sovereignty

sovereignty

[sov-rin-tee, suhv-]
sovereignty, supreme authority in a political community. The concept of sovereignty has had a long history of development, and it may be said that every political theorist since Plato has dealt with the notion in some manner, although not always explicitly. Jean Bodin was the first theorist to formulate a modern concept of sovereignty. In his Six Bookes of a Commonweale (1576) Bodin asserted that the prince, or the sovereign, has the power to declare law. Thomas Hobbes later furthered the concept of kingly sovereignty by stating that the king not only declares law but creates it; he thereby gave the sovereign both absolute moral and political power. Hobbes, like other social-contract theorists, asserted that the king derives his power from a populace who have collectively given up their own former personal sovereignty and power and placed it irretrievably in the king.

The concept of sovereignty was closely related to the growth of the modern nation-state, and today the term is used almost exclusively to describe the attributes of a state rather than a person. A sovereign state is often described as one that is free and independent. In its internal affairs it has undivided jurisdiction over all persons and property within its territory. It claims the right to regulate its economic life without regard for its neighbors and to increase armaments without limit. No other nation may rightfully interfere in its domestic affairs. In its external relations it claims the right to enforce its own conception of rights and to declare war.

This description of a sovereign state is denied, however, by those who assert that international law is binding. Because states are limited by treaties and international obligations and are not legally permitted by the United Nations Charter to commit aggression at will, they argue that the absolute freedom of a sovereign state is, and should be, a thing of the past. In current international practice this view is generally accepted. The United Nations is today considered the principal organ for restraining the exercise of sovereignty.

In the United States, the nation (i.e. the federal government) and each state are considered sovereign. Among conflicts in which the concept comes into play are those between the federal and state governments (see states' rights) and those between citizens and either the federal or a state government. Governments are generally held to be immune from suit for consequences of their sovereign acts (those acts the government was constituted or empowered to perform). This "sovereign immunity" must be waived to permit suit against the government. It is also encountered in claims that government officials, in pursuance of their duties, be immune from having to give evidence before a tribunal or inquiry.

See C. E. Merriam, History of the Theory of Sovereignty since Rousseau (1900, repr. 1968); H. J. Laski, Studies in the Problem of Sovereignty (1917, repr. 1968); B. de Jouvenel, Sovereignty (tr. 1957); J. L. Brierly, The Law of Nations (6th ed. 1963); F. H. Hinsley, Sovereignty (1966); A. James, Sovereign Statehood (1986).

Political doctrine that allowed the settlers of U.S. federal territories to decide whether to enter the Union as free or slave states. It was applied by Sen. Stephen A. Douglas as a means to reach a compromise through passage of the Kansas-Nebraska Act. Critics of the doctrine called it “squatter sovereignty.” The resulting violence between pro- and antislavery factions (see Bleeding Kansas) showed its failure as a workable compromise. Seealso Dred Scott decision.

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In political theory, the ultimate authority in the decision-making process of the state and in the maintenance of order. In 16th-century France Jean Bodin used the concept of sovereignty to bolster the power of the king over his feudal lords, heralding the transition from feudalism to nationalism. By the end of the 18th century, the concept of the social contract led to the idea of popular sovereignty, or sovereignty of the people, through an organized government. The Hague Conventions, the Geneva Conventions, and the United Nations all have restricted the actions of sovereign countries in the international arena, as has international law.

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Sovereignty is the exclusive right to control a government, a country, a people, or oneself. A sovereign is the supreme lawmaking authority.

Enlightenment philosopher Jean-Jacques Rousseau, in his 1762 treatise Of the Social Contract argued, "the growth of the State giving the trustees of public authority more and means to abuse their power, the more the Government has to have force to contain the people, the more force the Sovereign should have in turn in order to contain the Government," with the understanding that the Sovereign is "a collective being of wonder" (Book II, Chapter I) resulting from "the general will" of the people, and that "what any man, whoever he may be, orders on his own, is not a law" (Book II, Chapter VI) – and furthermore predicated on the assumption that the people have an unbiased means by which to ascertain the general will. Thus the legal maxim, "there is no law without a sovereign."

A more formal distinction is whether the law is held to be sovereign, that is, whether it is above political or other interference. Sovereign law constitutes a true state of law, meaning the letter of the law (if constitutionally correct) is applicable and enforceable, even when against the political will of the nation, as long as not formally changed following the constitutional procedure. Strictly speaking, any deviation from this principle constitutes a revolution or a coup d'état, regardless of the intentions.

In constitutional and international law, the concept also pertains to a government possessing full control over its own affairs within a territorial or geographical area or limit, and in some contexts to various organs possessing legal jurisdiction in their own chief, rather than by mandate or under supervision. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute.

Jean Bodin (1530-1596) is considered to be the modern initiator of the concept of sovereignty, with his 1576 treatise Six Books on the Republic which described the sovereign as a ruler above human law and subject only to the divine or natural law. He thus predefined the scope of the divine right of kings, stating "Sovereignty is a Republic's absolute and perpetual power " . Sovereignty is absolute, thus indivisible, but not without any limits: it exercises itself only in the public sphere, not in the private sphere. It is perpetual, because it does not expire with its holder (as auctoritas does). In other words, sovereignty is no one's property: by essence, it is inalienable.

These characteristics would decisively shape the concept of sovereignty, which we can find again in the social contract theories, for example, in Rousseau's (1712-1778) definition of popular sovereignty (with early antecedents in Francisco Suárez's theory of the origin of power), which only differs in that he considers the people to be the legitimate sovereign. Likewise, it is inalienable – Rousseau condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarchy or representative democracy are founded. Machiavelli, Hobbes, Locke and Montesquieu are also key figures in the unfolding of the concept of sovereignty.

Carl Schmitt (1888-1985) defined sovereignty as "the power to decide the state of exception", in an attempt, argues Giorgio Agamben, to counter Walter Benjamin's theory of violence as radically disjoint from law. Georges Bataille's heterodox conception of sovereignty, which may be said to be an "anti-sovereignty", also inspired many thinkers, such as Jacques Derrida, Agamben or Jean-Luc Nancy.

Different Views

There exist vastly differing views on the moral bases of sovereignty. These views translate into various bases for legal systems:

  • Partisans of the divine right of kings argue that the monarch is sovereign by divine right, and not by the agreement of the people. Taken to its conclusion, this may translate into a system of absolute monarchy.
  • The second book of Jean-Jacques Rousseau's Du Contrat Social, ou Principes du droit politique (1762) deals with sovereignty and its rights. Sovereignty, or the general will, is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and always right, determined and limited in its power by the common interest; it acts through laws. Law is the decision of the general will in regard to some object of common interest, but though the general will is always right and desires only good, its judgment is not always enlightened, and consequently does not always see wherein the common good lies; hence the necessity of the legislator. But the legislator has, of himself, no authority; he is only a guide who drafts and proposes laws, but the people alone (that is, the sovereign or general will) has authority to make and impose them.
  • Democracy is based on the concept of popular sovereignty. Representative democracies permit (against Rousseau's thought) a transfer of the exercise of sovereignty from the people to the parliament or the government. Parliamentary sovereignty refers to a representative democracy where the Parliament is, ultimately, the source of sovereignty, and not the executive power.
  • Anarchists and some libertarians deny the sovereignty of states and governments. Anarchists often argue for a specific individual kind of sovereignty, such as the Anarch as a sovereign individual. Salvador Dalí, for instance, talked of "anarcho-monarchist" (as usual, tongue in cheek); Antonin Artaud of Heliogabalus: Or, The Crowned Anarchist; Max Stirner of The Ego and Its Own; Georges Bataille and Jacques Derrida of a kind of "antisovereignty". Therefore, anarchists join a classical conception of the individual as sovereign of himself, which forms the basis of political consciousness. The unified consciousness is sovereignty over one's own body, as Nietzsche demonstrated (see also Pierre Klossowski's book on Nietzsche and the Vicious Circle). See also self-ownership and Sovereignty of the individual.
  • Republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers.
  • Imperialists hold a view of sovereignty where power rightfully exists with those states that hold the greatest ability to impose the will of said state, by force or threat of force, over the populace or other states with weaker military or political will. They effectively deny the sovereignty of the individual in deference to either the 'good' of the whole, or to divine right.

The key element of sovereignty in the legalistic sense is that of exclusivity of jurisdiction.

Specifically, when a decision is made by a sovereign entity, it cannot generally be overruled by a higher authority. Further, it is generally held that another legal element of sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. ("No de jure sovereignty without de facto sovereignty.") In other words, neither claiming/being proclaimed Sovereign, nor merely exercising the power of a Sovereign is sufficient; sovereignty requires both elements.

Territorial sovereignty

Following the Thirty Years' War, a European religious conflict that embroiled much of the continent, the Peace of Westphalia in 1648 established the notion of territorial sovereignty as a doctrine of noninterference in the affairs of other nations. The 1789 French Revolution shifted the possession of sovereignty from the sovereign ruler to the nation and its people.

Sovereignty in international law

While many purists regard the individual or an individual nation state as the sole seat of sovereignty, in international law, sovereignty is defined as the legitimate exercise of power and the interpretation of international law by a state. De jure sovereignty is the legal right to do so; de facto sovereignty is the ability in fact to do so (which becomes of special concern upon the failure of the usual expectation that de jure and de facto sovereignty exist at the place and time of concern, and rest in the same organization). Foreign governments recognize the sovereignty of a state over a territory, or refuse to do so.

For instance, in theory, both the People's Republic of China and the Republic of China considered themselves sovereign governments over the whole territory of mainland China and Taiwan. Though some foreign governments recognize the Republic of China as the valid state, most now recognize the People's Republic of China. However, de facto, the People's Republic of China has jurisdiction only over mainland China but not Taiwan, while the Republic of China has jurisdiction only over Taiwan and some outlying islands but not mainland China. Since ambassadors are only exchanged between sovereign high parties, the countries recognizing the People's Republic often entertain de facto but not de jure diplomatic relationships with the Republic by maintaining 'offices of representation', such as the American Institute in Taiwan, rather than embassies there.

Sovereignty may be recognized even when the sovereign body possesses no territory or its territory is under partial or total occupation by another power. The Holy See was in this position between the annexation in 1870 of the Papal States by Italy and the signing of the Lateran Treaties in 1929, when it was recognised as sovereign by many (mostly Roman Catholic) states despite possessing no territory – a situation resolved when the Lateran Treaties granted the Holy See sovereignty over the Vatican City. The Sovereign Military Order of Malta is likewise a non-territorial body that claims to be a sovereign entity, though it is not universally recognized as such.

Similarly, the governments-in-exile of many European states (for instance, Norway, Netherlands or Czechoslovakia) during the Second World War were regarded as sovereign despite their territories being under foreign occupation; their governance resumed as soon as the occupation had ended. The government of Kuwait was in a similar situation vis-à-vis the Iraqi occupation of its country during 1990-1991.

Sovereignty and federalism

In federal systems of government, such as that of the United States, sovereignty also refers to powers which a state government possesses independently of the federal government; this is called "clipped sovereignty."

The question whether the individual states, particularly the Confederate States of America, remained sovereign became a matter of debate in the U.S., especially in its first century of existence:

  • According to the theory of Thomas Jefferson, James Madison and John C. Calhoun, the states had entered into an agreement from which they might withdraw if other parties broke the terms of agreement, and they remained sovereign. These individuals contributed to the theoretical basis for acts of secession, as occurred just before the American Civil War. However, they propounded this as part of a general theory of "nullification," in which a state had the right to refuse to accept any Federal law that it found to be unconstitutional, regardless of judicial review.

Likewise, according to the theory put forth by James Madison in the Federalist Papers "each State, in ratifying the Constitution, was to be considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution [was to be] a federal, and not a national constitution." In the end, Madison likewise compromised with the Anti-federalists to modify the Constitution to protect state sovereignty: At the 1787 constitutional convention a proposal was made to allow the federal government to suppress a seceding state. James Madison rejected it saying, "A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."Rives, William (1866). History of the Life and Times of James Madison.

In his Report on the Virginia Resolutions, James Madison wrote that "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.” Madison even made a dire prediction of what would happen if this was denied, stating that “If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared."

During the first half-century after the Constitution was ratified, the right of secession was asserted on several occasions, and various states considered secession (including, for example, the Hartford Convention after the War of 1812) in response, not a single state objected on the grounds that such was unlawful. It was not until later, c. 1830, that Andrew Jackson, Joseph Story, Daniel Webster and others began to publish the theory that secession was illegal, and that the United States was a supremely sovereign nation over the various member-states. These writers inspired Lincoln's later declaration that "no state may lawfully get out of the Union by its own mere motion", based on the premise that "the Union is older than the Constitution or the even states," in effect an assertion that the 1781 confederation had consolidated the states into a single nation.

Opponents of Lincoln's claim argue that the states, in forming the union of the Constitution, each seceded from the prior Confederated union of 1781, thereafter nine of them joined in Constitutional union on June 21, 1788 – when New Hampshire became the ninth state to ratify the Constitution, thereby establishing it among those nine states as per Article VII; meanwhile other states refused to ratify until various conditions were met – including the addition of the Bill of Rights, ultimately ratifying by 1790. Therefore, their argument proceeds, both unions continued to exist in perpetuity between 1788 and 1790 (whereupon the final state of Rhode Island likewise joined the Constitutional union, thus ending the original confederated union. For this reason, the United States could not have been a single sovereign nation at any time prior to the Constitution, if ever.

Miscellaneous

  • Tribal sovereignty refers to the right of tribes or of federally recognized Native American nations to exercise limited jurisdiction within and sometimes beyond reservation boundaries.
  • In some regions of the world, such as Quebec and Indian Kashmir, the word "sovereignty" has become the preferred synonym for national independence (referring in this case to "national sovereignty" or the right of national self-determination, as explicited by example in U.S. President Wilson's Fourteen Points - 1918). Compare the Māori term rangatiratanga, and the concept of self-determination.
  • The Holy See is recognized as sovereign subject under international law (separate entity in international law vis-à-vis Vatican City, which has a very small amount of territory enclaved in the Italian capital Rome).
  • A case sui generis, though often contested, is the Sovereign Military Order of Malta, the third sovereign mini-state based in an enclave in the Italian capital (since in 1869 the Palazzo di Malta and the Villa Malta receive extraterritorial rights, in this way becoming the only "sovereign" territorial possessions of the modern Order), which is the last existing heir to one of several once militarily significant, crusader states of sovereign military orders; in 1607 its Grand masters were also made by the Holy Roman Emperor Reichsfürst ('prince of the Holy Roman Empire', granting a seat in the Reichstag or Imperial Diet, at the time the closest permanent equivalent to a UN-type general assembly; confirmed 1620), the sovereign rights never deposed, only the territories lost; several modern states still maintain full diplomatic relations (100) with the order (now de facto 'the most prestigious service club'), and the UN awarded it observer status.
  • Just like the office of Head of state (whether sovereignty is vested in it or not) can be vested jointly in several persons within a state, the sovereign jurisdiction over a single political territory can be shared jointly by two or more consenting powers, notably in the forms of a condominium or of (as still in Andorra) a co-principality
  • Thomas Hobbes wrote that Sovereignty was the very soul of the Leviathan.
  • Christianity and more specifically the systematic theology of Calvinism asserts that God is sovereign in all things, including salvation.

An underdeveloped aspect of sovereignty is individual sovereignty meaning the ability of individuals to have effective control over their everyday lives. Individuals have no genuine sovereignty unless they have secure income sufficient to satisfy basic need and rare is the politics or economics, such as binary economics, which consciously upholds individual sovereignty by guaranteeing that income.

Sovereign as a title

In some cases, the title sovereign is not just a generic term, but an actual (part of the) formal style of a Head of state.

Thus from 22 June, 1934, to 29 May, 1953, (the title "Emperor of India" was dropped as of 15 August, 1947, by retroactive proclamation dated 22 June, 1948), the King of South Africa was styled in the Dominion of South Africa: "By the Grace of God, of Great Britain, Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India and Sovereign in and over the Union of South Africa." Upon the accession of Elizabeth II to the Throne of South Africa in 1952, the title was changed to Queen of South Africa and Her other Realms and Territories, Head of the Commonwealth, parallel to the style used in almost all the other Commonwealth Realms. The pope holds ex officio the title "Sovereign of the Vatican City State" in respect to Vatican City.

The adjective form can also be used in a Monarch's full style, as in pre-imperial Russia, 16 January, 154722 November, 1721: Bozhiyeyu Milostiyu Velikiy/Velikaya Gosudar'/Gosudarynya Tsar'/Tsaritsa i Velikiy/Velikaya Knyaz'/Knyaginya N.N. vseya Rossiy Samodyerzhets "By the Grace of God Great Sovereign Tsar/Tsarina and Grand Prince/Princess, N.N., of All Russia, Autocrat"

See also

References



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