SOVEREIGNTY

[received 23/03/11; edited draft 1, 25/03/11; final 16/4/2011]

Sovereignty is a complex concept, hard to characterize in an uncontroversial manner. The core idea of sovereignty is that of
an ultimate source of political power or authority in a realm (see Morris 1998, Ch. 7). Several classical utilitarian thinkers
were interested in the concept. John Austin made it the center piece of his jurisprudence, influenced by Thomas Hobbes and
Jeremy Bentham. The latters writings on the subject turn out to be particularly insightful and relevant to contemporary
interests in constitutional or limited government.
The notion of sovereignty is mostly modern, with roots in classical Rome. The notion was developed by Jean
Bodin, Hobbes, Jean-Jacques Rousseau, among others, and deployed to make sense of the authority and power claimed by
early modern sovereigns and states. In late medieval and early modern times, powerful monarchs and emerging states faced
a number of rivals: city-republics, leagues of cities, empires, the Church, and various remnants of feudalism. These forms of
political organization lacked two features of modern governance that we take for granted: exclusivity of rule (a closed
system of governance) and territoriality. Modern states emerge only when their claims (or that of their rulers) to govern a
determinate territory alone, exclusively, is recognized. A determinate realm, with relatively unambiguous geographical
boundaries, and not subject to rival powers, is a prerequisite of the modern state and is largely missing in early forms of
political organization. A modern sovereign is the unique ruler of such a realm, one whose sphere of authority
encompasses the whole realm without overlapping that of any other ruler. It initially the monarch, later the state, then the
people rules without superiors. As the historian F.H. Hinsley says, at the beginning, the idea of sovereignty was the idea
that there is a final and absolute political authority in the political community... and no final and absolute authority exists
elsewhere (pp.25-26). With the development of the concept of sovereignty, we have the main elements of what is now
called the state system: independent states and international relations (and international law).
In early modern Europe, sovereignty was the power that monarchs claimed in their battles against lords and princes
on the one hand and popes on the other. Their realm (or kingdom) was theirs, and their authority over it was to be shared
with no one. The history is complex and cannot be traced here. But it is useful to appreciate the appeal of this conception of
political governance as territorial, unitary, and to some extent absolute. In the ferocious battles fought by European
monarchs against the limits imposed on them by imperial and papal authorities and against the independent powers of
feudal lords, self-governing towns, and autonomous guilds, a modern ideal of unitary and absolute political power emerges
and finds expression in the notion of sovereignty. Today it is customary to distinguish between internal and external
sovereignty, the first pertaining to the structure or constitution of a state, the second to the relations between states. Internal
sovereignty thus conceived has to do with the states authority over its subjects, while the second notion refers to the
independence or autonomy of states. The two remain connected: if a state or its people are sovereign over their realm
(internal sovereignty), then outsiders are constrained from interfering. Internal sovereignty gives states or peoples a
certain autonomy or liberty in their international relations (external sovereignty).
The core notion of sovereignty the ultimate source of political power or authority within a realm requires
unpacking. Sovereignty is associated with modern kingdoms and states; the realms in question are the well-defined
territories of such states. The relevant notion of political power or authority is more controversial. We shall focus on
authority, which we can think of normatively or non-normatively, the latter being a kind of power attributed or conferred to
leaders or institutions. But the normative notion seems primary, presupposed by the non-normative one (something has
authority if people treat it as authoritative, but what is it to treat it thus?). We might say that something is an authority only if
its directives are (and are intended to be) action-guiding. Laws prohibiting certain behaviour, for instance, are meant to
guide us. The key to the notion of sovereignty lies in the idea of ultimate authority. What is it for a source of authority to be
ultimate? An authority may be ultimate if it is the highest in a hierarchy of authorities. Such an authority may also be final:
there is no further appeal after it has spoken (it has the last word). Lastly, an ultimate authority may be one which is
supreme in a particular sense: it has authority over all other authorities in its realm. The states authority is sovereign in this
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sense; it takes precedence over competing authorities (e.g., corporate, syndicate, church, conscience). Summarizing, then,
sovereignty is the highest, final, and supreme political authority within a modern territorial realm (see Morris 1998, Ch. 7).
William Blackstone, in his Commentaries on the Laws of England (1765-69), famously argued that ...there is and
must be in all of [the several forms of government] a supreme, irresistible, absolute, uncontrolled authority, in which the
jura summi imperii, or the rights of sovereignty, reside (p.36). Blackstones views proved to be very influential in Britain
as well as in late eighteenth century revolutionary America. The English jurist John Austin accepted the idea that there must
be a sovereign in every political society. His positivist account in The Province of Jurisprudence Determined (1832) made
law the creation of a sovereign person or body.
We are accustomed to reading Austin back into Hobbes and Bentham, but this is unfortunate as both differed from
Austin in important ways and were more subtle theorists. Bentham in particular was critical of Blackstones idea that
governments authority stands unlimited so much as by convention; ... it would be saying that there is no such thing as
government in the German Empire; nor in the Dutch Provinces; nor in the Swiss Cantons; nor was of old in the Achaean
league. (A Fragment on Government, p.489) Unlike Austin, Bentham did not have to tie himself into knots to find a
sovereign in federalist states like the new American one (see Austin, Lect. VI).
Bentham and Austin both make habits of obedience, a distinctively non-normative notion, central to
understanding politics and law. Bentham thinks a political society exists when a number of persons (whom we may style
subjects) are supposed to be in the habit of paying obedience to a person, or an assemblage of persons, of a known and
certain description (whom we may call governor or governors) (p.428). But, unlike Austin, he sees how habits and
dispositions of obedience can limit a sovereign body: dispositions to obey can be limited, beyond them the subject is no
more prepared to obey the governing body of his own state, than that of any other. (p.489; see also Burns, 1973) This view
develops in Benthams later work into a popular conception of sovereignty. In the Constitutional Code, written in the 1820s,
Bentham concludes that the powers of government owe their existence to the Constitutive power which resides in the
whole body of active citizens throughout the state. (Works, vol. 9, p.96). For the happiness of the people, every security
that can be given is reducible to this one the supremacy, or say the sovereignty, of the people: the sovereignty of the
people, not nominal merely, but effective, and brought into action, or rather capable of being brought into action, as
frequently as the exigency of the case requires, and the nature of the case renders possible. (Works, vol. ch XVI, p.123.) In
this work the interesting move that Bentham makes is to conceptualize the various powers of government the legislative,
administrative, and judicial as the Operative power, itself a creation of the Constitutive power. Bentham transfer
sovereignty to We, the People and is so doing transforms the Hobbist understanding of sovereignty as a power to
command. (See Burns 1973)
Today few wish to understand sovereignty as absolute or unconstrained; it is now widely thought that sovereignty
can and should be limited. We now also think that one of the most effective institutional means of limiting the power and
authority of states is to divide sovereignty amongst a plurality of agents or institutions. Contra Hobbes and others,
republican and democrats have stressed the value and importance of divisions of power within states; indivisibility is no
longer assumed to be essential to sovereignty. Our notion tends to be one of divisible, limited sovereignty. But it is worth
noting that to attribute even limited sovereignty to a monarch or state may be to grant it considerable power. For the
sovereign retains the power to judge the nature of the limits to its authority, and its judgment here is final and supreme.
Even if sovereignty is not absolute, it remains formidable.
While sovereignty is now often understood to be a defining attribute of states, it was initially attributed to, or
claimed by, monarchs. In Britain it became customary to attribute sovereignty to the trinity of the monarch and the two
houses of Parliament. Rousseau, Bentham, and some of the founders of the American system attributed sovereignty to the
people, and the French Dclaration des droits de lhomme et du citoyen of 1789 claims sovereignty for the nation. The
doctrine of popular sovereignty the idea that peoples are the rightful bearers of sovereignty is especially influential in
the American and French political traditions and is held by many to be the foundation of modern democracy.
It is not clear, however, that we should wish to attribute (limited) sovereignty either to states or to peoples. We may
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think, for instance, that the authority of conscience, church, community, or international law is not always pre-empted by
that of the state or the people when the two conflict. Justice and in particular the rights of humans or persons may be
thought to be standards that have supremacy over others, contrary to the claims of sovereign states or peoples. It is not easy
to adapt this complex early modern concept to our contemporary conceptions of politics. Many have thus thought that it
might be best to do without the notion of sovereignty, however important it has been to the development of modern politics.
Certainly, its usefulness in contemporary legal theory or jurisprudence is doubtful (Hart 1994, Chs. II-IV, X). Adapting our
constitutional states and democratic institutions to new forms of international cooperation and law may perhaps best be done
without the notion of sovereignty.

Bibliography
Austin, John. The Province of Jurisprudence Determined, ed. William Rumble (1832; Cambridge, 1995).
Bentham, Jeremy. The Collected Works of Jeremy Bentham (CW), ed. J.H. Burns (196179), J.R. Dinwiddy (197783), F.
Rosen (198394), F. Rosen and P. Schofield (19952003), P. Schofield (2003), London and Oxford:
A Comment on the Commentaries and A Fragment on Government, eds. J.H Burns and H.L.A. Hart (1977).
Constitutional Code, Vol. 1, eds. F. Rosen and J.H. Burns (1983).
Constitutional Code, Works of Jeremy Bentham, ed. John Bowring, (Edinburgh),
Bentham, Jeremy. The Works of Jeremy Bentham, 11 vols., ed. John Bowring (London, 1838-43).
Blackstone, William. The Sovereignty of the Law, Selections from Blackstones Commentaries on the Laws of England, ed.
Gareth Jones (Toronto, 1973)
Burns, J.H. Bentham on Sovereignty: An exploration, Northern Ireland Legal Quarterly, 24 (1973): 399-416.
Hart, H.L.A. The Concept of Law, 2nd edn. (Oxford, 1994).
Hinsley, F.H. Sovereignty, 2nd edn. (Cambridge, 1986).
Morris, Christopher W. An Essay on the Modern State (Cambridge, 1998).

Further reading
Bodin, Jean. The Six Bookes of a Commonweale [Les Six livres de la rpublique], trans. R. Knolles, ed. K.D. McRae (1576;
Cambridge, MA, 1962).
Hart, H.L.A. Sovereignty and Legally Limited Government, in Essays on Bentham (Oxford, 1982), pp. 220-42.
Hobbes, Thomas. Leviathan, ed. R. Tuck (1651; Cambridge, 1991).
Morris, Christopher W. The Very Idea of Popular Sovereignty: We the People reconsidered, Social Philosophy & Policy
17, no. 1 (2000): 1-26.
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Postema, Gerald J., Bentham and the Common Law Tradition (Oxford, 1986).
Rousseau, Jean-Jacques. Du Contrat social (On the Social Contract) [1762], in Oeuvres compltes, vol. 3, ed. B. Gagnebin
and M. Raymond (Paris: Editions Gallimard, 1964).
Schofield, Philip, Utility and Democracy: The political thought of Jeremy Bentham (Oxford, 2007).

Christopher W. Morris
University of Maryland

See also John Austin; Jeremy Bentham; William Blackstone; Constitutional Theory; Democracy; H.L.A. Hart; Thomas
Hobbes; Jurisprudence; Legal Positivism.