State Power and Sovereignty: Concept and Limits
For a group of people to become a State, there needs to be an independent power—a supreme and final authority—that possesses sufficient legitimacy and, therefore, the capacity to command and secure obedience from its citizens.
The defining characteristics of this State power are:
- Imperative: Orders are not questioned or negotiated with the State; they must be complied with.
- Public: It is exercised on behalf of the community that this government represents and is entitled to.
- Geographically Specific: The three elements that make up the State (people, territory, and power) are interrelated. The territory serves as a spatial field of jurisdiction.
- Legal: It is exercised through the law. The set of rules governing the life of society forms an integrated system of interdependent legal standards. The power, in some cases, creates and recognizes other valid standards, always honoring and respecting them.
As a system, the legal system maintains unity in two ways:
- Formal unity, given by the procedures of standards development and the hierarchy between them.
- Physical unity, as the rules follow the same system of values or principles.
In the constitutional state of law, the rule that determines both the powers of each body and the form of production rules, as well as the values they must adhere to, is the Constitution (by definition, the supreme law). Furthermore, the law must be consistent, meaning there must be consistency among all regulations. This consistency operates in two directions:
- Horizontally, concerning standards of equal rank. There is no hierarchical relationship, but rather relationships of timing (the later standard supersedes the earlier), space (due to the territorial distribution of political power), or competence (certain rules are pre-determined by law to regulate specific subjects, preventing other rules from regulating what is reserved to them).
- Vertically, where we deal with senior rules and regulations of lower rank. The dependence is clear: the lower standard, to be valid, must be consistent with the higher standard, all of which must ultimately be consistent with the Constitution.
Beyond these formal aspects, substantive criteria established by the Constitution must be met. No rule applies, even if it conforms to the procedures for its creation, if its content violates the fundamental rule of law also set out therein.
The legal system is also characterized by its claim to provide a sound answer to all problems arising in social life (the law is, or aspires to be, complete). In other words, in good legal theory, there is no room for gaps or voids. Everything must be provided for in the standard. However, the law is not limited to the provisions of the law. Sources of Spanish law also include custom and general principles of law. Through these, and jurisprudence, the legal system and regulation of social relations, in accordance with criteria of justice, can reach all cases and assumptions.
- Finally, the power of the State, besides being legally organized, is sovereign.
We have previously clarified the meaning of the concept of political sovereignty. Here, we return to this issue and make the following considerations:
- State power is sovereign because it is the ultimate and definitive authority in making decisions and does not accept any challenge to its power.
- From a formal point of view, the concept of sovereignty we use today is the same as that found at the origin of the State, but the subject holder has changed, and limitations have been incorporated. The subject is no longer the absolute king but the people.
- Being the only sovereign, the people embody a liberal democratic conception of the State, supporting the limitation of powers and the rule of law. In this case, the power of rulers (parliament, government) and judges are limited and under control. However, popular power is not.
- The Constitution is the instrument that establishes the original constituent power, setting the limits and characteristics of the powers of rulers.