Sovereignty Under Law: A Possible Redefinition of Sovereignty in the Light of Locke's Theory of Liberty

Does the concept of sovereignty under law necessarily involve a self-contradiction? That it does, has admittedly been held by the great majority of careful thinkers from the time of Hobbes to the present day. Nor has this been inconsequential. The belief that submission to an enforceable law would be a surrender of sovereignty has been a most potent obstacle to the substitution of the law court for the battlefield in the determination of international disputes. On the other hand, it is generally conceded that for the individual the only liberty worth seeking is liberty under law. It is the thesis of this article that sovereignty under law for the state is no more absurd than liberty under law for the individual.The term “sovereignty” has been variously and elaborately defined, but for present purposes its essential elements may be listed as authority, equality, and liberty. The first-named attribute—authority—has its great importance in the field of constitutional law, which postulates that in every state there is some agency or combination of agencies possessed of the authority to control everything within the state. However, it is well known that the rise and spread of constitutionalism and federalism have rendered the concept of sovereign authority increasingly mystical. Even in Great Britain, the old simplicity of the sovereignty of “King in Parliament” has been complicated by the Parliament Act of 1911, and especially by the Statute of Westminster of 1931. To-be sure, it is easy enough to visualize sovereign authority in a dictatorial régime, but this arouses no envy on the part of those who enjoy other forms of government.