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
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