Sovereignty

SOVEREIGNTY. - Since the middle of the last century the concept of s. has become the keystone of the modern conception of the State. Nevertheless both its content and its subject are still disputed, the variety of theories on the State (v.) and on law opposing their exact determination, so that no univocal definition is to be found among publicists. It may be said that the most general meaning of the term, derived from Low Latin superanus, is that of superiority, and, in the specific case of the society to which it is applied, that of a power, authority or function superior to other powers and functions existing in the same political organism. From this relative sense the passage was not difficult to the more proper one of potestas suprema, which became the central nucleus of the concept, which must nevertheless be better determined.

I. GENESIS OF THE CONCEPT OF SOVEREIGNTY

Its origin is commonly traced back to the 16th century, and in particular to Bodin (v.), who, in his De republica (1576), is said to have systematized it for the first time.

Even before Bodin the word had become current usage, to designate the power of the king in opposition to the feudal authorities subordinate to him; it appears, for example, in Budé (De l'institution du prince, Paris 1547). It must still be admitted that Bodin systematized the principle of s. in a more organic way. Once these concessions are made, it must be noted on the other hand that Bodin's conception does not differ in substance from the preceding ones, since what he calls s. is nothing other than what earlier thought called authority or imperium. In every society, he says, there must be a supreme power, called maiestas: it is therefore a matter of the potestas suprema, about which the speculation that preceded him had long discoursed.

Nor is the definition he gives of it new: summa in cives legibusque soluta potestas (ibid.). The configuration of public power as legibus solutus goes back to Roman Law, to which the medieval legists continued to look for inspiration, subjecting the concept, however, to a broad reworking in order to limit its meaning. Bartolus maintained that the prince is legibus solutus, but at the same time added that it is just and equitable that he be subject to the law. Baldus, referring to the Roman-law phrase, attributed to him the fullness of power, but held him bound by the laws of God and by the ius naturale. Bodin evidently links himself to this current, for after defining s. as supreme power legibus solutus, he adds that it remains limited by the ius divinum, naturale and gentium (cf. A. van Hove, De legibus, Malines 1930, no. 202 ff.).

Nor can Bodin be called original in attributing s. to the republic as such, since Catholic theorists had already conceived authority as a right emerging spontaneously from the fact of association, whose original subject was the people, understood as a unitary organic moral body. This is the conception that clearly prevails throughout the Middle Ages and among the writers of the 16th century, although the word s. is unknown to them. Moreover, not one of the elements that are customarily attributed to s. had not already been brought to the fore in the preceding centuries, as, for example, that of autonomy and independence, undoubtedly included in the concept of autarchy or self-sufficiency, recognized by Aristotle as a property of the State and expressed in the scholastic definition of the same, conceived as societas perfecta (cf. Santonastaso, Le dottrine politiche da Lutero a Suárez, Milan 1946, p. 77 ff.).

To encounter the first enunciations of a theory of s. that comes close to that of the most modern doctrine of the State, one must descend to the 18th century, when from a common naturalistic foundation there sprouted the theories of Hobbes and Rousseau, in whom s. is configured as an absolutely unlimited power. With the latter, in particular, there is affirmed the concept of popular s., founded upon a naive contractualism, by virtue of which s., divided into fragments in each subject of society, would be nothing other than the arithmetical sum of the particular s., gathered in the so-called general will. On this individualistic basis French public law developed the concept of national s., partly correcting Rousseau's atomistic conception (cf. E. Crosa, op. cit. in bibl.).

A strictly juridical reworking was obtained by s. in the 19th century in Germany, where, for predominantly political reasons, there was a lively reaction against natural law. National s. was replaced by the s. of the State, and this was conceived as an essential quality of it, as a subjective right of its legal personality. The change of subject was not, however, accompanied by an equal change in the extension already given to the concept: s. continued to be defined as an absolutely unlimited power.

II. DETERMINATION OF THE CONCEPT OF SOVEREIGNTY

It remains to determine exactly the concept within this bare historical outline. By the term s. is commonly meant the supreme power of the State, the summa potestas, destined to direct the life of the political entity, with the faculty of governing and imposing law, arming it with coercion. Such a definition, however, requires an integration. A rational conception of collective life cannot prescind from the indication of the end to which society is naturally and essentially destined, and therefore the concept of s. cannot do without referring to it. It will therefore define s., as Suárez had done with political power (Def. Fid., I. III, cap. 2, n. 4), as a supreme power of governing the State civilly, understanding by the adverb civilly the immediate purpose which public power must serve. The elements that concur to compose the concept of s. are, then, three: two intrinsic, which reveal its substance, and one extrinsic to s. itself, but intrinsic to the political aggregate. The two intrinsic elements consist in this, that s. is a power — a generic aspect — but is a power that is distinguished from others in that it is supreme in its order — a specific aspect: the extrinsic element is the end, the common good, toward which the wills of the associates tend. Some clarification will make the concept thus delineated more perspicuous. Taparelli conceives the sovereign as the center in which that universal authority comes to be actualized, an authority that necessarily emerges, by a necessary law of our nature, from the association of men (Saggio teoretico di diritto naturale, I, 4th ed., Rome 1928, p. 225 ff.). S. is therefore an authority, and precisely social authority. It consists consequently in the primordial right which the social aggregate possesses from the very moment of its first constitution, to regulate the activity of all its components for the attainment of the collective end. No difficulty therefore stands in the way of accepting the most common theory, which conceives s. as a power or subjective right of the State, connected with its juridical personality.

The points of convergence with contemporary doctrine can indeed be extended still further to two other notes which it is customary for that doctrine to attribute to s., namely that it is an essential and original mark of the State. Both of the notes referred to are deduced from the objective examination of the political aggregate. An association of men cannot do without a central power that regulates its activity: s., therefore, insofar as it is the faculty of directing and governing, is essential to it. Moreover, since the presence of a unitary power is a necessity of nature, such power or right arises spontaneously at the moment when the being of society is brought into act by the meeting of free wills, so that not even the consent of the human race could prevent its arising and establishing itself. In its generic aspect, s. is therefore a power or an authority, and properly that power which finds its firm foundation in the original right of society to require from its associates the services necessary and useful to the common good.

The specific note that distinguishes s. from other powers consists in its supremacy. It is a summa potestas, essentially not ordered to be subject to another authority of the same order, last in the hierarchical scale and with a breadth of action that extends to all the particular powers operating within the State. It is necessary, however, to establish the conditions required for a power to be such. According to Suárez, a power is said to be supreme when it recognizes no superior above itself. Taparelli, in turn, continuing the tradition, holds as essential to the concept of s. independence from any other superiority, since s. is nothing other than authority that does not depend (ibid.). The negative mark of the supreme potestas is therefore independence from any other power of the same order.

Suárez further adds (Def. Fid., I. III, cap. 2, n. 4) that civil power is said to be supreme when, in the same order and with respect to the same end, ad illam sit resolutio in sua sphera, seu in tota communitate quae illi subest. That is to say, a power is supreme when the judgment of last instance belongs to it, to resolve questions concerning collective life, with the exclusive exercise of coercion. In other words, there is a true s. when the power signified by it stands at the apex of the social hierarchy, subordinating to itself the lower nuclei and the relative powers, in order to decide autonomously and with full competence on whatever concerns the common good. It is the competence of competences, the center in which all lower competences come to be summed up and resolved, competences that emanate from it.

Integrating now the preceding conclusion, s. may be defined as a supreme and unitary right of governing public society, without dependence on any other authority of the same order.

For the questions concerning the origin, the subject and the intrinsic and extrinsic limits of s., in the solution of which Catholic doctrine differs appreciably from contemporary doctrine, see the entry AUTORITÀ.

1939; A. Messineo, Il diritto internaz. nella dottr. cattol., Rome 1942, pp. 329-421.