Law, Sovereignty, and the State

In societies with developed legal systems, a law-making authority is essential.
Simpler societies rely on customary observances passed down through generations, evolving gradually with new usages.
This chapter examines sovereignty as a key concept in modern law, its role in law's autonomy, and the challenges it poses in constitutional states and international relations.

The Origins of the Idea of Sovereignty

Modern sovereignty encompasses more than a supreme ruler with unfettered power.
It is associated with the supreme power of law-making rather than executive or judicial authority.
The sovereign is the supreme legislator in a community, possessing ultimate legal authority due to the power to change the law.
Other authorities are theoretically subordinate to this ultimate legal authority.
The concept of the sovereign as supreme legislator originates from three historical sources:
- Roman Emperor: The emperor's will had the force of law, influencing the rulers of national European states during the fifteenth and sixteenth centuries.
- The Papacy: During the Dark Ages and feudalism, the papacy became the supreme legislator for Christendom, assisted by a highly developed administrative machinery.
- Rise of Independent Nation-States: These states emerged as successors to the sovereignty claimed by the Pope and Roman Emperor, shaking off feudalism and papal supremacy.

Sovereignty and the State

The association of sovereignty with the entity known as 'the state' added a new dimension to the concept.
Initially, the sovereign was identified with the established ruler, but it shifted to the idea that sovereignty resides in the state itself.
The state is viewed as a self-supporting legal entity, with rulers as organs of the state.
Jean Bodin, a French lawyer, was an important exponent of this theory in the sixteenth century, asserting that every independent state possesses supreme and unfettered legislative power.
Bodin and successors acknowledged that law-making power was subject to natural-law principles.
With secularization, natural law's role as a constraint on state sovereignty diminished, leading to the recognition of the national state as the complete master of its system of positive law.
The theory that the state wields sovereign power is not consistently applied in modern states' constitutional theory.
In the United Kingdom, for example, a hybrid body called the Queen in Parliament is considered the possessor of legal sovereignty.
The state represents the community as a legal organization, with all wielders of official power as organs of the state.
The state is a personification of legal authority, with power derived from the state itself.
This concept is difficult to grasp in states with prolonged constitutional development, like England, where Parliamentary sovereignty is accepted.
In countries like France, where new constitutions are frequently introduced, there is a need to rest authority on the more permanent source of the state itself.
Political scientists invoke the state, but less so lawyers, who focus on the immediate constitutional framework.
Under a federal constitution, attributing sovereignty to the state is less easily avoided.

Internal and External Sovereignty

Sovereignty has distinct internal and external aspects.
Internal Aspect: Supreme domestic legislator.
External Aspect: Resembles an absolute monarch with total freedom of action; newly established national states claimed total freedom of action in their dealings with one another.
In international relations, state sovereignty meant each state was free to regulate relations with other states, including declaring war and annexing territory.
The lawlessness between nations led to the development of natural-law theory to regulate international anarchy.
Nations were considered in a state of nature towards each other, governed by natural law.
Attempts were made to elucidate rules that natural law imposed on independent nations, leading to the development of international law.
The national state was shaking off natural law internally while subjecting itself to it in international relations.
This created the legal problem of subordinating the unfettered sovereignty of the national state to international rules not derived from any superior state or authority.

Law as the Command of a Sovereign

Positivist thought aimed to establish the autonomy of law as a system of positive norms validated within the legal system.
Positive law entails a rule laid down by an identifiable human lawgiver.
The theory that every independent state possessed the sovereign power of legislation pointed towards showing how law possesses autonomy without external authority.
Sovereignty is a legal concept, and positive law defined in terms of sovereignty provides a self-sufficient pattern for testing legal validity.
Jurists from Bodin to Bentham took up this line of thought, with detailed statement from John Austin.
Austin is associated with the command (or imperative) theory of law and legal positivism.
Legal positivism asserts legal validity is distinct from the moral order, so must explain legal obligation in its own terms, but not necessarily tied to the command theory.
One may adhere to positivism but reject the command theory, as Kelsen does.
The command theory states that law is what the sovereign commands, and nothing can be law if not commanded by the sovereign.
Legal validity is determined by ascertaining whether the norm was laid down by the sovereign.
Identifying the sovereign poses a problem, as sovereignty must be governed by legal rules.
Consulting legal rules to find the sovereign leads to a vicious circle, as the rules' validity is questioned.
Sovereignty is invoked to validate law, and law is invoked to create the sovereign.
Some jurists argue that this circularity is a deliberate feature for preserving legitimacy.
Others argue for legal theory's self-contained unity, like mathematics or logic.
Legal theory must be based on the facts of legal life.
The theory corresponds to the fact that legal systems reflect this vicious circle.
As Mr Justice Holmes remarked, 'the life of the law is not logic but experience'.
Austin proposed a different solution, viewing sovereignty as the source of ultimate power, not just legal authority.

Who is the Sovereign? Austin's Theory

Austin interpreted sovereignty as the power in the state that commands habitual obedience and does not yield habitual obedience to any other power.
Sovereignty is based on the sociological fact of power itself, not legal rules.
This cuts the Gordian knot of circularity but leaves open the question of how to investigate the source of actual power.
Austin rested on the postulate that every community with a developed legal system must have a sovereign power that receives unqualified allegiance within the community and none to any other power.
This is the essential mark of an independent state.
Obedience to an outside authority means the society is not an independent state.
Absence of a supreme power within the state means confusion and anarchy.
The possessor of power is not to be located by a purely sociological inquiry into the community's springs of action.
This would lead to sources of power, such as economic, social, or military groups, which would not guide in answering the lawyer's question of how to determine legal validity.
Austin recognized this difficulty by accepting that constitutional rules for ascertaining the legal sovereign cannot be ignored.
In England, Austin attributed sovereignty to the King, the House of Lords, and the electors of the Commons, not the King in Parliament.
He sought to fill the gap during elections by substituting the electors for the Commons itself.
This solution is neither fact nor law, involving a facile identification of democratic electioneering with the actual roots of power in the state.
No English lawyer or private citizen treats anything emanating from the arbitrary assemblage of King, Lords, and electorate as legally binding.

The Unity and Illimitability of Sovereignty

Austin insisted that the sovereign must possess indivisibility and illimitability, inherent in the logical nature of sovereignty.
The sovereign must be a unity (individual or body).
Divided sovereignty would prevent habitual obedience, as it might be owed to different entities in different matters.
There could be no limitations on sovereignty, as limitations would result from obedience to an external power (lack of sovereignty) or be self-imposed (moral but not legal limitations).
This view of sovereignty was applicable to a Parliamentary regime like England's, where the unity of Parliament's sovereignty has been accepted, but with odd consequences.
Austin claimed that all constitutional 'laws' dealing with the structure of the sovereign power are not really legal because who is sovereign is determined by the fact of obedience.
He also claimed that any restraints imposed by Parliament on its legislative power are nugatory in strict law.
A provision in a statute that amendment should be effected only by a special procedure is not really law but at most what Austin calls 'positive morality'.
The provision in the Statute of Westminster of 1931, which created Dominion status and provided that no legislation affecting the Dominions, was to be passed by Parliament at Westminster without the consent of any Dominion affected, is not law at all and can be ignored.
England has not so far felt the need for 'entrenched clauses' in its constitution.
In South Africa, the voting rights of the 'coloured' population were protected by an entrenched clause.
The South African Supreme Court held that unity of sovereignty did not preclude the sovereign body from being differently constituted for different functions.
Rules defining the body invested with sovereign power have the essential function of laying down the form in which acts of sovereignty are to be exercised.
There was no reason why such a procedure should not be variable according to the class of matter that was the subject of legislation.
This judicial approach is remote from Austin's idea of interpreting sovereignty in terms of fact rather than law.

Federal Constitutions

The case of a Federal constitution, where legislative power is distributed between a central legislature and provincial legislatures is even more resistant to the Austinian mold.
Austin wrestled to locate an ultimate sovereign, claiming to find it among the combined electorates of the state legislatures.
This may be regarded as the reductio ad absurdum of the whole hypothesis, and later Austinians have sometimes preferred to treat the ultimate sovereign as the body empowered to amend the constitution.
The incredibly cumbrous procedure of amendment under the American Constitution does not really set up a legislative body in any reasonable sense of the word.
A federal constitution may be incapable in certain respects of being amended at all, or not without the consent of a particular body.
Such a constitution may and frequently does contain overriding limitations, such as a bill of rights, which control and limit subsequent legislation, and the courts may treat legislation as void which infringes these basic norms of the constitution.
And it is quite possible for these limitations to be made indefeasible.
Austin might declare these restraints to be no more than positive morality, but as the courts and the community itself are likely to treat them not merely as law but as a portion of the legal system entitled to peculiar reverence, the virtue of Austin's classification is obviously seriously open to question.

Constitutional Changes

The problem of constitutional change in the structure of the sovereign calls for some brief consideration.
Suppose in England the House of Lords were abolished or some differently constituted second Chamber were set up in its place. The legal sovereign would then be the monarch acting with the House of Commons and the new second Chamber.
As a matter of legal theory would such a transfer, however expressed, necessarily be final and irrevocable, or would the abdicating sovereign retain some vestige of ultimate authority so that, for instance, it could change its mind the next day and re-assume the power previously surrendered by it?
At this sort of level we are really passing from the realm of legal categories into the field of power politics.
To understand legal systems, we need a conceptual structure that will account for the constitutional patterns of reasonably well-ordered states.
We need a legal theory that will enable us to see how the Parliament Act of 1911, depriving the House of Lords of its financial veto, is a legal norm that fits into the structure of the legal system.
How Parliament can impose legal fetters on its power to legislate for the Dominions.
How judges can be empowered to invalidate legislation that they hold to be beyond the powers of a federal or state legislature.
When considering revolutionary situations such as Parliament transferring all power to another body, we are in a realm where power is taking ascendancy over law.
When the Cromwellian regime succeeded in superseding the monarchy, the Austinian conception of habitual obedience to A rather than B is relevant as explaining how legal authority can pass from one to the other regardless of legal regulations hitherto in operation.
An operative legal system necessarily entails a high degree of regular obedience to the existing system, and where revolution or civil war has supervened.
When this transitional stage is passed, it is no longer relevant to explore the sources of ultimate de facto power in the state.
By this time, the constitutional rules will again have taken over and the legal system will have resumed its regular course of interpreting its rules on the basis of its own fundamental norms of validity.

Power, Force, and Sanctions

If Austin misconceived the function of power as providing the ultimate source of legal validity, there is more to be said for his treatment of coercion as the ultimate mark of the legal process.
Austin held that law was the command of the sovereign, obedience to which could be enforced by some prescribed penalty.
This penalty, following normal juristic usage, he described as the 'legal sanction' of the rule.
Austin held that law was the command of the sovereign, and this he expounded as meaning that law was a rule laid down by the sovereign to which obedience could be enforced by some penalty prescribed for failure to obey.
A sanction does not necessarily involve the imposition of a penalty in the form of punishment. Punishment may also be inflicted as a sanction in non-criminal matters, but this is generally for willful disobedience to a judicial order.
In civil matters, coercion usually involves not so much the imposition of penalties as the enforcement of the order against the property of the defendant.
Sanctions in law therefore possess a very wide meaning, referring to any coercive process by which the law seeks to impose its will in the last resort upon an offender or a defaulter who has failed to comply with a legal order or judgment.
There are cases where legal rules are imposed but no specific coercive procedure or penalty is provided for non-compliance.
There is a whole group of rules which are permissive in the sense that they lay down the conditions which have to be satisfied if a certain result is to be achieved in law.
Much of civil law consists of this type of provision, of which the formalities for making a will, or types of transactions which need to be in writing, may be given as instances.
Here the law doesn't say that if you fail to have your will duly attested the law will apply coercion in some way; the effect is rather negative, since non-compliance results in any will thus made being treated as a nullity.
All the same in a broader sense nullification is a kind of sanction, and when seen in the context of the whole legal system can be shewn to be related to sanctions at least indirectly.
Again, it often happens that in modern law statutory duties are imposed, for example on public bodies, which have no sanctions or penalties attached.
In all such cases the Austinian claims that there is not strictly a legal duty since no sanction can be applied. Yet there is a good deal of unreality in this view, for Parliament has expressly imposed the duties in question or permitted actions to be brought against the state, and all such matters are treated as concerning duties imposed by law.
There is thus a clear distinction between the state paying on judgment holding the state legally liable, and the state merely making an ex gratia payment where no liability is or can be established.
the core of truth in this approach is that no legal system, in the state of human society and human psychology that has hitherto prevailed and seems likely to continue, can function unless it is ultimately rooted in a background of coercive machinery which can enforce compliance with its rules and decrees.
Provided effectiveness is secured in this way, so that the system as a whole qualifies as legal, it does not seem necessary in order to determine the legal quality of any particular norm within the system to find that a specific sanction is annexed thereto.
It suffices that such a sanctionless duty fits into the whole pattern of norms recognized as possessing legal attributes for it to merit treatment as a specifically legal norm, which can be differentiated from other norms derived from other systems, such as morals, religion, social convention, etiquette, and so forth.

State Sovereignty and the International Sphere

There is nothing in legal logic which compels every state to regard its own internal sovereignty as either indivisible or illimitable.
Sovereignty can be more appropriately regarded not as an unlimited power to enact any legislation whatsoever as the will or whim of the sovereign may dictate, but rather as a means of expressing in legal terms that a given state is independent in the sense of not being subject to any legal superior.
In addition, sovereignty also implies that within that state there is a supreme legislature or legislatures which in their particular spheres acknowledge no superiors and can pass any legislation within the scope laid down by the governing constitution.
Some states may grant by their constitutions to a sovereign legislative power the freedom to enact any legislation they wish.
Equally there is no reason why other constitutions should not, and some in fact do, impose legal fetters on the power even of the supreme legislature itself.
Those jurists who argued for the absolute and unfettered character of national sovereignty found themselves in difficulty when faced with the phenomenon of international law.
Austin countered this by declaring that international law was really not law at all but no more than positive morality.
Others who desired to affirm the legal status of international law endeavored to reconcile the subordination of state sovereignty to such a regime as a kind of 'auto limitation' operating by the consent of the various states.
If once it is recognized that state sovereignty is capable of internal limitation, two further questions arise for consideration in the external sphere.
- What is the position of a state which still regards its own internal sovereignty as unlimited?
- Even if a state’s sovereignty is capable of internal limitation, how can it be made subject to an external system of law and still retain its independence?
This point is a comparatively simple one, for we have to distinguish between the legal duty within the national system and the international obligation.
There is the possibility of a conflict between the two systems, for an English court will recognize that its sole duty is to obey the decrees of Parliament even if these infringe international law.
There are two possible approaches available to a national court; one is to treat international law as part of its own law and directly binding, in which case it may have to be given an overriding effect abrogating any domestic law in conflict with it; the other is to regard international law as an alien intruder subordinate to the local law though relevant in arriving at a true interpretation of any local law which impinges on international law.
English domestic law clearly adopts the second of these alternatives, but there are other states which favor the first.
There may still be a breach of an international obligation for which the state may be answerable in international law.
International law, though now mustering a number of important international organs and institutions, is still a very long way off constituting a kind of international super-state set over the various independent national states.
Subordination to the norms of international law does not therefore involve the merging of state sovereignty in a higher state entity but rather the recognition of a system of legal rules which are binding on states themselves, which for this purpose are treated as corporate legal persons, just as the state is treated as a person in domestic law for the purpose of suing or being sued in legal proceedings.
A failure by a state to grant diplomatic immunity or to recognize copyright in accordance with the conventions to which it adheres is a breach of international law.
This does not mean that the rule of international law will be automatically recognized in the courts of the country concerned, though in most instances governments will have taken care to see that their own law is brought into line with their international obligations.
In domestic law, there is a regular coercive procedure for enforcing the majority though not all, of the duties imposed by the legal system.
Even the International Court of Justice has no compulsory jurisdiction and if it had, has no means of enforcing its decisions.
In support of the legal right of the claimant legal authorities and precedents may be appealed to and discussed in legal terms in ways closely analogous to claims before a domestic court.
The whole apparatus of international law, while lacking some of the features of domestic law, possesses many characteristics closely analogous to a national legal system.
Every rule of international law imposes a legal fetter on national states in the international sphere, for this is the very sense and meaning of an international legal community. But within its own internal sphere the national sovereign still retains domestic sovereignty and may legislate or act in disregard of international obligations.
By so doing it cannot alter, abrogate, or lessen the force of these obligations vis-à-vis other states, and will have to take whatever consequences its default may entail.

The Treaty of Rome and National Sovereignty

The features of the E.E.C. are that it is a permanent arrangement with no provision for withdrawal, and that it has set up various institutions such as the Council and the Commission with power in a wide range of matters, including tariffs, restrictive trade practices, free movement of workers, and establishment of commercial companies, both to make decisions and lay down rules binding on all members of the Community.
The permanent institutional character of the treaty and its wide scope undoubtedly place it in a very special situation vis-à-vis the member states, especially as new legislation laid down by the treaty organs is directly binding on the members and the ultimate interpretation of the treaty and any rules made under it are to be decided, not by the national courts, but by the Community's own Court of Justice.
In theory the national sovereignty of the member states is no more encroached upon by this treaty than by any other, since from the point of view of their national laws the provisions of the treaty could be disregarded with whatever consequence internationally this might provoke under international law.
The practical result however is very different, for the signatory states will regard the treaty as involving very solemn legal obligations and will naturally exert every effort to bring their national law into line with the requirements of the treaty.
Indeed so deeply rooted is the tradition of theoretically unfettered Parliamentary sovereignty in England that it is conceivable that no international arrangement whatever, however permanent and far-reaching, will ever in the foreseeable future shake the doctrine of Parliamentary sovereignty.
A time might eventually come when even the lawyers would recognize that a change had imperceptibly been wrought in the actual law itself and that Parliament could not, even if it wished, and even as a matter of strict law, legislate in defiance of such overriding matters as Dominion status, or the E.E.C. Treaty.
This possibility then, however shadowy it might appear in this particular instance, must lead us to inquire how the fundamental basis of a legal system comes to be established, and by what means it may be validly upset or amended.

Kelsen's Pure Theory of Law

Kelsen calls his theory the 'pure' theory, because he desires to emphasize the positivist position that law is entirely autonomous and self-contained, and that its validity therefore has to be conceived in legal terms and not in terms of morals or of any other extraneous system of norms or values.
For Kelsen law is concerned not with the facts of human behavior but with norms, which are rules or standards of conduct forming part of a unified system.
That system is really a kind of hierarchy of norms, that is to say, a series of norms laid out at various levels of generality and subordination, the highest norms being the most general and therefore the most abstract.
Like Austin, Kelsen also insists on the need for ultimate coercion to be available for it is a condition of the validity of a legal order that it is by and large effective, and hence actually obeyed and enforced.
The sanction itself is however merely a description of certain concrete norms at the bottom of the legal hierarchy, which provide a legal basis for force to be applied in particular cases.
Kelsen will have none of this which, he says, confuses fact with law. Parliament's authority must therefore depend upon a higher norm and it is this norm which will validate the rule that the will of Parliament (expressed in a particular form), which may or may not be changeable by Parliament itself, is to prevail.
Kelsen's answer is that this norm is the Grundnorm, the basic norm or ultimate premiss of the whole system, and that for legal purposes we cannot go behind it. It is rather like the idea of the world supported on an elephant, the rules not permitting you to ask what supports the elephant.

The Basic Norm

Kelsen's argument is really that in any normative system there must come a point beyond which you cannot go because you have come to the outer edge of the whole system and any further inquiry you make is really an extraneous inquiry not within the terms of the system itself.
This still leaves open the question how we are to decide what is the basic norm.
Kelsen tells us that you must trace back the existing constitution to a historical first constitution that was either laid down as a result of a revolution or for a territory not previously possessing a constitution. The presupposition that this first constitution is valid and should be obeyed is the basic norm of the existing constitution.

The Basic Norm of International Law

He asserts that each nation can in fact have its own ultimate norm and treat international law as merely valid in so far as its norms are incorporated in those of the individual national system.
On the other hand it is equally possible to envisage a monistic system in which the basic norm of every state is a rule imposing obedience to the rules customarily accepted as binding by states inter se.
Kelsen's view is that this monistic system is not only desirable but is in fact operative, because states do substantially adhere to it to an extent which complies with the principle of the minimum of effectiveness.
Moreover, even the need for ultimate coercion is not lacking, since international customary law recognizes the rule of enforcement by self-help, by means of war and reprisals as a last resort, in the case of flagrant breaches of international law.

Does Kelsen Provide a Solution to the Problems of Sovereignty?

Although Kelsen's approach presents a far more consistent and logical pattern than Austin's it is not without its difficulties. Attention must here be concentrated on the idea of the basic norm.
However, Kelsen finds himself in metaphysical perplexities, which, as a positivist, he is anxious to shun, by his insistence on a single basic norm outside the legal system itself and chosen on the principle of effectiveness.
It seems doubtful however whether legal consistency can be equated with logic.18 Experience shows that constitutions frequently bristle with possible internal conflicts, which no basic norm on Kelsen's pattern will suffice to resolve.
This is apparent enough in the conflict in the United States over the construction of the constitution the Supreme Court has attempted to impose, in the non-segregation cases, upon the States of the Union.
In fact, therefore, it hardly seems helpful to look for an artificial basic norm in Kelsen's sense but rather to say that every system has its own basic norm or norms and that these have to be reconciled between themselves in such ways as are legally practicable.
Kelsen's approach, however, does, it may be suggested, throw some light on our query as to how the fundamental basis of a constitution may be established and changes effected therein even without revolutionary convulsions.
At present in England our legal system derives from the basic norm that Parliament is sovereign, but there seems no reason why, as a result of a long process of customary acceptance of substantial inroads into this principle, a new basic norm might not ultimately come into being.
Thus, now that this country has joined the E.E.C., the view might ultimately emerge that sovereignty is limited by certain fundamental documents, such as the Rome Treaty, and is divided between Parliament and other bodies. It can be said there is nothing to stop this development save the force of tradition, which can itself, as we shall see when we come to discuss customary law, be creative of new rules.