SOVEREIGNTY. I. The Idea of Sovereignty. The state is the embodiment and personification of the power of the people. The power of the people in its highest dignity and greatest force is sovereignty.
—The word sovereignty originated in France, and the idea of sovereignty was for the first time developed by French science. Bodin raised it to the dignity of the fundamental idea of public or constitutional law. Since his time the word sovereignty and the idea have exercised a great influence on the entire development of the constitution of modern states as well as on politics.
—During the middle ages the expression souveraineté (suprema potestas) was used in a still wider sense. Every board or authority competent to give a final decision, so that an appeal to a higher authority was impossible after such decision, was called a sovereign board. The highest courts of justice were called cours souveraines. Thus there were a great number of sovereign offices and corporations within the state. But gradually this name ceased to be given to mere offices and positions in the different branches of the administration, and it was finally given only to the highest power in the state, the power which controlled the whole. Hence the idea of sovereignty came to have a higher meaning and to signify the concentrated fullness of political power or of the power of the state. The definition of the term sovereignty was controlled completely by the centralizing tendency of French politics, beginning with the sixteenth century, and by the struggle of the French kings for absolute power. Bodin had explained sovereignty as absolute, perpetual political power (puissance absolue et perpetuelle d' une république). Sovereignty was subsequently understood in this absolute sense. Not only Louis XIV., who called himself the state, but even the Jacobin convention of the French republic of 1793, attributed omnipotent political power to itself, as Louis had to himself. Both were wrong in doing so. The modern representative state knows nothing of absolute political power; and absolute independence does not exist anywhere on earth. Neither political freedom, nor the rights of the other organs and component parts of the state, are compatible with such unlimited sovereignty; and whenever men have sought to exercise it, history has condemned such usurpation. The state itself, as a whole, does not possess such omnipotence; for even the state is limited externally by the right of other states, and internally by its own nature, by the rights of its members, and those of the individuals within the state.
—The characteristics of sovereignty are: 1. The independence of the power of the state of all superordinated political or state authority. Even this independence is to be understood as relative, and not as absolute. International law, which binds all states together by common rights, is no more in conflict with the sovereignty of states than is constitutional law, which limits the exercise of the power of the state within the boundaries of the state. This renders it possible for certain territorial states to be still considered sovereign states, although in essential things, as for instance, in their foreign policy, etc., they are dependent on the greater aggregate state. 2. The highest political or state dignity, or what the ancient political language of Rome understood by the term majestas. 3. The plenitude of political or state power in contradistinction to mere partial authority. Sovereignty is not the sum of separate special rights, but the political aggregate right; it is a central idea with an energy similar to that of property in private law. 4. Further, the sovereign power is, by virtue of its nature, the supreme power in the state. Hence it follows, that no other political power within the state can be superordinated to it. The French seigneurs of the middle ages ceased to be sovereign when they were again compelled to subordinate themselves to their liege lord, the king, in all the essential relations of political independence and rank. The German electoral princes, after the fourteenth century, were able to claim sovereignty in their territories, because they really possessed, in their own right, the supreme political authority within the same. 5. The state being an organized body, the unity of sovereignty is accordingly a requisite of its well-being. The partition of sovereignty leads in its consequences to the paralysis or dissolution of the state, and hence is not compatible with the health of the state.
—II. State Sovereignty (Popular Sovereignty) and Regent Sovereignty. To whom does sovereignty belong? The different political parties are inclined to answer this question in an entirely different sense, and science also has to remove many kinds of obstacles, and to overcome many prejudices, before it can succeed in reaching a simple and true solution of the question.
—1. A widely spread opinion, particularly since the time of Rousseau and the French revolution, answers: To the people; and declares itself in favor of the principle of the so-called sovereignty of the people. But we must first inquire, What does this opinion understand by the "people"? By the "people" some understand simply the sum total of the individuals who find themselves brought together in the state; that is, they, in thought, resolve the state into its elements, and attribute the highest power to the inorganic mass, or the majority of these individuals. This extremely radical opinion is manifestly in contradiction with the existence of the state, which is the foundation of sovereignty. Hence it is not compatible with the constitution of any state, not even with absolute democracy, of which it pretends to be the foundation; for even in an absolute democracy it is the regular assembly of the people, and not the atomized multitude, that exercises the state power.
—2. Still others understand by "people" the collective, equal citizens of the state, who, assembled in commonalties, give expression to their will; that is, they understand by people the sovereignty of the demos, in democracy. When limited to this form of the state, the principle of popular sovereignty, thus understood, has certainly some sense and truth in it; it is then literally synonymous with democracy. But even in the case of representative democracy the principle loses its application in great part, because in the regular action of the state the supreme power is not exercised directly by the citizens, but indirectly by their representatives. The principle is entirely incompatible with all other forms of the state on which it makes the strange claim that the head of the state should place himself on an equality with the meanest citizen, and that those governing, being the minority, should subordinate themselves to the governed, or the majority. In the body politic this principle assigns to the feet the place of the head, and to the head the place of the feet.
—3. It sometimes happens that the two opinions are not sharply distinguished from one another, but that they fade one into the other. The one is anarchical, the other absolute-democratic. Their defenders, however, maintain the universal validity of both. Yet the danger of this theory consists precisely in the fact, that is recognition presupposes and demands in principle the complete overthrow of all other forms of the state, with the sole exception of direct democracy, and the transformation of the former into the latter.
—This opinion, accordingly, has been advocated by decidedly antagonistic parties, but still (if indeed consciously) only by those who were dissatisfied with the existing political organization or government, and strove to undermine and overthrow it. Hence it became a terrific weapon of destruction in the hand of the French revolution. Even the national assembly, in its declaration of war of April 20, 1792, officially proclaimed Rousseau's theory: "The French nation has undoubtedly declared, that sovereignty belongs only to the people, who, limited in the exercise of its highest will by the rights of succeeding generations, can not confer any irrevocable power; the nation frankly acknowledges, that no tradition, no legal decree, no declaration, no contract, can subject the society of men to any authority in such a manner that the nation should no longer have the right of revoking such power. Every people has alone the power to give itself its laws, and the inalienable right of changing its laws. This right, in its fullest extent, belongs either to no one or to all." The subsequent convention disclosed the further consequences of this principle after the destruction of the monarchy. But even in our own days we have heard the proclamation of the same principle at the Paris Hôtel de Ville.
—In February, 1848, the constitutional monarchy was abolished, the republic proclaimed, and the dictatorship of an improvised government appointed by a similar sovereign act of the excited Parisian population. In an official declaration drawn up by Lamartine himself, we read: "Every Frenchman who has reached the age of manhood is a citizen of the state, and every citizen is a voter. Every voter is a sovereign. The law is equal, and is absolute for all. No citizen can say to another: You are sovereign to a greater extent than I; consider well your power; be prepared to exercise it; and be worthy of taking possession of your lordship."
—4. The endeavors of certain French statesmen to oppose to this ruinous idea of the sovereignty of the people (an idea which either destroys all constitutional and public law, in order to give a foundation to the majesty of the state, or which transforms all states into democracies) the idea of a sovereignty of reason and justice, were indeed well meant, but they did not prove satisfactory. By appealing to either reason or justice they thought they could do away with the abuse which the people might make of its sovereignty. This notion, however, overlooks the fact that the right belongs only to the person, but sovereignty only to a political personality, by which it must be exercised according to the principles of reason and justice. To the error which recognizes in absolute democracy the only fundamental form of the state, we thus find opposed here another error, the error of idiocracy, with its well-meant intention of guiding the majority of the people by the supremacy of an idea. But this contradiction remains without result, because the power of personality is stronger than any fiction.
—5. Another opinion calls the nation, considered as a unit, and as capable of organization, even if it be not yet organized or only insufficiently organized, with its instincts, its language and its social differences, the people, and ascribes to the nation the right to change the form of the state at its pleasure. A nation has a tendency to constitute itself into a people, and hence into a state (See NATIONALITIES, PRINCIPLE OF); and therefore we must admit that the germs of sovereignty lie in the nation, and that the nation had a tendency to develop sovereignty out of them; but that it shall develop sovereignty is only a possibility. (See NATION.) Popular sovereignty, in this sense, or, more correctly, national sovereignty, is accordingly an unripe, undeveloped, ante-state idea, which had to await the actual growth of states in order to become realized in a state form.
—6. But in a political sense we may and even must understand by people, the ordered aggregate of head and members which we recognize as the living soul of the personality of the state. In so far as the state appears as a person, independence , the highest honor, the plenitude of power, supreme authority, and unity, that is, sovereignty, undoubtedly belong to it. The state as a person is sovereign. Hence this sovereignty is called the sovereignty of the state. Sovereignty does not exist before the state, nor outside the state, nor above the state; it is the power and majesty of the state itself. It is the right of the whole; and as certainly as the whole is more powerful than any part of that whole, just as certainly is the sovereignty of the whole state superior to the sovereignty of a single member within the state. If, through the strife of parties, language had not been distorted, it would seem perfectly legitimate to call state sovereignty, as here defined, the sovereignty of the people, understanding by "people," not a loose multitude of individuals, but the politically organized whole, in which the head holds the highest position and has the highest duty to perform, and in which every individual fills the place and performs the task best suited to his nature. In this sense French publicists have called this sovereignty souveraineté de la nation. But nowadays this designation would be liable to the most deplorable misunderstandings, and for this reason we have preferred the unequivocal expression state sovereignty. This state sovereignty manifests itself both externally and internally; externally as the self-dependence and independence of every single state in respect to every other single state, and in relation of the secular power to the church; internally it manifests itself as the legislative power of the whole body of the people. In this sense the English are wont to ascribe sovereignty to their parliament, at the head of which is the king, and which represents the whole people. Yet this is not a peculiarity of English constitutional law, but a fundamental view of the constitutions of modern representative states in general, a view which does, indeed, regard the prince as the head, and for that very reason as a member of the people, and which ascribes the highest actual exercise of sovereignty, legislation, not to the head alone, but to the head in connection with the representative body, in other words, to the whole body of the state. The patrimonial doctrine of the state, which regards the states as the property of the prince, and hence attributes sovereignty only to the prince, and the absolutist doctrine of the state, which identities the state with the prince, and thus looks upon state sovereignty as princely sovereignty, alike ignore the important principle that all the power of the prince is essentially only the concentrated and condensed power of the people, and that the people and the state continue a legal entity despite the downfall of princes and the extinction of dynasties.
—7. Besides this sovereignty dwelling in the whole body of the state or of the people, there is also within the state a sovereignty of the head of the state, to wit, the sovereignty of the ruler, or, because it is most apparent in monarchy, what is called the sovereignty of the prince. In relation to all other single members of the organism of the state, and in relation to individual citizens of the state, the supreme head of the nation possesses the highest power and occupies the highest position—a power and position which properly belong to him. Thus, in English constitutional law, the king is in a special manner styled sovereign. Thus, too, in every monarchical state, sovereignty is ascribed to the monarch as such. There is, however, no contradiction between state sovereignty and the sovereignty of the prince, above referred to. Sovereignty is not divided, from the fact that one-half is given to the people, and the other to the prince. Their relation is not that of two jealous powers, struggling for supremacy. In both there is unity and plenitude of power; but it is manifest that the whole, in which the head, in accordance with its highest position in the body politic, is included, is superordinated even to the head considered in itself alone and apart from the whole. The whole people (the state) makes the law, but within its limits the head of the state moves with complete freedom in the exercise of the supreme power that belongs to him. State sovereignty is chiefly the sovereignty of the law: the sovereignty of the prince is chiefly that of government. Where the former is at rest, the latter is active. A real conflict can not easily take place between them; a conflict between them at all points is, in principle, not possible; for such a conflict would be the conflict of the supreme head considered in itself alone with the supreme head in connection with the remaining members of the state; that is, it would suppose a conflict of the same person with himself. While thus there is no conceivable peace between the democratic sovereignty of the people and the sovereignty of the prince, and while the one must necessarily subjugate and abolish the other, there exists between the sovereignty of the state and the sovereignty of the prince the same harmony that exists between the whole man and his head.
—III. What the Sovereignty of the state includes. 1. The people, politically organized, the state, has first of all, a right to the recognition of, and respect for, its dignity and supremacy; or, as the Romans termed it, respect for its majesty. Hence every serious injury to the honor, power and even to the established order of the Roman state, was considered by the Romans as a crimen lœsœ majestatis.
—2. The independence of the state of foreign states is, further, a necessary quality and effect of its sovereignty. When a state is compelled to acknowledge the political superordination of another state it loses its sovereignty, and submits itself to the sovereignty of the latter. Still, all subordination of a state does not completely destroy its sovereignty, because the dependence which that subordination implies is not an absolute one, and because its original independence and self-dependence reappear in many circumstances. In composite states, confederations, federal states and kingdoms, the individual states, although in certain respects subordinated to the whole, still, as states, possess a relative sovereignty, limited, not as to its content, but as to its extent. Thus in Switzerland they speak of cantonal sovereignty when reference is had to cantonal affairs, in contradistinction to the sovereignty of the confederation when reference is had to the affairs of the confederation. Similarly in the United States and in the German Empire we must distinguish between the sovereignty of the aggregate state (union, empire) and that of the states belonging to the confederation. We can, however, speak of the relative sovereignty of individual states subordinated to an aggregate state (confederation or empire) only where the individual state is itself organized as a state, that is, where it has all the essential organs of a state (legislative bodies, governments, etc.,) and a state life peculiar to itself; but we can not speak of such relative sovereignty of the individual state subordinated to an aggregate state when it has to the whole the relation of a mere part of that whole, the relation of a province, for instance. As in all that is relative, there is here, too, a scarcely perceptible transition from the one thing to another. Externally the sovereignty of the state in out time is ordinarily represented by the head of the state, not by the legislative body, but this rather from motives of expediency than from juristic reasons.
—3. At home, sovereignty finds its chief expression in the right of the people independently to determine the forms of its political existence, and, in case of need, to change them. What can not be conceded to a part of the people, to the mere majority of the people without the government, undoubtedly belongs to the aggregate people in its political organization. The individual subject should not oppose the ordinances of the people, even his political rights are injured by such ordinances: for if the state is to preserve its unity, its cohesion and order, the individual, in the domain of public law, must subordinate himself to the highest power in the state.
—It certainly is not a matter of indifference, in passing a moral or legal judgment on the change, whether it takes place by the way of reform or of revolution. Reform supposes, first, that the change is introduced by the organism empowered by the constitution to make it, and hence, that in constitutional representative states, it is introduced by the legislative body representing the whole nation: that is, that it is made formally conformable to law. Second, that even in the transformation of the law the spirit of the law is respected; and hence, that the law which it is proposed to change or repeal, should be set aside only to the extent that it has become obsolete or unsuitable, and that new law should be allowed to come into force only in so far as it seems to be mature and to have its foundation in the new circumstances of the people's life. If either the form of the constitution is disregarded, or if the principle of right be violated in the change, such an act is not reform, but revolution. The right of reform is a necessary expression of the vital energy of the state. To contest this right, is to deny the development of the people, and to cause revolution.
—But the radical doctrine of the state also maintains the right of the people to revolution. The idea of public law. however, opposes this assumption; for revolution is either a violent breach of the existing constitution of the state, or else a violation of the principles of legal right. For this reason revolutions, as a rule, are not legal acts, although they may be powerful natural phenomena which changes public law. Which the unchained natural forces which are passionately excited in the nation produce and determine a revolution, the regular efficiency of public law is disturbed. In the face of events of this kind, public law is powerless. It is unable to draw the revolution within the sphere of its norms and laws. One of the greatest tasks of politics is to guide a revolution which has broke out into the regular paths of reform and political order. If the law was too weak to prevent, or reform too slow to anticipate, revolution, neither the one nor the other, nor both together, can now control it. Hence we can speak only by way of exception of a right of revolution, and only in the sense of a right of self defense of the people, to save its existence, or to realize its necessary development, when the avenues of reform have been closed. The constitution is, after all, only the external organization of the people. If by the constitution the state incurs the danger or ruin, or if by it the life of the people has been paralyzed, or the vital interests of public well-being have been endangered, the principle of self-defense should be applied. "Necessity knows no law"
—4. State sovereignty embraces the power of making the necessary laws. The legislative power, in the narrower sense of the term, like the constitutive power, flows from the sovereignty of the state, and is at the same time its regular revelation.
—5. But further still, on the sovereignty of the state, in principle, rest all other powers of the state for which reason the constitution and legislation limit and regulate all other expressions of sovereignty.
—6. Irresponsibility. From the higher point of view, there really exists no irresponsibility of men in regard to their doings or omissions. In fact, the eternal judgment of God of this world excluded the idea of the irresponsibility even of nations. Even on earth, in the destinies and sufferings of peoples, this responsibility is not unfrequently painfully felt. But it is impossible within a state to establish a tribunal before which the whole people, or its representatives, as holders of the supreme power of the state, can be called to account. If this were attempted, the state itself would to that extent at least be subject to this tribunal, and thus a member would be placed higher than the body, the part above the whole. But if a state, in the execution of its sovereignty, should be responsible to another state, its sovereignty on that account would be a limited one, and subordinate to the higher sovereignty of the judging state. Only by the further development of international law, or by a higher political organization of the world, before which individual sovereign states would have to bow, as to an aggregate empire, could the political responsibility of individual states be organized. It may be reserved for the future to realize this idea. At present it is only an idea.
—7. All particular state powers, on the contrary, are responsible to the sovereignty of the state.
—IV. The second kind of sovereignty, the sovereignty which belongs only to the head of the state, is recognized in modern public law only in monarchy. Only the monarch, not the president of a republic, although the latter exercises rights of sovereignty, has , according to modern public law, a personal claim to be regarded as sovereign.
J. C. BLUNTSCHLI.