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Sovereignty Under Law: A Possible Redefinition of Sovereignty in the Light of Locke's Theory of Liberty

Published online by Cambridge University Press:  02 September 2013

Margaret Spahr
Margaret Spahr
Affiliation:
Hunter College of the City of New York
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Extract

Does the concept of sovereignty under law necessarily involve a self-contradiction? That it does, has admittedly been held by the great majority of careful thinkers from the time of Hobbes to the present day. Nor has this been inconsequential. The belief that submission to an enforceable law would be a surrender of sovereignty has been a most potent obstacle to the substitution of the law court for the battlefield in the determination of international disputes. On the other hand, it is generally conceded that for the individual the only liberty worth seeking is liberty under law. It is the thesis of this article that sovereignty under law for the state is no more absurd than liberty under law for the individual.

The term “sovereignty” has been variously and elaborately defined, but for present purposes its essential elements may be listed as authority, equality, and liberty. The first-named attribute—authority—has its great importance in the field of constitutional law, which postulates that in every state there is some agency or combination of agencies possessed of the authority to control everything within the state. However, it is well known that the rise and spread of constitutionalism and federalism have rendered the concept of sovereign authority increasingly mystical. Even in Great Britain, the old simplicity of the sovereignty of “King in Parliament” has been complicated by the Parliament Act of 1911, and especially by the Statute of Westminster of 1931. To-be sure, it is easy enough to visualize sovereign authority in a dictatorial régime, but this arouses no envy on the part of those who enjoy other forms of government.

Type
International Affairs
Information
American Political Science Review , Volume 39 , Issue 2 , April 1945 , pp. 350 - 355
Copyright
Copyright © American Political Science Association 1945

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References

1 However, see Professor Shotwell's position, infra, p. 353.

2 Leviathan, c. xiv.

3 Ibid., c. xiii.

4 Ibid.

5 Shotwell, , The Great Decision (1944), p. 202.Google Scholar

6 Corwin, , The Constitution and World Organization (1944)Google Scholar, Epilogue.

7 “Cowardice at Chicago,” Collier's, Sept. 16, 1944, p. 77.

8 The Republican platform announced: “We favor responsible participation by the United States in a postwar coöperative organization among sovereign nations to prevent military aggression and to attain permanent peace with organized justice in a free world. Such organization should develop effective coöperative means to direct peace forces to prevent or repel military aggression.”

9 The principal Democratic planks on international relations were: “We pledge to join with the other United Nations in the establishment of an international organization based on the principle of the sovereign equality of all peace-loving States, open to membership by all such States, large and small, for the prevention of aggression and the maintenance of international peace and security…. Such organization must be endowed with power to employ armed forces when necessary to prevent aggression and preserve peace.”

10 Supra, note 7.

11 The four powers “recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security.”

12 Proposals for the Establishment of a General International Organization, c. II, par. 1.

13 Ibid., c. I, par 1.

14 Locke's, own distinction is found in his Second Treatise on Civil Government, c. II, par. 6.Google Scholar

15 Supra, note 5, pp. 202–203.

16 Second Treatise on Civil Government, c. II, par. 4.

17 Ibid., c. IX, pars. 123–126.

18 Ibid., par. 131.

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