Theory of State Sovereignty Jean Bodin and Georg Jellinek
State Sovereignty
From the adherents of the theory of state sovereignty, it is stated that sovereignty does not exist in God, as the adherents of the Theory of God Sovereignty (Gods-souvereiniteit) say, but in the state.
The state creates the law, so everything must be subject to the state.
The state here is considered as a whole that creates legal rules, so that law exists because of the state, and no one law applies if the state does not want it.
The followers of the theory of state sovereignty include Jean Bodin and Georg Jellinek. The teaching of state sovereignty from Jean Bodin does not need to be repeated, because it has already been discussed earlier, so it is sufficient to re-examine it.
It only needs to be noted here that in essence the theory of state sovereignty or Staats-souvereiniteit, only states that the highest power is in the state, whether that power is absolute, whether it is limited in nature, and this must be distinguished from the understanding of the teachings of Staats-absolutism.
Because in the teachings of the Staats-souvereiniteit, in principle it only says that the highest power is in the state, this supreme power may be absolute, but it may also be limited.
While in the teachings of Staats-absolutism it is said that the state's power is absolute, so it means that it is impossible to be limited, in the sense that the state's power covers all aspects of community life, so that the citizens of the state no longer have a personality.
In addition, the Staats-souvereiniteit can coincide with liberalism. Meanwhile, Staats-absolutism cannot. It is logical and understandable that this question is closely related to the issue of citizen freedom, even though the freedom of citizens is a principal problem in every country.
In essence, Jellinek said that the law was an incarnation rather than the will or will of the state. So it is also the state that creates the law, then the state is considered the only source of law, and it is the state that has the highest power or sovereignty.
Outside the country, there is no single organ that has the authority to enact laws. So in this case it then means that custom, namely unwritten law, which is not issued or made by the state, but which actually applies in society, does not constitute law.
And it is true if according to Jean Bodin; whereas according to Jellinek, these customs can become law, if they have been stipulated by the state as law.
Regarding the theory of state sovereignty, it is likely that there are those who raise objections. If the law is considered to be the embodiment or incarnation of the will or will of the state, and only has the power to take effect when it has been stipulated by the state, then what is the reality ?
The reality is that the state itself is subject to the law. That is the opinion of Leon Duguit, check his book: "Traite de Droit Constitutionel", as well as Krabbe in his book: "Kritische Darstellung der Staatslehre", and his other book "Die Lehre der Rechts-souvereinitat".
The main thing is Krabbe opposes Jellinek's opinion, because according to Krabbe this opinion contradicts reality. Against this objection, Jellinek defended his opinion by presenting the teachings of Selbstbindung, namely the teaching that the state voluntarily binds itself or requires itself to submit to the law as the manifestation of its own will.
But even with this Selbstbindung teaching, problems or objections can still be raised again, because the teachings of the Staats-souvereiniteit do not differentiate between the state and its organs, he stressed that it does not clearly differentiate between the state and the government.
Because in essence a state is an abstract thing, so it is only an abstraction, and a state can only act if it is through its organs, its government, and even by its people. So thus the teaching of Selbstbindung is not Selbstbindung from the state, but Selbstb Protecting it from its organs or the government, so the people.
Factors than Selbstbindung
The answer to this problem is that first of all in the field of law, of course, apart from social factors there are also ideal factors, namely a sense of law, awareness of the law, and a sense of justice. This is the answer from Jellinek who is a factor of the Selbstbindung.
How next, according to Krabbe these things actually lie above the state; Thus, then there is something souvereiniteite above the state, which is sovereign, namely the awareness of the law.
So according to Krabbe, the sovereign is not the state, but the law is sovereign. Thus, a new teaching about sovereignty emerged, namely the theory of the rule of law.
