#14945 - Sovereignty - Constitutional Theory

9. Sovereignty

HLA Hart, Concept of Law, 2nd ed. (OUP, 1994), chap. IV: ‘Sovereign and Subject’ [Google books; Keble]

Sovereign is office that

1. has authority by virtue of generally accepted (constitutional) rule (>habit of being obeyed) and

2. has no legal limit (cf legal disability, factual limit) on authority (>does not obey any other body)

In modern parliamentary context, rejects Austin’s view that electorate is sovereign

Sovereign = entity whose orders society habitually obeys & who does not obey any other entity

• Critical unifying concept of a society governed by law

• Two aspects of sovereignty

  • Habit of obedience (of subject) – accounts for continuity of obedience & persistence of laws after sovereign & subjects have passed

  • Superior position of sovereign – query significance

1. Habit of obedience

• Obedience

  • Causation issue – most laws prohibit conduct that people would not engage in in any event – is an actor obedient to sovereign if complying with orders of own free will?

  • Definition of obedience – suggests deference to authority as well as compliance with coercive orders

• Habit –

  • Unreflective, effortless & engrained – where no real incentive to disobey – eg driving on a certain side of the road

  • Mere pattern of regular behaviour – even if not natural or attractive – eg annual payment of taxes

  • Collective habits – behaviour of population converging on same unreflective & effortless / regular pattern of behaviour

Continuity – obedience to office rather than to person

• Historical examples of obedience to king but not to son

• Supervening rules required – eg succession to throne or governing election of successive parliaments – before orders can be regarded as legitimate law

  • EG son of king issues first order; dies immediately – is the order law even before it is obeyed?

• Habit of obedience insufficient to guarantee continuity

  • Cannot give successor legislator any particular right

  • Cannot render probable habitual obedience by subjects to successor

• Social/legal rules (<> habits)

  • Deviation attracts criticism & threatened pressure to conform

  • Prevailing standard viewed (by most compliant and non-compliant actors) as justifying that criticism

  • ‘Internal’ aspect of rules – generality of behaviour is concerted rather than coincidental

    • Rules (<>habits) have normative aspect – perceived obligation to act in a certain way, either because

      • it is inherently good (eg not stealing) or

      • convergence of behaviour is good (eg moving chess pieces in a certain way, driving on left) or

      • a combination of the two (eg paying taxes) or

      • viewed in one way by some and in the other by others (eg taking off hat in church)

    • Normative ‘internal’ aspect of rules gives added force to sovereign power = acceptance of rules as well as authority to make rules = gives legitimacy

    • Legitimacy of sovereign power in turn permits the existence of rules governing succession

• In complex democratic society

  • Cannot speak of citizens ‘accepting’ supervening rules of succession in the same way – they most likely don’t know of or understand them

  • Officials (legislative, judicial, executive) know & accept rules – citizens accept official capacity

Persistence of Law

• Inverse of continuity problem –

  • Inherited authority of sovereign office <> Lasting authority of sovereign’s law

  • Successor to office already has authority before obeyed <> Predecessor to office still has authority after reign finished

  • Why law already? <> Why law still?

• Rests on same justification – supervening rules of succession create sovereignty in office rather than in person – rules created by person in office endure

• CF Hobbes (and Bentham and Austin) justifies based on obedience to sovereign legislator alone

  • Justification – current sovereign’s (tacit) authority is basis for obedience to previous sovereign’s rule

    • NB without supervening rule, ‘authority’ has no meaningful content – simply equates to ‘power’

  • BUT potentially has the consequence that an old statute is not ‘law’ until enforced by the current administration?

    • Depends on scope of ‘tacit’ – and makes little sense to talk of courts (composed of tenured members enduring past particular sovereign parliament) in this way

  • Also theory suggests that repeal of a law by a previous sovereign doesn’t prevent current sovereign from enforcing it? – tends towards Legal Realism (no statute is law until enforced by Court)

2. Freedom of Sovereign from obedience (no legal limits)

• IE if was obedient to another legislator, would not be sovereign

• Theory goes that every society with law has sovereign of this nature

• Not completely true since Magna Carta

Limits to legislative power

• No legal limits

  • Factual<>legal limit on power (eg by public opinion, due to moral conviction or fear of revolt)

  • Manner & form limits – but self-imposed & do not limit substantive powers as no obstruction (in law) to compliance

• Legal limits – eg proscription of deprivation of liberty without trial

  • “Cannot” in impossibility rather than normative sense – law passed contrary to constitutional norm is no law at all <> should not pass such laws which will not be enforced if he does – legal disability <> legal duty

  • Therefore constitutional limits do not impose ‘duty’ of obedience on sovereign – simply limits capabilities

  • Rather, equate to disabilities contained in rules qualifying sovereign to legislate (same rules that give authority to successor, etc)

• IE more accurate to say that no entity has superior authority over sovereign

  • May be limits (factual, manner & form, legal) on power

    • BUT ignores the fact that limits on power are subject to interpretation by courts? Legal ‘disability’ is a simplistic characterisation

  • May habitually obey someone’s laws, but not required to do so

  • – mirrors ‘authority’ of rule preferred to ‘habitual obedience’ above

Modern parliamentary context

• Sovereignty can be traced to body with power to amend supervening constitutional rules –

  • Where special procedure of Parliament required (eg South Africa), Parliament remains sovereign

  • Where some other body entrusted to dictating limits on legislative power of Parliament (eg Australia, US)

• Austin – in democracy, electors are sovereign body

  • UK – Commons as trustees for electors / and peers in HL

  • Citizens delegating legislative power to Parliament with or without limits

  • BUT makes no sense to talk of sovereign people in the sense of habits of obedience as above

    • At a stretch – all enfranchised adults constitute sovereign body whose rules govern all people incl insane, incarcerated, infants, etc

    • Requires distinction between people in private capacity <> capacity as electors

    • Remains a fiction to suggest that the People do anything other than elect representatives to create rules

      • Legitimises revolution? But even then no rules governing revolution – few with sufficient strength could force change

      • Legitimises representative form of government?

  • Other problems

    • Query whether ‘commands’ of the people in changing constitution constitute demands that the Parliament obeys

      • They are not commands but simply defining scope of legislative competencies

      • BUT this seems to shrink conception of ‘sovereignty’ in proportion to ‘authority’ and ‘obedience’

    • Suggests that People tacitly impose restrictions on legislative power (eg by failing to exercise amendment power in Constitution) – has same problems as Hobbesian ‘tacit’ authority theory above

      • Although mirrored answer would be that People as a body (rather than any particular collection) are sovereign – so followed by continuity of Constitutional rules limiting legislative power

    • In some cases not all Constitutional rules & limits on legislative power can be amended by the People – what then?

      • Shared sovereignty?

  • IE Hart rejects notion that electorate is sovereign – seems to suggest that it is still the Queen (behind the Parliament) subject to legal ‘disabilities’

T. Endicott, ‘The Logic of Freedom and Power’ in J. Tasioulas and S. Besson, eds., Philosophy of International Law, (Oxford, 2010).

Freedom paradox: sovereignty requires freedom from obligations and freedom to contract. Sovereignty is not incompatible with international law. Basis for humanitarian intervention.

Sovereignty of nations is analogous to autonomy of individuals: supervening authorities can only intervene to prevent harm to greater good and ability to alienate freedoms must be subject to limits.

Sovereignty requires

• Absolute power within community

• Absolute independence externally

• Full power as a legal person in international law

Consistency with international law

• Absolute power to act = power to act with impunity? = inconsistent with CIL & jus cogens

• Absolute independence = cannot bind itself? = inconsistent with formation of treaty obligations in international law

  • but paradoxically would constrain sovereign States considerably if they couldn’t enter treaties – treaty is an exercise of sovereignty

    • NB treaties that destroy capacity for action – analogy with excessive entrenchment?

    • WTO – treaties that have mechanisms for development to further carve out sovereignty – but States still have capacity to leave treaty or to act contrary to treaty – domestic police force won’t turn on it

  • Effectively – inconsistency between absolute independence <> legal personality in international law

  • = “paradox of freedom”

Is ability to bind oneself inconsistent with or required by freedom?

• State context – sovereignty & capacity to...