06. Sovereignty

Ulpian

170-223 AD

Quod principi placuit, legis habet vigorem, ut pote cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem conferat

What pleases the leader, has the force of law; since by the royal law, he holds the supreme power, since the people have conferred all his authority and power.

Bodin

1530-1596

"The absolute and perpetual power of the Republic; it is the authority over the subjects not the law; absolute power because it is not subject to another power and perpetual because it does not have a limitation in time; And it is not found in the law, but in the capacity to impose obedience to the subjects, without the need for laws. The power that entails a soveregnty is such that it is a generator of law, since it can manifest itself by dictating laws to subjects"

The sovereignty is not so absolute because he found limitations: the fundamental laws of the kingdom, the law of the succession of the crown and the need to respect the property of individuals; unless the political unity of the State is in danger

Hobbes

1588 - 1679

"capacity that the Head of State must have to preserve the unity of the latter”.

Affirms the power of the monarch as sole depository of sovereignty

"popular sovereignty lies with the prince since the moment he rises to the authority of prince by means of a contract, to which men come by virtue of the inability to preserve their own security against the aggressions of other men"

Locke

1632 - 1704

Absolute sovereignty belongs to God

Relative sovereignty, separated into "potential" and "real" sovereignty, is granted to the community on the basis of the Edenic agreement with God.

"The community, established by a single and fundamental contract, is divided into "society" to fulfill the function of legislation, which means the potential sovereignty of the community, to cultivate the Common Law, and the "government" to undertake the execution, which it means the real [royal] sovereignty of the king; through Common Law, Commonwealth" / Common Good

Westphalian Sovereignty

1648

Also called State sovereignty, it is the principle of International Law that establishes that each Nation-State has exclusive sovereignty over its territory.

External powers must therefore not interfere in the internal affairs of another country

Rousseau

1712 - 1778

The sovereignty is essentially popular, affirms that it is lodged in an aliquot manner in each of the members of the community

In its liberal, egalitarian and democratic position it reaches the conclusion that sovereignty lies with the people; The true sovereign is the one who expresses himself through the general will.

Hegel

1770 - 1831

It is the "ideality of the particular spheres and functions [within the state], these are not independent or self-sufficient, but are determined and depend on the purpose of the whole"

He considers the State as sovereign and it is understood as the result of a long dialectical development of humanity, by virtue of which the politically organized community becomes the representation of the universal spirit on Earth.

People can not be sovereign because, without the unity that the monarch gives to the whole, people would be a formless mass incapable of being a State, let alone sovereign.

Jellinek

1851 - 1911

In an ahistorical way, he eliminates the concept of sovereignty from the Theory of the State.

The legal attribute of a sovereign State is the exclusive ability to establish obligations through its own will. Sovereignty is therefore the characteristic of a State that can force itself.

In the end, sovereignty is nothing, it is a normative impossibility that can only be conceptualized within the limits of a descriptive science.

Heller

1891 - 1933

He theorizes sovereignty without formalizing it, since it starts from the fact of the experience of power as a central element of it; sovereignty can not be understood without a will that directs the State; the will is the essential element that gives meaning to the legal norm and that gives meaning to the action of the State

If the State is to be an effective unit of decision and action of a collective nature, it can only be so through the specific manifestation of a human will, which can not be attributed to legal norms in the abstract, a will that drives the community and makes possible the effective action unit.

Sovereignty must have a central role in legal theory and its function includes a place for a final legal decision. All versions of sovereignty are intrinsically political.

Post-Westphalian Sovereignty

XXIst century

Doctrine of the United States and Europe in which they affirm that countries can interfere in countries where human rights abuses occur

Highly criticized, especially by Russia and China, since it generates processes similar to the standard Euro-American colonialism, because the colonial powers always used ideas similar to "humanitarian intervention" to justify colonialism, slavery and alike practices

Newton

1642 - 1726

English mathematician, astronomer, theologian, author and physicist

He formulated the laws of motion and universal gravitation.

By finding the mathematical laws of natural phenomena completely eliminated the religiosity of the sciences.

Comte

1789 - 1857

"The Course in Positive Philosophy" and "A General View of Positivism"

He formulated the Law of the 3 States: society as a whole, and each science in particular, develops through three mentally conceived stages: the theological stage, the metaphysical stage and the positive stage.

Kant

1724 - 1804

"Critique of Pure Reason"

Sovereignty is the key mechanism of political reform. It is the way in which politics can be tamed to approximate to form principles of morality

Although sovereignty is a necessary cause of justice, it is also, paradoxically, a major cause of injustice both nationally and internationally.

His vision of sovereignty is ambiguous because it is based on two different fields: a "dogmatic" formal justification a priori; and, a call to constantly reform the empirical existence of all sovereigns everywhere.

Kelsen

1881 - 1973

"Pure Theory of Law"

It radically suppresses the concept of sovereignty in legal thinking, since it conceives States as equal actors within an international legal system.

A legal system is a closed system of hierarchy of norms, where the validity of each norm is traceable to a norm of higher order, until the Grundnorm or basic system standard is reached. Such an order is free of contradictions. However, the validity of the basic or constitutional norm can not be traced back to any other norm, its validity must be assumed.

The sovereignty is not a type of freedom of the law, it is a property legally constituted, that belongs to the identity of a particular legal system.

Legal Positivism

School of thought of analytical jurisprudence

The only valid law is that created by the socially recognized legal authority

There is no necessary connection between law and morality

Antagonistic of Natural Law and Legal Realism

Schmitt

1888 - 1985

Considered the top jurist of the Third Reich

Sovereign is the one who decides on the exception. The sovereign politician is the person who can make such a distinction, and decide the best way to respond to it.

Liberal democratic institutions with their commitment to the legal regulation of political power, that is, with the Rule of Law or the Rechtsstaat, are incapable of making the distinction, therefore, they are incapable of being sovereign