2. Introduction
2.1 The meaning of sovereignty
2.2.1 Philosophical development of sovereignty
Sovereignty and practising sovereign rights have existed since the Sumerian era, but developing the philosophical notion of sovereignty does not have a long history. The French philosopher Jean Bodin is the first scholar who developed philosophical theories about sovereignty, followed by English philosopher Thomas Hobbes. 89 Bodin defines sovereignty as “the absolute and perpetual power of a commonwealth.”90 This means that the government has absolute and continuous authority over the people and the territory. This notion of absolute sovereignty also exists in Thomas Hobbes’s thoughts.
According to Hobbes, when people obey a government, they should know that the government’s sovereignty is unlimited and absolute over the people and territory. The government’s approach to taking power is not a matter for Hobbes, but how effectively the government protects the people and territory is essential.91
Here, a question that quickly comes to mind is why these philosophers were enthusiastic about the absolute power of sovereignty? Both had an awareness of the negative impacts of absolute power in some leaders’ hands, but they also supported it. An appropriate answer can be found in their historical context. Both philosophers lived during periods of sectarian tensions and civil war. Bodin was about to be murdered in religious tension in France in 1572.92 Hobbes wrote his famous book Leviathan in 1651. This was only two years after the execution of King Charles I in the English Civil War.93 Thus, both Bodin and Hobbes were concerned about the domestic order of their countries. For them, justice cannot be achieved without preserving domestic order.94
John Locke and, later, Jean Jacques Rousseau rejected the idea that sovereign power is supreme because of the law of nature. They also rejected the absolute notion of sovereignty. According to them, the relationship between people and government is represented by rulers, who are in a social contract with them. Hence, sovereignty is
89 Stephen D Krasner “Sovereignty” (2001) Foreign Policy at 21.
90 Jean Bodin and Bodin Jean Bodin: On Sovereignty (Cambridge University Press, 1992) at 1.
91 Thomas Hobbes Leviathan: Or, the matter, form, and power of a commonwealth ecclesiastical and civil (G.
Routledge and sons, 1887) at 106-111.
92 Krasner, above n 89 at 21.
93 Aloysius P Martinich Hobbes (Routledge, New York, 2013) at 15.
94 Krasner, above n 89 at 21.
limited by a social contract.95 Locke, in particular, did not use the word ‘sovereignty’
frequently. He used the word ‘supreme power’ to describe sovereign power. He stated that:96
The reason why men enter into society, is the preservation of their property;
and the end why they chuse and authorise a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society.
Here, Locke confirms the limitation of sovereign power and this power depends on the peoples’ will because the people are creating this sovereign power based on a social contract. Rousseau also confirms this in his famous book Social Contract; or, Principles of Political Right. He believes that the people are collectively sovereign, not a single ruler. Therefore, the power of the ruler is bound by the people’s will because he supports collective sovereignty, not absolute sovereignty.97
Moreover, the concept of sovereignty was illustrated more deeply by the positivist legal philosopher Jeremy Bentham. Under the influence of Bentham, John Austin developed legal positivism and popularised Bentham’s thoughts, including the concept of sovereignty.98 As one of the most influential legal positive thinkers, Bentham attempts to define the idea of sovereignty from a legal perspective. This distinguishes him from Hobbes, which he described it a part of political philosophy. In his book, The Limits of Jurisprudence Defined Bentham states that:99
By a sovereign I mean any person or assemblage of persons to whose will a whole political community are (no matter on what account) supposed to be in a disposition to pay obedience
According to the above definition, sovereignty can be represented by one person or a number of persons. This is embodied by the head of state or the people who govern the
95 Takashi Inoguchi and Lien Thi Quynh Le “Toward modelling a global social contract: Jean-Jacques Rousseau and John Locke” (2016) 17(3) Japanese Journal of Political Science at 494.
96 John Locke Two Treatises of Government: With a Supplement, Patriarcha, by Robert Filmer (Simon and Schuster, 1947)Chapter XIX. s222.
97 See Jean-Jacques Rousseau The social contract: or, principles of political right (G. Allen & Unwin, Limited, London, 1916).
98 Leslie Green and Thomas Adams “Legal positivism” (2003) Stanford Encyclopedia of Philosophy
<https://plato.stanford.edu/entries/legal-positivism/?utm_source=fbia>.
99 Jeremy Bentham and Charles Warren Everett “The Limits of Jurisprudence Defined: Being Part Two of An Introduction to the Principles of Morals and Legislation” (1945) at 101.
state. For Bentham, it is not important how the government comes to power, but the main element for creating sovereignty is obedience. Thus, sovereignty is indefinite, but a convention can limit it.100 Regarding this absoluteness of sovereignty, he illustrates the issue more thoroughly in his book A Fragment on Government. He believed that:101
The authority of the supreme body cannot, unless where limited by express convention, be said to have any assignable, any certain bounds.
That to say there is any act they cannot do, to speak of any thing of their’s as being illegal, as being void; to speak of their exceeding their authority (whatever be the phrase) their power, their right, is, however common, an abuse of language.
Here, Bentham distinguishes himself from both Bodin and Hobbes by limiting sovereignty in some specific circumstances. According to him, sovereignty can be limited by “express convention.”102 F.C. Montague believes that Bentham refers to two circumstances to restrict sovereignty. Firstly, a victorious sovereign can impose sovereignty over a beaten sovereign by a convention. Secondly, several sovereign states can limit their sovereignty when they all agree to pass it to an independent federal council in the case of federal states. Except for these circumstances, sovereignty is unlimited even by law. Thus, the law cannot limit absolute sovereignty, but the limitation should accrue through a treaty or federal agreement. This is a clear distinction from Hobbes because, for him, sovereignty is morally unlimited. In addition, the nature of the state is not a matter. If the state is free or despotic, they are all equal sovereign states.103
Another philosopher of the theory of legal positivism is Austin, who looked at sovereignty in the same approach as Bentham. Austin was significantly influenced by Bentham in many of his legal thoughts. He considered Bentham as his legal master, but he clarified and simplified many of Bentham’s juristic thoughts. As many of Bentham’s jurisprudence writings were unpublished until 1945, his influence mostly came after
100 See Jeremy Bentham A fragment on government Edited with an Introduction by F.C. Montague (The Lawbook Exchange, Ltd., New Jersey, 2001).
101 Jeremy Bentham A fragment on government;: being an examination of what is delivered, on the subject of government in general in the introduction to Sir William Blackstone's Commentaries:: With a preface, in which is given a critique of the work at large (Printed for T. Payne... P. Elmsly... and E. Brooke, 1776) at 155.
102 Bentham, above n 99 at 75.
103 At 75-76.
Austin.104 In his explanation for sovereignty, Austin states that: 105
If a determinate human superior, not in a 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
In the above definition of sovereignty, Austin argues that all independent political societies are sovereign by nature.106 Also, Austin follows Bentham’s approach that sovereignty is unlimited by law, but he distinguishes himself in the federal pack’s responsibility. He considered that this pack does not have consistency with the characteristic of sovereignty. According to Austin, sovereignty cannot be ascribed to the federal authority as the representation of all sovereign states, “but only to the authority which can alter the terms of the federal pack.”107
H. L. A. Hart sharply criticised Austin’s definition because it dismissed three main points of sovereignty. According to Hart, the three features are: “(i) legal limitation of sovereign power; (ii) division of sovereign power; and (iii) plurality of sovereigns each having full sovereign power.”108 As Hart noted, it is not possible to find a sovereign legal system with the limitations and divisions of power in Austin’s thought. Ignoring these two significant features of sovereignty led Austin to present a distorted perception of his sovereign doctrine. Furthermore, Austin refused to accept the possibility of more than one sovereign power inside any political society. This claim seems to be impossible, logically.109
Therefore, analysing sovereignty and defining sovereignty without considering the historical background can lead to contestable outcomes. Sovereignty has changed by time and location. The concept has altered throughout different periods of history. It varies in meaning and characteristic from country to country. Even in the same period and place, it may be interpreted diversely by rulers of the same state.110 For the
104 Herbert LA Hart “Bentham on Sovereignty” (1967) 2(2) Irish Jurist at 327-328.
105 Austin John The province of jurisprudence determined (University of London, 1832) at 200.
106 Brian Bix “John Austin” (2001) <https://plato.stanford.edu/entries/austin-john/>.
107 Bentham, above n 100, at 71.
108 Hart, above n 104, at 329.
109 At 329.
110 Dieter Grimm Sovereignty: The origin and future of a political and legal concept (Columbia University Press,
philosophers such as Bodin and Hobbes, absoluteness was the fundamental element for sovereignty. They had a high impact on the positive legal scholars such as Bentham and Austin because they accepted and developed the same sovereignty notion. However, Bentham’s understanding of sovereignty is more refined and more logical for that particular time. Bentham and Austin agreed that sovereignty could not be limited by law, but Bentham believed that the federal pack could limit sovereignty.
The above discussion is concentrated mainly on domestic sovereignty, which is distinctive from external sovereignty. Domestic or internal sovereignty is a “structure capable of making authoritative determinations” inside any political body.111 However, external or international sovereignty focuses on a method of “organising political life among political entities” or states at the international level. Territory, autonomy, and equality are the three main particulars for recognising this external sovereignty.112 Therefore, internal sovereignty concerns the relationship between individual and state, and external sovereignty involves states’ relationships. However, the relationship between individuals and states (internal sovereignty) should be extended and linked with external sovereignty under modern internal or domestic law.113 This is one of the main factors that sovereignty’s (external) absoluteness has faced more critical challenges, which will be discussed in the following sections.