INTERNAL SOVREIGNITY

Sovereignty has an external and internal dimension, with two types of functions and limits:

The internal function of the state is constituted by the police, which has an internal peacemaking
role.

The external dimension is made by belligerence, war-states which take place outside.

With the exception of de Vattel, none of the authors that raised the questions of the limits on state
power or about popular sovereignty, derived the necessity of a constitution (legal document) in
order to legitimize the political system. This idea come effective with the revolutionary beak of the
late XVIII century.

The meaning of the modern constitution is what Peter Grimm describes in his book as the
comprehensive regulation of a community, in the sense that extra constitutional methods are
prohibited. Since the end of 18th century it is represented as a written document, but for example
in some states like England, the constitution is “unwritten” meaning that it is constituted by all the
sentences made by the juridical power. What are the main consequences in terms of sovereignty
in the development of the constitutional states? The development of a constitution contrast with
the idea of absolutist power and opens the question regarding both the the holder of sovereignty
and the divisibility of sovereignty.

In a constitutional state it is hard to find the sovereign power, as even the sovereign is subject to
the constitutional law. Therefore, we don’t have absolute sovereignty, but not that we don’t have
sovereignty at all > sovereignty holders are divided from those who exercise the sovereign power
and public authority. According got the constitution emerged in USA and UK no one but people
could hold sovereignty. In Germany in the 19th century the holder of sovereignty is not a particular
constituted power in the state but it is the state understood as a legal person.

The American case

The idea of popular sovereignty is one of the most founding ideas in the creation of the
constitutional power in USA:

«When one wants to speak of the political laws of the United States, it is always with the dogma
of the sovereignty of the people that one must begin. [...] In America, the principle of the
sovereignty of the people is not hidden or sterile as in certain nations; it is recognized by mores,
proclaimed by the laws; it spreads with freedom and reaches its final consequences without
obstacle. If there is a single country in the world where one can hope to appreciate the dogma of
the sovereignty of the people at its just value, to study it in its application to the affairs of society,
and to judge its advantages and its dangers, that country is surely America. [...] The American
Revolution broke out. The dogma of the sovereignty of the people came out from the township
and took hold of the government; all classes committed themselves to its cause; they did combat
and they triumphed in its name; it became the law of laws». Alexis de Tocqueville, Democracy in
America (1835-1840)

Reading the Declaration of Independence and the Constitution, it is easy to recognize the
implication of sovereignty and - more specifically - the idea of popular sovereignty. “No taxation
without representation” is a perfect example of the request of sovereignty from the Americans.
American colonists were only able to elect colonial parliaments but could not send representatives
to Westminster (real decision-making body). Moreover, they were triggered by special tariffs
imposed by the English Parliament and colonists considered these incompatible with the rights of
Englishmen, which were owed also to them.

The English argued that sovereignty - being the final and supreme authority - did not need
legitimation through representatives and - most importantly - couldn’t be divided > sovereignty
has to be exclusive. With the Declaration of Independence, 1776, American constituted
themselves as free and independent states, without a king but with several parliaments of the
formal colonies, now called states. They justified this asset with the Vattel’s statement that
independent states could unite in a permanent confederation without sacrificing their character as
states or their sovereignty:

“Each state retains its sovereignty” (Articles of Confederation, 1781)

However, this confederation lacked the moderating elements of English parliamentarianism and
failed: in order to overcome this failure, it was necessary to strengthen the confederation at the
expense of the independence of the individual states > renewed debate on sovereignty around a
new main question: who held sovereignty.

The answer is the people. Until that moment, the people had acted as an entity with the only
decision-making power of voting for the parliament. Now, they become the principal authority and
the parliament constitutes as an organ of the people. In this sense, the constitution could be only
emanated from the people and had to be ranked above any organs and acts of the state.
Parliamentary sovereignty was overcome.

James Madison, the leading mind of the convention, struggled against the Bodinian doctrine of
indivisibility of sovereignty: the United States had to be empowered to make decision that were
binding for the 14 colonies and this could only succeed if the confederation was transformed in a
single state, and its legal basis, made of international treaties, was formed into a Constitution.

The problem with this, however, was again how to cope with the sovereignty of every individual
state. Should sovereignty be hold by every state (aggregate or coequal) or should it be centered?
The brilliant idea of Madison was using the dimension of the holders of sovereignty in order to
solve the problem of divisibility: sovereignty didn’t belong neither to the singular nor to the central
state, but it belonged to the people, the people fo the United States as a whole. Now people are
the permanent political agent.

In this period was born the idea of the holder of sovereignty as a state instrument for fragmenting
sovereignty, in various senses:

Division in the holder of sovereignty between the American people and the executive of
sovereignty.

Sovereignty is shared among the central state and the federal states.

Senate, House of Representative, President are all supreme powers.

Thanks to the idea fo popular sovereignty embodied symbolically in the Constitution, which starts
with “We, the People…” USA institutionalized a fragmented sovereignty.

On the French Revolution and its contribution to the topic of sovereignty

The French Revolution had different goals and enemies. While the American revolution looked
outside for obtains self-governance, the French Revolution looked inside, to have a fundamental
change in the basis of their own state. It was a matter of changing the holder of sovereignty,
which up to that moment was the monarch (ancien régime). This kind of change needed a
fundamental transformation of the legal order (≠ American revolution) according to the guiding
principles of freedom and equality. In the French case, the revolution eliminated all the existent
intermediate powers.

Contractarian theorists guided the actions against the traditional order, since they anticipated in
their text the switch from ancient regime to the modern state.

Sovereignty was transferred from the Monarch to the People, or, to say it better, to the Nation.
Contrary to Rousseau’s view, it was clear that the public authority had to be entrusted to
representatives of the people. In Title III of the First and Second Article of the French Constitution
of 1791 it is written that:

“Sovereignty belongs to the nation; no section of the people nor any individual may assume the
exercise thereof” and “the nation, from which alone all powers emanate, may exercise such
powers only by delegation. The French Constitution is representative.”

However, this concept alone leaves open the problem posed by Rousseau: what if representatives
deviate from the interest of the sovereign? This was solved by the Constitution > binding legal
conditions under which their representatives could exercise the power entrusted to them.

Exercise of public authority at the behest of the sovereign, which is not itself able to act is then
the key to understand this system and, in France, this relationship was conceived and specified
by Emmanuel de Sieyes, who was able to translate Rousseau’s theory of democracy in our
representative democratic constitutions. His theory also solve the problem of divisibility of
sovereignty (“Sovereignty is one, indivisible, inalienable, and imprescriptible”). He differentiated
between the constituted power and the constituent supreme power, which lays entirely in the
Nation*. The apogee of the constituent power is the moment in which you make a new
constitution, but in that precise moment you have the end of the constituent power. It is not a
transferrable power and popular sovereignty as realized through it. The constituent power is latent
in the constitutional state, since the restrictions created by the constituent power applied to the
representatives, establishing rules for political decision making.

«The nation, from which alone all powers emanate, may exercise such powers only by delegation.
The French Constitution is representative; the representatives are the legislative body and the
King». French Constitution of 1791,

This theory directly implies the primacy of the constitution. The most important means of limiting
the constituted powers were basic rights and separation of powers (= America).

«Any society in which no provision is made for guaranteeing rights or for the separation of
powers, has no Constitution». Declaration of the Rights of Man and Citizen, 26 August 1789

Separation of powers did not contradict the indivisibility of sovereignty because it only affected
the constituted power, which possessed no sovereignty but merely exercised public authority.
Moreover, the separation between possessing and exercising power prevented the monarchy
from contradicting popular sovereignty and is the key to maintain - without contradiction -
monarchy as a form of government and popular sovereignty as the legitimate way to keep that
government. The ruler receives his legitimacy from a constitution singed and prescribed by the
people, by the nation > no risk of an arbitrary supreme power. Also after the return to the
monarchy (restoration, after the fall of Napoleon), it was always seen under the idea of a power
limited to a Constitution.

* Terminological ambivalence. Nowadays, the term “nation” can be seen as a sort of specification
of the term “people”: national sovereignty lies with the people (this concept was achieved thanks
to the postwar constitutions of 1946 and 1958). However, the difference between nation and
people as bearers of sovereignty dominated the French debate for long, at least until Raymond
Carré de Malberg’s theory.

The French positivist Raymond Carré de Malberg wrote the most sophisticated theory about
sovereignty: popular sovereignty would be a concrete sovereignty, while the national sovereignty
would be an abstract sovereignty, which would include present, past and future generations. The
term nation communicates a unity of individuals in an homogeneous context. The ideal of national
sovereignty implied a more deep rethinking of the concept of sovereignty, because popular
sovereignty was associated with the most extreme moment of the Revolution, the one of the
Jacobins’ experiments of Robespierre. So if popular sovereignty formed a general will, national
sovereignty cannot. National sovereignty is a constitutional idea, while popular sovereignty is an
extra constitutional idea.

Moreover, according to de Malberg, before the state and the constitution there is only actual
power. Strictly speaking, there was no constituting body (organe constituant): if the state is the
exclusive source of law, its founding cannot be a legal act. The same is true of the constitution. It
creates the right to make law in the first place and cannot therefore regulate its own creation.

The German case: State Sovereignty

Compared with America and France, Germany (and also Italy) represent a special case. First of all,
they constituted themselves as unitary states very late (end of the XIX century). Secondly, both the
modality of unification of Germany and Italy had totally different paths in respect to America and
France, since they were “revolutions” from above and not from below as, for instance, the Jacobin
one. Antonio Gramsci described this path as a “passive revolution”, which maintains a certain
degree of dominance.

During the XIX century, both the countries were divided in different states. In Germany there were
a confederation (after the fall of Napoleon, 1815), an international union of sovereign German free
cities and princes that had full sovereignty; while in Italy there were separated kingdom. In the
Statute Albertino, the constitution of the reign of Sardinia, sovereignty is said to belong to the
king.

However, a significant consequence of America and French Revolutions is perceivable also in

Germany and Italy: the Statuto Albertino is an example of constitution voluntarily granted by the
monarch. Taking a step toward constitutions meant that kings had to accept constitutional
limitations - without the power to revoke them - on his powers through basic rights and the right
to parliamentary assemblies. The monarchs’ authority was no longer unrestricted or absolute.
However, the use of force was permitted in order to put down attempted revolts in the member
states that might threaten monarchical sovereignty.

The monarch was still considered the sole bearer of sovereignty, but in exercising it, he voluntarily
bound himself to the provisions of the constitution (in Germany it was the Final Act of the
Congress of Vienna and this arrangement lasted until the fall of the monarchy at the end of WWI
and the enactment of the Weimar Constitution in 1919).

Also in this situation, the problems about who should be the holders of sovereignty and about the
divisibility of the same appeared:

Holders

Hegel, who in 1821 wrote the Elements of the Philosophy of Right, was one of the first
philosophers who argued that sovereignty belongs to the State, not to the people nor to the
nation:

«Sovereignty belongs to the State. But the usual sense in which the term ‘popular sovereignty’
has begun to be used in recent times is to denote the opposite of that sovereignty which exists in
the monarch. In this oppositional sense, popular sovereignty is one of those confused thoughts
which are based on a garbled notion of the people. Without its monarch and that articulation of
the whole which is necessarily and immediately associated with monarchy, the people is a
formless mass».

However, he did this in order to strengthen monarchical claims while contesting popular
sovereignty. His one is a anti democratic kind of argument. In his view, the state is just a
idealization of monarchical sovereignty, since it is impossible to have a state sovereignty without a
monarch, which physically manifests the authority of the state. In this sense, Hegel is highly
influenced by Hobbes (indivisible and absolute power). The people, without a monarch, were
merely a formless mass incapable of forming a state.

In 1837, Edward Albrecht goes beyond Hegel, proposing state (designated as a legal person)
sovereignty as the third options between the dualism of people (popular assembly) sovereign and
monarch (princes) sovereign. In his perspective, the state was the single subject of sovereignty
and was not affected by constitutional obligations > limited not the state, but only its organs. The
problem in this theory is that the state as a legal person could ONLY act trough those organs
which had no claim to sovereignty but only powers.

In Italy, Vittorio Emanuele Orlando accepted the idea of Albrecht, conceiving the State as a formal,
legal concept:

«Sovereignty is in the State and for the State: it descends from the organs that exercise it, but
does not emanate from them: a king, or an assembly, is not the source of sovereignty, because
their power derives rather from the State». (Vittorio Emanuele Orlando)

In the last third of the XIX century, after the unification of Germany thanks to Bismarck (1871), the
conception of the State as a legal person becomes widely accepted thanks to the distinction
among the subject (state) and the bearer of sovereignty (monarch).

Hans Kelsen, exponent of legal positivism, radicalized the idea of H. Krabbe who proposed to
completely separate sovereignty from the state, ascribing it to the legal order. Kelsen affirmed that
sovereignty should belong to the state not because it is a legal person BUT because it is the legal
system itself: the legal order of the state is the supreme order. Here sovereignty reaches its
highest degree of abstraction.

Divisibility

In Germany there were a strong debate, since some believed that sovereignty should be divided
between the central and the federal state. The main positions were two:

1) Georg Jellinek —> sovereignty is not the essence of the state power, but it is just a
characteristic, which existence does not affect the existence of the state power. The real essence
of the state, was indeed state power. As a consequence, he believed that sovereignty could be
divided since it is just a form of self-limitation and legal self-determination of the state:

«Sovereignty is [...] the characteristic of State’s authority, by which the State has the exclusive
capability of legal self- determination and self-limitation».

This self limitation was seen as a necessity, since a state without a law was unimaginable
(anarchy): by virtue of its sovereignty, the state may abolish or change any concrete self-imposed
limitations in regard to existing law. But it is not above the law to such an extent that it can
completely avoid being bound by law.

Jellinek’s one was the most abstract level of sovereignty until Kelsen. Kelsen believed that the
central, local (called partial systems, distinguished only by their different powers) and federal state
(the common state, expression of the unity of the whole and the one that grant the partial systems
their powers), had the power to distribute public power to the system. Who, among those three,
had the competence to do so had to be decided according to the different juridical cases.

His theory of latent or hidden sovereignty is the idea that in the constitutional state there is the
constitution while sovereignty stays hidden.

N.B. Today, the holder of sovereignty is not a concrete reality, it is instead a form of ascription, a
way to attribute authority (public) to someone > Gaetano Mosca. However, recognizing someone
as sovran has practical implications such as the accountability of power.

2) Carl Schmitt —> was Kelsen’s great opponent, a very controversial philosopher and member of
the nazi party in Germany, a nazi theorist. He states that Kelsen’s theory of the coexistence of
several independent political units within a common legal framework (in his terminology a Bund)
was a contradiction in terms.

Moreover, he theorized that sovereignty is a borderline concept (“at the border” between the
constituent and constituted powers) that can be experienced only in times of emergency:

«Sovereign is he who decides on the exception. Only this definition can do justice to a borderline
concept. Contrary to the imprecise terminology that is found in popular literature, a borderline
concept is not a vague concept, but one pertaining to the outermost sphere. This definition of
sovereignty must therefore be associated with a borderline case and not with routine». Carl
Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty.

In times of emergency (impervious to legal regulation that threatened the very existence of the
nation), constitutional law had to be abandoned, and unlimited state power prevailed. In those
situations, the constitution could at best prescribe who might act and whoever is empowered to
act is sovereign, and his “decisions are free of any normative bonds and are absolute in the actual
sense.

People cannot act in times of emergency, this power has to be of a ruler who legitimizes himself
through his successful actions in time of emergency. This statement can be translated in two
ways:

The ruler is the one who decides what are the exceptional cases.

The ruler is the physical person able to decide what to do about the exceptional case.

Schmitt’s idea of sovereignty is the flip side of the sovereignty realized through the constitution-
making power (= Seyes) > it is based on a constitution unmaking power. Schmitt’s doctrine of
sovereignty led away from the constitutional state