Halk Egemenliği ve Milli Egemenlik Teorileri Bağlamında AnayasacılıkSabahattin Nal, Furkan Çirkin
Bu makale, anayasacılığa egemenlik teorileri bağlamında yeni bir bakış açısı getirmeyi amaçlamaktadır. Anayasacılık, iktidarın sınırlandırılmasını amaçlayan bir anlayışa dayanmaktadır. Ancak bu sınırlandırma devletin kendi içinde olmalıdır. Anayasacılık, dışarıdan bir müdahaleyle gelen sınırlandırmayı içermemektedir. İlk olarak egemenliğin kaynağını tanrıda gören teokratik egemenlik teorileri, hiçbir şekilde anayasacılıkla bağdaşmamaktadır. Aslında egemenliğin kaynağı ne kadar geniş bir tabana yayılırsa egemenliği kullanan iktidar da o kadar çok sınırlandırılır. Bu bakımdan anayasacılık, geçmiş ve geleceği de kapsayan millet kavramına dayanan milli egemenlik teorisiyle sıkı bir ilişki içindedir. Milli egemenlik teorisine göre egemenliğin kaynağı ile onu kullanan iktidar birbirinden oldukça uzaklaşmakta ve anayasacılığın amacı olan iktidarın sınırlandırılması düşüncesi sağlıklı bir şekilde ortaya konulmaktadır. Günümüz demokrasilerinde anayasacılığın amacı, halkın çoğunluğunun iktidarını sınırlandırmak ve bireylerin haklarını çoğunluğa karşı güvenceye almak şeklinde okunabilir. Bu bakımdan somut bireylerin toplamından oluşan halka dayanan ve halkın çoğunluğunun genel iradesini en üstün sayan halk egemenliği teorisi, anayasacılık düşüncesiyle bağdaşmamaktadır.
Constitutionalism in the Context of Popular Sovereignty and National Sovereignty TheoriesSabahattin Nal, Furkan Çirkin
This article aims to bring a new perspective to constitutionalism in the context of sovereignty theories. Constitutionalism is based on an idea that aims to limit power; however, this limitation must be within the state as constitutionalism does not include external limitations. The theory of theocratic sovereignty, which posits that the source of sovereignty comes from God, is incompatible with constitutionalism. Indeed, the more widely the source of sovereignty is, the more restricted power is. In this respect, constitutionalism is closely related to the theory of national sovereignty, which is based on the concept of nation as including the past and future. According to the theory of national sovereignty, power is far from the source of sovereignty; thus, the idea of limiting power, which is the aim of constitutionalism, is realized in a healthy way. The aim of constitutionalism can be considered as limiting the power of the majority and securing the rights of individuals against it. In this respect, the theory of popular sovereignty, which is based on the people and regards the general will of the majority as supreme, is incompatible with the idea of constitutionalism.
State is defined as a community of people who have sovereignty within a specified territory; hence, elements of state are a community of people, a specified territory, and sovereignty. According to this definition, the existence of the state dates back to ancient times. The first states emerged a long time ago and had elements similar to those of modern state, such as a community of people, a specified territory, and sovereignty. However, these states did not have a constitution as we now understand it. Although most discussions are not in terms of territory and population but in terms of sovereignty, and considering that the concept of sovereignty emerged together with that of the modern state, some only view the state as the modern state. However, it is clear that some states in the past had sovereignty over a territory and a community of people, and this element of sovereignty was generally theocratic in origin. On the other hand, when its source shifted from theocracy to democracy, constitutionalism began to emerge.
Constitutionalism aims not only to regulate any state organization but also to create a state that limits the power and guarantees the freedom of individuals. We believe that theories of democratic sovereignty—and especially the theory of national sovereignty—also constitute the basis of constitutionalism; therefore, this study aims to bring a new perspective to constitutionalism in the context of sovereignty theories.
Although the elements of community and specified territory are basic material conditions of the state, the main factor that ensures its existence must be sovereignty because the power of the state over the territory and the community is related to it. Some theories have been proposed to explain sovereignty and its origin. States and their constitutions are shaped according to the theory of sovereignty that they are based on or adopt. Contemporary democratic states are based on popular sovereignty or national sovereignty.
A state uses its sovereignty equally with and independently from other states externally; nevertheless, it uses its sovereignty having absolute and permanent power against its own people internally. As a matter of fact, the word “sovereignty” is derived from the Latin superannus, meaning supreme; in short, it means supreme power.
There are different theories about the origin of sovereignty. First, theocratic theories had emerged and dominated for a long time. Later, with the development of democratic thought, the origin of sovereignty ceased to be God and began to be found in the people/nation. Nowadays, democratic theories have been adopted by most contemporary states. In the theory of popular sovereignty, it is claimed that sovereignty belongs to the people and that the people are the sum of the individuals living in that state. On the other hand, in the theory of national sovereignty, it is claimed that sovereignty belongs to the nation, which is an abstract personality separate from the sum of the individuals living in that state. Thus, the concept of nation includes not only the present but also the past and the future; in this respect, it is necessary to limit even the majority of the people within the understanding of the theory of national sovereignty.
Constitutionalism is the antithesis of arbitrary power, although it does not include external limitation. Therefore, limitation that undermines the sovereignty of the state is incompatible with constitutionalism. In our opinion, the wider the source of sovereignty, the more limited the power; for instance, as the idea of human rights is based on very wide framework, the ideas of human rights and international courts of human rights significantly limit power. However, it cannot be considered the source of sovereignty, and it undermines the sovereignty of the state. In contrast, constitutionalism claims that power must be limited within the state itself. In this respect, the theory of national sovereignty stands out as the state limits its own power within itself.
Aritcle 16 of the Declaration of the Rights of Man and of the Citizen states that “[a]ny society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution.” In this respect, the limitation of the power, which is the aim of constitutionalism, can only be achieved with the separation of powers, and the guarantee of rights is possible with a superior constitution and a functional constitutional court. Then, these features of constitutionalism are closely related to the theory of national sovereignty. Moreover, constitutionalism aims to limit the power of the majority and aims to protect individuals against it. As a result, by seeking to provide a limited power within the state, constitutionalism is closely related to the theory of national sovereignty, which bases the source of sovereignty on the widest framework within the state itself.