The Modern Law of Sovereign Immunity

TLDR: Bodin's notion of sovereignty, coupled with Hobbes' justification of absolute power as 'an imaginary compact between ruler and ruled' appears to have provided Austin with the raw materials for his own view of law as a command of the sovereign.

Abstract: Bodin's notion of sovereignty, or the absolute and perpetual power within the state,5 coupled with Hobbes'6 justification of absolute power as 'an imaginary compact between ruler and ruled'7 appears to have provided Austin with the raw materials for his own view of law as a command of the sovereign.8 Austin's command theory provided that the sovereign who is not subject to any law whatsoever, could, if that was the wish, command all whom he may find within his 'independent political society'9 to be subject to his command. Hegel, who fell under the influence of these views formulated his theory of dialectics.'° At the zenith of social advancement chartered by Hegelian dialectics may be found the state which for Hegel was the 'highest achievement of human endeavour."' Within this nineteenth century philosophical framework sovereign immunity took an absolutist form justifying an attitude against impleading a foreign sovereign before a local court. This attitude became clearly established in the decisions concerning ships, which were handed down by the courts on both sides of the Atlantic. 12 Yet another contributing factor for the growth of the absolutist view was the nineteenth century quest for colonial expansion. Colonial expansion raised the notion of a sovereign with absolute powers. Austin described his sovereign as one whose powers were indivisiblel3 and illimitable.l4 Chief Justic Marshall of the United States Supreme Court'5 and Lord Stowell in the Admiralty Courtl6 took the view that 'Sovereigns have made an implied contract to respect each others' independence