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LAW111/ 101 legal method
1.0 INTRODUCTION
Today's lecture focuses on one of the most fundamental concepts in jurisprudence: the relationship between law, the state, and sovereignty. These concepts form the backbone of our legal system and understanding them is crucial for anyone studying law.
When we talk about law, we often take for granted the authority behind it. Who makes the law? Who enforces it? By what right do they do so? These questions lead us directly to the concepts of state and sovereignty.
Throughout history, civilizations have grappled with these questions. From the ancient Greek philosophers like Aristotle who pondered the ideal form of governance, to Thomas Hobbes who theorized about the social contract, to modern legal theorists like Hans Kelsen and H.L.A. Hart who developed sophisticated models of legal systems.
In Nigeria, as in other nations, these concepts aren't merely theoretical - they have practical implications for our constitutional framework, federal system, and the relationship between various branches of government.
Let's begin by clarifying what we aim to achieve in this lecture.
2.0 OBJECTIVES
By the end of this lecture, you should be able to:
* Define and distinguish between the concepts of law, state, and sovereignty
* Analyze the relationship between these three concepts
* Explain different theories of sovereignty (legal, political, internal, external)
* Evaluate who truly holds sovereign power in different types of states
* Apply these concepts to analyze the Nigerian political and legal system
* Critique traditional notions of sovereignty in light of globalization and international law
3.0 LAW, SOVEREIGNTY AND THE STATE
3.1 Defining Key Concepts
3.1.1 What is Law?
There is no universally accepted definition of law. Different legal philosophers have offered different perspectives:
John Austin defined law as "a command set by a superior being to inferior beings and enforced by sanctions." This is known as the command theory of law.
Hans Kelsen viewed law as a hierarchical system of norms where each norm derives its validity from a higher norm, ultimately reaching what he called the "Grundnorm" or basic norm.
*H.L.A. Hart saw law as a union of primary rules (which govern conduct) and secondary rules (which govern how the primary rules are recognized, changed, and adjudicated).
For our purposes, we can define law as a system of rules recognized by a community as binding and enforced by an authority.
What is the State?
The state is a political organization comprising:
* A defined territory
* A permanent population
* A government
* Sovereignty (independence from external control)
These elements come from the 1933 Montevideo Convention on the Rights and Duties of States, which codified the declarative theory of statehood in international law.
3.1.3 What is Sovereignty?
Sovereignty refers to supreme authority within a territory. It is the power to make and enforce laws without foreign interference.
Jean Bodin, a French jurist of the 16th century, described sovereignty as "the absolute and perpetual power of a commonwealth." Thomas Hobbes, in his work "Leviathan," portrayed sovereignty as the soul of the artificial person we call the state.
3.2 The Relationship Between Law, State and Sovereignty
These three concepts are deeply intertwined:
The state exercises authority through law
Law derives its authority from the sovereign
Sovereignty is manifested through the state's legal order
In simpler terms:
1. The state creates and enforces law
2. Law establishes and regulates the state's institutions
3. Sovereignty gives the state the authority to make and enforce law
Consider Nigeria as an example. The 1999 Constitution (as amended) establishes Nigeria as a sovereign state, creates the framework for governance, and is the supreme law of the land. The sovereignty of Nigeria is exercised through its constitutional framework, which distributes powers among the federal, state, and local governments.
3.3 Types of Sovereignty
Sovereignty can be classified in several ways:
3.3.1 Legal Sovereignty
Legal sovereignty refers to the supreme law-making authority in a state. In the United Kingdom, for instance, Parliament is legally sovereign according to the doctrine of parliamentary sovereignty. In Nigeria, legal sovereignty is embodied in the Constitution, which is described as the supreme law in Section 1(1) of the 1999 Constitution.
Legal sovereignty answers the question: Who has the final authority to make law?
3.3.2 Political Sovereignty
Political sovereignty refers to the political power that stands behind legal authority. It is the ultimate political power in the community.
While the legislature may have legal sovereignty, the electorate who can vote them in or out possesses political sovereignty. In Nigeria, Section 14(2)(a) of the 1999 Constitution affirms that "sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority."
Political sovereignty answers the question: From whom does the law-making authority derive its power?
3.3.3 Internal Sovereignty
Internal sovereignty refers to the state's supreme authority over all individuals and associations within its territory. It involves the power to make and enforce laws, collect taxes, maintain order, and administer justice.
In Nigeria, the federal government exercises internal sovereignty, although this is distributed among the three tiers of government (federal, state, and local) according to the constitutional framework.
3.3.4 External Sovereignty
External sovereignty refers to independence from control by other states. It involves recognition by other states, the capacity to enter into international relations, and freedom from unwanted external interference.
Nigeria's external sovereignty is exercised through its foreign policy, international agreements, and participation in international organizations like the United Nations, African Union, and ECOWAS.
3.4 Limitations on Sovereignty
Despite the theoretical absoluteness of sovereignty, in practice, it faces several limitations:
3.4.1 Constitutional Limitations
In constitutional democracies like Nigeria, sovereignty is limited by constitutional provisions. For instance, the Nigerian Constitution restricts governmental powers through:
* Fundamental human rights provisions (Chapter IV)
* Separation of powers among the executive, legislature, and judiciary
* Federal division of powers
3.4.2 International Law
States increasingly limit their sovereignty by entering into international treaties and agreements. By joining organizations like the United Nations, World Trade Organization, or African Union, states agree to abide by certain rules that limit their freedom of action.
In Nigeria, Section 12 of the 1999 Constitution requires that international treaties be domesticated through national legislation before they become binding.
3.4.3 Globalization
Economic interdependence, transnational corporations, global financial markets, and international civil society have all eroded traditional notions of state sovereignty. States can no longer act with complete independence in economic or even political matters.
4.0 WHO IS SOVEREIGN?
This question has different answers depending on the type of state and theoretical perspective:
4.1 In a Democracy
In a democratic state, sovereignty ultimately resides with the people. This is the principle of popular sovereignty. The people delegate their sovereign power to representatives who exercise it on their behalf.
In Nigeria, Section 14(2)(a) of the 1999 Constitution explicitly states that sovereignty belongs to the people. However, this sovereignty is exercised through elected representatives at various levels of government.
4.2 In an Autocracy
In an autocratic state, sovereignty is concentrated in a single ruler or small ruling group. The monarch in an absolute monarchy, the dictator in a dictatorship, or the ruling party in a one-party state exercises sovereign power.
Historically, Louis XIV of France exemplified this concept with his famous statement "L'État, c'est moi" ("I am the State").
4.3 In a Federal System
In a federal system like Nigeria, sovereignty is shared between the federal government and the component states. The constitution delineates the spheres of authority for each level of government.
The Nigerian constitution, in the Second Schedule, divides legislative powers between the federal government (Exclusive Legislative List) and concurrent powers shared with states (Concurrent Legislative List). Residual powers not listed in either belong to the states.
4.4 Theories of Sovereignty
Different theories provide different answers to the question of who is sovereign:
4.4.1 Divine Right Theory
This theory, associated with monarchies, posits that sovereignty comes from God, who grants it to the monarch. The monarch is answerable only to God, not to the people.
James I of England was a proponent of this theory, arguing that kings were "God's lieutenants on earth."
4.4.2 Social Contract Theory
Developed by philosophers like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, this theory suggests that sovereignty originates from a social contract among people who consent to be governed.
Hobbes argued that people surrender their natural rights to a sovereign (Leviathan) in exchange for protection and order. Locke suggested a more limited surrender of rights, with the people retaining the right to overthrow a government that violates the social contract.
4.4.3 Popular Sovereignty Theory
This theory holds that sovereignty resides ultimately with the people, who delegate it to government. Government exercises sovereignty as a trustee for the people.
The American Declaration of Independence exemplifies this view: "Governments are instituted among Men, deriving their just powers from the consent of the governed."
4.4.4 Pluralist Theory
This theory, associated with thinkers like Harold Laski, argues that sovereignty is not absolute but is distributed among various associations and groups within society. No single entity, including the state, has absolute sovereignty.
4.5 Contemporary Challenges to Sovereignty
Several developments in recent decades have challenged traditional notions of sovereignty:
4.5.1 Globalization
The increased interconnectedness of the global economy has diminished states' control over their economic affairs. International financial institutions, multinational corporations, and global markets all constrain state sovereignty.
4.5.2 International Organizations
Membership in organizations like the United Nations, European Union, or African Union involves surrendering some sovereign powers to supranational bodies.
4.5.3 Human Rights Norms
The development of international human rights law has challenged the traditional notion that how a state treats its citizens is solely a domestic matter. Doctrines like the "Responsibility to Protect" suggest that sovereignty is conditional on states protecting their citizens.
4.5.4 Non-State Actors
Terrorist groups, transnational criminal organizations, and civil society networks operate across borders, challenging states' monopoly on power within their territories.
5.0 SUMMARY
In this lecture, we have explored the intricate relationship between law, the state, and sovereignty. We have seen that:
* Law is a system of rules recognized by a community as binding and enforced by an authority
* The state is a political organization with a defined territory, permanent population, government, and sovereignty
* Sovereignty is supreme authority within a territory
We have examined different types of sovereignty:
* Legal sovereignty (supreme law-making authority)
* Political sovereignty (ultimate political power)
* Internal sovereignty (supreme authority within a state)
* External sovereignty (independence from other states)
We have also considered who is sovereign in different types of states and according to different theories:
* In democracies, the people are ultimately sovereign
* In autocracies, the ruler or ruling group is sovereign
* In federal systems, sovereignty is shared between levels of government
* Various theories (divine right, social contract, popular sovereignty, pluralism) offer different perspectives
Finally, we have noted contemporary challenges to traditional notions of sovereignty, including globalization, international organizations, human rights norms, and non-state actors.
6.0 CONCLUSION
The concepts of law, state, and sovereignty are foundational to understanding legal and political systems. While these concepts have evolved over centuries, they remain relevant in today's world, albeit in modified forms.
As future legal practitioners, your understanding of these concepts will inform your interpretation and application of law. Whether you work in constitutional law, international law, or any other field, the relationship between law, state, and sovereignty will be an underlying theme.
As Nigeria continues to develop its democratic institutions and navigate the challenges of globalization, questions about sovereignty will remain pertinent. Who truly holds sovereign power in Nigeria? How should sovereignty be exercised? How can Nigeria maintain its sovereignty while participating in the international community? These questions will require thoughtful analysis by legal minds like yourselves.
I encourage you to reflect on these concepts as you progress in your legal studies. The better you understand the foundations, the more effectively you can engage with the complexities of modern legal systems.
7.0 TUTOR MARKED ASSIGNMENT
1. Define law, state, and sovereignty, and explain the relationship between these three concepts. (15 marks)
2. "Sovereignty in the 21st century is not what it was in the 19th century." Discuss this statement with reference to at least three challenges to traditional notions of sovereignty. (20 marks)
3. Analyze the concept of sovereignty within Nigeria's federal system. To what extent is sovereignty shared between the federal government and the states? (15 marks)
4. Compare and contrast any two theories of sovereignty discussed in this lecture. Which theory best explains the source of sovereignty in modern Nigeria? (20 marks)
5. Case Study: The International Criminal Court (ICC) claims jurisdiction over certain crimes committed in Nigeria, even if Nigerian courts choose not to prosecute them. Does this arrangement violate Nigeria's sovereignty? Discuss, referring to relevant concepts from the lecture. (30 marks)
8.0 REFERENCES
Appadorai, A. (1975). *The Substance of Politics*. Oxford University Press.
Austin, J. (1832). *The Province of Jurisprudence Determined*. London: John Murray.
Dicey, A.V. (1885). *Introduction to the Study of the Law of the Constitution*. London: Macmillan.
Elias, T.O. (1954). *Groundwork of Nigerian Law*. London: Routledge & Kegan Paul.
Hart, H.L.A. (1961). *The Concept of Law*. Oxford: Clarendon Press.
Hobbes, T. (1651). *Leviathan*. London: Andrew Crooke.
Kelsen, H. (1945). *General Theory of Law and State*. Cambridge: Harvard University Press.
Laski, H.J. (1917). *Studies in the Problem of Sovereignty*. New Haven: Yale University Press.
Nwabueze, B.O. (1982). *A Constitutional History of Nigeria*. London: C. Hurst & Co.
Nwabueze, B.O. (2003). *Constitutional Democracy in Africa*. Ibadan: Spectrum Books.
Obilade, A.O. (1979). *The Nigerian Legal System*. London: Sweet & Maxwell.
Rousseau, J.J. (1762). *The Social Contract*. Amsterdam: Marc Michel Rey.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Tobi, N. (1996). *Sources of Nigerian Law*. Lagos: MIJ Professional Publishers.