Bodin has said that the ruler is not totally absolute, but subject to the Constitution because it is the Constitution that makes him a ruler. The constitution must, according to him, accord with the
“Laws of God and Nature to which all kings and princes are subject.”
Hooker (1554 – 1600), Grotius (1583 – 1645) Hobbes (1588 – 16790 Locke (1632 – 1704) and Rousseau (1712 – 78)
enunciated and expanded the social contract theories. They are consensual that man, by contract with fellow men surrendered his personal sovereignty – the “summe” of rights of nature – to the sovereign (the state or a ruler or volonte generale). The compact was in pursuance of man’s quest for a society for his own good (Hooker), to alleviate the ‘solitary, poor, nasty, brutish, and short’ life in a state of nature (Hobbes), to preserve his property, life, liberty and estate of man as he lived in the golden era (Locke) or to defend and protect with common force, the person and goods of each associate. (Rousseau). The surrender was to the Prince (Bodin), ruler (Hooker), sovereign command (Hobbes) general will of the community rather than a single sovereign (Rousseau) or the community which acts through its representatives (the Legislative ), itself a creation of the people (Locke).
Whether the social contract theory is real or a fiction and whether or not it has been borne out by anthropological research is not the issue here. Our concern is their conception of sovereignty or supremacy.
According to the founder of the English analytical positivist, Jeremy Bentham (1748 – 1832) and his disciple, John Austin (1790 – 1859), the sovereign is a superior, who may be a person or assemblage of persons whose act or command is law and whose subjects are supposed to be in the habit of obeying him. In their view, the sovereignty does not receive order from anybody and is above the law. Austin believed that every developed state has to have a “sovereign’ who makes laws in the form of commands which are habitually obeyed and whose legal authority is absolute, indivisible and without limit. The Sovereignty may be subject to certain checks. Bodin’s Prince is subject to the Constitution which made him Prince and to the law of god and nature. In other cases, the fundamental terms of the compact are over-riding.
If the sovereign (for example) commands a man to kill, wound or maim himself or not to resist those that assault him or to abstain from the use of food, air, medicine, or any other thing without which he cannot live, yet hath that man the liberty to disobey “Locke and Roussean have argued that the Sovereign is the Community, and the government acts in fiduciary capacity, like what the board of directors is to a registered company.
The State must be distinguished from its ruler. When man entered into compact with fellow men and gave up personal sovereignty, the state evolved. (Hooker) Machicavelli (1469 – 1527) saw the preservation and success of that State as an end. There is no independent community (or state) governed by law without some authority ‘whether residing in one person or in several whereby
the law themselves are established and from which they proceed. Bodin in his book Six Books of the Republic wrote:
It is the distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another, for it is he who makes laws for the subjects, abrogates law already made and amends absolute law. No one who is subject either to the law or to some other person can do this. That is why it is laid down in the civil law that the Prince is above the law, for the word law in Latin implies the ‘command of him who is invested with sovereign’.
Wheare concludes saying that Parliament is sovereign and supreme and there is no legal limits on its power of amendment in the United kingdom.
If the sovereign (for example) commands a man to kill, wound or maim himself or not to resist those that assault him or to abstain from the use of food, air, medicine, or any other thing without which he cannot live, yet hath that man the liberty to disobey “Locke and Roussean have argued that the Sovereign is the Community, and the government acts in fiduciary capacity, like what the board of directors is to a registered company.
The State must be distinguished from its ruler. When man entered into compact with fellow men and gave up personal sovereignty, the state evolved. (Hooker) Machicavelli (1469 – 1527) saw the preservation and success of that State as an end. There is no independent community (or state) governed by law without some authority ‘whether residing in one person or in several whereby
the law themselves are established and from which they proceed. Bodin in his book Six Books of the Republic wrote:
It is the distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another, for it is he who makes laws for the subjects, abrogates law already made and amends absolute law. No one who is subject either to the law or to some other person can do this. That is why it is laid down in the civil law that the Prince is above the law, for the word law in Latin implies the ‘command of him who is invested with sovereign’.
Wheare concludes saying that Parliament is sovereign and supreme and there is no legal limits on its power of amendment in the United kingdom.
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