January 2012 ~ The Lawster

Parliamentary Sovereignty

Sovereignty is a key concept in all constitutions; it defines the location of supreme constitutional power. Constitutions define the duties, powers and functions of the various institutions of government, whilst the sovereign body, or any body that shares sovereignty, has the ability to shape the constitution itself. In this way, it defines the powers of subordinate bodies. In the United Kingdom, sovereignty is located in parliament, or technically in the ‘Crown in Parliament’. Parliamentary sovereignty is strictly a form of legal sovereignty; it means that parliament has the ability to make, amend or dissolve and law it wishes. Parliamentary sovereignty is, without a doubt, the most important principle in the constitution of the United Kingdom. As J. S. Mill (1806-73) described it, ‘Parliament can do anything except turn a man into a woman’.

Where does the sovereignty come from?
The prime political leader to solve this problem was Thomas Hobbes. His book is called Leviathan, in which he compared the state to Leviathan. “In Leviathan, Hobbes set out his doctrine of the foundation of states and legitimate governments - based on social contract theories. Leviathan was written during the English Civil War; much of the book is occupied with demonstrating the necessity of a strong central authority to avoid the evil of discord and civil war. Beginning from a mechanistic understanding of human beings and the passions, Hobbes postulates what life would be like without government, a condition which he calls the state of nature. In that state, each person would have a right, or license, to everything in the world. This inevitably leads to conflict, a "war of all against all" (bellum omnium contra omnes), and thus lives that are "solitary, poor, nasty, brutish, and short".”1 To escape this state of war, men in the state of nature accede to a social contract and establish a civil society. “According to Hobbes, society is a population beneath a sovereign authority, to whom all individuals in that society cede their natural rights for the sake of protection. Any abuses of power by this authority are to be accepted as the price of peace. However, he also states that in severe cases of abuse, rebellion is expected. In particular, the doctrine of separation of powers is rejected: the sovereign must control civil, military, judicial and ecclesiastical powers.”2

Hobbes is the first great political thinker who doubts that a human is a priori designed to live in a political order, society, that the human is a political creature. Ergo the state is a built, artificial and an unnatural way of living, but the only one that enables humans to leave peacefully.

Each state is based on ratio, because this is the only way of retaining our life. State is a necessary, but not always a sufficient means to curb social war. According to Hobbes states in the medieval world have failed, because they did not manage to prevent their own death; the death of their political order. Then what is a good state? - Hobbes’s answer: sovereign states; states that are not bound by religion or old privileges. Why? How? Because human beings are not designed to live together, because state is only necessary for installing peace; people bring about the state – Leviathan – in which one person has the sovereignty.

The origin of sovereignty, as viewed by Hobbes, is democratic – this is a political order, in which every citizen gives up his or her natural rights and chooses state instead. So the king brings about our rights to decide, because we have transferred to him our rights to decide. Even if a citizen disagrees, he still has to comply with his sovereign’s decisions – this is in essence the social contract. The state decides on right and wrong and because the origin of the state is democratic, it exists only as long as its citizens want it. However, the alternative is worse – a war and death. Hobbes believes that it is either civil war, or strong order.

Hobbes’s beliefs might sound totalitarian. However, Hobbes also states that there is no such thing like objective truth, ultimate veritas. We cannot know whether state is a good thing or not, because truth does not exist. Only the sovereign decides what is true. The sovereign cannot force us to believe, but can command us to comply with his orders. Hobbes introduces the difference between faith and confession. Faith is individual and unenforceable, while confession is enforceable. So he introduces the first human right, the first universal human freedom – the freedom of conscience. The state cannot rule our conscience, only our actions; it can bind us to a confession, not to a faith. As a result, faith becomes neutral. It is Christianity, not Catholicism or Protestantism. Before Hobbes, laws were holy, as they were Christian, there were no contradictions: Obey the state, obey the religion. After Hobbes the binding force of the law comes not from Veritas Christiania, but from Auctoritas. This is the logical and conceptual basis of positive law. Hobbes neutralizes the state and gives foundation for the possibility of the separation of the law and the state from the religion and faith. He makes clear that state is not natural, but cultural a human invention to protect people from war and extermination. He says that state is a mortal god. He is also the first thinker to distinguish between public and private space – a person is in one and the same time a citizen and individual. Jean Bodin is the first one to distinguish between public and private law.

Hobbes’s ideas give basis for the next idea, namely that sovereignty does not only originate from people, the people are the sovereign. This is the idea on which the American and the French constitutions are based on. This principle is legalized in the idea of written Constitution that originates from the people.

Examples:
USA’s Constitution, the first Constitution ever written, states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” This is a legal fiction – of course not everybody signed the Constitution! It simply shows that the sovereignty comes from the people. Although a small part of the USA citizens could actually vote, still it was true from a legal point of view that people were sovereign, because their representatives acted on their behalf.

Sources:
Infidels.org
Leviathan
OregonState.edu
SparkNotes
Wikipedia

Constitutional law focuses on the organization of the state. Constitutions do not just exist as a collection of simple rules defining and granting power, but instead these rules put into practice a legal framework of principles.

What is a constitution?
A constitution comprises a set of rules which aim to establish the duties, powers and functions of the various institutions and branches of the government. The rules enshrined in the constitution regulate the relationship between the branches of government and ensure that there can be no abuse of power by creating a separation of power and ensuring that there are sufficient checks and balances in place, allowing the three branches; legislative, executive and judicial, to function together without any one branch having a dominant and powerful position over the others. Additionally, the constitution also defines the relationship between the state and individuals and therefore defines the extent of civil liberty which shall be granted within a state.

“Substantively, a constitution is a body of law that:

Attributes power to public authorities
Regulates the fundamental relations between public authorities
Regulates the fundamental relations between the public authorities and the individual”

Introduction to Comparative Constitutional Law Second Edition, A. W. Heringa and Ph. Kiiver, Page 3.

The purpose of a constitution
Constitutions exist to control and regulate the power of the government. Power corrupts man, and citizens must be protected from the people in power; without this protection, citizens have no protection against tyranny. Without a constitution, the government would have the power to pass any laws, which could lead to the oppression of minorities, violation of freedom, and so on. We have seen cases of such power abuse during the reign of Hitler and Nazi Germany, where Jews were oppressed.

Codified and Uncodified Constitutions

Codified Constitutions
Codified constitutions are in theory enshrined in law. A codified constitution is one which is based on the existence of a single written authoritative document. This central written document lays down the core principles of the system of government. The main body typically outlines the duties, powers and functions of the major institutions of government.

Three key features of a codified constitution:

Authoritative – In a codified constitution, the end document itself is authoritative in the sense that it constitutes ‘higher law’. All political institutions are bound by the constitution; this creates a two-tier legal system, where the constitution stands above statute law which is created by the legislature.
Entrenched – The provisions laid out in a codified constitution are entrenched, which means that they are difficult to amend or abolish. The amendment procedure is more complex than the procedure for making ordinary statutes. Some constitutions contain certain clauses which prevent them being changed at all, such as the German ‘eternity clause’, whilst others prevent the changing or amending of parts of the constitution during times of conflict, or before a certain time period.
Judiciable – The constitution sets out all of the duties, powers and functions of the governmental institutions in terms of ‘higher law’; this means that all political bodies are subject to the authority of the courts, including the Supreme Court and the Constitutional Court.

Advantages of a codified constitution

Clear Rules – Rules are clearly defined which results in less confusion and greater certainty that constitutional rules can be enforced.
Limited Government – Ends parliamentary sovereignty and thus ends the problem of elective dictatorship. Higher law would safeguard the constitution from interference by the government.
Neutral Interpretation – The constitution would be ‘policed’ by senior judges; judges would be the guardians of the constitution. This would ensure that provisions of the constitution are properly upheld by other public bodies. Judges are ‘above’ politics, they would act as neutral and impartial constitutional arbiters.
Protect Rights – Individual liberty would be more securely protected. The relationship between the state and the citizens would be defined, possibly through a bill of rights. Thus, they will be clearly defined and easier to enforce.
Education and Citizenship – The central values and overall goals of the political system are highlighted in a codified constitution; this would strengthen citizenship by creating a clearer sense of political identity, which may become particularly important in an increasingly multicultural society.

Uncodified Constitutions
Uncodified constitutions are becoming increasingly rare and at present there are only three liberal democracies which continue to utilize an uncodified constitution ; these are the United Kingdom, Israel and New Zealand.

Similarly to codified constitutions, uncodified constitutions have three defining features:

Not Authoritative – Laws and provisions within the constitution share the same status as ordinary laws; these means that states with an uncodified constitution have a single-tier legal system, where there is no form of higher law in the hierarchy.
Not Entrenched – The constitution can be changed through normal legislative processes for enacting statute law; this is reflected in the United Kingdom, where there is a principle of parliamentary sovereignty, through which parliament can make, dissolve and amend any law it wishes, including laws that directly affect the constitution.
Not Judiciable – Due to the absence of a higher law, judges do not have a legal standard, enshrined in a written constitution, against which they can declare that actions of other bodies are ‘constitutional’ or ‘unconstitutional’; this is known as ‘constitutional review’.

Advantages of an uncodified constitution

Less Rigidity – Higher law is harder to change than statute law. Due to this, the law constitution could become out dated and fail to respond to the ever-changing political environment. An uncodified constitution does not recognise ‘higher law’ and uses a single-tier legal system, meaning that it is easier to change the provisions within the constitution.
No Judicial Tyranny – It is argued that judges should not have the responsibility of ‘policing’ the constitution as they are unelected and socially unrepresentative. The constitution could thus be interpreted in a way that is not subject to public accountability.
Less Legalistic – Codified constitutions are created by people at one point in time, so they are often only properly understood by lawyers and judges. Uncodified constitutions are endorsed by history and have an organic character.
Less Political Bias – Constitutional documents are inevitably biased as they enforce one set of values or principles in preference to others. Codified constitutions can never be ‘above’ politics as they are based on political promises and principles; therefore they may precipitate more conflict than they actually resolve.

Image by Kristie Wells

Within the last week or so it has been impossible to avoid the subject of SOPA; many large corporations are campaigning against it, including Wikipedia who took their content down for twenty-four hours in protest against the potential implementation of SOPA. Many people do not understand the implications that SOPA will have, or how it will affect them, so this article is dedicated to raising awareness and explaining the main facts behind SOPA.

Below is a short video provided by CNN which elaborates on the basics behind the SOPA bill. It explains who SOPA will affect, who supports SOPA and what will happen if the bill is passed.

What is SOPA?

SOPA stands for ‘Stop Online Piracy Act’ and is one of two bills which are designed to eradicate websites which provide or sell pirated media, including images, music and movies; this applied to media which is downloaded or streamed. The second bill involved is known as ‘PIPA’, which stands for ‘Protect Intellectual Property Act’.

Under federal law, law enforcement can shut down websites that offer pirated content, however this only applies to websites which are based in the United States, and is therefore not applicable to websites which are hosted or situated abroad. In order to tackle foreign based websites the two bills would grant the Justice Department prosecutors new powers to help prevent pirate websites from obtaining funding from the United States; additionally, the bills would also prevent those websites from gaining hits or visitors from the United States.

The powers in question include the ability to obtain a court order requiring internet providers within the United States to block access to pirate websites. Blocking access to certain websites could be achieved either by preventing users from typing a web address into an internet browser, and therefore preventing them from visiting websites such as Pirate Bay or Demonoid. The second method would require search engines, such as Google, Bing and Ask, to disable incoming links to the pirate websites. Essentially, this would cause the website to ‘disappear’ as people would no longer be able to reach it.

Furthermore, a court order could be issued which would require credit-card processors to prevent the processing of payments to websites which require premium or paid membership to download or view copyrighted content. Both of the proposed bills would give content creators and owners the right and ability to initiate private legal actions against websites or individuals that host pirated or stolen material.

The justification behind the two proposed bills, as claimed by supporters of the legislation, is that they will prevent copyright infringements. In turn the bills will assist copyright holders and content creators protect their content and intellectual property rights.

Why oppose SOPA and PIPA?

If the bills are passed by the Senate, the government of the United States could order any website to be blocked if it deems the website in question to be ‘providing pirated material’. Search engines could be forced to delete and remove websites from their search results, meaning that they would virtually no longer exist in cyberspace. These methods resemble the ones used by the Chinese authorities to keep their citizens in the dark with regard to government actions and world news.

“Scary Part - Even if a site is hosting completely legal content, it can be served copyright infringement notices under SOPA, claiming a "good faith belief" that the target site has infringed copyright. In an earlier version of the bill, the target site, Google, PayPal or the ISP had just five days to respond to the notice, either by taking down a portion of the site or by appealing in a U.S. court. However, now the 5-day clause has been softened, allowing any one to serve copyright notice, even a rival company, for the sole purpose of hurting its competitors.

RIP Internet, Almost - This may sound a bit extreme. However, it is almost certain that a good portion of the fun we now enjoy over the Internet will no longer be available under SOPA. No free movies, songs, games, software, streaming, videos, sharing and almost no free thinking - If this isn't the death of Internet what is?”

Amrutha Gayathri - International Business Times

Sources:

http://money.cnn.com/video/technology/2012/01/18/t-ts-eitm-sopa.cnnmoney/

http://www.huffingtonpost.com/2012/01/19/what-is-sopa_n_1216725.html

http://colorlines.com/archives/2012/01/what_the_hell_is_sopa_and_how_it_would_affect_you.html

http://online.wsj.com/article/SB10001424052970203735304577167261853938938.html

http://www.pcworld.com/businesscenter/article/248378/why_sopa_and_pipa_are_bad_for_small_business.html

www.ibtimes.com/articles/283654/20120118/what-sopa-mean-5-points-need-know.htm

https://www.google.com/landing/takeaction/sopa-pipa/