Jurisprudence - Lesson 3

Sovereignty

• It is a contested concept as there are many different theoretical approaches dispute over its correct explanation or definition, and also disagreeing about its practical relevance
• Person (King, Monarch, Sultan), groups (Judicial Council), state (Sovereign State) developed the idea of one person authority to the idea of people or the idea of “we”
• The idea of “we” provide for a constitution
• A sovereign state can be define as a state that has been mutually recognized and there is no other state that possesses the right to invade it regardless of the size or population or any other element of the state

a. Origin of Sovereignty

i. Based on Thomas Hobbes

• The social contract theory
• Man and women were living in the state of nature where there is chaos, brutality and war against each other
• When people realized that they cannot live in this kind of live, they claim to agree to an appointed government
• The idea of social contract provide for security which will lead to sovereignty

ii. Based on John Locke

• Originally, sovereignty was governing under the Monarch or King which stated that is it a divine right of the King to rule over its people
• This later move to a rule of consent of people and the government

b. Sovereignty Leads to Revolution

i. America War of Independence

• The idea of sovereignty make the people of America to realized that they want an independent from the British colonization
• They don't want to be rule by the British King but decided to be governed by themselves
• Hence, they become republic under the name of United States of America

ii. French Revolution

• This revolution stated that the government should lies in the hand of the people and not the king

-Both revolution promote the idea of self-government by people
-Self-government state leads to the making of referendum which will be used in order to make constitution

c. Popular Sovereignty

-Sovereignty evolves from the Devine Right of kings to Popular Sovereignty

i. Features of Popular Sovereignty

• Denial of supremacy on anyone of the organ of the state
• State as a whole is sovereign, but it hard to define what is sovereign inside a state, nevertheless, in order to secure the sovereignty, mutual recognition or respect by other state must be obtained
• External sovereignty happens when 1 country did not recognized another country sovereignty such as the relationship between China and Taiwan
• Sovereignty under international law recognized each state as possessing sovereignty

d. Weakening of the Concept of Sovereignty

• Emergence of States Association such as European Union weakening the sovereignty of a country as they make law for the country enlisted with them, but does it represent sovereign body?
• Treaties signing lead to a question on whether the state sovereignty has been surrendered or limited when treaties are sign as they are bound by any superior or higher authority in the treaties or agreement

Rule Of Law

• Power will lead to sovereignty which will lead to the Rule of Law
• Rule of law promotes that no other person shall be above the law, rule are made according to the law, official of the government must be acting according to the law, and fairness justice which mean law based on normative standard must be observed
• Before rule of law exist, there was rule of men by men which is upheld by the church
• This rule leads to; uncertainty as the decision of the king will not be certain in the judgment of a case, unpredictability as the king's decision cannot be predict, and irrationality as the king is only human and might not give a rational judgment as it can be bias on certain values, tradition or belief
• Rule of Law resolves the problem of uncertainty, unpredictability, and irrationality
  The need of rule of law comes from the arising capitalist as they prefer to have a certainty, predictability and rationality in a decision that is important for their business
• Rule of law guaranteed of provided for; certainty of conduct of officials, security of expectation of conduct, clearly stated rules, rules or laws are prospective and not retrospectives, law is generally applied, coherent clear patent of demand and open to interoperation and not absolute
  

That's all for now.