The State Power and the Limits of the Principle of Sovereignty: An Historical Approach

Abstract

This chapter explores the notion of sovereignty and the limits of state power in the framework of criminal justice. It is not an easy enterprise to counter terrorism while respecting the rule of law and guaranteeing the security of citizens to the maximum extent possible without violating their fundamental rights. Theoretically, modern constitutionalism emerged to protect citizens from political abuses of power. In practice, however, fundamental rights are not always fully respected since the state is often tempted to exercise its power beyond legal boundaries. To limit the power of the state means to limit its sovereignty. Otherwise, the abuses of power by the state become inevitable. Surprisingly, modern constitutionalism applied limits to the state during an historical period in which sovereignty was regarded, in the realm of political philosophy, as an unlimited notion (Rousseau). Nevertheless, the notion of sovereignty, being the result of a long development in the Western legal tradition (particularly from the Middle Ages to the sixteenth century), was never regarded as unlimited. The first chapter analyses the limits to the principle of sovereignty in three specific periods. Firstly, in Roman antiquity, when, during the transition between the Republic and the Principality, Cicero weighed the values, principles and institutions of the republic, by resorting to the defence of freedom, the class of the optimates, a mixed constitution and to the natural law. Secondly, in the Middle Ages, where, in front of the Emperor, the Papacy, Pact laws and the observance of natural law became elements to limit the sovereignty of the monarch. Lastly, in the early Modern Age, the notion of sovereignty – and its limits – was notably developed by Jean Bodin in his most famous work, The Six Books of the Commonwealth. This historical survey is an attempt to demonstrate that the challenge of dealing with emergency is not new, and that the lessons of history demonstrate that unchecked power of the sovereign leads to the demise of liberty.