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Michel Troper- Sovereignty
This article argues that the question of whether the theory of sovereignty is valid or not must be answered by two reasons, both connected to fundamental conceptions of constitutional theory: -The first is that we can see the task of constitutional theory as a general description of constitutional law; -The second is that constitutional theory also describes the law through an analysis of legal discourse(and it is a fact that actors use the language of sovereignty). Sovereignty has been a central part of constitutional discourse since Bodin defined it as “the highest level of command”. Sovereignty is used to justify legal rules and legal decisions. The Westphalian system of international relations has been praised for bringing peace between sovereign states, and yet, many scholars argue that this peace results from the primacy of international law, which as stated before, is incompatible with the sovereignty of national states. -Liberals fear that the theory of sovereignty can be used to justify authoritarianism, this is a reason why they do not agree with Hobbes. -Democrats on the other hand, do accept sovereignty as they define democracy as the sovereignty of the people.
So, can sovereignty help us to perform a meaningful analysis of constitutional law? This question can be asked in two different ways as sovereignty can be used in two different ways: -lawmakers and courts use it in the language of law; -scholars use it in the language of legal theory when they talk about the state or constitutional law. These two concepts are mutually independent. We use the definitions of Raymond Carre de Malberg, a French constitutional scholar: “Firstly, in the original sense, sovereignty refers to the supreme character of the State’s power. Secondly, if refers to the range of powers included in the State’s authority(and it is therefore synonymous with that authority). Thirdly, it is used to characterize the position occupied within the State by the highest organ of the State’s authority, and in this sense, sovereignty is the same thing as the power of that organ.” Carre de Malberg’s distinctions help us to clarify the ongoing debate about the origin of the modern concept of sovereignty, a concept which scholars mainly attribute to Jean Bodin.
Sovereignty of the State When we say the state is sovereign, we mean that it has absolute power to make decisions on every aspect of human life, and, secondly, that it is independent of every other external force. Internal Sovereignty of the State The claim that the state is sovereign has two aspects: -firstly, the state possesses and exercises power that is its own, and that it has not been empowered to exercise; -secondly, that this power is unlimited. These two aspects are closely linked within the framework of the theory that law is a product of the will, which states that only positive law is legally binding. This idea has two consequences: -The idea of the hierarchy of norms: Only those sentences, issued by some authority empowered to produce commands, are laws. But this empowering authority has to be empowered by some higher authority and so on until we read the ultimate level above which we cannot find a higher human authority. This highest authority has not been empowered by any legal rule(unlike all other authorities) and its powers are “suo jure”(Latin) which means “for its own right”(“per suo proprio diritto”). The powers of this authority derive from its own nature;
-The absence of any substantial limits to the power of the state: Since this authority is the ultimate lawmaker, it is unbound, thus making it the legibus solutus. However, being this unbound can mean two things: -That the state is unlimited in the functions it can exercise and in the fields it can regulate(so the state has the competency to determine its own competency); -That the state has the power to decide with complete discretion, but within a limited field and on a limited number of matters. This double meaning of sovereignty helps to explain the debate in federal systems on the doctrine of dual sovereignty. If sovereignty means the unlimited capacity to determine one’s own competency and the ability to exercise unlimited power in all possible fields, then dual sovereignty is impossible as the federal government could take the powers of the member states and vice versa. Bodin himself also criticized this view as he stated that all attributes to sovereignty are included in the power to make laws, which according to him is the unique attribute of sovereign power. This is why the 18th century brought such a radical change: The Enlightenment introduced the doctrine of separation of powers in legislative, executive and judiciary. Only the legislative power is sovereign, as Rousseau and later Kant, make perfectly clear.
External Sovereignty External Sovereignty in Classical International Law In the classical doctrine of sovereignty, before national kings constituted themselves as sovereigns, they claimed to be independent from the Emperor and Pope. But being sovereign never meant to be unbound by treaties. In fact, being bound by treaties to which the king consented meant that the sovereign was only bound to his own will. Hence, the capacity to make treaties and be bound by them is viewed not as a limitation but as an expression of sovereignty(Bodin places it among the attributes of sovereignty, as part of the power of making peace and war). This is the reason why the system of international relations established after the Peace of Westphalia was an order between sovereign states. Hence, several consequences follow: -Only sovereign states have the power to enter international relations and that those entities which don’t have that power, such as member states in a federal system, are not sovereign. International organizations can make treaties on the basis of the treaty that created them in the first place. -Because they are all sovereign, all states are equal, this principle is proclaimed by the Charter of the United Nations. -States keep their internal sovereignty to the effect that they are free from intervention by other states and that their subjects(population) are not direct subjects of international law but only domestic law.
The dualist theory: states that the domestic and international legal system are distinct, so that the validity of the norms belonging in one system is not based on a norm belonging to the other system, and that validity in one system could mean invalidity in the other. The monist theory(mainly created by Kelsen): views the two systems as one: in this case international law prevails because by coming into legal existence, the State is subjected to pre-existing international laws. However, this monist theory crumbles under the fact that some actions can be simultaneously valid and invalid. External Sovereignty in Contemporary International Law After WW2 states have decided to relinquish some of their sovereignty as means to ensure peace. In fact the UN Charter prohibits a state from using force(except in cases of self- defense or “common interests”) which was once one of the main attributes of sovereignty. Another important factor(seen after WW2) is the creation of the International Criminal Court in the Treaty of Rome(1998) which can try citizens against the will of their own states. The most significant development is the EU and the European Convention on Human Rights. In both cases states can be bound by decisions they have not consented. What is important to note is that EU law or the European Convention can be applied not only against the will of the state, but by the state’s own courts.
The Holder of Sovereignty in the State One of the virtues of the hierarchy of norms is that it allows every norm-maker to state(contend) that he is applying the will of another. This ‘other’ is not necessarily a physical human being or a group of people but can refer to the country itself or the population. This shows the nature of the theory of representation. Many modern constitutions designate a holder of a sovereignty that the government merely exercises. Thus, by pretending to have received a delegation of powers, it is the representative that creates the represented. Three consequences follow from the principle that the people are sovereign: -The people delegate those powers they cannot exercise by themselves(for practical reasons) and do exercise the powers they do not want to delegate, hence there is some form of direct democracy with popular referenda; -All members of the people have a right to participate in the exercise of sovereignty, that is the right to vote; -The representatives of the people have to carry out an imperative mandate, thus voters will give them instructions and have the right to recall them if they have not acted according to those instructions. Consequences of the principle that the nation is sovereign are different: -The system will not be a democracy but a representative government, therefore citizens have no personal right to vote; -The right to participate in elections is given by those representatives only to those who are qualified, meaning all those who are educated, wealthy or independent from others;
-Since voters are not sovereign, the representatives are not bound by any imperative mandate. The will expressed by the representatives cannot be compared to that of the sovereign as the sovereign is the abstract nation. Hence, their will is presumed to be the expression of the general will, which can never be rebutted. However there are objections and contradictions: The system is democratic because the people are not merely the holders of the essence of the sovereignty but also exercise it through representatives and referendums. Democracy is alternately indirect and direct. However, the need to refer to the people as the holders of sovereignty explains the difficulties in the relations between EU and national legal systems. No treaty, nor the European Court, mentions a European people, therefore making it impossible to present the decisions made by the European organs as expression of a general will. The only possible justification is that they express the general will of the national people. Conclusion If sovereignty is a constitutive character of the state, then, it is not the law that is produced by the state, but the state is produced by the law.
