Philosophy of Law – 1° December 2015 Sovereignty Philosophy of Law – 1° December 2015

Sovereignty Important topic philosophy of law within relationship law vs politics Origin Middle Ages Modern times, Europe birth of national states/decline idea of universal legal sytem(that medieval culture inherited from roman culture)

Sovereignty - defintion Excercise of political power within the State (internal sovereignty) relations among states (external sovereignty) The concept of sovereignty is the core attribute of the modern state. It has an “inside” face—the relation of the state to its citizens—and an “outside” face—the relation of states to other states.

Legal positivism 2 different/opposing ways of considering sovereignty and political power in the context of a different conception of law and politics and within the relationship between law-politics Legal positivism Law subordinate to politics Politics is prior(chronological sense) and superior(hierarchical level) to law Positive law is the result of political will

Legal positivism Power, superordinate to law, has no legal limits binding it(absolutism): Power states its own will (self-justifies itself through factual exercise) Example: despotic and tyrannical dominion “power for power” In engaging in its personal interests and advantages,power decides arbitrarily in compliance with its own will denying need for rational and ethical justification

self-conservation/self-affirmation objective does not(necessarly) consider the interests of community members disadvantageous to individuals law reduced to coercion politics to power (strong overwhelming weak)

Natural law theory We witness the opposite Super-ordination of law to politics Positive law is produced by politics(i.e.codes) Politics is subordinate to meta-positive/pre-positive law (natural law) Power is bound by law: To the extent to which power observes legal limits ensuring justice(human dignity/social co-existence)it is recognised (democratically) by citizens as authority

Natural law theory Power requires a justification: Foundation of the legitimacy of power is the common good(not self- interests) Power not arbitrary and limited to the benefit of all by delivering good social order as an advantage for all

Natural law theory Arbitrary power would be a “ corruption” of politics and disobedience to power is legitimate and dutiful. Theory that leads to the rule of law within constituionalism or neo-constitutionalism In the constituional rule of law all powers, including legislative one, are subordinate to law.

Rule of law with the expression rule of law we refer to a socio-political structure characterized by the law’s supremacy. Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law. it follows that in the Rule of law it should always be possible to sue the lawmaker - claiming the injustice of a law or any other regulation or decree promulgated by him – to obtain the annulment and possibly removing or condemning who has promulgated it.

Natural law theory Principle of legality (fundamental rights) and the separation of powers empty concept of absolute internal sovereignty

United Nations Charter (1945) Universal Declaration of Human Rights(1948) Concept absolute external sovereignty loses its right Birth super-state legal system rooted in human rights and peace assist to decline of absolute external sovereignty Political power defined by constitutional law-On internal level international law-On external level

Contractualist theory Identifies origin of power in contract stipulated by citizens who delegate part of freedom to sovereign’s management Individualistic anthropological conception State born from accidental agreement among wills it (does not exist independently from wills)

Contractualist theory In the contractualist conception the human’s active action is highlighted; In other words, State is the result of the individuals’ action; The pact or agreement between the members who constitute it assumes fundamental importance also in relation to the limits of the individuals’ rights and duties against the State.

Contratualistic theory can have various political outcomes: Absolutism (power is absolute as in Hobbes) Liberalism (sovereign recognises individual freedom rights as binding, as in Locke) Democracy (will identified with the whole people, as in Rousseau)

Organicist theory (different theorists from Aristotles to Hegel) Starting from relational anthropology (man=social being) State: cannot be conceived as the product of a conventional agreement among men original phenomenon (exists in nature indipendently from man’s will) Necessary for social co-existence Such theory led to both absolutist and democratic outcomes Theory supported by Aristotles, St.Thomas and Hegel

Organicist theory not possible to conceive the state as the product of a formal agreement between the men for the simple reason that this agreement already presupposes a mutual recognition of those who agree, it already assumes an intersubjective constraint of mutual reliance in which the essential of what should characterize the state is already present This natural inclination to political relation-ship (St.Thomas)

Organicist Theory Inother words,that “whole” constituting the State can not be formed by juxtaposing its parts (citizens), as if each particular will can produce the general will. the "whole" precedes the parts (not in ontological dignity, but structurally); citizens exist, because their being individuals does not influence their natural sociability, because they live in a community, in short, because there is the State, or, if you prefer to say because they have a motherland. È figlio di una patria, cioè di quel complesso di tradizioni, istituzioni,poteri sentimenti collettivi, che nello Stato e solo in esso giungono a maturazione. Every man is a son of a homeland, that is, that complex of traditions, institutions, powers, collective sentiments, that only in the State reaches maturity.

in this respect the State calls into question the category of "totality" and not totalitarianism. organicist theory refers to that totality which presupposes in citizens a common good (common- in everyone’s interest) this leads us to the principle of political organicism: Only the state which includes all human functions (no othr real community) will pursue promotion common good, it follows that the legitimacy of its power takes priority over any other form of collective association.

Politics vs Law Politics (similiar to law) is a form of associative co-existence extrinsically creating bonds between individuals and avoiding conflicts ‘closed’ in so much as being structurally ‘integrative-excluding’ Aggregation of individuals but does not include all human beings Law applies to everyone Only if rooted in common good regulating value and solidarity as a constitutive value can guarantee bonds between individuals