struggle between secular and canonical leaders, the juxtaposition between the
territorial rulers and the authority of the Pope.
20
Most importantly, the concept created borders and alongside them territorial
jurisdiction, which is still a focal concept of procedural law. The objective of the
Westphalian model was to establish a system of international law for coordinating the solving of territorial conflicts between sovereign states. However,
although such a system did not emerge, the Westphalian model of sovereign
territorial states remained as the model of international cooperation for
European states.
21
In the seventeenth century the concept of sovereignty was evaluated through
social contract theories. In social contract theories, the sovereign authority of the
state is created by the consent of individuals who, by surrendering their freedom
(such as it exists in the natural state), gain the protection of a sovereign. The
concepts of the state of nature, which precedes the creation of the sovereign
power, and of social contract, which is the instrument for the transfer of power,
are essential to social contract theories. Two of the most influential works on
formation of a sovereign state through a social contract are Thomas Hobbes’
Leviathan (1651), which is often described as advocating absolutism for the
sovereign ruler, and John Locke’s Two Treatises of Government (1689), which
places limits to the sovereign’s power.
The question that divides Hobbes’ and Locke’s theories is whether or not
limitations apply to the sovereign’s power. However, both Locke and Hobbes
consider that penal authority and the monopoly on dispute resolution are
surrendered to the sovereign by the social contract.
Hobbes’ absolutist sovereign
Hobbes’s state of nature is defined as ‘war of all against all’, where an individual
has, in theory, unrestricted freedom. In practice this freedom is limited by the
continuous threat of attack from other individuals. There are no misdemeanours
or obligations to be penalised, as there is no penal authority in Hobbes’ state of
nature. He defines punishment only in relation to the Sovereign, following the
social contract that establishes such authority:
A Punishment, is an Evill inflicted by publique Authority, on him that hath
done, or omitted that which is Judged by the same Authority to be a
Transgression of the Law; to the end that the will of men may thereby the
better be disposed to obedience.
22
According to Kingsbury and Straumann, ‘there is nothing, no possible violation
that could trigger a right to punish’ in Hobbes’ state of nature.
23 Hobbes
considered the surrender of individual autonomy in exchange for peace as
absolute; only the right to self-preservation is left within the individual’s autonomy. After establishing sovereignty by acquisition or institution,
24 the sovereign
has the right of judicature in all legal and factual cases.
25
Sovereignty and state agenda 113
territorial rulers and the authority of the Pope.
20
Most importantly, the concept created borders and alongside them territorial
jurisdiction, which is still a focal concept of procedural law. The objective of the
Westphalian model was to establish a system of international law for coordinating the solving of territorial conflicts between sovereign states. However,
although such a system did not emerge, the Westphalian model of sovereign
territorial states remained as the model of international cooperation for
European states.
21
In the seventeenth century the concept of sovereignty was evaluated through
social contract theories. In social contract theories, the sovereign authority of the
state is created by the consent of individuals who, by surrendering their freedom
(such as it exists in the natural state), gain the protection of a sovereign. The
concepts of the state of nature, which precedes the creation of the sovereign
power, and of social contract, which is the instrument for the transfer of power,
are essential to social contract theories. Two of the most influential works on
formation of a sovereign state through a social contract are Thomas Hobbes’
Leviathan (1651), which is often described as advocating absolutism for the
sovereign ruler, and John Locke’s Two Treatises of Government (1689), which
places limits to the sovereign’s power.
The question that divides Hobbes’ and Locke’s theories is whether or not
limitations apply to the sovereign’s power. However, both Locke and Hobbes
consider that penal authority and the monopoly on dispute resolution are
surrendered to the sovereign by the social contract.
Hobbes’ absolutist sovereign
Hobbes’s state of nature is defined as ‘war of all against all’, where an individual
has, in theory, unrestricted freedom. In practice this freedom is limited by the
continuous threat of attack from other individuals. There are no misdemeanours
or obligations to be penalised, as there is no penal authority in Hobbes’ state of
nature. He defines punishment only in relation to the Sovereign, following the
social contract that establishes such authority:
A Punishment, is an Evill inflicted by publique Authority, on him that hath
done, or omitted that which is Judged by the same Authority to be a
Transgression of the Law; to the end that the will of men may thereby the
better be disposed to obedience.
22
According to Kingsbury and Straumann, ‘there is nothing, no possible violation
that could trigger a right to punish’ in Hobbes’ state of nature.
23 Hobbes
considered the surrender of individual autonomy in exchange for peace as
absolute; only the right to self-preservation is left within the individual’s autonomy. After establishing sovereignty by acquisition or institution,
24 the sovereign
has the right of judicature in all legal and factual cases.
25
Sovereignty and state agenda 113