The Syllabus of Pius IX and the encyclicals of Leo XIII, Pius XI, Pius XII, and John XXIII present the Church's doctrine in regard to the origin, function, and limitations of sovereignty. In these documents sovereignty is ascribed to God, the author of man's nature. "Every civilized community," Leo XIII said, "must have a ruling authority and this authority, no less than society itself, has its source in nature and consequently has God for its author. It follows, then, that all power must proceed from God" [Immortale Dei, Acta Sanctae Sedis, (Rome 1865–1908) ed. 18 (1885) 162].
The philosophical arguments of Catholic philosophers lead to the same conclusion. In them, man has been viewed consistently as a social and political being not merely by his own free choice but by the exigency of his intrinsic human nature. This is to say that man is obliged by the natural law to accept or create right social order or civil society in which he may achieve the perfection demanded by human nature, that is, the development of his physical, intellectual, cultural, and moral potentials. This natural goal can be achieved only in and through association with his fellow men. Consequently, membership in society, especially in the family and the state, is natural to man. It is an expression of his dynamic nature. It answers an essential demand and fulfills an intrinsic need of his human nature. Since human nature demands the existence of the state, it simultaneously requires the existence of all elements essential to the state, one of which is sovereignty. God, therefore, being the author of human nature, is likewise the author of the state and the origin of sovereignty. Edmund burke (1729–97) put the argument succinctly in his Reflections on the Revolution in France: "He who gave our nature to be perfected by our virtue willed also the necessary means of its perfection: He willed, therefore, the state" [Works (Boston 1881) 3.361].
Limitations. In accordance with this philosophical theory, in exercising sovereignty the state performs a twofold service function. First, it directs its activities toward the realization of the common good, while at the same time safeguarding the inviolable rights of the human person. Secondly, it maintains a stable order of peace and prosperity in and through which man, in the enjoyment of his God-given rights, may pursue within the confines of the common good his happiness and perfection. Sovereign power, therefore, although supreme and final in the direction of society toward the common good, is not absolute and unlimited. It is limited by its purpose, the common good, by the inviolable rights of the human person, and by the dictates of the natural law and the divine law. Any law or activity of the sovereign power that would deprive a person of his natural rights to ownership of property, to marry, or to worship God, for example, would be contrary to the will of God and the inviolable rights of the person and therefore ultra rites, not only immoral but also illegal. Political philosophers who deny that man is social and political by nature and those who advance positivistic theories of sovereignty are forced to posit the free will of man as the sole source of political society and sovereignty. Consequently, they are unable to establish a sound, objective justification either for man's obedience to or for any theoretical limitations on sovereignty. If the supreme authority of the state, sovereignty, is derived solely from the free will of man, there is no objective order of rights or any higher law to which both man and the state are subject. Nor is there any valid protection against the abitrary use of sovereignty and the creation of the absolute state. To say that God is the author of sovereignty is not to deny men the right in the actual formation or change of government to choose the form of government under which they wish to live and to locate sovereignty.
Bibliography: h. a. rommen, The State in Catholic Thought (St. Louis 1945). l. sturzo, Church and State, tr. b. b. carter (New York 1939). j. maritain, Man and the State (Chicago 1951). g. bowe, The Origin of Political Authority (Dublin 1955). j. leclerq, The Two Sovereignties (New York 1952). thomas aquinas, On Kingship, to the King of Cyprus, tr. g. b. phelan, ed., i.t. eschmann (Toronto 1949). f. suÁrez, Selections from Three Works, tr. g. l. williams, 2 v. (Oxford 1944), contains De Legibus, Defensio fidei, and De triplici virtute theologica. r. bellarmine, De laicis, or The Treatise on Civil Government, tr. k. e. murphy (New York 1928).
[a. a. north]
The single term "sovereignty" is used to denote two distinct (although related) concepts of constitutional significance. It refers both to the autonomy of a state with respect to its legislative jurisdiction and to the supreme authority within the state. There are historical reasons why the same term is used for both, but to confound them is a serious and all-too-common error. The term itself comes from the Latin superans (meaning "rising above" or "overcoming") through the French souverain.
Sovereignty, in the first sense, is a concept derived from international law. A state is sovereign if it is independent of other states and possesses the authority to determine its relationship to other states and to regulate its own internal affairs. Sovereignty, in this sense, is the essential condition required for membership in the family of nations. Sovereign states do not ordinarily make treaties or wage formal war except with other states recognized as sovereign. International law also recognizes some communities as semisovereign, that is, as possessing certain, but not all, of the attributes of sovereignty. The member states of a federal union are in this category.
Internally the several states of the United States are legally sovereign in this sense insofar as they possess jurisdiction, the legitimate authority to declare the law within their territory. But this sovereignty is not unlimited. As the Supreme Court said in parker v. brown (1943), "The governments of the states are sovereign within their territory save only as they are subject to the prohibitions of the Constitution or as their action in some measure conflicts with powers delegated to the National Government, or with Congressional legislation enacted in the exercise of those powers." The jurisdiction of the states is constitutionally limited by subject as well as by territory, but within their sphere the state governments are as supreme as the national government is within its sphere. This is the meaning of what james madison in the federalist #39 called the "compound republic."
The states enjoy some other attributes of sovereignty: they may not without their consent be sued in their own courts or in the courts of the United States (see sovereign immunity; eleventh amendment) and they possess independent and plenary authority to lay and collect taxes on persons, things, or transactions within their jurisdiction. Among themselves, also, the states are sovereign. The jurisdiction of a state is exclusive of the other states. Disputes between or among states in cases not governed by the Constitution, an interstate compact, or a federal statute are resolved according to the principles of international law. But the sovereignty of the states does not limit or diminish the sovereignty of the Union. In all international affairs and in domestic affairs properly subject to it, the government of the United States is sovereign. Without its consent, the United States may not be sued in the courts either of the United States or of the several states.
In political theory sovereignty is generally held to be indivisible; careful writers thus distinguish between the indivisible sovereignty of the people and the powers or attributes of sovereignty that are divided between the national and state governments. Hence alexander hamilton, in The Federalist #32, wrote of "the division of the sovereign power." But not all political actors are so careful; it is not uncommon for politicians, judges, or commentators to refer to a "division of sovereignty" in the federal system.
The second meaning of sovereignty as the single, supreme authority within a state, above the law and uncontrollable except by its own will, was introduced into political theory by Jean Bodin in his Six Bookes of the Commonwealth (1576). Its most extreme expression was given by Thomas Hobbes who, in Leviathan (1651), asserted that opposition to tyranny was identical with opposition to sovereignty, or, in other words, that there is no standard except its own will against which the actions of the sovereign can be judged. A democratic, but no less radical, form was given to this concept of sovereignty by Jean-Jacques Rousseau in The Social Contract (1762).
Originally an analytical or explanatory formulation, the notion of a single, indivisible power in the state became a prescriptive article of the Tory political creed. william blackstone identified the King-in-Parliament as the sovereign in England. Governor thomas hutchinson, in his famous dispute with the Massachusetts Assembly in 1773, ascribed that same status to Parliament within the British Empire—denying that the provincial legislatures of America had any power or authority except by Parliament's grace. To the Whigs of America the Hobbesian idea of sovereignty, as it was stated by Hutchinson, represented a threat to the liberty they had inherited and the self-government they had established. As an empirical assertion the indivisibility of sovereignty seemed to be disproved by the federal systems of Germany, Switzerland, and the Netherlands, as well as by the British imperial system as it existed in the mid-eighteenth century; and as a prescriptive formula it was all too clearly intended to subvert American home rule.
The social contract theory expressed in the declaration of independence and the first state constitutions was a rejection of the Tory doctrine of sovereignty. Neither the government nor any branch or officer of the government justly exercises any power except by the consent of the governed. The doctrine of equality of rights means that no person or body of persons is above the law. The claim of the Declaration, our most fundamental constitutional document, is that there can be no sovereign but the people. This doctrine of popular sovereignty was identified by alexis de tocqueville as the defining characteristic of American constitutionalism. Both the national and state governments derive their powers from the people through the Constitution. Each exercises jurisdiction, but neither possesses sovereignty in the absolute, Hobbesian sense.
The Hobbesian notion of sovereignty was translated from a political to a legal concept in the nineteenth century by the British jurist John Austin, who argued that there was no higher law against which the decrees of the state could be measured, and so the power of the legislature was absolute. In this revived form it was brought to America as part of the intellectual baggage of legal positivism.
Throughout American history a favorite rhetorical device has been to identify one level of government—usually the state—as sovereign. The success of this device depends upon the ambiguity of the term. That a political body exercises jurisdiction, is supreme within its sphere, and is autonomous in its internal affairs does not mean that it, its government, or its legislature is immune to the sanctions of the law or is free of the constraints of higher law. To speak of the "sovereign states" is not entirely inaccurate if the speaker refers to their autonomy within their own sphere, but it derives its force by evoking the notion of indivisibility and illimitability drawn from the other sense of the term. The rhetoric seemingly denies that the sovereign states are comprised within a sovereign Union.
Within the American regime the ultimate power and authority to alter or abolish the constitutions of government of state and Union resides only and inalienably with the people. If it be necessary or useful to use the term "sovereignty" in the sense of ultimate political power, then there is no sovereign in America but the people.
Dennis J. Mahoney
Diamond, Martin (1970) 1981 The Founding of the Democratic Republic. Itasca, Ill.: F. E. Peacock.
Sovereignty is the supreme power of an individual, country, or state to govern internal affairs without interference from any other comparable authority. Sovereign countries can conduct foreign affairs with other nations including negotiating treaties, engaging in international commerce, and making war and peace. Sovereignty defines political authority within the modern nation.
Sovereignty first applied to a king's divine right to rule his subjects. Unlimited power was believed to flow from God to the king enabling him to rule his kingdom. The term evolved through time to represent the power of a state to take every action necessary to regulate itself. In democratic countries, the ultimate source of sovereignty or government power lies with the people.
In 1777, the Second Continental Congress of the United States adopted the Articles of Confederation giving Congress a few powers typical of an independent sovereign nation. Congress alone had the power to conduct foreign affairs, negotiate treaties, control a national army, coin money, and operate a national postal system. The Articles did deliberately keep the central government weak by limiting sovereignty. Each state had its own state court to settle disputes. All important Congressional decisions required approval of at least nine states, and these resolutions were mere suggestions to the states. This limited sovereignty granted to Congress proved ineffective and ten years later the U.S. Constitution was ratified. It was followed by ratification of the Bill of Rights in 1791. The Tenth Amendment of the Bill of Rights states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The United States is a sovereign nation in external affairs but the states do hold certain attributes of internal sovereignty, such as providing for public schools. The U.S. Constitution, the supreme law of the land, is the ultimate determinant of sovereignty powers in the nation.
"Popular sovereignty" is another variant of the term sovereignty in U.S. history, referring to the principle of allowing settlers to decide on their own a territory's slavery policy. The Kansas-Nebraska Bill of 1854 embraced popular sovereignty. Another use is sovereign rights of territorial waters. The United States has sovereign ocean rights extending 12 nautical miles from shore. These rights include fishing, shipping, navigation, and use of natural resources.
The supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers arederived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.
Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations.
The individual states of the United States do not possess the powers of external sovereignty, such as the right to deport undesirable persons, but each does have certain attributes of internal sovereignty, such as the power to regulate the acquisition and transfer of property within its borders. The sovereignty of a state is determined with reference to the U.S. Constitution, which is the supreme law of the land.