Reconstructing Sovereignty

Reconstructing Sovereignty RECONSTRUCTING SOVEREIGNTY A working note on the constitutional system of the state and the development of imperative international law by LEOPOLD LOVELACE Mershon Center, The Ohio State University I P S A World Congress, Quebec City, August 1-5 2000 LOVELACE 2000 Sovereignty as supreme rule The concept of sovereignty designates an institution of supreme rule which seems common to all politically organized peoples throughout history. Every people since the ancient polities to the most recently constituted states, concerned with the control, organization and uses of power, has also found a fundamental utility in institutionalizing various forms of the principle of the supreme rule. Quoting from Mountague Bernard’s historical account of the neutrality of Great Britain during the American Civil War, Henry Maine observes in one of his 1887 lectures on international law that by “sovereign state” it is meant “a community or number of persons permanently organized under a sovereign government of their own”, where “sovereign government” means “a government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior government”. Exercise of power and absence of superior control, would thus “compose the notion of sovereignty and [be] essential to it” [1]. A remarkable aspect of this institution is that it seems to have emerged in every case as a result of an autonomous process, like an inherent trait of the organization of political power among people, and not as a transplant in a pattern of external expansion and influence from from one people to another. Territorial conquest in the past has not usually meant that sovereignty was established for the first time in that land, but rather the substitution, often violent, of the local territorial supreme rule structure by that of the occupant power. Two sources of sovereignty Ruling supremacy and the authority to govern over people, resources, and common issues, in a given territory, have been interrelated attributes of independent political systems. Political theories of the state and the political system have persistently focused on those attributes –ruling supremacy, authority to govern, political independence of the state or system in question– with no basic disagreement on their structural association. There have been however substantial differences on the sources, or on the bases of which such structure of ruling supremacy or sovereignty and authority to govern was, and had to be, constituted. Generally, monarchical, absolutist and autocratic concepts of the political system, whether tribal, feudal or state like, found the sources of sovereignty in dynastical or kingship factors which were presented as bound with prerogatives dispensed by divine powers, administered by the corresponding churches and the clergy or bureaucracies of the supernatural, who held a decisive political influence before the advent of rational enlightenment and scientific understanding. In contemporary politics there persist some 2 LOVELACE 2000 residual cases of such forms of state, but the new autocratic and totalitarian concepts of the political system, even if somewhat receding after the defeat of fascism in World War II and the dissolution of the Soviet state system in 1991, have substituted the divine or supernatural sources of authority by the values underlying military and communist party dictatorships. Democratic sovereignty and revolution Democratic theory of the state, since the fith century Athens, B. C., has found the sources of sovereignty in the consent of the people. The process of achieving democracy has been hard, long, and bloody in history, and so it remains still in many regions of the world. The most influencial episodes in shaping the pattern of contemporary democracy are probably the English revolutions and civil wars of the 16th and 17th centuries, which culminated with the Bill of Rights of 1689; the French Revolution of 1789 which, though truncated by the Bonaparte’s regime, proclaimed the Declaration of the Rights of Man and put an end to absolute monarchies in France and Spain and many other European countries; and the American Declaration of Independence in 1776, a political prologue in fact to the adoption of the Constitution of the United States in 1789 by the Philadelphia Convention. There are differences of emphasis in the conceptual frameworks derived from these decisive episodes of the history of the political system of democracy. In the 1689 English Bill of Rights the Parliament is squarely conceived as the locus of sovereignty. The 1789 French Declaration of the Rights of Man proclaims that “the principle of all sovereignty resides essentially in the nation”, this latter being a concept somewhat obscure, though presumably related to, perhaps even determined by, that of “the general will”, from which law is supposed to emanate. The 1776 American Declaration of Independence explicitly postulates that governments derive “their just powers from the consent of the governed”, but it also, for the first time, establishes that the end of government is to secure fundamental rights of the people such as “life, liberty, and the pursuit of happiness”. There are other, perhaps qualitative differences between these hallmarks of democracy, in their approaches to sovereignty. Probably one of the main ones stems from they way these patterns of democratic development have related to a third intellectual framework on the sources of the supreme rule. This third framework on the sources of sovereignty has been historically minoritarian, surely among other reasons because of the subtle and complex intellectual constructs it proposed, not readily amenable to practical, or 3 LOVELACE 2000 ideological, simplifications. It was first spoused perhaps by the Pythagorean Circles in the late 6th century B. C., somewhat incorporated into the Stoic schools of the 5th century, and more throughly conceptualized by Plato in his writings on justice and government. It emphasized rather abstract notions of righteousness based on ethical concepts of the good, wisdom of judgment or reason, and knowledge of the truth. It was perhaps through the juristic strands of the Stoic schools that it became influencial among the ancient Rome jurists to given shape the Roman Republic’s particularly robust, if still primitive, concept of legal sovereignty. The concept was to persist in England through the judicial incorporation of Roman cannon law. The English civil wars were dominated by the conflict for the control of the sovereign prerogative between Parliament and the Crown, but they had been preceded by another contest between them and common law courts [2]. In 1610, Judge Coke ruled in the Bonham’s case that, “when an act of Parliament is against common right or reason or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void” [3]. The theory of judicial supremacy as a source of legal sovereignty was overruled in England by the High Court of Parliament, but at the turn of the eighteenth century it passed on to the courts of the American Territories through the Calvin’s case of 1702. Professor Louis Fisher observes that, even if the Bonham’s case “provides inadequate support for the American concept of judicial review, it was accepted as good law and precedent by those who wanted to break with England” [4]. Sovereignty in America The American Declaration of Independence is a historical preamble of the Constitution which is to establish in fact a precise juridical concept of sovereignty. The Federalist Papers were to examine and vigorously contend this juridical reconstruction of sovereignty by focusing on four aspects of the prerogative to govern. First, how the largest sovereign function transferred to the American people as a whole through the establishment of the Union constituted a safeguard “against domestic faction and insurrection” [5]. Second, on how it could be divided, or shared among the Union and the States through the specification and enumeration of the powers granted by the Constitution [6]. Third, how it was structured and secured through the republican institutions by guaranteeing both separation and reciprocal constitutional controls [7]. Fourth, by establishing the supremacy of the Constitution and providing the federal government, through a concurrent mechanism in which the States shared the sovereign treaty-making power of the Republic [8]. Though a matter of controversy among constitutionalists, the juridical construction of sovereignty which placed its source 4 LOVELACE 2000 directly in the supreme law of the land, can be derived from a textual interpretation of the Constitution itself by finding the normative coherence and determinacy of the relationship between the judicial power which extends “to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties which shall be made under their authority”, in Article 3, Section 2, clause 1, and the provisions, in Article 6, paragraph 2, that “this Constitution, and the laws which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding” [9]. Constitutional sovereignty The juridical construction of sovereignty in

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