Sovereignty

Cover Leviathan by Thomas Hobbes representing the sovereign as a massive body composed of many people, holding a sword and a pastoral stall.

Sovereignty is the supreme political power that corresponds to an independent State, without external interference. In political theory, sovereignty is a substantive term that designates the supreme authority that has the ultimate and unappealable power over any system of governance. The sovereignty of the people or popular sovereignty is the modern basis of democratic states throughout the world.

Concepts of sovereignty

In its etymology, the word sovereignty comes from the Latin word “super omnia”, which means "above all" or "supreme power", which is also synonymous with the Latin word "principatus", which comes from the Latin word "primus inter pares", which means " 34;first among peers" or "main".

According to Carl Schmitt's famous definition, the sovereign is the one who decides on the state of exception:

«if there is a person or institution, in a particular political system, capable of causing a total suspension of the law and then using extra-legal force to normalize the situation, then that person or institution is the sovereign in that political body.»

Any legal order, Schmitt concludes, is based on a sovereign decision and not on a legal rule. For Schmitt, it is not even necessary for the law to determine who can make a decision on the state of emergency. There may be a sovereign authority, in a relevant jurisprudential sense, even where such authority is not recognized by positive constitutional law. All that matters is whether there is a person or institution that has the capacity, in fact, to make a decision on the exception. If there is a sovereign, thus understood, his authority to suspend the law does not need positive legal recognition, since the applicability of the law depends on a situation of normality guaranteed by the sovereign.

According to the classic definition of Jean Bodin, in The Six Books of the Republic (1576), sovereignty is the “absolute and perpetual power of a Republic”. Sovereign is the one who has the power of decision, to give the laws without receiving them from another, that is, the one who is not subject to written laws, but to divine or natural law. For, as Bodin adds, "if we say that he who is not subject to laws has absolute power, there will be no sovereign prince in the world, since all the princes of the earth are subject to the laws of God and nature and to certain human laws common to all peoples.

This initial definition shows in summary the breadth of the concept of sovereignty, which, as such, endures although not exempt from variations throughout history in its attempt to justify the evolution of the subject of sovereignty (the people, the nation, state).

Thomas Hobbes suppressed the dependence on natural law that Jean Bodin traced in his definition of sovereignty and established the sovereign as the only form of power. In his most famous treatise, Leviathan (1651), he justified the existence of state authoritarianism from philosophy. Although it should be specified that natural law is not alien to Hobbes's theories.

The law of nature and civil law are contained one to another, and are of equal extension (...) The laws of nature, which consist of equity, justice, gratitude and other moral virtues that depend on them, in the condition of mere nature are not proper laws, but qualities that men have for peace and obedience. (...) The law of nature is a part of civil law in all States of the world (...) Each subject in a State has stipulated his obedience to civil law; therefore, obedience to civil law is also a party to the law of nature. Civil law and natural law are not different species, but different parts of the law; of them, a part is written, and is called civil; the other is not written, and is called natural.

Thomas Hobbes

In 1762, Jean-Jacques Rousseau returned to the idea of sovereignty but with a substantial change. The sovereign is now the community or people, and this gives rise to power by alienating their rights in favor of authority. Each citizen is sovereign and subject at the same time, since he contributes so much to creating the authority and being part of it, insofar as he gave rise to it through his own will, and on the other hand is a subject of that same authority, insofar as he he forces himself to obey her.

Thus, according to Rousseau, everyone would be free and equal, since no one would obey or be commanded by an individual, but the general will has sovereign power, it is the one that indicates what is correct and true and minorities should abide by it accordingly to what the collective will says. This Russonian conception, which in part gives rise to the French Revolution and influences the appearance of modern democracy, allowed multiple abuses since, in the name of the "general" or town, was murdered and destroyed. It generated irresponsible attitudes and the violation of the rights of minorities.

Faced with these ideas, Abbe Sieyès postulated that sovereignty resides in the nation and not in the people, that is, that the authority does not act only taking into account the conjunctural majority sentiment of a people, which could be subject to influences or disjointed passions, but also take into account the historical and cultural legacy of that nation and the values and principles under which it was founded. The concept of nation would contemplate all the inhabitants of a territory, without exclusions or discrimination. Sieyès indicates that parliamentarians are representatives and not agents, since they enjoy their own autonomy once they have been elected and will exercise their positions mediating a share of responsibility and objectivity when legislating; On the other hand, the representatives must carry out what their principal indicates; in this case, the people.

Thus, the concept of popular sovereignty was born from Rousseau, while the concept of national sovereignty was born from Abbe Sieyès. Both concepts occur interchangeably in modern constitutions, although after the Second World War the concept of popular sovereignty has been strongly retaken, which is seen as closer to the people, which is supposed to currently have a much greater degree of civic culture and moderation. higher than at the time of the storming of the Bastille in 1789.

The word sovereignty is also conceptualized as the right of a political institution to exercise its power. Traditionally it has been considered that there are three elements of sovereignty: territory, people and power. In international law, sovereignty is a key concept, referring to the right of a state to exercise its powers.

Conception of the concept

The concept of sovereignty was handled neither by the Greeks nor by the Romans. Georg Jellinek says that the idea of sovereignty was forged in the Middle Ages and «in struggle with these three powers (the Church, the Roman Empire and the great lords and corporations) the idea of sovereignty was born, which is, therefore, impossible to know without also having knowledge of these struggles. Various authors contemplate the question of sovereignty in their works, such as Hermann Heller, with Sovereignty; F. H. Hinsley, with The Concept of Sovereignty; or Harold J. Laski, with The problem of sovereignty.

In absolute monarchies sovereignty corresponds to the State, which in turn is identified with the king ("The State is me", said Louis XIV). Hence the monarch is called sovereign, a name that still endures. Liberalism subverted the concept of sovereignty and conceived two modalities of it: one, revolutionary, in which the people, considered as a group of individuals, exercise universal suffrage (popular sovereignty); another, conservative, who resides in a parliament with a census vote (national sovereignty).

National sovereignty and popular sovereignty

The term «popular sovereignty» was established against the thesis of national sovereignty. The French Constitution of 1793 was the second legal text that established that «sovereignty resides in the people». Jean Jacques Rousseau, in The Social Contract , attributes to each member of the State an equal share of what he calls " sovereign authority " and proposed a thesis on sovereignty based on the general will. For Rousseau, the sovereign is the people, which emerges from the social pact, and as a body decrees the general will manifested in the law.^{[citation required]}

According to the theses maintained to date, popular sovereignty implies «that the legal and effective residence of the power of command of a social group is found and exercised in and by the universality of citizens», and in particular in democratic states. In this way, universal suffrage becomes a fundamental right and the citizen condition is equal for all regardless of any other consideration, except for limitations of age or trial.^{[citation required]}

In this way, for example, the Spanish Constitution of 1978 recognizes that «national sovereignty resides in the Spanish people, from whom the powers of the State emanate».

International Law

The term «sovereignty» has also played an important role in political theory and in the doctrine of international law. However, on occasions, the content of this word has been obscured and distorted, so it can be understood in various ways or admit different interpretations and, therefore, be a reason for doubts, uncertainty and confusion. The main problem is that, having as many definitions of the term as there are authors, there is no agreement on what is the object sought by this concept in international law.

According to the definition of Jean Bodin: «Sovereignty is the absolute and perpetual power of a republic», who, in turn, determines what is the object of his definition. First, it establishes what the Republic is: «it is the right government of several families and of what is common to them with sovereign power»; to immediately say: «once the end is established, the means to achieve it must be established». Whose corollary would be that sovereignty is the means to achieve the right government, and not just any government.

On the other hand, Carré de Malberg, in his General Theory of the State, after analyzing and breaking down the concept of sovereignty «in independence abroad and consummate superiority within the State ”, states that the concept seems double, but that, ultimately, “internal sovereignty and external sovereignty are only the two sides of one and the same sovereignty”.

It is possible that, thinking of those who seek to redefine sovereignty, this was what led Georg Jellinek to say that «sovereignty is a controversial concept». Perhaps it was this same reason that could have prompted Hermann Heller to promote the recommendation to reread the work of Bodino (Jean Bodin), since he said: «It seems to me that many of those who speak of him do not really know with certainty what Bodino taught».

Carlos Augusto Rodríguez points out that a scientific critique of sovereignty must expose all the definitions of that term and direct the objections that proceed against each of them. Of course, only the general outlines of the problem will be exposed and practical solutions will be offered. It is not necessary to confuse or mix the practical consequences that result from this scientific criticism with what is conceived in the doctrine of the State, in that of constitutional law or with what the Magna Carta actually provides. These consequences will serve to feed the doctrine of international law, particularly to clarify the object sought by the concept of sovereignty within the aforementioned law.

Consulted bibliography

• BODIN, Jean (1992). The six books of the Republic. Selection, translation and introduction of Pedro Bravo Gala. Madrid: Editorial Tecnos.