Theory of People's Sovereignty and the Thinkers in the State to Determine the Applicable Law
Theory of People's Sovereignty
The teachings of the monarchs, especially the teachings of Johannes Althusius, were continued by scholars from the stream of Natural Law, but the latter reached a new conclusion, namely that the reincarnation of these individuals through community agreements formed society, and it was to this society that these individuals surrendered their power. , it was the people who handed over the power to the king.
So indeed the king got his power from these individuals.
Now the question arises again, that is where do these individuals get their power ? Because they must have it first before they can give that power to the king. Their answer is that these individuals derive that power from the laws of nature. Remember here what is meant by natural law from the seventeenth and eighteenth centuries, not the natural law of the monarchs earlier.
So this is the law of nature if that is the basis of the king's power, then the king's power is then limited by the law of nature, and because the king had obtained his power from the people, then if so the one with the highest power is the people, so the sovereign is the people, the king is only an executor of what has been decided or desired by the people.
Then came the new idea of sovereignty, namely the sovereignty of the people, which among other things was pioneered, or even people say was created by J.J. Rousseau.
The teachings have been explained at the time of discussing the teachings of natural law. But it is worth remembering that what Rousseau meant by the people was not the summation of the individuals in the country, but rather the union formed by those individuals, and who had the will, the will which he obtained from those individuals through community agreements, which Rousseau's will was referred to as the general will or volonté générale, are considered to reflect the will or general will.
Because if what is meant by the people is the summation of the individuals in the country, so it is not the union formed by those individuals, then the will that is in it is not the general will or volonté générale, but volonté de tous.
So when in a country the government is held by some or a group of people, which is actually a separate unit within the country, and which has its own will called volonté de corps, as a result this volonté générale will fall along with the volonté de corps. And if the government is held by only one person, which this person also has his own will called volonté particuliere, then consequently volonté générale will fall along with that volonté particuliére.
So if that government must be held by the people, at least the people have a representative in the government so that the volonté générale can be realized.
In addition, it should also be borne in mind that what Rousseau meant by the sovereignty of the people was in principle a way or system of how to solve a matter according to a particular way or system that meets the general will.
So the public will is just an abstract delusion, and that sovereignty is the general will.
This theory of people's sovereignty, among others, was also followed by Immanuel Kant, who said that the purpose of the country is to uphold the law and guarantee the freedom of its citizens.
In the sense that freedom here is freedom within the boundaries of the law, while the law here that has the right to create is the people themselves. So then the law is an embodiment of the will or will of the people.
So it is the people who represent the highest power, or sovereignty. The conclusion of this talk about souvereiniteit is that people should not be too mentoristic about who that sovereignty is.
The important reason is : it is up to whom that sovereignty is daily exercised, because what we strive for is what is exercised. For example, a country adheres to the theory of the sovereignty of the people, and that provision is enshrined in the constitution of that country.
If at some point the provision is changed to the rule of law, and the people are not informed, then they will not know and feel that the sovereignty adopted by the country has been changed. New people or citizens will know when that has been implemented.
About the confirmation of power
About the affirmation of power is the question of how we can recognize the power of the organization of that country over ourselves.
On this issue, which is the question of the legitimacy of state power, we can not hold hypothetical bases, since we can acknowledge or not of that power, it depends very much on how the state organization itself in carrying out its power or duties.
In this case we must distinguish, even more firmly separate between the organization itself, that is, the state, with the organs or equipment of the organization, or the bodies that run the organization.
So when we question the affirmation of power or legitimacy from a state organization, do not mix it with the affirmation of power or the question of legitimacy from the bodies that run the organization.
For example, the organization of power from our own country, that we must differentiate or we separate from the Head of State, the People's Consultative Assembly, the House of Representatives and so on, who hold power from the organization of that country. Furthermore, we must also differentiate or we separate between the Head of State himself for example, with the person holding the position of Head of State.
It is very important, because, for example, the fall of the person who holds or holds that position or the organization, is not sure or not necessarily lead to the fall of his organization. But the fall of the organization itself always brings the consequences of the fall of the bodies that run the organization, by itself also drops the people who hold positions from those bodies.
Therefore, the statement about the collapse of the organization is the same as the statement about the collapse of the country itself. And this organization alone does not need legitimacy, because the organization is the country itself. Can only question the origin of power from the people who hold the bodies, or the organization is legitimate or not.
The answer to that question depends on the shape of the country and the nature of the government in the country itself, because this is not a matter of hypothesis, but a matter of fact.
Isn't what we work for a reality ? For example in authoritarian and dictatorial countries the policy of power of the people who hold the organization is power itself. In Nazi Germany, for example, the basis of that power was the power of a man named Hitler, and indeed at that time it was a fact that Hitler had enough power to control the group of people united by his organization. Also for example in the time of Facistme in Italy. The situation is very similar to the situation in Soviet Russia.
The situation is different with the situation in democratic countries, here the power of the people who hold the government is based on the attitude of the ruled people themselves. Therefore, it is appropriate to say that in a democratic country the basis of government power is the will of the ruled people themselves.
So in fact the question of the legitimacy of power is very closely related, even inseparable from the question of the purpose of the state, in fact the latter is what determines the first. The real reason we can admit or not, can accept or not, can recognize the shah or not the power from the government first depends on the purpose planned and worked to be achieved by the government for the sake of the people ruled.
The government here is in a broad sense, so it covers all the statehood bodies that exist in the country. About the purpose of this country, even thinkers about the state and the law put forward various teachings. So that this question can influence the scholars in presenting their theories or teachings about the country and the attributes of the power of the ruler, as well as the principles of the power of the ruler.
That is one of the things that scholars have tried to think about the state and the law. The last thing we have to talk about is the teachings of modern theoretical scholars. But in addition we must not forget the fact that the teachings of the adherents of natural law are in many respects greatly influenced the development of state and legal thinking, especially the teachings of adherents of natural law theory in the eighteenth century, such as the teachings: Montesquieu, and Immanuel Kant, even the teachings of the last-mentioned scholars will later pave the way for the thought of state and law in the next century, the nineteenth century.
If we think back, then we will remember that the thought of the state and the law began in the 5th century s. M. From the Greeks had produced his philosophers, such as Socrates, Plato, Aristotle, Epicurus, and Zeno. From them have been found its forms as well as its most important attributes of the state, in which case they have also presented broad opinions about the state and the law.
Later the thinking of the Greeks was continued by the Romans, and from this nation were also produced their thinkers, such as Polybius, Cicero, and Seneca. If from the Greeks were in many respects more focused on theory, then it is different with the Romans who in many respects pay more attention on practical matters.
Thus, from this Roman nation can produce a glorious theory about the practice of state and law. But at the beginning of the 5th century AD, and later in the medieval period, that is, the V century to the XV century, the way of thinking about the country and the law that had been pioneered by the nation
Greece and by the Romans had disappeared into the world view according to the teachings of Christianity.
So it is firmly replaced by a new view created by Augustine at the beginning of the 5th century. By Augustine the new worldview was presented as beautifully as, while against the collapsed Greek and Roman civilizations, he described it as a satanic country, faced with a new view, namely the state or kingdom of God as the heavenly kingdom.
Thus this new theocratic view has been going on for almost 10 centuries. The latter will be followed and replaced with views or thoughts about the state and law that give new and broader opinions, after the theocratic view of state and law in medieval times was softened by Thomas Aquinas and Marsilius.
Meanwhile, as a result of their teachings, there is a great contradiction between the general view and the specific view, which causes the disappearance of the general view, and the emergence of the specific view, where the personal values of the person appear, after losing the way of thinking in divine teaching and high philosophy.
The new era began, about the year 1500. During this time great conflicts arose. Which contradiction revolves between the principle of statehood and the principle of morality, due to the greed and lust of people for power. Where people no longer care about the values of decency and morality, but people just follow their worldly lusts, and pursue personal pleasures.
There was also a sharp conflict of power exercised by the kings, as a result of the teachings of Niccolo Machiavelli which was presented and illustrated in his guidebook "II Principe" with the teachings of the Staats-raison. Where is described the absolute absolute power of the king, with no restrictions whatsoever. The state with his king as a director of all interests.
Thus the way people think about the state and the law backwards as it was in ancient times, because the absolute power of the king forbade all thoughts about the State and the law, consequently it was done secretly, and secretly; This is what they experienced during the renaissance, around the sixteenth century.
With his depressed condition people began to dare to rethink the basics of the king's power, so this effort was started by the reformers in the field of religion, and by the monarchs in the field of state, with Johannes Althusius as his figure. The situation is starting to get a bit critical.
But this situation was later eased again by the great thinkers of the state and law in the seventeenth century, where there was a balance between the way of thinking and the practice of statehood and law.
This is because since the renaissance people with the help of definite science and logic form a new worldview that is separate from the religious view, so it can be understood that Descartes and Hugo de Groot provide the same basis on philosophy and thought about state and law .
While thinking about the state and the law in the 17th century, people only try to describe the state of the state and the law as experienced in the country as a true and reasonable state according to common sense, and they provide the legal basis for that state. Thus it turns out that in fact they are skeptical of their own independent thinking, and do not dare to fight the situation that is actually rejected by their souls.
Such a situation, as well as a way of thinking that is only descriptive, rejected and changed in the eighteenth century. In this century, his way of thinking is judicious. Both in general philosophy, as well as in the philosophy of state and law people begin to use their own opinions to oppose all circumstances which they consider unacceptable to the human ratio, and to demand changes and reforms, both in thought and in practice.
The first thing they are talking about is the absolute power of the king, because this turns out to be increasingly threatening not only the prosperity of his people, but also his civilization. How could it not be that at that time the king considered himself inviolable in law because he felt that his power was inherited from God and was hereditary individually, and that his power included not only the rights of the state, but also the rights of wealth, as well the will of his people, even his own people.
It was in the eighteenth century that people began to present the principles of statehood that in principle opposed to the existing system of government. It starts with the attitude and teachings of a young Prussian king, Frederik the Great. Which totally rejects the teachings of Niccolo Machiavelli written in his guidebook Il Principe. Then John Locke, as a pioneer of human rights, who should not be disturbed by anyone's implementation, even by the king, even the power of the king is limited by these human rights, in the sense that the king in exercising his power he obtained from the people cannot violate human rights.
For this John Locke created the doctrine of the division of power of the state, which would later be perfected by his colleague, Montesquieu, and later by Immanuel Kant called the teaching or theory of Trias Politica.
Rousseau teachings were even stricter with his invention of the people's sovereignty theory. With such a community agreement, although its teachings are still hypothetical and according to common sense, a community agreement is held between people to form their unity called society.
The king gained power in this treaty from the community; but do not forget that this agreement can be decided by the consent of the people themselves, because it is the people who in essence have the highest power or sovereignty, and the king is only a servant of the people who is given the task of exercising the people's power, so the king is not one who has power .
That is the demand for change in the system of government put forward by thinkers about the state and the laws of the natural law, first of all about the recognition of human rights, especially in its implementation.
Second, the principle of limiting the power of the ruler with the teachings of Trias Politica, so that the power of the king is no longer absolute.
Third, the principle that those who have the highest power is the people, with the creation of the theory of people's sovereignty. While the fourth is the demand that all the rules of law be written in a book of law in accordance with the principles and opinions that are considered in accordance with reason, without distinction of class, religion, so for all people alike. This law will bind the king in carrying out the government of the country, because the law is the embodiment of the general will. Also the judge in his decision should be guided by this law.
But no matter how hard their demands are, in many cases they are still theoretical, and new to the level of thinking, so in their implementation it has not felt that way. There is still the influence of the old state as a relic from the medieval period and from the renaissance.
Only later with the teachings of Immanuel Kant, who in many respects he continued the teachings of Rousseau, the thought gained implementation in the practice of governance and law. This could have far-reaching consequences, including the outbreak of the American revolution against and liberation from British occupation, and the French revolution against the absolute power of the king, with its financial situation being too precarious.
With the occurrence of the French revolution this is the thought of the state and the law practiced for two centuries, the seventeenth and eighteenth centuries, will undergo a period of experimental implementation in a very heavy practice, and thus will test the truth of the contents of the teachings of law scholars nature.
It is this situation or experience later that actually gives a completely different nature to the thought of the state and the law in the XIX century, when compared to the thought of the state and the law in the past. Because in the nineteenth century, people had more independence, freedom and power, and they were often more of a group than individuals. In fact, sometimes the thinkers act as representatives of an existing political stream.
Remember that at that time the modern system of democracy, or representative democracy, has begun to develop, where political parties are needed, especially in the election of elected representatives who will sit in government.
Meanwhile, if we look at its development, the first stream, whose teachings are contrary to the teachings of natural law is the historical stream, which says that value, it does not arise from abstract reasoning and hypotheses, but exists in the growth of history, society, and country.
Among the trends that arose in the nineteenth century that would have an influence in thinking about the country and the law at that time was the trend that based its thinking on economic conditions.
This trend is called mercantilism. First everything is measured with gold, then in its development which is used as a measure of changing land, finally changed again which is used as a measure of no longer land, but labor.
Development continued and we got an English scholar, Blackstone, who lived from 1723-1780, he wrote a commentary on English law in 1765.
In this book he rejects the teachings of natural law which say that the country came into being because of the establishment of a community agreement, this according to Blackstone, he says is contrary to historical events.
But if Blackstone could not know and predict it, it would really happen later in North America. That is when the country seceded from the British colony, and united to form a union state by making a constitution, which was later considered by Immanuel Kant as a renewed treaty.
Meanwhile, the French revolution continues, and will end with the fall of Napoleon forever. And after the revolution ended people felt once and for all, and while people wanted to restore the system of government to the royal system again on the condition that the king should base his actions on the constitution.
Thus was born the Chart octroyee. It is a constitution approved by the king, which is a guarantee that the king will not act arbitrarily.
And then came the reactionary flow, which among others in France was pioneered by :
- Chateaubriand, Chateaubriand wrote the book "De la Monarchi selon la Charte" (About the government in accordance with the charter). From his main teaching here is, there is the privilege of the king, and the responsibility of the minister. In addition, the ministers must get the support of most members of the House of Representatives, in order to run the government well.
- De Bonald. De Bonald wrote his teachings in his book, "Theorie du Pouvoir politique et religieux dans la societe civile" (the theory of state and church power in the life of the population). In the book Theorie du Pouvoir politique et religieux dans la societe civile his important opinion here is, there is a fundamental philosophical difference between people and society in the time before and after the revolution. That is, the state is not man-made independently of the people, who are described as individuals united by common sense, not people who determine how the state should happen, but rather, it is the country or society that makes up its people. So it is not the State for the people, but the people for the country. Try comparing this opinion with that of Aristotle.
- Joseph de Maistre. Joseph de Maistre wrote the book "Considerations sur la France". (Views on the French state). In many ways his opinion is the same as De Bonald's.
- Ludwig von Haller. Ludwig von Haller lived from 1768-1854. Von Haller's teachings are written in his book, "Restauration der Staatswissenschaften". In this book, von Haller directly opposes the principles of so-called revolutionary thought, namely: the agreement of society, the natural state of being in independence and full equality, the uncertainty that grows out of it, the surrender of power by the agreement of society, and the order of the state worthy of its formation. All this is opposed, and it is said that it is contrary to reason and history.
The true nature of the state is the opposite, that is, the arrangement of God who is eternal, a mixture of things that are related or not with society, from the same and that are not the same, from the strong and the weak, from his employers and slaves. Of all those who are the strongest, are the ones in power, such things include the nature of the state. Natural power is the power of God. - Adam Müller. Adam Müller lived from 1799–1829. His teachings are written in the book "Die Elementer der Staatskunst". In many respects his views are similar to those of von Haller. That is, Adam Muller, does not acknowledge the existence of natural conditions that precede the existence of the state.
- Joseph von Gorres. His teachings were in principle about restoring the system of government that Napoleon had abolished during the revolution. And what is needed is not the foundation of democracy, but the foundation of government, so as to be able to reunite the French people who have been divided as a result of the revolution. Joseph von Gorres also opposed the existence of a people's representative base in government.
Eventually from all that the reactionary flow aroused at the time of this counter-revolution will reach its peak of its most beautiful harmony in the teachings of Friedrich Julius Stahl.
Friedrich Julius Stahl wrote his teachings in his book entitled "Die Philosophie des Rechts".
Friedrich Julius Stahl is a scholar of state and law. His teachings were theocratic-sociological, as Friedrich Julius Stahl said that the country was formed by the development of a family.
Which family is the first is the nature, or the family is organized patriarchally.
The family due to certain factors grew older, grew larger, and eventually achieved its shape as a country. But such a development is not because it is desired or made intentionally by man, but because it is by the will of God, or because it is already divine nature. So everything something is based on the will of God or Gottes Fugung, or Hohere Fugung.
Such was the thinking of the state and the law at the beginning of the nineteenth century, where thinkers were greatly influenced by the French revolution, especially as a result of which many countries experienced it very bitterly. So they rejected this situation, and instead admired and hoped for the restoration of the situation as in the past, before the French revolution.
But in the meantime new foundations arose for the thought of the state and the law, which had been practiced since 1814 by the legal or historical stream pioneered by Freidrich Karl von Savigny. He wrote his teachings in his book entitled "Vom Beruf Unserer Zeit Für Gesetzgebung und Rechtswissenschaft" (About the call of our time for legislation and legal science).
Freidrich Karl von Savigny wrote the book as a challenge to the teachings of Thibaut, a scholar from Heidelberg, who essentially recommended that Germany draft a civil law law as the successor to French law. Its teachings have in many ways had an effect, so that at that time people thought that the law could be established once, forever.
But then arose the desire to know what had arisen in history, the desire arose because the state of the soul in the course of time had changed altogether, said von Savigny
who further said that in order to establish good law in a book of law, first should be investigated how the law actually grew in human civilization. If the investigation is done in history, then we will know that the law always arises from the general beliefs of the people, as well as the language and structure of the society itself.
For further thought, von Savigny focused more on the law than on the state. Similarly scholars like Immanuel Kant, Fichte, von Humboldt, Schelling, Hegel. Everything is from the teachings of idealism. So in many cases his speech entered the field of legal philosophy, and the introduction of legal science.
