Features of government deals with territory population and sovereignty
A people occupying a defined territory and equipped with institutions of self-rule presents itself to the rest of the world as a sovereign entity, signifying its independence from subjection to any higher authority. This principle forms the basis of international law, a sphere in which states contract with one another to regulate inter-state relations.
Although it is sometimes said that the existence of a body of international law itself amounts to a limitation on state sovereignty, this is confused. States sign and ratify treaties as sovereign entities: international law, far from being a limitation is in reality an explication of state sovereignty.
A similar point can be made with respect to internal authority. Sovereignty is an essential characteristic of a state. Every sovereign state possesses supreme, unlimited and indivisible authority. Since the jurisdictional competence of each of these governmental institutions is established and limited by a formal constitution, none possess ultimate authority to rule. But this distinction does not amount to a limitation on sovereignty.
British scholars wedded to the traditional principle of the absolute legal authority of the Crown-in-Parliament, in particular, have a tendency to become confused on this matter. But see also section 6 below. Constitutional arrangements do not limit or restrict sovereignty. They exemplify the existence of sovereignty. If sovereignty is a representation of the autonomy of the political domain, then we can appreciate how it is effectively a synonym for the juristic concept of the state.
From a juristic perspective, the state is the entity that offers access to modern political reality. The state may be defined as an autonomous entity comprising three constituent elements of territory, people and institutional form. In a juristic sense, however, the state is better grasped as a scheme of intelligibility. As an institution, it is both an idea and its instantiation, but it cannot be reduced to any of its constituent parts.
Through an exercise of representation, it brings into existence a comprehensive way of seeing, understanding and acting in the world. Graham Burchell, ed. Michel Senellart London: Palgrave, , This concept of the state enables us to grasp the ways in which inherited institutions and practices form an autonomous set of relations.
London: Macmillan, , Sovereignty is much misunderstood today largely because of its intrinsic political and legal dimensions.
It is the concept on which received ideas of legitimate domination are founded. Those ideas have always been contested, not least because they involve the continuous struggle to establish the conditions of political authority in regimes founded on collective self-actualization. Today, however, the problem is that the contest over the conditions of legitimate domination is now being equated with the contestability of the concept of sovereignty itself. This leads to the misuse of language, generating analytical confusion, misdiagnosis of the issues, and even incoherence of proposed solutions.
One reason for this is that during the twentieth century the dual legal and political dimension became a source of deep discomfort for scholars in the emerging academic disciplines of political science and law. In their quest for scientific credibility, political scientists have been seeking to discover causal laws of political behaviour and, within such an empiricist mindset, sovereignty was felt to express the metaphysics of a bygone era.
To the extent that political scientists continue to invoke the concept, they tend to conflate sovereignty and government. Sovereignty expresses a principle of unity: it is an expression of illimitability, perpetuity and indivisibility. Any limit on sovereignty eradicates it, any division of sovereignty destroys it. But this is a maxim relating to the phenomenon of governing, not to the concept of sovereignty. This distinction between sovereignty and government forms a central pillar of public law thought. It has since been treated as a commonplace of public law thinking.
Having forgotten the point of this distinction, this is precisely what now is happening. Some errors are of the most elementary kind, as in the claim that federalism is incompatible with — or the same thing requires a division of — sovereignty. But mostly they arise because political scientists fail to acknowledge that sovereignty is a juridical concept. As a result, they confuse sovereignty with governmental competence, and therefore with ideas such as autarky, that is, with the ability of a nation-state to control its own material conditions and destiny.
This stems from a blurring of the distinction between the ability to govern and the right to govern. This distinction relates to two different concepts of power: the former is potentia , the actual ability to control things, while the latter is potestas , the exercise of rightful authority.
The state and sovereignty : Understanding political ideas and movements
Political scientists tend to focus only on the former, whereas the latter is the critical aspect of the concept of sovereignty. Sovereignty involves the dialectical interplay between potestas and potentia , right and capacity. At the same time as political scholars were seeking to burnish their scientific credentials, legal scholars, determined to establish the autonomous normative authority of law, were devoting their energies to the severance of any significant connection between law and political power. This is in reality an attempt to overthrow the concept. Those who assert the autonomy of constitution rather than legality draw a distinction without a difference: these theories are variants of normativism, united in the abstract and ideal character of the directing idea of the autonomy of normative ordering.
Constitutionalism, International Law and Global Governance , ed. Jeffrey L. Dunoff and Joel P. Trachtman Cambridge: Cambridge University Press, , If law is to be conceived as a normative order whose authority comes not from the state and not from sovereign authority but from its intrinsic moral properties, then it is obvious not only that the connection between law and political reason is sundered but also that no clear distinction can be drawn between the law of a state and international law. The claims of state sovereignty, it is asserted, must be rejected and in its place a monist system of law, in which there is a single universal legal order from which the validity of municipal legal orders derive, is postulated.
This innovation remains controversial, not least in being a theory of law far removed from the political world we inhabit. But it also contains a basic theoretical difficulty: it postulates a system of law as a normative scheme that somehow carries its own authority. The problem here is that norms do not of themselves act; legal norms acquire their authority only within the frame of a political power that ensures their application and enforcement. This political aspect of sovereignty expresses the essential factual conditions that underpin legal validity.
It is this aspect that normativists seek to suppress.
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To this point, I have tried to show that sovereignty is a foundational concept for public law, that the challenge for those who have sought its overthrow is immense, and that those who have advocated its overthrow have either failed to grasp its foundational nature or have avoided the problems raised by their proposed re-specification. There is, however, one jurist who did address this juristic challenge in a systematic manner and whose work is worth considering in some detail.
Following through the logic of emerging positivist social science, Duguit maintained that the processes of continuing social evolution that were leading to the establishment of an administrative state had rendered the modern post-revolutionary public law inheritance anachronistic. The entire scheme of public law founded on the principle of sovereignty, he argued, was being eclipsed.
It needed to be reconstituted on a new foundation. He noted that the state expresses the general will of citizens and therefore seeks to organize itself so as to ensure maximum protection of individual subjective rights. But he also recognized that although the individual is a bearer of rights, the collective person is superior to the individual person: the will of the legal person of the state is superior to the individual will. This entire modern scheme of public law, Duguit asserted, rests on a mere fiction: not only is the idea of a general will fictitious but, since humans are social beings, so too is the assertion of the natural rights of the individual.
If public law is to be grasped in scientific terms, this subjectivist system founded on sovereignty must be replaced by an objective jural principle. This objective principle is the principle of social solidarity. The authority of government thus derives not from rights but from duties. In reality, governments do not exercise the sovereign right to issue commands; their authority is based on the duties they perform. With the emergence of the modern administrative state, the sovereign right of command is replaced by the principle of organization as the basis of public law.
In this scheme of authority, the status of any legal rule is the product not of its source but of its function. The significance of the claim to the primacy of this functional principle is radical. It suggests that no clear distinction is to be drawn between statute, executive decrees and administrative rules. Such a distinction is based on a formal hierarchical understanding which has its justification in the fiction of sovereign will; this type of distinction must now be supplanted by an assessment of purpose.
Duguit offers a theory of public law founded on the entire eclipse of sovereignty. It develops the juristic implications of the social scientific theories of Saint-Simon, Comte and Durkheim, which maintains that society evolves through three main stages: the theological stage, followed by the metaphysical stage, eventually leading to the scientific stage. Modern society should no longer be viewed through the prism of individual and state; society must be conceived as a collection of groups and the key task for government is to provide some sound method for coordinating their activities.
Following this line of analysis, the predominant legal mode of operation shifts from that of command to co-ordination. The emergence of objective social law also has implications for understanding the boundaries between national and international law, boundaries which had previously been recognized through concepts of state and sovereignty. Once determinate social groups sc. I ; Columbia Law Review 21 : Pt. II ; Pt. III ; Pt. See Pt IV , International law, Duguit argues, now establishes objective social norms that governments of all nation-states are obliged to respect.
Failing to acknowledge the juristic nature of sovereignty, the former group conflates sovereignty with the ability of a nation-state fully to control the material conditions of its existence. There is no doubt that in contemporary conditions governments are obliged to co-operate with other actors, both within the nation-state and beyond. But as has already been explained, sovereignty is not an aggregation of competences. Once this is recognized, the empirical assessment about the complexity of contemporary governmental networks can be accepted without it following that public law has entirely lost its symbolic power.
The modern discourse of public law seeks to manage the tensions between the conceptual and empirical: it aims not only to identify the formal right to rule but also to specify conditions that maintain the capacity to rule. Those who do seek to draw this conclusion are obliged to argue, it would appear, that we are now living in a post-jural world. These arguments are mostly made by scholars who maintain that governmental developments have undermined the normative scheme of modern public law, such that we are now living in a world of ubiquitous governmentalism.
James D. Faubion London: Penguin, , The concepts of sovereign, law, and prohibition, he maintained, established a system of representation of power which was bolstered by theories of right. But there are also certain jurists who make an almost opposite manoeuvre and accentuate the normative to the neglect of the empirical.
This latter type of post-sovereignty claim founds itself on the argument that legal principles have now evolved beyond the site of the nation-state in which they were originally situated and should now be recognized as establishing a set of self-sustaining universal principles of constitutionality. Whereas the post-sovereignty argument made from the perspective of governmentality is that law has become entirely instrumentalized and has thereby lost its structural connection to legitimacy, the argument from hyper-constitutionality is that the concept of legality is now to be fused with legitimacy.
Those making the claim of hyper-constitutionality reject the idea that sovereignty constitutes a representation of the autonomy of the political realm, anchored by the political unity of a people or state. They argue instead that modern i. The administrative developments he documents are undeniable, but his argument that this leads to an eclipse of sovereignty is overstated. From the vantage point of the twenty-first century, however, it is evidently an account which is presented as social science but is underpinned by a collectivist political ideology.
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17.1. Power and Authority
Separation of powers Legislature Executive Judiciary Election commission. Related topics. Sovereignty Theories of political behavior Political psychology Biology and political orientation Political organisations Foreign electoral intervention. There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.
This section needs additional citations for verification. Main article: Acquisition of sovereignty. Philosophy portal. Retrieved 5 August Random House. Oxford English Dictionary 3rd ed. Oxford University Press. September Subscription or UK public library membership required. International Journal for the Semiotics of Law. State Sovereignty as Social Construct. Cambridge Studies in International Relations.
Cambridge University Press. World-Systems Analysis: An Introduction. Duke University Press. Retrieved 26 November Archived from the original on 21 February Retrieved 10 January The Social Contract. McNair ed. Foundations of comparative politics: democracies of the modern world. Cambridge: Cambridge University Press, Recognition of Governments in International Law. Oxford Monographs in International Law Series.
Nijhoff Publishers. Palgrave Macmillan. Archived from the original on 24 December Retrieved 25 June Retrieved 19 June Retrieved 21 June Archived from the original on 8 December Retrieved 4 October The Greenwood Encyclopedia of International Relations. Volume 4. Greenwood Publishing Group. Political Studies.
Introduction to Government and Politics
Manchester University Press. British government and politics balancing Europeanization and independence. Identity and institutions: conflict reduction in divided societies. State Univ. Akehurst's Modern Introduction to International Law. II, ch. WordNet 3. Retrieved 14 August Categories : Sovereignty Authority. Namespaces Article Talk. Views Read Edit View history.
Public administration Bureaucracy street-level Adhocracy. The growth of multinational corporations and the free flow of capital have placed constraints on states' ability to direct economic development and fashion social and economic policy. Finally, both to facilitate and to limit the more troubling effects of these developments, along with a range of other purposes, supranational organizations have emerged as a significant source of authority that, at least to some degree, place limits on state sovereignty.
It is too early to tell for certain, but recent US action in Afghanistan and Iraq suggest that sovereignty will be further constrained in the fight against transnational terrorism.
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The United Nations Charter contains a contradiction that has become ever more troublesome,e particularly after the end of the Cold War. On the one hand, the Charter contains clear defense of the territorial integrity of states, a reaction to Nazi aggression during World War II. At the same time, it also contains commitments to individual human rights and the rights of groups to self-determination. Conventions on genocide , torture, and the like restricted state behavior within its own borders. Regional organizations were articulating human rights principles as well. The growth of human rights law limits sovereignty by providing individuals rights vis-B-vis the state.
However, in the context of the Cold War, US-Soviet rivalry paralyzed the Security Council and it rarely acted in defense of these principles. At the same time, non-governmental organizations NGOs emerged in the ss fighting for the cause of human rights. At other times, the information serves to prompt other states to apply diplomatic pressure , economic sanctions , and increasingly common to contemplate humanitarian intervention. In the s, the Security Council began to reinterpret the Charter to more frequently favor human rights over the protection of state sovereignty.
Through a series of resolutions, the United Nations has justified intervention in the internal affairs of states without their acquiescence. At the same time, as these cases and Rwanda show, states are often only willing to risk their troops when there is some national interest at stake. There is also great reluctance to interpret any of these instances as precedent-setting as states fear they may be the target of intervention in the future. For many, economic globalization places significant limits on the behavior of nation-states at present.
For those who see the retreat of the nation-state, the growing power of unaccountable market forces and international organizations provokes calls for change. Nor can the outcomes be reduced to strictly positive or negative because the multitude of processes involved impact different states in different ways. Given the emergence of a whole range of transborder issues from economic globalization to the environment to terrorism, one of the key discussions surrounds whether the nation-state is obsolete as the best form of political organization to deal with these problems.
Economic and social processes increasingly fail to conform to nation-state borders, making it increasingly difficult for states to control their territory, a central component of sovereignty. This raises important questions about the proper site of political authority. As governance structures are established at the global level to deal with the growing number of global problems, debate has ensued as to how to make these arrangements accountable and democratic. Therefore, in principle, states are firmly in control and any ceding of sovereign authority is in their interest to do so. However, bureaucracies, once established, often seek to carve out additional authority for themselves.
States also may find functional benefit in ceding authority to supranational organizations. What is more, a whole range of private organizations have emerged to infringe on sovereign authority as well. In addition to human rights NGOs discussed above, global civil society organizations have emerged around numerous issues. Civil society groups have had a growing, yet uneven, effect on nation-states and international organizations.
Together all of this suggests that the concept of sovereignty is under considerable pressure. Some aspects of sovereignty still exist and are honored in most circumstances, but many inroads are being made into state authority by many actors in many different circumstances. Where this will lead has yet to be determined.
Weber, Eds. State Sovereignty as Social Construct. New York: Cambridge University Press. Compromising Westphalia. International Security. Saving Strangers. New York: Oxford University Press. New York: Zed Books. When Corporations Rule the World. Bloomfield CT: Kumarian Press. Wharton School Publishing. The Work of Nations. Along the Domestic-Foreign Frontier. Cambridge: Cambridge University Press. Losing Control? Sovereignty in an Age of Globalization.
New York: Columbia University Press.