Sovereignty, Legitimacy and Fundamental Rights as Limitations to Criminalisation Power of the State

Author:Simeneh Kiros Assefa
Position:Simeneh Kiros Assefa: LL.B (Addis Ababa University), LL.M (University of Pretoria), LL.M (Kyushu University), LL.M (University of San Francisco); Assistant Professor of Law at AAU Law School, Attorney-at-Law and member of California State Bar (inactive). Email: simeneh@simenehlaw.com
Pages:127-164
SUMMARY

Sovereignty is a doctrine of power that constitutes and vests supreme political power in the state, including criminal lawmaking power. However, this supreme power of exercising coercive state power through the criminal law is not unlimited. Because the justifications for sovereignty are also justifications for criminal lawmaking power of the state, they are discussed together. After presenting... (see full summary)

 
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127
Sovereignty, Legitimacy and Fundamental
Rights as Limitations to Criminalisation
Power of the State
Simeneh Kiros Assefa
Abstract
Sovereignty is a doctrine of power that constitutes and vests supreme political
power in the state, including criminal lawmaking power. However, this
supreme power of exercising coercive state power through the criminal law is
not unlimited. Because the justifications for sovereignty are also justifications
for criminal lawmaking power of the state, they are discussed together. After
presenting the justification and legitimacy of sovereignty and the criminal
lawmaking power of the sovereign, this article discusses criminalization power
of the state in three parts: the limitation inherent in the notion of sovereignty, in
constitutionalism and the bill of rights. Finally, it reviews the practice of
criminalisation in Ethiopia.
Key terms
Sovereignty · Criminalization · Legitimacy · Principle theory · Legislative
rationality · Coordination theory
DOI http://dx.doi.org/10.4314/mlr.v12i1.5
Received: 8 April 2018 Accepted: 30 September 2018
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
_____________
Introduction
The state is the highest form of socio-political organisation. Sovereignty is
another political devise in this organisation, and some even contend that it is one
form of organisation. Intuitively understood, sovereignty is the supreme power
of the state. However, sovereignty is a social construct meant to represent th e
legitimate power exercised by the state, not the naked power. Stated directly,
sovereignty is an instrumental concept justifying the power exercised by the
Simeneh Kiros Assefa: LL.B (Addis Ababa University), LL.M (University of Pretoria),
LL.M (Kyushu University), LL.M (University of San Francisco); Assistant Professor of
Law at AAU Law School, Attorney-at-Law and member of California State Bar
(inactive). Email: simeneh@simenehlaw.com
128 MIZAN LAW REVIEW, Vol. 12, No.1 September 2018
state; and embedded in the doctrine of sovereignty is legitimacy. Legitimacy
refers to not only the power that is exercised by the state, but also the very
creation of the state itself. Authorities have endeavoured to establish the
foundational legitimacy of the state.
The exercise of coercive power by the state is justified by the doctrine of
sovereignty. One such coercive power is criminalisation, declaring conducts
criminal and attaching punishments for violation of such norms whether it is
fine, imprisonment or death. However, such power is not unlimited. It is limited
in the doctrine of sovereignty itself; it is also limited by the law. The exercise of
sovereign power and its legitimacy is justified in and by a constitution. As the
very notion of a constitution is associated with limited government, the
criminalising power of the government is limited in the constitution.
Such limitation takes both structural and substantive forms. The structural
form is accomplished in two ways: the first is the institutional structure in the
form of separation of power among the three branches of the government
relating to their respective jurisdiction, and the second is the normative
structure. The substantive limitation on the power of the government is
incorporated in the form of the bill of rights and other constitutional principles
that guide the legislature and the body conducting constitutional litigation.
The bill of rights puts restriction on the legislative power through both the
adjudicative and legislative processes. In the adjudication process, fundamental
rights are treated as principles. Principles are optimisation commands to be
realised to the maximum as facts and norms permit; where there is a collision
between the various principles, the conflict is to be resolved through a weighing
process; fundamental rights are principles that necessarily are taken into
consideration. However, those constitutional norms also include principles
which may be called normative judgments that require balancing in case of
conflict of values. Democracy requires that every relevant conflicting interest be
taken into consideration and all contradictory choices are decided by majority.
The weighing of those conflicting values is governed by the principle of
proportionality.
This article enquires into whether the sovereign power of criminalisation of
the state is unlimited. Section 1 attempts to describe the notion of sovereignty as
a politico-legal technique in the social organisation, the state. It discusses the
scope and source of sovereignty. It depicts the concept as a social construct and
as an instrument of „the powerful‟ in the social structure, along with restrictions
to such power inherent in the doctrine itself. Section 2 deals with the notion of
legitimacy in the framework of sovereignty. As it is logically difficult to
establish foundational legitimacy of the state or sovereignty, the alternative
approach is moving the argument to the second level legitimacy, legitimacy of
state action, including legislation as a method of limiting criminalisation.
Sovereignty, Legitimacy & fundamental rights as Limitations to Criminalization Power of the State 129
The notions of sovereignty and legitimacy are discussed in the context of a
constitution. Section 3 therefore deals with constitution and constitutionalism
incorporating both structural and substantive limitations to the power of the
state. Legitimacy is about the exercise of sovereign authority. Section 4
discusses criminalisation, doctrinal and structural limitations to criminalisation
inherent in the criminal law itself. The substantive limitations to the power of
the state are fundamental rights. The substantive limitations of the coercive
power of the state both in the context of adjudication as well as legislation are
discussed in section 5. Section 6 illustrates the justification and practice of
criminalisation in Ethiopia.
1. The Doctrine of Sovereignty: Overview
The state is the modern politico-social structure invented by society; and
sovereignty is an aspect of such modern state. For Kriegel, it is a “doctrine of
power;” it “is the form that gives being to the state; it is inseparable from the
state; without it, the sate vanishes.1 Although the doctrine of state sovereignty
dominates our legal and political theory and practice, there is little agreement
regarding the description of the nature of the legal-political doctrine.
Sovereignty, holds Lutz, “is a constitutional order that marries justice with
power in such a way as to tame that power and turn it to the service of civil
society.2
Likewise, Kriegel considered sovereignty as “the state under the rule of law;”
as a “legitimate, rational and responsible exercise of power”.3 The state, in her
opinion, is “a legal, institutional and moral construct” that cannot be reduced
into “economic or social interests” as was done by Marx and his followers.4 Nor
can the state “be identified with despotism” as some governments would like
to.5 Coming after the collapse of feudalism, Kriegel describes sovereignty as
1 B Kriegel (1989), The State an d the Rule of Law (Marc A. LePain and Jeffrey C. Cohen
Translation, 1995.) at 15. [citations omitted.]
2 DS Lutz (2006), Pr inciples of Constitutional Design (Cambridge University Press) at 26.
3 Kriegel, supra note 1, at 17.
4 Id., at 27. F or instance, Marx and his followers argue that the state which operates as an
instrument of oppression would wither away .
5 Blandine Kriegel‟s argument is that despotism is not sovereignty. She contends that “the
classical state did not functio n in ways that a despotic state did. The former did not control
its intellectuals nor transform them into mercenaries. […] it established research
institutions, thereby running the enormous risks of critique and oppo sition, and subjecting
its power, de facto, to law.” Id., at 7. Often, the classical writers were critical of the
government of their time. T heir greatest challenge had come from the church, not from the
state. When t hey display such extra-ordinary intellectual quality, they would be appointed
to high offices or would be given great responsibilities. However, Kriegel a lso argues that

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