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)

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)

Legal studies and consequently legal history focus on constitutional documents, believing in a nominalist autonomy of constitutional semantics.Reconsidering Constitutional Formation in the late 18th and 19th century, kept historic constitutions from being simply log-books for political experts through a functional approach to the interdependencies between constitution and public discourse. Sovereignty had to be 'believed' by the subjects and the political élites. Such a communicative orientation of constitutional processesbecame palpable in the 'religious' affinities of the constitutional preambles. They were held (...) as 'creeds' of a new order, not only due to their occasional recourse to divine authority, but rather due to the claim for eternal validity contexts of constitutional guarantees. The communication dependency of constitutions was of less concern in terms of the preamble than the constituents' big worries about government organisation. Their indecisiveness between monarchical and popular sovereignty was established through the discrediting of the Republic in the Jacobean reign of terror and the 'renaissance' of the monarchy in the military resistance against the French revolutionary and later Napoleonic campaigns. The constitutional formation as a legal act of constituting could therefore defend the monarchy from the threat of the people (Albertine Statute 1848), could be a legal decision of a national constituent assembly (Belgian Constitution 1831), could borrow from the old liberties (Polish May Constitution 1791) or try to remain in between by referring to the Nation as sovereign (French September Constitution 1791, Cádiz Constitution 1812). Common to all contexts is the use of national sovereignty as a legal starting point. The consequent differentiation between constituent and constituted power manages to justify the self-commitment of political power in legal terms. National sovereignty is the synonym for the juridification of sovereignty by means of the constitution. The novelty of the constitutions of the late 18th and 19th century is the normativity, the positivity of the constitutional law as one unified law, to be the measure for the legality of all other law. Therefore ReConFort will continue with the precedence of constitution. (www.reconfort.eu). (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)

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)

The aim of this essay is to examine the place of the people in the constitutions of democratic nations. While the meaning of democracy and the degree to which it is achieved vary within the family of nations considered democratic, the idea common to all is that the people are self-governing. In its origins, the idea is tied to liberty: not to be self-governing is to be subject to the will of another and so not to be free. What constitutes (...) self-government is open to interpretation, although this is not the place to examine the possible meanings. Nor is this the place to set out the history of the idea or to show how it became central to modern constitutions, except to note the number of nations qualifying as democratic has steadily increased in recent years to just under a half of the total. It seems reasonable to assume that a democratic nation, a self-governing people, would want to make sure that the constitution, the basic of government and of relations between the people and government, provide for and protect self-government and hence democracy. (shrink)

본 논문은 우리 헌법 전문에 등장하는 ‘대한국민’의 주권적 의의를 헌법제정권력론 및 한나 아렌트의 논의에 비추어 살펴보고, 북한헌법에서 ‘조선인민’에 부여된 비주권적 위상을 조명한 다음, 통일헌법 제정의 주체가 될 하나된 국민의 주권적 면모를 전망하고자 한다. 우리 헌법 전문에서 대한국민은 스스로의 헌법제개정행위를 서술함으로써 헌법 본문에 대해 정당성을 보장한다. 헌법제정은 헌법제정권력이 단순한 사실적 힘의 차원을 벗어나 일정한 가치를 지향할 때 성립하며, 헌법제정행위는 그 자체가 공적 자유의 행사이다. 북한헌법의 특징은 주권적 국민의 실종과 역사적 맥락의 누락이다. 북한헌법에서 ‘조선인민’은 국가 주도적인 통제와 관리의 피동적인 객체로 설정된다. 통일헌법의 (...) 제정은 남북한 두 국민이 하나 된 국민이 되어 행하는 주권적 행위가 될 것이고, 특히 북한 주민들에게는 그 본래적 주권성과 역사성을 회복하여 보편적 헌법가치와 법원리의 구현에 참여하게 되는 계기가 될 것이다. (shrink)

Abstract:This essay examines the ways that the 2008 Constitution resignified Ecuador as a “plurinational” state, one that respects and affirms the sovereignty of the diverse Indigenous and Afro-descendent groups within it, as well as the ways that it redefined the family, shifting from a singular notion of family to one based on a notion of la familia diversa, the family in its diverse forms. We'll suggest that these linked redefinitions share a similar logic of multiplicity and open-endedness that work (...) to challenge monolithic and hegemonic social and political forms that had been imposed on Ecuador in a colonial context and then preserved in the postcolonial period. In doing so, we pay particularly close attention to the development of these concepts in contemporary Ecuadorian politics, as well as to ways in which their implementation has been limited, compromised, and forestalled. We argue that, far from being a change only on paper, the opening up of the definitions of the nation and the family in the Ecuadorian Constitution are important aspects of linguistic and institutional resistance to the coloniality of power in Ecuador. We explore ways that Ecuadorian activists maneuver the contradictions and challenges of engaging with the state in doing this work. (shrink)

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and...

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)

Bertrand de Jouvenel (1903–1987) was a renowned French philosopher and political economist. In Sovereignty he turned his attention to the relationship between the distribution of power and the creation of an ethical society. More specifically, he was concerned with the potential confusion of the body politic resulting from the development of increasingly dynamic and nebulous social conditions. The text is written in an exploratory fashion, reflecting the authorial perception of an ambiguity in modern political structures. This translated Cambridge edition, which (...) was first published in 1957, was derived from a 1955 French original. It constitutes an important contribution to post-war political theory that will remain of value to anyone with an interest in questions relating to political structures and the nature of authority. (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)

We typically associate sovereignty with the modern state and presuppose the coincidence of political rule, public power, government, legitimacy and jurisdiction with territorially delimited states. We are also used to referencing liberal principles of justice, egalitarian ideals of fairness, republican conceptions of non-domination and separation of powers, and democratic ideas of popular sovereignty, for the standards that should constitute, guide, limit and legitimate the exercise of sovereign power. This Article addresses an important challenge to these principles: the reemergence of theories (...) and claims to jurisdictional/political pluralism on behalf of non-state “nomos groups” within well-established liberal-democratic polities. Theories of jurisdictional political pluralism purport to account for the independent sovereign authority of the corporate religious, while providing a “postmodern,” “permeable,” “pluralist” conception of sovereignty allegedly more appropriate descriptively to twenty-first century reality and more attractive normatively, than the modern statist version. This Article analyzes and assesses these claims. It criticizes the disassociation of the sovereignty concept from publicly accountable power, challenges the displacement of rights-holders from individuals to corporate groups, and offers a different, federal alternative to anachronistic or normatively flawed modern monistic statist conceptions. My purpose is to preserve the key achievements of democratic constitutionalism and to apply them to every level on which government, power, rule, and/or domination is exercised. (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)

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.

Sovereignty in premodern times evoked the dynastic figure of the 'sovereign' or territorial monarch. In modern times, it became a more abstract idea, referring to the power of the state, later of the people or 'the popular sovereign' as articulated and refined through constitutional arrangements. Today these inherited understandings of sovereignty confront various new challenges, including those of globalization, privatization of power, and the rise of sub-state nationalism. An examination of key historical writers and trends from the seventeenth century onwards, (...) including Hobbes, Bodin, Constant, Rousseau and Schmitt, brings out these developments and challenges. Sovereignty remains a malleable and 'active' feature of the global configuration of power. Will sovereignty become a redundant concept over time, or will it remain a key part of the grammar of modern politics? (shrink)

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)

Modern sovereignty is anthropocentric, constituted and organized by reference to human beings alone. Although a metaphysical assumption, anthropocentrism is of immense practical import, enabling modern states to command loyalty and resources from their subjects in pursuit of political projects. It has limits, however, which are brought clearly into view by the authoritative taboo on taking UFOs seriously. UFOs have never been systematically investigated by science or the state, because it is assumed to be known that none are extraterrestrial. Yet in (...) fact this is not known, which makes the UFO taboo puzzling given the ET possibility. Drawing on the work of Giorgio Agamben, Michel Foucault, and Jacques Derrida, the puzzle is explained by the functional imperatives of anthropocentric sovereignty, which cannot decide a UFO exception to anthropocentrism while preserving the ability to make such a decision. The UFO can be "known" only by not asking what it is. (shrink)

Food sovereignty asserts the right of peoples to define and organize their own agricultural and food systems so as to meet local needs and so as to secure access to land, water and seed. A commitment to gender equity has been embedded in the food sovereignty concept from its earliest articulations. Some might wonder why gender justice should figure so prominently in a food movement. In this paper I review and augment the arguments for making gender equity a central component (...) of food sovereignty. The most common argument is: if women constitute the majority of the world’s food producers, then agricultural policy is a women’s issue. And insofar as patriarchal social relations continue to dominate the globe, then changing agricultural policies will require explicit attention to gender injustice. I suggest that this is a good argument, but that an ecological feminist perspective can provide additional theoretical reasons for maintaining the centrality of gender justice in food sovereignty discourse. Moreover, ecological feminism can provide a robust theoretical framework that coheres a concept and movement with a wide set of concerns. My critique positions food sovereignty’s call to social justice as embedded in a truly radical re-thinking of dominant conceptual frameworks, and re-envisioning of political and ethical relations. (shrink)

Constitutions enshrine the fundamental values of a people and they build a framework for a state’s public policy. With regard to generational change, their endurance gives rise to two interlinked concerns: the sovereignty concern and the forgone welfare concern. If constitutions are intergenerational contracts, how (in)flexible should they be? This article discusses perpetual constitutions, sunset constitutions, constitutional reform commissions and constitutional conventions, both historically and analytically. It arrives at the conclusion that very rigid constitutions are incompatible with the principle of (...) intergenerational justice. Recurring constitutional reform commissions in fixed time intervals would give each generation of citizens a say without leaning too much to the side of flexibility. (shrink)

In British constitutional law, the doctrine of parliamentary sovereignty maintains that Parliament has unlimited legislative authority. Critics have recently challenged this doctrine, on historical and philosophical grounds. This book describes its historical origins and development.

The political make-up of the contemporary world changes with such rapidity that few attempts have been made to consider with adequate care, the nature and value of the concept of sovereignty. What exactly is meant when one speaks about the acquisition, preservation, infringement or loss of sovereignty? This book revisits the assumptions underlying the applications of this fundamental category, as well as studying the political discourses in which it has been embedded. Bringing together historians, constitutional lawyers, political philosophers and experts (...) in international relations, Sovereignty in Fragments seeks to dispel the illusion that there is a unitary concept of sovereignty of which one could offer a clear definition. This book will appeal to scholars and advanced students of international relations, international law and the history of political thought. (shrink)

Contemporary Foucauldian research assimilates the political with governance. This formulation dates to Foucault's emphasis on the significance of the anti-Machiavellians in introducing the concept of governance into political theory. Returning to Machiavelli, we argue that early modern political theory was instead characterized by the simultaneous problematization of ruler and ruled, and the co-constitution of sovereignty and governance. We then outline the relation of ruler and ruled in the political structure of the democratic sovereign. Concepts of both sovereignty and governance (...) are necessary to theorize the political in modernity, including the dangers that arise from fusing sovereignty and governance, as occurred during the Nazi period in Germany, when the distinction between the sovereign people and the governed population was conflated. (shrink)

This article investigates the relationship between popular sovereignty, populism, and deliberative democracy. My main thesis is that populisms resurrect the polemical dimension of popular sovereignty by turning “the people” against the “powerbloc” or the “elite”, and that it is crucial thatthis terrain not be ceded to authoritarian distortions of this basic contestatory grammar. Furthermore, I contend that populist forms of politics are compatible with a procedural and deliberative conception of democracy. Ifirst engage with the assumption that populism and a procedural (...) model of democracy are incompatible, demonstrating that this assumption relies on a conservative bias which tiesthe exercising of communicative power to a “duty of civility”. I then engage with radical-democratic reconstructions of the procedural notion of popular sovereignty which emphasize the unleashing and diversification of peoplehood in communication circuits and the mutual permeability of constitutional politics, parliamentary legislation, and the public sphere. Thirdly, I conclude that populisms are an essential part of communicative power in modern democracies and part of its dialectical structure. (shrink)

Medieval Sovereignty examines the idea of sovereignty in the Middle Ages and asks if it can be considered a fundamental element of medieval constitutional order.

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)

In its enunciation of “We the people,” the Constitution of the United States of America becomes a constitution of the flesh as it simultaneously invokes a constitution, a nation and a people. Correspondingly, its amendments as a list of rights pertaining to sex and race discrimination, and freedoms of bodily movement and action, assert the Constitution’s authority through the evocation of “natural” human bodies. In this article, I explore the way in which a sovereignty of the (...) United States’ Constitution is realised in the particularlised bodies of its citizens. The fundamental and foundational laws of the United States, and the narratives and myths used to interpret them, are in part rendered legitimate by the Constitution’s embodiment, which extends from its physical manifestation in written documents into the flesh of its citizens. In order to make this argument, I turn to the film The Matrix (1999), the success of which relies on an investment in bodies and the United States’ Constitution as matter through its interwoven narrative themes of human slavery and emancipation, reality and computer-generated simulation. At the same time, The Matrix extends its ideological play into the bodies of its audience, who experience the film’s thrillingly sensorial fantasies of constitutional rights while enjoying its affective special effects. Thus, the sovereign authority of United States constitutional law is experienced as “natural” through the phenomenological experience of cinema. (shrink)

Questions of sovereignty are unavoidable when considering the production of social power within the context of modernity and globalization. If sovereignty refers to the existence of a highest or supreme power over a set of people, things, or places, then we ought to question whether sovereignty can be legitimately `located' in an agent like a state. Is not supremacy more accurately associated with the structures of relations that set the terms for - or are constitutive of - a domain of (...) social existence? This social sovereignty offers us a way to understand not only how both state and nonstate actors can together be central to the governance of social domains, but also how communities can fashion sovereign `societies' as opposed to states. The case of globalized financial markets is explored as a pointed example of a transboundary form of social sovereignty. (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)

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)

Does the establishment of a permanent InternationalWar Crimes Tribunal (International Criminal Court - ICC) constitute a challenge to national sovereignty? According to previous US governments and several American observers, the answer is yes. Establishing a world court that acts independently of the states that gave birth to it renders the idea of sovereignty meaningless. This article analyzes the American objections to the ICC and the conception of sovereignty and international law underlying these objections. It first considers the structure and intent (...) behind the criminal court and attempts to unveil the logic hiding behind the idea of ‘America’s historical uniqueness.’ It touches on the diverging US and European conceptions of sovereignty and ends up arguing that governments that stick to traditional conceptions of sovereignty and international law in the employment of their foreign policy may lose the moral legitimacy that has proven increasingly important for winning the sympathy of allies and regaining world leadership. Keywords: The ICC; US opposition to the court; sovereignty; international law; exceptionalism (Published: 19 May 2009) Citation: Ethics & Global Politics, Vol. 2, No. 2, 2009, pp. 83-108. DOI: 10.3402/egp.v2i2.1973. (shrink)

It is commonly held that the idea of natural rights originated with the ancient Greeks, and was given full form by more modern philosophers such as John Locke, who believed that natural rights were apprehensible primarily to reason. The problem with this broad position is three-fold: first, it is predicated on the presumption that the idea of rights is modern, biologically speaking ; second, it makes it appear that reason and rights are integrally, even causally, linked; finally, it legitimizes debate (...) about just what rights might be, even in their most fundamental essence. In consequence, the most cherished presumptions of the West remain castles in the air, historically and philosophically speaking. This perceived weakness of foundation makes societies grounded on conceptions of natural right vulnerable to criticism and attack in the most dangerous of manners. Most of the bloodiest battles and moral catastrophes of the twentieth century were a consequence of disagreement between groups of people who had different rationally-derived notions of what exactly constituted an inalienable right . If natural rights are anything at all, therefore, they better be something more than mere rational constructions. The adoption of a much broader evolutionary/historical perspective with regards to the development of human individuality and society allows for the generation of a deep solution to this problem—one dependent on a transformation of ontology, much as moral vision. Such a solution grounds the concept of sovereignty and natural right back into the increasingly implicit and profoundly religious soil from which it originally emerged, and provides a rock-solid foundation for explicit Western claims for the innate dignity of man. (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 phenomenon of “Muslim Democracy” has been analyzed by scholars for a number of years, at least since the mid-1990s. The standard view about Muslim Democracy is that (perhaps like its European counterpart Christian Democracy) it represents a nonideological, or postideological, pragmatic approach to electoral politics. The purpose of this article is to advance two primary arguments. The first is that the turn to Muslim Democracy as an ideology and practice should first be understood as a way of thinking about (...) politics that breaks with the sovereigntist imaginary that dominated modern Islamic political thought. Second, Muslim Democrats do not forswear the use of democratic means to advance goals derived from religious commitment as part of their recognition of pluralism and constitutional democracy. Their attitude toward politics should thus be seen as a form of agonistic pluralism. This article thus proposes an interpretation of Muslim Democracy as post-sovereigntist agonistic political Islam. (shrink)

The notion of sovereignty plays an important part in various areas of law, such as constitutional law and international public law. Though the concept of sovereignty as applied in constitutional law differs from that used in international public law, there is no true consensus on the meaning of “sovereignty” within these respective fields, either. Is sovereignty about factual power, or only about legal equality? Do only democracies have sovereignty, because they have legitimacy, or is there no connection between democracy, legitimacy (...) and sovereignty? Has the European Union encroached upon the sovereignty of the Member States, or is transferring competences to the European Union an expression and exercise of the very sovereignty some claim is under attack? Is it about states, or is it about peoples having a right to self-determination, and if the latter, does this represent popular sovereignty or something else? In order to answer these and related questions, we need a clear grasp of what “sovereignty” means. This book provides an analytical and conceptual framework for “sovereignty” in the context of law. The book does not seek to describe how the term “sovereignty” is used in the different contexts and discourses in which it is employed, but rather distinguishes between two possible meanings of sovereignty that allow the reader to use the term with specificity and clarity. In this way, this book hopes to offer valuable analytical tools for politicians, constitutional and international lawyers and legal theorists that help them be clear about what they mean when they speak of “sovereignty.”. (shrink)

This essay argues that modern sovereignty is not simply a legal or political concept that is coterminous with the modern nation-state. Rather, at the theoretical level modern sovereign power is inscribed into a wider theological dialectic between “the one” and “the many”. Modernity fuses juridical-constitutional models of supreme state authority with a new, “biopolitical” account of power whereby natural life and the living body of the individual are the object of politics and are subject to state control (section 1). The (...) origins of this dialectic go back to changes within Christian theology in the late Middle Ages and the early modern period. In particular, these changes can be traced to Ockham's denial of the universal Good in things, Suárez's priority of the political community over the ecclesial body and Hobbes's “biopolitical” definition of power as state dominion over life (section 2). At the practical level, modern sovereignty has involved both the national state and the transnational market. The “revolutions in sovereignty” that gave rise to the modern state and the modern market were to some considerable extent shaped by theological concepts and changes in religious institutions and practices: first, the supremacy of the modern national state over the transnational papacy and national churches; second, the increasing priority of individuality over collectivity; third, a growing focus on contractual proprietary relations at the expense of covenantal ties and communal bonds (section 3). By subjecting both people and property to uniform standards of formal natural rights and abstract monetary value, financial capitalism and liberal secular democracy are part of the “biopolitical” logic that subordinates the sanctity of life and land to the secular sacrality of the state and the market. In Pope Benedict's theology, we can find the contours of a post-secular political economy that challenges the monopoly of modern sovereignty (sections 4–5). (shrink)

‘The political’ is much talked about today, but its invocation in international political theory is all but entirely dismissed. Yet, moral-ethical articulations do impact theorizing about international life, albeit in a most peculiar and often concealed fashion. In this paper I investigate the modernity of sovereignty in political and international theory and explain why invocations of the moral-ethical are so forcefully liquidated from international relations theory. I examine the constitutive effects of the sovereignty imperative and explain how modern notions of (...) ethics, politics and community are delimited by the need to effect what can be made to count as the pre-political ground of will-formation. A peculiar modernist strategy delimits the imagination of the politically possible in international life. I argue that critique must attend and not dispense with a fundamental paradoxicality (which is transfigured as modernity’s very metaphysical embodiment) that structures a distinctively modern manner of reflecting on ethics and community. The paradoxicality is sovereignty. It is accommodated by a liberal politics that works to conceal a restive anxiety of the modern ‘condition’. This anxiety is in turn productive of a politics with which we must grapple as we elaborate governance in global life. (shrink)