LAW, SOVEREIGNTY AND THE STATE

Federal Constitutions

BELO, CLARISA

Federal Constitutions

Legislative power is distributed between a central legislature and a number of provincial legislatures USA power between the federal and the state organs

Federal Constitutions

Federal Constitution

Where does the power lie?

Among

the combined electorates of the state legislatures later Austinians preferred to treat the ultimate sovereign as the body empowered to amend the constitution

Reductio ad absurdum = reduction to absurdity

Federal Constitution

American Constitution does not really set-up a legislative body Federal Constitution -> incapable in certain respects of being amended at all or not w/o the consent of a particular body

Federal Constitution

Unlimited sovereignty not applicable

Overriding
Bill

limitations

of Rights control and limit legislation Courts power to treat legislation as void

Constitutional changes

UNABIA, MILCAH

Problem of constitutional change in the structure of the sovereign Power Politics

i.e.

What if the House of Lords was abolished?

of power to House of Commons

Transfer

Would the transfer be final and irrevocable? Would the sovereign retain some authority and reassume power surrendered?

Power Politics

Stage where it is almost impossible to distinguish between prescriptions of law and uses of power
NOT

an endorsement of Austinian theory (law based on power)

To understand legal systems, need:

identify what is legally valid structure that identifies constitutional patterns of the states and the legal relations inter se

Recall: Austinian concept of habitual obedience to A (old) rather than B (new) Explains possibility of transfer of legal authority

imperative that an operative (new) legal system has regular obedience to an existing system

Revolutionary/civil wars: necessary that there be actual obedience to the prevailing power during transition

Upon completion of transition (period where law and power are merged), no longer relevant to identify the de facto power in the state

REASON: system will be stable enough to recommence its usual manner of interpreting its rules according to own norms of validity

Power, Force and Sanctions

BELO, CLARISA

Power, Force and Sanctions

Law command of the sovereign

Laid

down by sovereign to which obedience could be enforced

Legal Sanction penalty for failure to obey Coercion only necessary here to try and clear up a few misunderstandings on point of detail

Power, Force and Sanctions

Not necessarily involve in the form of punishment Punishment may be inflicted as a non-criminal matters Civil matters not so much imposition of penalties as the enforcement of order against the property of defendants

Power, Force and Sanctions

Sanctions of law referring to any coercive process by which the law seeks to impose its will in the last resort upon an offender who has failed to comply with legal order or judgment

Power, Force and Sanctions

Legal rules but no specific coercive procedure or penalty is provided for non compliance
Marriages,

Making a will Nullification a kind of sanction Courts taking account of this nullity will be enforceable

Power, Force and Sanctions

Public bodies duties are imposed but have no sanctions or penalties Provision for actions to be brought against the state, any result is not enforceable as would be the case were it obtained against a private citizen
Bodies

and state the state if sued will be just as any party to a legal duty to determine the scope of duty and liability

Power, Force and Sanctions

Judgment holding the state legally liable vs State merely making an ex gratia payment where no liability is or can be established Austin mistaken that a sanction being annexed to ever command of the sovereign for it to constitute a legal duty

Power, Force and Sanctions

Core truth: no legal system can function unless it is ultimately rooted in the background of coercive machinery w/c can enforce compliance with its rules and regulation System as a whole qualifies as legal, not necessary in order to determine the legal quality of any particular norm Sactionless duty possessing legal attributes for it to merit treatment as a specifically legal norm

State sovereignty and the international sphere

UNABIA, MILCAH

INTERNAL SOVEREIGNTY

As discussed, nothing in legal logic that compels a state to consider its sovereignty as unlimited or indivisible

Does not mean that any legislation can be enacted at the whim of the sovereign

Means of expressing the States independence Existence of supreme legislature/s which do not acknowledge superiors

can enact legislation within the scope of their constitution

However, supreme legal power is purely theoretical

no legislator known to enact whatever law he wanted laws must always be in consonance with moral values, traditions, sentiments, and prejudices of community must also be according to express limitations imposed by law itself

Means of expressing the States independence Existence of supreme legislature/s which do not acknowledge superiors

can enact legislation within the scope of their constitution

Some states even grant power freedom to enact any legislation they want (England) May also impose legal limits on power of supreme legislature

INTERNATIONAL LAW

If existent:
a law higher than national/state law binding and limiting sovereigns of states subject to it

Austin contradicts by declaring that international law was not really law... but no more than positive morality.

Upon determining limitability of internal sovereignty, two questions arise:

1.

What is the position of the State which regards itself as having unlimited internal sovereignty? How can a state remain independent when made subject to external system of law?

2.

1. Position of state with unlimited sovereignty

Must distinguish between legal duty to national law and international law
try to put limits on statutes in order to keep with international laws BUT: if wording is vague, national laws still enacted despite being against international laws

(2) approaches the State may adopt

Option A: Treat international laws as part of its own laws

directly binding

Option B: Treat international law as inferior/subordinat e to national law

Still relevant for interpreting local laws that impinge on international laws

Abrogate a domestic law if it goes against an international law

2. How can the state remain independent

International law is not a super-state

not superior over the independent national states

Subordination to international law means recognition of legal rules binding on states themselves

not merging of state sovereignty with higher entity

Example: Rule to grant diplomatic immunity

Failure of state to grant = breach of international law Does not automatically mean that I.L. Automatically recognized by state, but make adjustments to accommodate. However, breach still remains = state is liable

I.L. does not have a regular coercive procedure to ensure enforcement of majority of its laws Universal acceptance that duty to uphold international law = duty to uphold national law What a state ought to do morally is different from its legal duty.

Breach of international law

State may be arraigned for a breach of legal duty

through formal procedures available to international tribunals includes claim for legal compensation

Methods available distinct:

Impracticability
Tension

between states

External sphere: Every rule of international law imposes a legal fetter on national states Legal community Internal sphere: state still retains absolute sovereignty
may enact even in disregard of international laws but cannot abrogate, lessen or alter obligations with other states in international sphere

The Treaty of Rome and National Sovereignty

ROMANO, KENCZAR

The Treaty of Rome and National Sovereignty

The Treaty of Rome, which established the European Economic Community(EEC) is a permanent arrangement with no provisions for withdrawal. It set up the Council and Commission with power in wide range of matters. It likewise created a Court of Justice of the Community- the final Court of Appeal, in matters concerning the treaty.

In theory, since the point of view of their national laws, the provisions of the treaty can be disregarded. Regardless of the consequences this might provoke in the international law. However, the practical result is that the signatory states will regard the treaty as involving very solemn legal obligations and will naturally exert every effort to bring their national law into line with the requirements of the treaty.

This might lead to a time where lawyers will recognize that a change had imperceptibly been wrought in the actual law itself and that the Parliament could not, even if it wished, and even as a matter of strict law, legislate in defiance of such overriding matters.

Kelsens Pure Theory of Law

ROMANO, KENCZAR CALIWARA, LESTER

Kelsens Pure Theory of Law

Law is entirely autonomous and self-contained Its validity therefore has to be conceived in legal terms and not in terms of morals or of any other extraneous system of norms or values (such as that of treaties)

Kelsens Hierarchy of Norms

These lay down the rules which govern the application of norms on a lower level of generality and subordination, the highest norms being the most general and therefore the most abstract.
Whether

the act is lawful Policeman who is authorized to conduct the arrest. Such authority is derived from a judgment of a judge of the Court. The judgment may involve the application of a statutory order made by the Legislature.

What id the highest norm? Kelsens answer is that this norm is the Grundnorm, the basic norm and ultimate premiss of the whole system, and that for legal purposes we cannot go behind it.

The Basic Norm

In any normative system there must come to a point beyond which you cannot go because you have come to the outer edge of the whole system and any further inquiry you make is really an extraneous inquiry not within the terms of the system itself.

The Basic Norm

How to decide what is the basic norm? We must trace back the existing Constitution to a historical first Constitution that was either laid down as a result of a revolution or for a territory not previously possessing a Constitution.

The Basic Norm of International Law

Each nation can have its ultimate norm and treat international law as merely valid in so far as its norms are incorporated in those of the individual national system.

The Basic Norm of International Law

Monistic System The basic norm of every state is a rule imposing obedience to the rules customarily accepted as binding by states inter se.

(inter se - a rule which covers treaties, since it is already a customarily established international rule the treaties shall be observed by the parties thereto)

Solution to the Problems of Sovereignty

Legal validity cannot be reposed on purely de facto considerations such as obedience, but must be explained in normative terms.