Dieter Grimm's accessible introduction to the concept of sovereignty ties the evolution of the idea to historical events, from the religious conflicts of sixteenth-century Europe to today's trends in globalization and transnational institutions. Grimm wonders whether recent political changes have undermined notions of national sovereignty, comparing manifestations of the concept in different parts of the world. Geared for classroom use, the study maps various notions of sovereignty in relation to the people, the nation, the state, and the (...) federation, distinguishing between internal and external types of sovereignty. Grimm's book will appeal to political theorists and cultural-studies scholars and to readers interested in the role of charisma, power, originality, and individuality in political rule. (shrink)

Sovereignty and the sovereign state are often seen as anachronisms; Globalization and Sovereignty challenges this view. Jean L. Cohen analyzes the new sovereignty regime emergent since the 1990s evidenced by the discourses and practice of human rights, humanitarian intervention, transformative occupation, and the UN targeted sanctions regime that blacklists alleged terrorists. Presenting a systematic theory of sovereignty and its transformation in international law and politics, Cohen argues for the continued importance of sovereign equality. She offers a (...) theory of a dualistic world order comprised of an international society of states, and a global political community in which human rights and global governance institutions affect the law, policies, and political culture of sovereign states. She advocates the constitutionalization of these institutions, within the framework of constitutional pluralism. This book will appeal to students of international political theory and law, political scientists, sociologists, legal historians, and theorists of constitutionalism. (shrink)

Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence (...) of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era. (shrink)

This paper analyses the intertwinement of legal philosophy and political theory in the British intellectual framework between the late 19th and early 20th centuries, with specific regard to Harold Laski's works. I will try to illustrate the transition from 19th-century utilitarianism to H. L. A. Hart and Isaiah Berlin as evolving through important debates which include Laski's contribution. I will argue that a discussion of “juridical” obligation, i.e., the conditions of legal validity, may lie implicitly in these concerns that Laski (...) and other early 20th-century British authors had about “political” obligation—viz., about the nature of the state and its claim to obedience. By approaching Laski's theories and their genealogy through a legal-philosophical perspective, I will contend that this debate about political obligation anticipates to a considerable extent some of the most renowned conceptions of obligation in 20th-century British legal theory. (shrink)

Whenever sovereignty is defined as a supreme, absolute, unfettered and unlimited power, there is an obvious contradiction between two ideas: that states are sovereign and that they can or should be limited. Nevertheless, while many legal texts proclaim sovereignty, there are several signs that states are indeed limited by constitutional or international law. In light of this situation, some authors claim that those texts are mere proclamations and that sovereignty is an obsolete concept, while others argue that (...) states are still sovereign and that there are no real limits, but others still try to conceive of sovereignty as limited by morality or natural law. Professor Benvenisti’s remarkable theory of sovereigns as trustees of humanity is part of a very old tradition going back to the sixteenth century where sovereignty was defined as an absolute power, which is unlimited by positive law, yet based on and limited by natural law. This Article tries to show that this concept of sovereignty has emerged because of the necessity to provide a final point of imputation to the hierarchy of norms, and that the limitation by natural law was part of the original definition. Sovereignty so defined can usefully justify not only the power of kings and lawmakers but also that of courts trying to control kings and lawmakers. (shrink)

This article focuses on theoretical reflections on sovereignty and constitutionalism in the context of the globalization and Europeanisation of the nation states, their politics, and legal systems. Starting from a critical assessment of the Kelsen-Schmitt polemic, the author claims that sovereignty needs to be analysed by the sociological method in order to disclose its current structural differentiation. The constitution of society may be imagined as the multitude of self-constituted and functionally differentiated social subsystems. The constitutional pluralism argument subsequently (...) reconceptualizes sovereignty as socially differentiated and divided between specific subsystems. The EU's differentiated constitutional domain and the paradox of divided sovereignty are used as examples of profound structural and semantic changes in contemporary national and transnational societies. While the sovereign nation-state institutions have become marginalized in political structures of European societies, the self-constitutionalization of the functionally differentiated EU legal system proceeds by internalizing the concept of divided sovereignty and using it semantically as its mode of self-reference. (shrink)

The imperativist strand of positivism derives law from an actual person or set of persons wielding a monopoly of force. The rule-based positivism of H.L.A. Hart has more sublty identified a matter-of-fact rule of recognition in place of such a sovereign one or many. But sovereignty is not a matter-of-fact of any kind; rather it is partly the product of what I call qua arguments. I reconstruct the reasoning, in the extradition case of Augusto Pinochet in the British House (...) of Lords, providing a focus for an account of the limits of legal positivism in the application of the principle par in parem non habet imperium. Sovereign power is interpreted through reasoning that is at its margin more moral than technically legal. (shrink)

The keenly contested debates over the passage from the Middle Ages to modernity have steadily revealed how this transition was itself characterised by tensions and complexities. Narratives and inte...

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's (...) societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework. (shrink)

We agree with Saunkeah and colleagues that research ethics principles outlined by the Belmont Report—which guide the procedural basis for “human subjects” research in the United States throu...

The “Lošinj Declaration on Biotic Sovereignty” is a novelty in the consideration of the environment and life in general and a unique document on a global scale. Until the advent of the Declaration, the environment was usually considered in an instrumentalist way, following the prevailing techno-scientific paradigm. The Declaration introduces biotic sovereignty as the starting point for the debate on GMOs, from which the harmfulness or potential benefits of genetic engineering can be assessed. The protection of biotic (...) class='Hi'>sovereignty should be one of the crucial values that European and Croatian citizens should defend in the upcoming struggle to change and probably drastically reduce the regulatory regime for genetically modified crops in the European Union and thus also in Croatia. In this paper, we highlight the importance of the “Lošinj Declaration on Biotic Sovereignty” in the context of the emergence of new gene regulation techniques that are becoming a threat to biotic sovereignty. We analyse the lobbying process against the ruling C-528/16 using the example of the scientists united in the network EU-SAGE. The central part of the paper analyses the controversy over a new European Commission study on new genetic techniques and the political context of the conflict between the European Commission and the European Parliament over the authorisation of new seed varieties of genetically modified crops. (shrink)

In order to counter the steady erosion of tribal powers of self-government, this book argues for redirecting the trajectory of tribal-federal relations to better reflect the formative ethos of legal pluralism that operated in the nation's earliest years.

While the immediate aim of Walter Benjamin’s famous essay, “Critique of Violence,” is to provide a critique of legal violence, commentators typically interpret it as providing a further critique of state violence. However, this interpretation often receives no further argument, and it remains unclear whether Benjamin’s essay may prove analytically relevant for a critique of state violence today. This paper argues that the “Critique” proves thusly relevant, but only on condition that it is developed in two directions. The first direction (...) is conceptual, and consists in an explanation of the necessary relationship between states and violence. This explanation is found by appealing to a concept not cited in Benjamin’s text, but which, I argue, remains its implicit basis: sovereignty. According to this conceptual development, state violence is the necessary result of the state's attempt to maintain its sovereign law at the expense of emancipatory struggles to generate non-sovereign law. The second direction is genealogical, and consists in destabilizing the modern belief that justice is best served through the judicial channels of a sovereign state. Here I employ Michel Foucault’s genealogical research to demonstrate the historical contingency of state justice and, by extension, the possibility of a justice beyond the state. (shrink)

For Guizot, legal sovereignty is a divine, absolute prerogative precluded from mankind. The best possible form of government is that based upon a representative system, since such a system continuosly shifts the attibution of power from one subject to another. Guizot's analysis, which also denies the modern democratic principle of the sovereignty of the will of the people, examines certain aspects common to all representative systems, such as the relationship between the elected and the electorate and between the (...) majority and the minority, independently of the extension of suffrage. In particular, Guizot examines the relationship between public opinion and the common interest in an optic which is beyond his time and proves to be very appropriate today. He consideres the common interest to be a virtual and hypothetical component of the representative relationship, pre-eminent as regards the indications ascertained through the majority vote. (shrink)

Kantian legalism is now the dominant scholarly interpretation of Kant and an important approach to legal and political philosophy in its own right. One notable feature is its construal of the relationship between law and politics decisively in law’s favour: Law subordinates politics. Political judgment is constrained by and only permissibly exercised through law. This paper opposes this subordination through a close analysis of an ambiguity in Kant’s conception of sovereignty. Understanding this ambiguity requires seeing that, for Kant, law (...) cannot subordinate the sovereign’s political judgment because it is a condition which makes a legal system possible. Kant was not an exacting legalist, but a practical reasoner struggling with the pressures politics imposes on finite beings. Through discussion of a leading contemporary approach, and close engagement with its historical source, the paper raises new considerations about the relevance of political judgment in the relationship of law and politics. (shrink)

The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.

Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from 'the people' - is perhaps the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. Although its classic formulation is to be found in the major theoretical treatments of the modern state, such as in the treatises of Hobbes, Locke, and Rousseau, this (...) book explores the intellectual origins of this doctrine and investigates its chief source in late medieval and early modern thought. Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as François Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought. (shrink)

This article explores the idea of Parliamentary sovereignty in British constitutional theory. Two general explanations for this idea are considered: firstly, that the existence of a sovereign entity is a conceptually necessary precondition for the existence of a state or constitution; secondly, that Parliament is sovereign, if it is, in virtue of a rule of recognition whose existence and content may be empirically determined. The former account, it is suggested, looms large in orthodox British constitutional theory but cannot be (...) sustained. Herbert Hart's version of the latter account is examined by reference to the decision in Jackson v Attorney General but is also found wanting. Given the inadequacy of these accounts, it is contended that the idea of Parliamentary sovereignty is misconceived. Building on insights in the work of Hart and Dworkin, it is argued that the British constitution instead rests on the ideal of government under law or the principle of legality. The putative value of legality, it is contended, will shape or control the many different principles that condition the exercise of official power. (shrink)

‘The deep state’ is a theme in a recent conspiracy theory according to which opaque segments of the public administration prevent the will of the people from being fully reflected in public policy...

‘The deep state’ is a theme in a recent conspiracy theory according to which opaque segments of the public administration prevent the will of the people from being fully reflected in public policy...

_Sovereignty, Knowledge, Law_ investigates the notion of sovereignty from three different, but related perspectives: as a legal question in relation to the sovereign state, as a political question in relation to sovereign power, and as a metaphysical question in relation to sovereign self-knowledge. The varied and interchangeable uses of legal sovereignty, political sovereignty and metaphysical sovereignty in contemporary debates have resulted in a situation where the word ‘sovereignty’ itself has become something of a non-concept. Panu (...) Minkkinen shows here how these three perspectives have informed one another, by addressing their shared relationship to law, and to the ‘autocephalous’ function of sovereignty; that is, the attempt to provide a single source and foundation for law, power, and self-knowledge. Through an effort to domesticate the intrinsically ‘heterocephalous’ nature of power, the juridical and jurisprudential aim has been to confine power within the closed vertical hierarchy of traditional legal thinking. _Sovereignty, Knowledge, Law_ thus elaborates this heterocephaly, proposing new understandings of sovereignty, as well as of law and of legal scholarship. (shrink)

_Sovereignty, Knowledge, Law_ investigates the notion of sovereignty from three different, but related perspectives: as a legal question in relation to the sovereign state, as a political question in relation to sovereign power, and as a metaphysical question in relation to sovereign self-knowledge. The varied and interchangeable uses of legal sovereignty, political sovereignty and metaphysical sovereignty in contemporary debates have resulted in a situation where the word ‘sovereignty’ itself has become something of a non-concept. Panu (...) Minkkinen shows here how these three perspectives have informed one another, by addressing their shared relationship to law, and to the ‘autocephalous’ function of sovereignty; that is, the attempt to provide a single source and foundation for law, power, and self-knowledge. Through an effort to domesticate the intrinsically ‘heterocephalous’ nature of power, the juridical and jurisprudential aim has been to confine power within the closed vertical hierarchy of traditional legal thinking. _Sovereignty, Knowledge, Law_ thus elaborates this heterocephaly, proposing new understandings of sovereignty, as well as of law and of legal scholarship. (shrink)

This is a controversial work of applied legal theory, addressing urgent contemporary questions about law and the state, about the character of the UK as a state, and about the juridical character of the European Union.

This article examines the relationship between the concept of sovereignty and the process of European integration. It is argued that the nature of this relationship has been both mutually informative and transformative. As a particular understanding of sovereignty has influenced and determined the perception of European integration, i.e., its conceptualization, so the process of European integration has reflected back on sovereignty and entailed its rethinking. This poses a particular challenge for legal theorists: how to pin down the (...) meaning of sovereignty and European integration so as to put both in the best conceptual and normative light. The article begins by looking at the traditional perspective on sovereignty and how this has been challenged by European integration. The focus then shifts from sovereignty to European integration in order to examine how different perspectives on sovereignty, when used as an epistemic lens for understanding the process of European integration, have produced uneven conceptions of this integration. Finally, the article concludes by making a choice between the various conceptions of sovereignty and European integration. It is argued that the best conception of European integration is offered by the constitutional form of a union founded on pluralist sovereignty. (shrink)

This article holds that governmental investments in quantum technologies speak to the imaginable futures of digital sovereignty and digital infrastructures, two major areas of change driven by related technologies like AI and Big Data, among other things, in international law today. Under intense development today for future interpolation into digital systems that they may alter, quantum technologies occupy a sort of liminal position, rooted in existing assemblages of computational technologies while pointing to new horizons for them. The possibilities they (...) raise are neither certain nor determinate, but active investments in them (legal, political and material investments) offer perspective on digital technology-driven influences on an international legal imagination. In contributing to visions of the future that are guiding ambitions for digital sovereignty and digital infrastructures, quantum technologies condition digital technology-driven changes to international law and legal imagination in the present. Privileging observation and description, I adapt and utilize a diffractive method with the aim to discern what emerges out of the interference among the several related things assembled for this article, including material technologies and legal institutions. In conclusion, I observe ambivalent changes to an international legal imagination, changes which promise transformation but appear nonetheless to reproduce current distributions of power and resources. (shrink)

Arguing that the state and its people stand in a fiduciary relationship, Sovereignty's Promise puts forward a bold new account of political authority and its legal limits. In doing so it presents a fresh argument for common law constitutionalism and a novel theoretical framework for understanding the requirements of the rule of law.

The Sovereignty of Human Rights advances a legal theory of international human rights that defines their nature and purpose in relation to the structure and operation of international law. Professor Macklem argues that the mission of international human rights law is to mitigate adverse consequences produced by the international legal deployment of sovereignty to structure global politics into an international legal order. The book contrasts this legal conception of international human rights with moral conceptions that conceive of human (...) rights as instruments that protect universal features of what it means to be a human being. The book also takes issue with political conceptions of international human rights that focus on the function or role that human rights plays in global political discourse. It demonstrates that human rights traditionally thought to lie at the margins of international human rights law - minority rights, indigenous rights, the right of self-determination, social rights, labor rights, and the right to development - are central to the normative architecture of the field. (shrink)

The traditional concept of sovereignty is largely independent of democratic legitimacy and completely indifferent to any obligation towards non-national citizens. But can this traditional concept meet the normative expectations of a post-traditional understanding of political authority as well as the challenges of an ever more interconnected world? In order to respond to this question, the Article analyzes the conceptual presuppositions that lie at the basis of the notion of “sovereignty,” first regarding its sources, and second regarding the ideas (...) of rationality that are applied when sovereign actors operate. As far as the sources of sovereignty are concerned, it is argued that both of them - the “ascending” and the “descending” - although decisive for determining the quality of the legitimacy of political power, have little influence on a positive attitude of sovereigns towards aliens’ interests. To clarify the conditions for an opening of sovereign powers to solidarity, an assessment of the rationalities which are implemented when a sovereign puts actions into effect is therefore required. Yet most rationality concepts - or uses of practical reason - prove to be negative or at least useless when it comes to the question of supporting solidarity: the gamut ranges from open hostility towards the idea of taking the interests of aliens into account, through substantial indifference, to a positive approach which presupposes, however, non-provable metaphysical assumptions or an individual mindset with no pretension of issuing norms of general validity. Only the communicative conception of reason meets the criteria for a convincing justification of solidarity towards aliens as an obligation. The author therefore concludes that only an “ascending” sovereignty based on a communicative understanding of rationality can be considered fully legitimate insofar as the sovereign power, in this case, first originates from the will of the citizens and, second, is morally, politically and legally obliged to a solidaristic attitude towards the justified interests of non-citizens. (shrink)

Although the Charter of the United Nations embodied an unresolved tension between state sovereignty and the inviolability of human rights, the fall of the Berlin Wall seemed to herald universal acceptance of the legitimacy of international concern for the protection of human rights. Since that time, however, the sovereignty of states has been pushed with renewed vigour under the guise of cultural sovereignty. Three examples of the role of cultural sovereignty in the international human rights sphere (...) are proposed to demonstrate that the real interest of states is not the protection of cultural identity, but non‐interference, supremacy and control. The paper identifies cultural sovereignty with cultural relativism and argues that the ideology of relativism, combined with the inadequacies of legal positivism, have significantly harmed the efficacy and character of the international human rights regime. (shrink)

Futility is not a purely medical concept. Its subjective nature requires a balanced procedural approach where competing views can be aired and in which disputes can be resolved with procedural fairness. Law should play an important role in this process. Pure medical models of futility are based on a false claim of medical sovereignty. Procedural approaches avoid the problems of such claims. This paper examines the arguments for and against the adoption of a procedural approach to futility determination.

This article explores the challenge of developing a feminist law reform proposal to decertify sex and gender based on research conducted for the ‘Future of Legal Gender' project. Locating the proposal to decertify within a do-it-yourself, prefigurative approach to law reform, the article asks: Can a law reform proposal be both instrumental and radical? Can a proposal take shape as a viable legislative text and as a more subversive intervention to unsettle and reimagine gender’s relationship to law? This article explores (...) this at two levels. First, it considers the ontological challenges of developing a controversial law reform proposal in terms of its realness (or fictiveness), contours, and temporality, turning to ‘slow law' as a credible way of approaching radical reform. Second, it explores the design-based challenges of legal prototyping—foregrounding questions of legitimacy, participation, and purpose, which arise in designing a decertification law. At the heart of this discussion is the relationship between representation and enactment—between what a proposal presents and what its presentation does and does not accomplish. (shrink)

This book focuses on sovereignty referendums, which have been used throughout different historical periods of democratization, decolonization, devolution, secession and state creation. Referendums on questions of sovereignty and self-determination have been a significant element of the international political and legal landscape since the French Revolution, and have been a central element in the resolution of territorial issues from the referendum in Avignon in 1791 until today. More recent examples include Quebec, East Timor, New Caledonia, Puerto Rico and South (...) Sudan. The global aim of this book is to achieve a better empirical and legal understanding of sovereignty referendums and related problems in international and national law and politics. Accordingly, it presents readers a comprehensive study of sovereignty referendums from the perspectives of both international and constitutional law. (shrink)

We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous peoples’ sovereignty within the trusteeship model. (...) Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent. The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that they are a move in the right direction, and that implicitly they represent international law’s recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors. (shrink)

What is sovereignty? Often taken for granted or seen as the ideology of European states vying for supremacy and conquest, the concept of sovereignty remains underexamined both in the history of its practices and in its aesthetic and intellectual underpinnings. Using global intellectual history as a bridge between approaches, periods, and areas, The Scaffolding of Sovereignty deploys a comparative and theoretically rich conception of sovereignty to reconsider the different schemes on which it has been based or (...) renewed, the public stages on which it is erected or destroyed, and the images and ideas on which it rests. The essays in The Scaffolding of Sovereignty reveal that sovereignty has always been supported, complemented, and enforced by a complex aesthetic and intellectual scaffolding. This collection takes a multidisciplinary approach to investigating the concept on a global scale, ranging from an account of a Manchu emperor building a mosque to a discussion of the continuing power of Lenin's corpse, from an analysis of the death of kings in classical Greek tragedy to an exploration of the imagery of "the people" in the Age of Revolutions. Across seventeen chapters that closely study specific historical regimes and conflicts, the book's contributors examine intersections of authority, power, theatricality, science and medicine, jurisdiction, rulership, human rights, scholarship, religious and popular ideas, and international legal thought that support or undermine different instances of sovereign power and its representations. (shrink)

In this article the relationship between Parliament and courts is examined. The views of writers on sovereignty are considered and criticized. Two criticisms of the sovereignty theorists are made: first, that they wrongly assume that a legal system must attribute supreme legal power to a single source and, second, that they wrongly assume that statutes in the English system constitute absolute exclusionary reasons for decision. It is contended that legal systems, can, and the English Constitution does, contain multiple (...) unranked sources of law. Hart's rule of recognition and Kelsen's Grundnorm are considered and compared, and found to be insufficiently flexible to meet the realities of the English Constitution. A more complicated model of judicial reactions to statutes is proposed, and decisions of the judges that run contrary to the law as set down in the statute are considered. It is contended that the relationship of the courts to Parliament ought not to be considered a purely legal issue; it also has a political dimension. (shrink)

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary (...) sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent’. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions. (shrink)

The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. It holds that Parliament has unlimited legislative authority, and that the courts have no authority to judge statutes invalid. This doctrine has now been criticized on historical and philosophical grounds and critics claim that it is a relatively recent invention of academic lawyers that superseded an earlier tradition in which Parliament's authority was limited to common law. The critics also argue that (...) it is based on a misunderstanding of the relationship between statutory and common law, and is morally indefensible. The Sovereignty of Parliament: History and Philosophy responds to these criticisms. It first defines and clarifies the concept of legislative sovereignty and then describes the historical origins and the development of the doctrine from the thirteenth to the end of the nineteenth century. Professor Goldsworthy goes on to identify many different reasons why persuaded statesmen, lawyers, and political theorists have endorsed the doctrine. He discusses the ideas of a large number of legal and political thinkers, including Fortescue, St German, Hooker, Coke, Bacon, Parker, Milton, Hobbes, Hale, Locke, Bolingbroke, Blackstone, and Burke. He shows that judges in Great Britain have never had authority to invalidate statutes, and that the doctrine is much older than is generally realized. The book concludes by dealing with philosophical criticisms of the doctrine. Combining the insights of earlier thinkers with those of contemporary legal philosophers, it demonstrates that these criticisms are based on a defective understanding of the nature and foundations of law, and of the relationship between legislative authority and the common law. It argues that the doctrine is morally defensible, and refutes the thesis that the judges have authority to modify or reject it. (shrink)

Whereas hundreds of social movements and NGOs all over the world have embraced the concept of food sovereignty, not many public authorities at the national and international level have adopted the food sovereignty paradigm as a normative basis for alternative agriculture and food policy. A common explanation of the limited role of food sovereignty in food and agriculture policy is that existing power structures are biased towards maintaining the corporatist food regime and neo-liberal thinking about food security. (...) This article sets out to provide an alternative explanation for this limited role by critically reflecting on the debate about food sovereignty itself. The main argument is that this debate is characterized by deadlock. Two mechanisms underlying the deadlock are analyzed: confusion about the concept of sovereignty and the failure of the epistemic community to debate how to reconcile conflicting values, discourses, and institutions regarding food. To overcome this deadlock and organize meaningful debate with public authorities, it is proposed that the food sovereignty movement uses insights from legal pluralism and debates on governance and adopts the ending of “food violence” as a new objective and common frame. (shrink)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The (...) second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)