A Problem of Power: The Impact of Modern Sovereignty on the Rule of Law in Comparative and Historical Perspective

Abstract

Sovereignty may be seen as the essential ground or origin of legal authority; the sovereign is that person or group whose will must be expected to prevail. Important concrete principles and practices flow from this assumption. One cannot sue the sovereign because this would give courts the power to command their superior, undermining the sovereign’s role as supreme lawgiver. National governments can only be bound by treaties to which they have given their assent, lest their sovereign self­mastery be denied. According to this view, there must be a source of law above the law or there is no real, full law of any kind, only conflict over what the law ought to be.