By: W. J. Rees
Rees starts his narrative by acknowledging that some has used the word sovereignas to mean the same with the word authority, although he noted that legal theorists in their works showed some distinction to them. For one, according to John Austin and Lord Lindsay, the word sovereigntyis notproperly concerned with questions of force or power. Instead, it’s focus is concerned with the question of authority. In this way, Rees describes this way of describing as sovereignty in the legal sense.
As for Rousseau andHegel, the word sovereignmeans a supreme legal authority in so far as it is also a completely moral authority. According to Bosanquet, it is the exercise of the general will, which is expressed in law, in so far as law is what is ought to be. When the word is used in this way, Rees says that it is used in the moral sense.
For another group of philosophers, the word has meant a supreme coercive power exercised by a determinate body of persons possessing a monopoly of certain instruments of coercion. Though described this way by the philosophers, they have not made it clear what they mean by the term coercion, and how it can differ from political influence and legal authority. One main difference pointed out by Rees is that the former may include that of extra-legal practices, while the latter concepts are confined to what is defined legally and how they are to be exercised by bodies conferred with such powers. For Lord Bryce’s concept of the word sovereign, he defined it as the strongest force in the State, whether that force has or has not any recognized legal supremacy. Using this way of defining sovereignty, Rees calls this as sovereignty in the institutionally coercive sense.
For other philosophers, sovereigntyis defined to be a supreme coercive power exercised habitually and cooperatively by all, or nearly all, the members of community. To distinguish this from that was defined in the second paragraph, Rees clarified that the force in this definition comes from social factors from within the community, and not from any political institution such as the police or the army. The concept of a de juredecision is introduced as the sovereignty of the people. In this sense, Rees calls this way of defining sovereignty as done in the socially coercive sense.
Given these four different senses of the word sovereignty, Rees clarified that although they are different in terms of the sources of a supreme power, it does not mean that one cannot be subordinated from the other to show what is really sovereign. In this way, they have used it in a sense which is equivalent to what one might call the strongest political influence. An example was given by Locke, when he conceptualized sovereignty as something given to the legislature, but ultimately bows down to the will of the people whenever the people disagrees with a law that was passed. Dicey agrees with Locke, since the former believes that the electorate has the sovereign power. With this, Rees says that this is sovereignty in the influential sense.
Lastly, Rees says that the word sovereign can be equated with the concept of a permanently supreme authority, power, or influence. This definition is concerned with the temporal aspect of sovereignty. Rees says that previously mentioned definition of sovereigntycannot be considered so if there is no sense of permanence in place. Duguit expounds on this by saying that sovereignty is the absolute and perpetual power in the state. Furthermore, this permanence is vested upon the government which acts as the sovereign organ if it consistently seeks to be absolute. For Rees, this is sovereigntydefined in the permanent sense.
Moving forward, Rees poses the question is it necessary that there should be a sovereign in every state?
If we’re looking at sovereignty in the legal sense, it is not logically necessary that it shall exist in every state, but Rees backtracks and says that it is, however, causallynecessary. This is true for Rees since, in practice, government can only be carried on by means of laws, and laws can only be administered if there exists some final legal authority. In the absence of which, no legal issue could ever be certainly decided, and government would become impossible.
On the other hand, if we take sovereignty in the moral sense, then it is logically necessary that sovereignty should exist in every state, since if the state is a not a completely moral authority, then there is no state (in our present definition) – as an organized society – to begin with.
In the coercive sense, Rees says that it is not logicallynecessary that there should exist in a state a sovereign, since it is not self-contradictory to say that there does not exist in a state a supreme coercive power. However, just like sovereigntyin the legal sense, it is causallynecessary that there should exist in the state a sovereign either in the socially coercive or in the institutionally coercive sense. There should be a way for laws to be enforced, either by the habitual and cooperative exercise in support of the law or through coercive power by a determinate body of persons.
If we now use the word sovereignty in the influential sense, it is neither logically or causally necessary that there should exist a sovereign in every state, since the strongest political influence may be exercised by bodies which exist outside the boundaries of the state (e.g. another stronger state). The same goes for sovereigntyin the permanent sense, since for a King in parliament to be the legal sovereign today, he does not necessarily need to continue to be the legal sovereign for an indefinitely long time.
Rees then proceeds with other questions about sovereignty:
First, is it necessary that the sovereign, if it exists, should be indivisible?For this, Rees says that if we’re talking about the legal sovereign, then it follows that it should not be indivisible for there is only one legal answer to one legal question. However, if we take sovereignto be a moral sovereign, then it logicallyand causally follows that it can be notindivisible, since it cannot be said that only one authority should decide the answer for a legal question. On the other hand, if we’re talking about the institutionally coercive sovereign, the socially coercive sovereign, and the influential sovereign, Rees says that it is neither logically or causally necessary that these sovereigns should be indivisible in the sense that the power or influence in question may not be divided between two or more bodies. Lastly, if the word sovereignis used in the permanent sense, then no questions about indivisibility arise, other than those already answered in connection with its other meanings.
The next question that arises is Is it necessary that the authority or power or influence of the sovereign should be unlimited? Rees says that it will depend on what the definition of unlimitedis. According to him, there can be two definitions, namely it as an equivalent of omnipotentand the other exceedingly greator superior to any other. When we take the former definition, then it is neither logicallyor causally necessary that sovereignty, in any sense, should be unlimited. If we take the latter definition, then it is logically and causally should be unlimited.
Rees then proceeds by saying that to exercise authority is to determine a person’s actions in certain intended ways by means of a rule, and these rules may oblige a person to act. In this way, the following kinds of authority may be distinguished: (1) Moral, where a person is obliged to act by his own conscience; (2) Customary, where a rule obliges him to act in virtue of his desire not to get disapproval from other members of the society; (3) Coercive, where a person is obliged in virtue of what is being enforced, whether from a supreme coercive power or from a legal authority. Given all these, then to exercise legal sovereignty, or supreme legal authority, is to determine the actions of persons in certain intended ways by means of a law as previously defined, where the actions of those who exercise the authority, in those respects in which they do exercise it, are not subject to any exercise by other persons of the kind of authority which they are exercising.
Straight from the Hart 