Sovereignty and Positivity

This chapter argues that one can glimpse the nature of sovereignty in the ability to positivize the highest legal rules binding on the community. There is no legal positivity for the authority order of the modern state without sovereignty. The legal derivation and attribution that grounds legal judgments, administrative acts, and legal transactions in the law, and the law in the constitution, inevitably falls into a yawning void if it dissolves the connection between the positivity of law and the sovereignty of the state. The jurist must take as a starting point the fact of sovereignty; otherwise he loses the object of his science—positive law—and will be left hanging in the air with all his science and practice.

The Claim of Sovereignty in International Law and against International Law

This chapter considers the attempt of contemporary international law doctrine to minimize the concept of sovereignty. The attempt is made to draw its fangs by construing the nature of sovereignty as a kind of modest, legally normed capacity to act, as authority under international law, or as a discretionary sphere granted by international law. However, this operation can never succeed using the tools of international law, because international law is only possible as long as there are at least two absolutely independent territorial decision-making units. The sovereignty problem has become more complicated for members of the League of Nations and its Permanent International Court in The Hague. The principles of a treaty order free of domination on which these institutions rest have not fundamentally changed; voluntariness and unanimity are preserved under these principles.

The Crisis of the Dogma of Sovereignty in the History of Ideas

This chapter considers Bodin’s theory of sovereignty. Bodin’s concept of sovereignty was the result of a war fought by the French state under the leadership of the king and the University of Paris against the king’s subjection to the Catholic Church and the empire, as well as against the subordination of state power to the feudal barons. Even before Bodin, the “initially relative, comparative concept of royal sovereignty” had changed to “an absolute one.” The state, represented in the king, which had heretofore only been superior in its relationship to the Church, empire, and barons, now became “supreme.” Bodin was the first to claim sovereignty as a defining criterion of the state.

Foreword to the Original German Edition

I commit this work to the public in full awareness of the great gamble it involves. It does not and cannot pretend to be exhaustive; it should be taken as an initial breaking of ground to prepare to rebuild the theory of the state on foundations that have been shaken. On the question of methodology, aside from a few remarks strewn throughout the text, I will say only one thing here. If we permit the theory of the state to place not the state, but some law, be it causal or normative, at its center, instead of taking as its starting point the meaning or nature of that concrete political unity in multiplicity that we call the state, we must ultimately end in more or less the same place as the contemporary theory of state law that lacks both state and law, and which banishes the lawmaker from its scope as something unjuristic, while recognizing the criminal as an organ of state. This last flowering of natural science conceptualization must be recognized as a symptom of a dominant method that functionalizes all individuality and is unable to allow either the concrete form of the state and the human personality, or that of the law, a logical-systematic meaning. This method must be destroyed at its roots, and state law theory restored to its original literal sense as an understanding of the essential juristic structure of the state and its institutions....

The Juristic Limits of and the Absolute Character of Sovereignty

This chapter discusses how sovereignty retains its absolute character despite highly developed international law. It argues that states’ social interdependence does not itself negate their juristic independence. Even the peace treaty forced upon the conquered state by the victor does not negate the sovereignty of the conquered, but only confirms it. Nor does the concept of sovereignty lose its absolute character as a result of international law obligations. “International law does not and cannot exist apart from distinct nations, separate, and living their own lives. So it must write on the pediment of its edifice that nations have the right to preserve themselves and to freely take the measures that serve this objective.” This absolute right of self-preservation demanded by international law is the basis for the absolute character of sovereignty.

The Sovereignty of the State and the Problem of International Law

This chapter argues that any study of international law that does not take the existence of a plurality of sovereign units of will as its starting point is doomed to fail from the start. International law exists only as long as there are at least two universal and effective territorial decision-making units. The sovereign state is a necessary part of juristic thought but international law is not. The “world state” and the state that isolates itself behind a Chinese wall would exist as sovereign decision-making units even without international law; international law without sovereign states, however, is a conceptual impossibility. The chapter shows that the sovereignty of the state is not an obstacle to international law, but an essential requirement for it.

The Nature of Sovereignty

This chapter discusses the nature of sovereignty, covering the sovereign state person and sovereignty as a characteristic of the state. It suggests that a dominant tendency of legal science is to see in the state person a “fictional person” [persona ficta], a purely ideal normative subject, and to merge this with the impersonal legal order. However, there can be no norm-logical imputation without constant reference to nomological knowledge, without insight into the regularities of causal connections. Jurists should separate imputation and causation just as they do normative and psychological will; but for specific juristic reasons, these cannot be torn apart.

The Sovereign Person

This chapter attempts to secure a sovereign person to positivize the supreme legal principles, one who is capable of making consciously evaluative decisions. This person must, on the one hand, eventually become a real bearer of the will, while, on the other, must be an independent, law-creating authority. A person equipped with these characteristics is unknown to the present theory of the state. In Germany, the dominant theory since Hegel maintains that the sovereign person is the state; sovereignty is a characteristic of state power or, in a relationship that is not entirely clear, the state’s will or state personality. The state can only be considered the sovereign person, however, if it is seen, with objective necessity, as a unified reality of will or decision-making unit.

Rule and Order

The sociological problem of sovereignty, and thus the fundamental sociological problem of public law, is the relationship between rule and order. No one has yet denied that the problem of rule belongs in sociology; and no public law scholar, despite lawyers’ aversion to sociological questions, has been able to skirt the concept of rule. More controversial is the possibility of dealing with the concept of social order ontologically, and the legal fruitfulness of such an interpretation. This chapter shows that a public law theory could not manage without establishing independently the causal structure of its subject, the legal order. The problem of sovereignty is so muddled not least because jurisprudence has become entangled in the net of its terms, with no regard for causation.

Introduction

Hermann Heller published Sovereignty: A Contribution to the Theory of Public and International Law [Sovereignty]1 in 1927 as an intervention in the interwar debate about the nature of sovereignty. In large part it is a response to the most important legal philosopher of the last century, Hans Kelsen, and in particular to his work of 1920, ...