Reconstructing Sovereignty 303030003X, 9783030300036, 3030300048, 9783030300043

Table of contents :
Preface......Page 6
Contents......Page 7
1.1 Introduction......Page 10
1.1.1 What This Book Aims To Be, and What It Does Not Aim To Be......Page 12
1.2 Why Stipulate More Definitions?......Page 13
1.3 Overview......Page 14
References......Page 15
Chapter 2: Sovereignty in the Law......Page 17
2.1 Legal Concepts......Page 19
2.2 Inferential Analysis of ``Sovereignty´´ in International Law......Page 24
2.3 Inferential Analysis of ``Sovereignty´´ in National Law......Page 30
2.3.1 Consequences of MCDS......Page 33
2.3.2 Attributed to State or State Organ?......Page 37
2.3.3 Attributed to the People?......Page 38
2.4 Implications......Page 40
References......Page 43
Chapter 3: Sovereignty Outside of the Law......Page 45
3.1 Constitutive Sovereignty Is Extra-Legal......Page 46
3.2 The Core of Constitutive Sovereignty (MCVS)......Page 48
3.2.1 The State and the Legal System Emanate from the People......Page 49
3.2.2 Excursion: Social Conventions and Social Rules......Page 55
3.2.3 Defining the People......Page 65
3.2.4 The Two Sides of Municipal Constitutive Sovereignty......Page 69
3.2.5 Intermediate Conclusion: Municipal Constitutive Sovereignty So Far......Page 70
3.3.1 Sovereignty as a Matter of Degree......Page 71
3.3.2 Exclusivity......Page 72
3.3.3 Constitutive Sovereignty and Legitimacy......Page 73
3.4 International Constitutive Sovereignty (ICVS)......Page 77
3.4.1 States Constitute International Law......Page 78
3.4.2 Social Rule or Contract?......Page 81
3.4.3 Who Is Sovereign (ICVS)?......Page 83
3.4.4 Concluding Remarks......Page 84
References......Page 85
Chapter 4: Questions About Sovereignty......Page 88
4.1.1 Constituted and Constitutive......Page 89
4.1.2 National Constituted and International Constitutive......Page 90
4.1.3 International Constituted Sovereignty and National Constitutive Sovereignty......Page 92
4.1.4 The Impact of Mastery on Sovereignty......Page 93
4.1.5 Concluding Remarks......Page 98
4.2 Is the Concept of Sovereignty Necessary?......Page 99
4.3 Sovereignty Relative to What?......Page 101
4.4 Limited or Not?......Page 102
References......Page 103
Chapter 5: Sovereignty in Context......Page 105
5.1 Sovereignty and Secession: Scotland, Catalonia, and Quebec......Page 106
5.1.1 Catalonia......Page 107
5.1.2 Quebec......Page 110
5.1.3 Scotland......Page 111
5.2.1 Are the Member States of the European Union Still Sovereign?......Page 113
5.2.2 Is the European Union Sovereign?......Page 114
5.3 Not the People but God?......Page 118
5.4 Humanitarian Intervention......Page 120
5.5 The Role of Recognition......Page 123
5.6 Concluding Remarks......Page 127
References......Page 128
Chapter 6: Other Accounts......Page 131
6.1.1 Jean Bodin´s Theory of Sovereignty......Page 132
6.1.2 Thomas Hobbes´ Theory of Sovereignty......Page 136
6.1.3 Concluding Remarks: Monarchical Sovereignty......Page 138
6.2.1 Dicey´s Theory of Parliamentary Sovereignty......Page 139
6.2.2 Goldsworthy´s Theory of Parliamentary Sovereignty......Page 143
6.3 Popular Sovereignty......Page 149
6.3.1 The Indian Conception of Popular Sovereignty......Page 150
6.3.2 The Australian Conception of Popular Sovereignty......Page 153
6.3.3 The German Conception of Popular Sovereignty......Page 155
6.3.4 Concluding Remarks: Popular Sovereignty......Page 156
6.4.1 Hans Kelsen......Page 157
6.4.2 Chinese Sovereignty......Page 162
6.4.3 Concluding Remarks: State Sovereignty......Page 164
6.5 Concluding Remarks......Page 165
References......Page 166
7.1 Constitutive Sovereignty......Page 168
7.2 Constituted Sovereignty......Page 172
7.3 A Look to the Future......Page 173

Citation preview

Law and Philosophy Library 132

Antonia M. Waltermann

Reconstructing Sovereignty

Law and Philosophy Library Volume 132

Series Editors Francisco J. Laporta, Autonomous University of Madrid, Madrid, Spain Frederick Schauer, University of Virginia, Charlottesville, VA, USA Torben Spaak, Stockholm University, Stockholm, Sweden Editorial Board Members Aulis Aarnio, Secretary General of the Tampere Club, Tampere, Finland Humberto Ávila, University of São Paulo, São Paulo, Brazil Zenon Bankowski, University of Edinburgh, Edinburgh, UK Paolo Comanducci, University of Genoa, Genova, Italy Hugh Corder, University of Cape Town, Cape Town, South Africa David Dyzenhaus, University of Toronto, Toronto, Canada Ernesto Garzón Valdés, Johannes Gutenberg University, Mainz, Germany Riccaro Guastini, University of Genoa, Genova, Italy Ho Hock Lai, National University of Singapore, Singapore, Singapore John Kleinig, City University of New York, New York City, NY, USA Claudio Michelon, University of Edinburgh, Edinburgh, UK Patricia Mindus, Uppsala University, Uppsala, Sweden Yasutomo Morigiwa, Meiji University, Tokyo, Japan Giovanni Battista Ratti, University of Genoa, Genova, Italy Wojchiech Sadurski, University of Sydney, Sydney, Australia Horacio Spector, University of San Diego, San Diego, USA Michel Troper, Paris Nanterre University, Nanterre, France Carl Wellman, Washington University, St. Louis, USA

The Law and Philosophy Library, which has been in existence since 1985, aims to publish cutting edge works in the philosophy of law, and has a special history of publishing books that focus on legal reasoning and argumentation, including those that may involve somewhat formal methodologies. The series has published numerous important books on law and logic, law and artificial intelligence, law and language, and law and rhetoric. While continuing to stress these areas, the series has more recently expanded to include books on the intersection between law and the Continental philosophical tradition, consistent with the traditional openness of the series to books in the Continental jurisprudential tradition. The series is proud of the geographic diversity of its authors, and many have come from Latin America, Spain, Italy, the Netherlands, Germany, and Eastern Europe, as well, more obviously for an English-language series, from the United Kingdom, the United States, Australia and Canada.

More information about this series at http://www.springer.com/series/6210

Antonia M. Waltermann

Reconstructing Sovereignty

Antonia M. Waltermann Foundations and Methods of Law, Faculty of Law Maastricht University Maastricht, The Netherlands

ISSN 1572-4395 ISSN 2215-0315 (electronic) Law and Philosophy Library ISBN 978-3-030-30003-6 ISBN 978-3-030-30004-3 (eBook) https://doi.org/10.1007/978-3-030-30004-3 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

Sovereignty is a topic on which much has been written already and undoubtedly, more will follow. Writing a book on such a topic is tricky—much has been said already, after all. It is my hope and belief that this book manages to offer something new nonetheless. More specifically, it is my hope and belief that this book manages to offer a conceptual framework for sovereignty which can help academics, practitioners, politicians, journalists, and anyone else interested in the topic of sovereignty make sense of the varied landscape. In some ways, writing a book is a solitary exercise. In other ways, it very much isn’t. Many people at Maastricht University’s Faculty of Law contributed by giving me the time and space for the solitary parts of writing this book and their support, feedback, and company—the less solitary bits. In particular, I want to thank Jaap Hage for a long list of things, including but not limited to frequent discussions on various points of legal theory and for his continued support. This book has benefitted from our ongoing conversation about many topics, and I have learned (and continue to learn) a great deal from him. Aalt-Willem Heringa has often provided a more practically oriented counterpart to theoretical flights of fancy and has my thanks for this and for the continued cooperation between us. Torben Spaak and the Faculty of Law of Stockholm University have welcomed me for a research visit that helped this book along; the Science Committee of the Faculty of Law of Maastricht University helped make that visit possible. Torben Spaak also offered feedback and fruitful discussions on many sections of this book. This book further benefitted from feedback from a number of people, including Andrew Halpin, Jan Smits, Jure Vidmar, Bruno de Witte, and Bert van Roermund. They all have my gratitude. Last but certainly not least, I would like to thank my parents, Elisabeth and Ernst, and my colleagues and friends. Maastricht, The Netherlands 2019

Antonia M. Waltermann

v

Contents

Preliminaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1.1 What This Book Aims To Be, and What It Does Not Aim To Be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Why Stipulate More Definitions? . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 4 5 6

2

Sovereignty in the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Legal Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Inferential Analysis of “Sovereignty” in International Law . . . . . 2.3 Inferential Analysis of “Sovereignty” in National Law . . . . . . . . 2.3.1 Consequences of MCDS . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Attributed to State or State Organ? . . . . . . . . . . . . . . . . 2.3.3 Attributed to the People? . . . . . . . . . . . . . . . . . . . . . . . 2.4 Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .

9 11 16 22 25 29 30 32 35

3

Sovereignty Outside of the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Constitutive Sovereignty Is Extra-Legal . . . . . . . . . . . . . . . . . . . 3.2 The Core of Constitutive Sovereignty (MCVS) . . . . . . . . . . . . . . 3.2.1 The State and the Legal System Emanate from the People . . . 3.2.2 Excursion: Social Conventions and Social Rules . . . . . . . 3.2.3 Defining the People . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 The Two Sides of Municipal Constitutive Sovereignty . . . 3.2.5 Intermediate Conclusion: Municipal Constitutive Sovereignty So Far . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Implications of This Conception . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Sovereignty as a Matter of Degree . . . . . . . . . . . . . . . . . . 3.3.2 Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Constitutive Sovereignty and Legitimacy . . . . . . . . . . . . .

37 38 40 41 47 57 61

1

1 1

62 63 63 64 65 vii

viii

4

5

6

Contents

3.4

International Constitutive Sovereignty (ICVS) . . . . . . . . . . . . . . 3.4.1 States Constitute International Law . . . . . . . . . . . . . . . . 3.4.2 Social Rule or Contract? . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 Who Is Sovereign (ICVS)? . . . . . . . . . . . . . . . . . . . . . . 3.4.4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . .

69 70 73 75 76 77

Questions About Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Relationship Between Sovereignties . . . . . . . . . . . . . . . . . . . . . 4.1.1 Constituted and Constitutive . . . . . . . . . . . . . . . . . . . . . 4.1.2 National Constituted and International Constitutive . . . . . 4.1.3 International Constituted Sovereignty and National Constitutive Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . 4.1.4 The Impact of Mastery on Sovereignty . . . . . . . . . . . . . 4.1.5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Is the Concept of Sovereignty Necessary? . . . . . . . . . . . . . . . . . 4.3 Sovereignty Relative to What? . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Limited or Not? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

81 82 82 83

. . . . . . .

85 86 91 92 94 95 96

Sovereignty in Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Sovereignty and Secession: Scotland, Catalonia, and Quebec . . . 5.1.1 Catalonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3 Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Municipal Constituted Sovereignty and the European Union . . . 5.2.1 Are the Member States of the European Union Still Sovereign? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Is the European Union Sovereign? . . . . . . . . . . . . . . . . . 5.3 Not the People but God? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Humanitarian Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Role of Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . .

99 100 101 104 105 107

. . . . . . .

107 108 112 114 117 121 122

Other Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Monarchical Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 Jean Bodin’s Theory of Sovereignty . . . . . . . . . . . . . . . 6.1.2 Thomas Hobbes’ Theory of Sovereignty . . . . . . . . . . . . 6.1.3 Concluding Remarks: Monarchical Sovereignty . . . . . . . 6.2 Parliamentary Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Dicey’s Theory of Parliamentary Sovereignty . . . . . . . . . 6.2.2 Goldsworthy’s Theory of Parliamentary Sovereignty . . . 6.2.3 Concluding Remarks: Parliamentary Sovereignty . . . . . . 6.3 Popular Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 The Indian Conception of Popular Sovereignty . . . . . . . .

. . . . . . . . . . .

125 126 126 130 132 133 133 137 143 143 144

Contents

7

ix

6.3.2 The Australian Conception of Popular Sovereignty . . . . . 6.3.3 The German Conception of Popular Sovereignty . . . . . . 6.3.4 Concluding Remarks: Popular Sovereignty . . . . . . . . . . 6.4 State Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 Hans Kelsen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.2 Chinese Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.3 Concluding Remarks: State Sovereignty . . . . . . . . . . . . . 6.5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .

147 149 150 151 151 156 158 159 160

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Constitutive Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Constituted Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 A Look to the Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

163 163 167 168

Chapter 1

Preliminaries

1.1

Introduction

Imagine that a Member of Parliament of the British House of Commons, a Chinese delegate to the United Nations and an Indian citizen walk into a bar. Before pouring them their drinks, the bartender asks each of them who is sovereign. The British MP replies that it is, of course, Westminster Parliament, able to make or unmake any law whatever. The Chinese delegate says that autonomous states are sovereign under international law, and the Indian claims that it is the people and only the people because they constitute the legal system. This fictional anecdote fails to make it as a bar joke, since it lacks a punch line. What it hopefully does not fail to do is convey the message that different groups understand very different things when they hear the term “sovereignty” and they mean very different things when they use the term. This means the term “sovereignty” stands for different intensions and that “sovereign” can denote very different individuals: Westminster Parliament, states, a people. The starting point of this book is that this is true not only of the MP, the UN delegate and Indian citizen when they walk into a bar, but also of sovereignty discourses in general—that not only academics and practitioners from different fields such as political theory, constitutional law and constitutional theory, and international law have very different conceptions of sovereignty, but that even within these individual fields, there is no consensus on sovereignty. Black’s Law Dictionary defines sovereignty as supreme dominion, authority or rule, as well as independence.1 However, this short and seemingly simple definition belies decades—centuries, even—of academic and political discourse regarding the concept of ‘sovereignty’ and meaning of “sovereignty”. As Schrijver summarises Few subjects in international law and international relations are as sensitive as the notion of sovereignty. Steinberger refers to it in the Encyclopedia of Public International Law as ‘the 1

Black’s Law Dictionary (2006), p. 665.

© Springer Nature Switzerland AG 2019 A. M. Waltermann, Reconstructing Sovereignty, Law and Philosophy Library 132, https://doi.org/10.1007/978-3-030-30004-3_1

1

2

1 Preliminaries most glittering and controversial notion in the history, doctrine and practice of international law’. On the other hand, Henkin seeks to banish it from our vocabulary and Lauterpacht calls it a ‘word which has an emotive equality lacking meaningful specific content’, while Verzijl notes that any discussion on this subject risks degenerating into a Tower of Babel. More affirmatively, Brownlie sees sovereignty as ‘the basic constitutional doctrine of the law of nations’ [. . .] As noted by Falk, ‘There is little neutral ground when it comes to sovereignty’.2

This does not yet take into account notions of municipal rather than international sovereignty, or constitutional perspectives on the concept of sovereignty. In short, there is no consensus on the concept—or concepts—of sovereignty and the meaning of the word. Indeed, Michel Troper notably explains that Scholars disagree about every aspect of the theories of sovereignty: whether they were first devised with the creation of the modern state after the end of the Middle Ages or have medieval origins; whether every state is sovereign or one can conceive of a non sovereign state; whether sovereignty is indivisible; whether there is a sovereign in every state; whether in the contemporary world sovereignty is compatible with the fact that states are subject to international law, with the idea of the Rechtsstaat, the rule of law, or with fundamental rights.3

This book finds its origin in the following argument: the term “sovereignty” is used in such a variety of contexts and taken to mean such a variety of things that finding a lowest common denominator requires such a level of abstraction that it is no longer useful for the purpose of understanding current legal phenomena. To give an example: Geenens (2016) identifies five different meanings of sovereignty: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage.4

A lowest common denominator between these different meanings might be “supreme authority”, but “supreme authority” is abstract to the point that it obscures more than it illuminates. Accordingly, it is necessary to find clearer and more specific conceptions of sovereignty. This book offers, at its core, a rational reconstruction of sovereignty. Rational reconstructions can seek proximity to existing or historical conceptions, making only minor changes for reasons of consistency, or they can seek coherence and consistency over proximity to historical conceptions, stipulating such definitions.5 Given that this book starts with the viewpoint that there is no real consistency or coherence

2

Schrijver (1999), p. 78. Troper (2012), p. 351. 4 Geenens (2016), p. 16. 5 Davia (1998), On The Problem Of Normativeness calls these rational reconstructions of the first and second degree respectively. “One may then distinguish basically between rational reconstructions of the first and of the second degree. A “rational reconstruction of the first degree” is dominated by the descriptive impetus, i.e., by the requirement of similarity, which here has to be strictly interpreted as a criterion of material non-creativity. [. . .] A “rational reconstruction of the 3

1.1 Introduction

3

to be found in existing and historical discourse, the reader may guess that the rational reconstruction of sovereignty in question is of the second kind, putting an emphasis on coherence and consistency. Spaak similarly describes explicating a concept: To explicate (or rationally reconstruct) a concept X, amounts to transforming X, which we may call the explicandum, into a concept that is more exact, which we may call the explicatum, while retaining its intuitive content, in order to make it more functional for a certain purpose [. . .]. Clearly, an explication of a concept is partly prescriptive, and this means that a given explication will not be true or false, but rather useful or not useful for a certain purpose.6

The purpose of the explicata in this book is their operationalisation for (scientific) work and to offer tools for an analytically and conceptually clear and consistent use of the term “sovereignty”. The latter in particular is based on the belief that in politics as much as in science, clarity and precision are important. Following Tamanaha, “the ultimate test for the approach I set out is whether it enhances our ability to describe, understand, and evaluate legal phenomena.”7

1.1.1

What This Book Aims To Be, and What It Does Not Aim To Be

In light of the starting point sketched out in the last section, it should come as no surprise that this book does not aim to offer an overview of existing discourses of sovereignty. Other people have done so admirably, and a mere retelling of their words would offer very little in terms of new insights.8 This book also does not aim to offer solutions to problems that involve the term “sovereignty”. While the definitions stipulated in this book can be used to answer questions of sovereignty in an analytically clear manner, doing so is not the primary aim of this book. Still, the reader interested in more pragmatic questions need not be disappointed: Chap. 5 identifies some of the less abstract and theoretical questions and points out how the sovereignties of this book can help in answering them. Not only is there disagreement about the aspects of sovereignty and theories thereof, sovereignty is also seen in ideologically divergent lights. As Troper states, [. . .] many of the writings on sovereignty are ideologically laden in very diverse ways. They do not focus on the question of whether states are actually sovereign and what it means or whether there is a sovereign in every state and who that sovereign is in a particular state, but

second degree” is dominated by the prescriptive impetus, i.e., the pursuit of precision and consistency, which here have to be interpreted as even material criteria of creativity.” 6 Spaak (2009), p. 69. 7 Tamanaha (2001), p. 2. 8 For example Bartelson (1995), Goldsworthy (1999), Besson (2011), and Troper (2012).

4

1 Preliminaries rather whether it is a good or a bad thing that states are or were sovereign at some period in history.9

However, this book does not seek to answer an ideological question—rather, it takes as a starting point the assumption that before any value judgment regarding the concept of sovereignty can be made, it is necessary to define clearly that which is to be judged. The purpose of this book is then to answer precisely the questions how it is possible to use the term “sovereignty” in a conceptually clear and coherent manner. This aim and its starting points and methodological choices place the book within two schools of thought: analytical jurisprudence and legal positivism. This book takes a positivistic stance toward law and its concepts. Some may take this to be an ideological choice in and of itself, while positivism would disavow such a characterisation. It does mean that someone of a more natural law persuasion may well reject not only its conclusions but indeed many of the starting points and arguments. One thing this book cannot and does not seek to cure is the divide within jurisprudence between such different starting points. Nonetheless, it is my hope that while those with a natural law-based and/or less analytical stance may fundamentally disagree with me on starting points and/or conclusions, the conceptual framework of this book will lead to clear and illuminating discussion.

1.2

Why Stipulate More Definitions?

The purpose of this book is, as mentioned, to stipulate definitions of sovereignty that are conceptually clear, consistent and coherent. This project is a proposal to the various communities that employ the term “sovereignty” in discourse to adopt these definitions. The reasoning behind stipulating definitions of sovereignty is because discourses are too fragmented, because there are too many different and competing conceptions of sovereignty already. This may seem counterintuitive to the sceptical reader. Why should one stipulate more definitions, when the problem is that there are already too many? The answer hopefully lies in the consistency and coherence, and accordingly, in the usefulness and explanatory value of the proposed definitions of sovereignty. The purpose of this book is not to investigate the meaning of sovereignty, but to propose how sovereignty could be conceived usefully in our current times, without departing entirely from how it has been used in discourse throughout the centuries. The key word here is usefully. If it turns out that the proposed definitions of sovereignty are not useful, they should not be used. I hope and believe that by offering definitions of sovereignty that are clear and without contradiction, discourses can be clarified and misunderstandings avoided. On the whole, the aim of this book is twofold: on the one hand, the conceptions of 9

Troper (2012), p. 351.

1.3 Overview

5

sovereignty proposed should speak for themselves in terms of conceptual clarity and coherence: the book is an academic and theoretical endeavour of conceptualising sovereignty. On the other hand, the aim is also to operationalise “sovereignty” and to provide a toolbox to legislators, policy makers, lawyers, journalists and academics alike. “Sovereignty” is used in many different contexts and in varying ways and even within one discourse or field, the term is not always used in a consistent manner. That makes it difficult for those who seek to convince others of their point of view not by invoking pathos but rational and clear arguments and analyses to do so. Without wanting to run ahead, it is useful to indicate already at this stage some of the confusion surrounding the term “sovereignty”. “Sovereignty” is used in international law (state sovereignty), in constitutional law and constitutional doctrine (national sovereignty, state sovereignty) and in constitutional law, constitutional theory and political philosophy (popular sovereignty) in very different ways. Even within these fields, however, the term is hardly used in a consistent and clear manner. To illustrate: popular sovereignty, for example, is said to be extra-legal,10 but exercised in referenda and elections,11 and present where the people are involved in constitutional amendments12—but it exists only in moments of revolution.13 There can be no other types of sovereignty next to popular sovereignty,14 but parliamentary sovereignty recognises the existence of popular sovereignty.15 Sovereignty may be a matter of degree,16 and a transfer of sovereign competences might constitute a limitation on sovereignty,17 or transferring competences might be an exercise of sovereignty.18

1.3

Overview

With these preliminary considerations out of the way, this introduction shall serve, lastly, also as a guide for the reader. Following this introduction, Chap. 2 considers sovereignty as a legal concept. It deals first with the question of how to determine what legal concepts mean. This is followed by an inferential analysis of sovereignty in international law and an inferential analysis of sovereignty in national law. I develop, here, a conception of constituted sovereignty as a legal status attributed to an entity by law and

10

Cf. Kalyvas (2005), p. 227. See for example art. 20(2) of the German Basic Law. 12 Cf. Winterton (1998). 13 Cf. Sen (2011). 14 Cf. Kalyvas (2005), p. 229. 15 Cf. Dicey (1915), p. 28. 16 Cf. Goldsworthy (1999), p. 14. 17 Goldsworthy (2010), p. 287. 18 Case of the S.S. “Wimbledon” (1923), p. 35. 11

6

1 Preliminaries

independent of the consequences that are attached to it. I end the chapter by considering the implications of understanding sovereignty in this way. In Chap. 3, I turn to sovereignty outside of the law and investigate the question of how and in what way it can be said that the legal order emanates from or is created by a sovereign X. I consider the paradigmatic case of popular sovereignty first and develop a conception of constitutive sovereignty as the extra-legal power of a collection of actors to constitute, maintain and deconstruct a legal system by means of a social rule to the effect that the norms of the system are preemptive and final. I apply this conception of sovereignty also to the international legal system. The implications of understanding sovereignty this way, particularly as regards democracy and legitimacy, receive due attention, as does the question whether the mechanism by means of which the constitutive sovereign constitutes, maintains and deconstructs the legal system does so is best characterised as a social convention or a social rule. Chapter 4 answers some questions about the two conceptions of sovereignty I have developed, such as what the relationship and interaction between these conceptions is, whether sovereignty is necessary at all and if it is or can be limited. Chapter 5 applies the conceptions of constitutive and constituted sovereignty to a number of contexts from secessionist movements (Catalonia, Quebec, Scotland) to the European Union to ISIS and humanitarian intervention and considers the role recognition plays in the constitution of states in international law. The aim of this section is to show how the conceptions of sovereignty I have developed can improve our understanding of these legal phenomena and questions. Chapter 6 considers a number of other accounts of sovereignty, connecting and contrasting the conceptions of constitutive and constituted sovereignty developed in this book to them. The purpose of this chapter is illustrative; it is not meant to be an overview of all accounts or even most accounts of sovereignty. This book concludes with a recapitulation of the two conceptions of sovereignty I have developed and a brief look to the future.

References Bartelson J (1995) A genealogy of sovereignty. Cambridge University Press Besson S (2011) Sovereignty. Max Planck Encyclopedia of Public International Law. Oxford Public International Law Black’s Law Dictionary (2006) Black’s Law Dictionary, vol 3rd Pocket. Thomson West Case of the S.S. “Wimbledon” (1923) Permanent Court of International Justice Davia GA (1998) Thoughts on a possible rational reconstruction of the method of “Rational Reconstruction”. Paper presented at the 20th World Congress of Philosophy, Boston Dicey AV (1915) Introduction to the study of the law of the constitution, 8th edn. Macmillan, London Geenens R (2016) E pluribus unum? The manifold meanings of sovereignty. Netherlands J Leg Philos 45(2):15–36 Goldsworthy J (1999) The Sovereignty of Parliament: history and philosophy. Oxford University Press

References

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Goldsworthy J (2010) Parliamentary Sovereignty: contemporary debates. Cambridge University Press Kalyvas A (2005) Popular sovereignty, democracy, and the constituent power. Constellations 12 (2):223–244 Schrijver N (1999) The changing nature of state sovereignty. Br Yearb Int Law 70(1):65–98 Sen S (2011) The Constitution of India: popular sovereignty and democratic transformations. Oxford University Press, Delhi. https://doi.org/10.1093/acprof:oso/9780198071600.001.0001 Spaak T (2009) Explicating the concept of legal competence. In: Hage J, von der Pfordten D (eds) Concepts in law. Law and philosophy library. Springer Tamanaha BZ (2001) Socio-legal positivism and a general jurisprudence. Oxf J Leg Stud 21 (1):1–32. https://doi.org/10.1093/ojls/21.1.1 Troper M (2012) Sovereignty. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law. Oxford University Press Winterton G (1998) Popular sovereignty and constitutional continuity. Fed Law Rev 26:1–14

Chapter 2

Sovereignty in the Law

When studying the notion of sovereignty, it soon becomes clear that the term “sovereignty” has more than one meaning. Distinctions are made in the literature, inter alia between “political” and “legal”,1 “empirical” and “legal”,2 “internal” and “external”, “absolute” and “limited”, “unitary” and “divided”,3 “international” and “behavioural” sovereignty4; sovereignty is called “territorial”,5 “parliamentary”,6 a quality of state, nation, people, or individual state organs. There exists a veritable jungle of sources, terms and classifications of sovereignty. This book suggests an analytical framework with two main types of sovereignty: constitutive and constituted. To understand the distinction between these two main types of sovereignty, it is necessary to understand the distinction between the world of law as an institutionalised part of social reality, and the rest of (social) reality.7 Because this distinction returns repeatedly in the book, I want to explain it in some detail at this junction. Hage distinguishes between two perspectives one can take when looking at law: law as a discursive practice and law as an institutional fact.8 Law as a discursive practice views legal facts as constructed by legal arguments. Law as an institutional fact, however, views legal facts as part of social reality. What is meant with social reality? We are all familiar with the physical world. The facts in the physical world obtain to a large extent independent of human beings. The social world, or social reality, does not only

1

Besson (2011), p. 59. Troper (2012), p. 352. 3 Besson (2011), p. 59. 4 Steinberg (2004). 5 Island of Palmas Case (Netherlands, USA) (1928). 6 Dicey (1915) and Goldsworthy (1999). 7 This distinction and my use of it is based on and inspired by Jaap Hage’s work. Cf. Hage (2011, 2013). 8 Hage (2011), pp. 25 f. 2

© Springer Nature Switzerland AG 2019 A. M. Waltermann, Reconstructing Sovereignty, Law and Philosophy Library 132, https://doi.org/10.1007/978-3-030-30004-3_2

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2 Sovereignty in the Law depend on what is physically the case, but also—and to a large extent—on what people believe the social world is. A fact in the social world can obtain because (sufficiently many) members of a social group believe it obtains, that it obtains because people believe that it obtains, and that (sufficiently many) other members of the group have the same beliefs, both about this fact, about its mode of existence, and about what the others believe [. . .].9

While it is possible that legal rules exist because sufficiently many members of a social group believe they exist, Hage points out that this does not accurately describe most legal systems today: In modern societies, however, most legal rules derive their existence and status as legal rules from being made in accordance with rules that specify how to make legal rules. They exemplify a second way in which things and facts in social reality can obtain, namely through the operation of rules, including legal rules. Rules deal with how people should behave towards each other, but also with the proper use of language, with the definitions of games, and with the membership of socially defined sets, such as the set of legal rules. If the conditions of these rules are satisfied, their consequences hold in social reality. The part of social reality that is the result of the application of rules is called the institutionalized part of social reality. Typical phenomena within the institutionalized part of social reality (or the social world) are the existence of money, of promises, of the law and of everything created through the law, such as officials, legally defined organizations and most legal rules.10

Figure 2.1 (crudely) visualizes the relationship between these different parts of reality. The distinction between the world of law and other parts of reality, be they social, physical, rule-based or not, is relevant for the two conceptions of sovereignty I develop: constitutive sovereignty is situated outside of the world of law; constituted sovereignty is situated within in and constituted by the rules of the world of law. In the following, the term “sovereignty” will be used in abundance. To make clear which meaning of sovereignty I am referring to when using the term, I will use the following specifications and abbreviations where necessary: constitutive sovereignty will, at times, be abbreviated to CVS, constituted sovereignty to CDS. At times, a further distinction may be drawn between sovereignty relative to a national or municipal legal system (abbreviated M for municipal) or sovereignty relative to international law (abbreviated I for international). This subdivision into municipal and international sovereignty should not be understood as indicating additional conceptions of sovereignty, but rather as applications of the two conceptions (constitutive and constituted) to the municipal and international legal system. Overall, this can be summarised in the following way (see Fig. 2.2). In this part of the book, constitutive and constituted sovereignty will be outlined, explained and analysed. It will become clear that these concepts exist relative to legal systems, meaning that the lowest level of Fig. 2.2 is not necessarily limited to national and international systems, although this depends on one’s view on law and legal systems. More on this will follow in Sect. 4.3.

9

Ibid. Ibid.

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2.1 Legal Concepts

11

Reality

Social Reality

Institutionalised Part of Social Reality ("Rule-Based")

World of Law

Fig. 2.1 The world of law as an institutionalised part of social reality

Sovereignty Constitutive (CVS)

Constituted (CDS)

Municipal (MCVS)

Municipal (MCDS)

International (ICVS)

International (ICDS)

Fig. 2.2 Terminology

2.1

Legal Concepts

The term “sovereignty” is invoked in many different contexts, ranging from religion to politics. It also plays a role in law: a state, a people or some other entity may be regarded as sovereign according to constitutional documents,11 legal doctrine12 or

Article 3 of the Russian Constitution states that “the bearer of sovereignty and the only source of power in the Russian Federation shall be its multinational people”, for example. References in constitutions that all state power emanates from the people are generally taken to imply popular sovereignty as well and can be found in various constitutional documents, such as in Article 1 of the Brazilian Constitution, Article 3 of the Portuguese Constitution, Article 3 of the Constitution of Thailand, Article 1(2) of the Greek Constitution, or Article 20(2) of the German Basic Law. 12 For example Dicey (1915). 11

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court judgements.13 This raises the question what sovereignty means when it is invoked in a legal context. To answer this question, it is necessary to first consider how one can know what any concept used in a legal context means. Sartor, for example, argues that a legal system endows its concepts with meaning, and that one should not assume that legal terms have a prior, independent meaning.14 I will call concepts of this kind “internal legal concepts” or “constituted legal concepts”, given that they are internal to the legal system and constituted by the law itself, and therefore necessarily systemdependent.15 It is possible that the same term stands for both an internal legal concept and one that is not legal16: take the example of “murder.” “Murder” is by no means a term used solely within legal discourse, but the system-dependent concept of murder is defined in the criminal codes of the legal system in question: The act of wilfully causing the death of another person constitutes murder.—Article 221-1 Code Pénal, France. A murderer is he who, out of lust for killing, for the satisfaction of his sexual drive, out of greed or otherwise for base motives, heinously or cruelly or by means dangerous to the public or to make possible or conceal another offence, kills another human being.—§221 (2) Strafgesetzbuch, Germany. He who intentionally and with premeditation takes the life of another person is [. . .] guilty of murder, [. . .]—Article 289 Wetboek van Strafrecht, Netherlands.17

Each of these provisions contains the elements of the concept of murder within the legal system.18 Legal practitioners are used to analysing the elements and testing whether they apply in a specific case in order to determine which, if any, legal consequence applies. This demonstrates how legal systems define their own concepts and how the legal rules themselves constitute the concept—or this specific form of the concept—and it furthermore shows that at least some internal legal concepts are structured in elements of individually necessary and jointly sufficient

Famously, in the context of international law: Case of the S.S. “Wimbledon” (1923) and Island of Palmas Case (Netherlands, USA) (1928). 14 Sartor (2009), p. 35. 15 Frändberg defines a system-dependent concepts as one “that is wholly dependent, with regard to its meaning, on the content of a given legal system at a given point of time”, giving the example of ownership, the meaning of which “is completely determined by the descriptions in legal rules of operative, or legal, facts and legal consequences which, in a given legal system at a given point of time, decide the generation and the extinction of ownership, as well as the legal effects of ownership.” Frändberg ibid.5 f. 16 Ibid. 17 Translations are taken from Kornet and Hardt (2013). 18 This is, of course, a simplified representation, as other provisions will also play a role and a complete conceptual analysis of murder would need to take, for example, matters of self-defence into account as well. However, the aim here is not to provide such a complete analysis, but rather to use this example to demonstrate several points regarding internal legal concepts in general. For these reasons, it is hoped that the reader will excuse this simplification. 13

2.1 Legal Concepts

13

‘building blocks’, all of which must be fulfilled in order for the concept to be present. These building blocks may at times consist of cumulative or disjunctive conditions. This understanding of internal legal concepts implies a view of the law as consisting of inferential links between operative facts and legal consequences19: legal rules can be understood as having a structure of if a, b, c (the conditions or operative facts), then x (the conclusion or legal consequence), for example if a person intentionally and with premeditation takes the life of another person (operative facts), then he is guilty of murder (legal consequence). Alf Ross argued in his paper Tû-tû (1957) that some legal concepts are intermediate in the sense of connecting operative facts of a kind with a consequence from which further consequences follow20: “ownership”, for example, connects operative facts (for example, that Benny has purchased a TV) with legal consequences (for example, that Benny has the right to use this TV, or that Benny can sell the TV): if Benny has purchased the TV, he is the owner of the TV. If he is the owner of the TV, he has the right to use the TV. Figure 2.3 illustrates this. Hage calls intermediate concepts such as ownership legal statuses.21 With regard to a legal status, it is possible to describe how one gains the status, what consequences are attached to the status, and how one might lose the status. The legal rules that determine how one gains a status are entrance rules, those determining the consequences of the status are consequential rules, and those determining under which circumstances the status is lost are exit rules.22 In the context of analysing these rules—in particular consequential rules— Hohfeld’s conceptual schemes are useful (Fig. 2.4). To continue using the example of ownership for a moment longer, Hohfeld’s conceptual schemes specify the meaning of “x has the right to use y” or “x has the power to transfer y”. Hohfeld developed two sets of related concepts which can be used to break down traditional legal concepts—e.g. ownership or trust, or in this book, sovereignty—and which can be used to analyse these traditional concepts more clearly. Hohfeld himself applied his work to private law, but the conceptual schemes are equally valid for issues of public law.23 The first of Hohfeld’s two conceptual schemes contains the notions of “claim”, “duty”, “privilege” and “no-claim”. Having a claim means that a person A has a claim to the performance or non-performance of a particular kind of factual or juridical act. This correlates to a person B’s duty to perform—or abstain from performing—that very same kind of act. An example for this is a contract between

19

Sartor (2009), pp. 36 ff. Ross (1957), Ross’ main point in this article is that concepts such as tû-tû or ownership are meaningless; it is possible to infer the same conclusions in the same factual situations by connecting all operative facts to all legal consequences, that is, by eliminating the intermediate concept of ownership. But contrast this to Hage (2009). 21 Hage ibid. 22 Ibid. 23 Morse (1987). 20

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Fig. 2.3 Sartor’s inferential analysis of ownership [The figure is taken from Sartor (2009), p. 39]

Opposite of

Claim No-claim

Opposite of

Power Disability

Correlates to

Correlates to

Duty Privilege Liability Disability

Fig. 2.4 Hohfeld’s conceptual schemes

two persons over the sale of a computer for $300. Person A has a claim that Person B hands over the computer, correlating to B’s duty to hand over the computer. Likewise, B has a claim against A to a payment of $300 and A has a duty to pay $300 to B. If X has a claim against Y that Y shall not walk on X’s land, this correlates to Y’s duty not to walk on X’s land, or to refrain from walking on X’s land. A privilege is the absence of a duty. Staying with the example of X and Y, X is privileged to walk on the piece of land, not having a duty to stay off it. Here, it must be specified that while a privilege is the opposite—the absence—of a duty, this is true only where they are precise opposites in content. As the owner of the land, X is privileged to be on the land in that she does not have a duty to stay off the land. If, however, X contracts with C that X will walk on her own land, X has a duty resulting from this contract to walk on the land. The duty to walk on the land is perfectly consistent with the privilege to do so.24 A no-claim is perhaps best understood in light of its correlative and opposite, as “no-claim” is a term invented by Hohfeld to describe something for which there existed no terminology prior.25 While “the correlative of X’s right that Y shall not 24 25

Hohfeld (1913), p. 32. Ibid.

2.1 Legal Concepts

15

enter on the land is Y’s duty not to enter [. . .] the correlative of X’s privilege of entering himself is manifestly Y’s “no-right” [no-claim] that X shall not enter. In other words, a no-claim describes a legal situation where, as the terminology already suggests, the other person has no claim to the performance or non-performance of the factual or juridical act in question. Hohfeld defines power as having the (legal) ability to effect a change in a particular legal relation.26 Examples of a power are that the owner of a thing T has the power to extinguish his own legal interest in the thing by abandoning it. Equally, the owner could transfer his interest to another person, thereby changing both his own legal situation as well as that of the other person.27 The correlative of a power is the liability to have one’s legal relation or situation changed by someone else who has the ability to effect the change in question, that is, who has the power to do so. Those qualifying for jury duty in the U.S., for example, are liable to having their legal situation changed in such a way that court officers, by acting on a power, create a duty on them to serve as jurors. The opposite of liability is immunity, largely synonymous with exemption.28 Power and immunity have a similar relationship with one another as claim and privilege do: A right [claim] is one’s affirmative claim against another, and a privilege is one’s freedom from the right or claim of another. Similarly, a power is one’s affirmative “control” over a given legal relation as against another; whereas an immunity is one’s freedom from the legal power or “control” of another as regards some legal relation.29

The correlative of an immunity is disability, that is, no-power or the absence and negation of power. Taking ownership of a piece of land as the example once more, X, the land-owner, has the power to alienate his piece of land to Y or to any other party. Y is thus under a liability to have his legal relation/situation changed by X acting on this power. X, meanwhile, has a number of immunities against Y and other parties, because Y does not have the power—that is, Y is under a disability—to transfer ownership of X’s piece of land either to himself or any other party.30 Hohfeld’s choice of two sets of four correlatives and opposites each is not uncontroversial, with some scholars arguing that eight terms are too much, or not enough.31 Nonetheless, the Hohfeldian conceptual schemes are a useful tool for the

26

Ibid. Ibid. 28 Ibid. 29 Ibid. 30 Ibid. One question arising from this example used by Hohfeld is whether a liability is dependent always on others, or whether a liability can arise also from one’s own (potential) conduct: can I be liable to change my own legal situation, i.e. can power and liability coincide? Hohfeld’s texts seem to suggest that this is not the case, yet the example used regarding the transfer of ownership of land suggests otherwise: such a transfer requires—at least dependent on jurisdiction—action not only on the side of the previous owner but also on the side of the potential future owner. 31 Halpin (2007). 27

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analysis of legal rules and concepts, particularly as combined with an inferential analysis as Sartor and Ross put forward. In the following, these two analytical tools will be applied to “sovereignty” in law.

2.2

Inferential Analysis of “Sovereignty” in International Law

This section considers “sovereignty” in the sense of a legal concept, that is, a concept the meaning of which is constituted by law. In the previous section, I have indicated that internal or constituted legal concepts are defined by the legal system itself. This implies that for legally constituted sovereignty, there are as many definitions theoretically possible as there are legal systems, although it is equally possible that some legal systems do not have a constituted legal concept of sovereignty. Moreover, the constituted legal concept of a particular system is changed as soon as the legal rules constituting the concept change.32 This means that an inferential analysis of any constituted legal term provides only a snapshot of the meaning of this term in a given legal system at a given time. The status of sovereignty plays an important role in international law. As a constituted legal concept, it is constituted by the rules of international law. Accordingly, the following section refers to sovereignty (ICDS).33 Current international law does not contain clear entrance rules for sovereignty, in that there is no explicit rule stating that the status of sovereignty applies to an entity if certain criteria are fulfilled. Nevertheless, one can say that international law attributes sovereignty to states: states are the entities claiming sovereignty in cases before, inter alia, the International Court of Justice and these claims are accepted. It is the “sovereign equality of all its Members” that is invoked by the Charter of the United Nations,34 an organisation whose membership is open only to (peace-loving) states.35 With regard to international law, “sovereignty” and “state sovereignty” are synonymous, as this introduction to an encyclopaedic article on “sovereignty” exemplifies: Most [. . .] if not all institutions and principles of international law rely, directly or indirectly, on State sovereignty.36

There is no attempt to justify that sovereignty means state sovereignty; this is presumed.

32

Frändberg (2009), p. 6. For an overview of the terminology, see Fig. 2.2. 34 Charter of the United Nations (1945), Article 2(1). 35 Ibid. 36 Besson (2011), p. 2. 33

2.2 Inferential Analysis of “Sovereignty” in International Law

17

Accordingly, international law attaches the status “sovereignty” to those entities which fulfil the characteristics of a state, to entities which have statehood.37 The entrance rule, although not specified as such, could be phrased as follows: • If an entity is a state, it is sovereign. Statehood is another legal status with its own entrance rules: the Montevideo Convention provides that “the state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”38 It bears pointing out that the following two conclusions cannot be derived from this: that an entity which no longer fulfils the criteria of statehood (for example a so-called failed state) is no longer sovereign, or that it is conceptually necessary that only states can be sovereign. The first conclusion is invalid because it conflates the entrance rules for the status with its exit rules. However, international law does not contain a clear exist clause regarding the status of sovereignty, nor is one clearly implied by practice or legal wording. With regard to the second (false) conclusion, it may be true that currently, international law only attributes the status of sovereignty to states. This does not mean, however, that a further entrance rule conferring the status unto another kind of entity—perhaps multinational corporations—could not be created in the future. While the entrance and exit rules of the status of sovereignty in international law are not explicitly stated, the consequential rules have received more attention. International legal documents such as the United Nations Charter do not spell out the legal consequences attached to the status,39 but the Permanent Court of International Justice (PCIJ) and later the International Court of Justice (ICJ) as well as other institutions of international dispute settlement have been more forthcoming on the matter. For this reason, I will now turn to case law and analyse authoritative cases in order to sketch the consequential rules that exist with regard to sovereignty in international law. The cases addressed in the following section are the Wimbledon and the Lotus case, the Island of Palma case, and lastly, Military and Paramilitary Action in and against Nicaragua. These cases offer an understanding of some of the most important consequential rules attached to the status of sovereignty, but they are by no means exhaustive. In the Wimbledon case (1923), the PCIJ had to decide on the legality of Germany denying access to the Kiel Canal to the steamship ‘Wimbledon’.40 The German argument was that since the relevant provisions of the Treaty of Versailles limited Germany’s exercise of sovereignty, they should be interpreted restrictively.41 The PCIJ said the following about state sovereignty:

37

Crawford (2007), p. 33. Convention on the Rights and Duties of States (1933), Article 1. 39 Charter of the United Nations (1945). 40 Case of the S.S. “Wimbledon” (1923), II. 41 Ibid. 38

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2 Sovereignty in the Law The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.42

In the Lotus case (1927), the PCIJ was faced with the question if Turkey had violated international law by starting criminal proceedings against a French national. The French national had been officer of the watch on board the steamer Lotus when the steamer collided with the Turkish steamer Boz-Kourt on high seas. Turkey started the proceedings after both ships arrived in Turkey. Here, the PCIJ made a number of statements relevant to the investigation of sovereignty. Firstly, they held that International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.43

International law primarily imposes the restriction on states that they may not exercise their power on the territory of another state, so the PCIJ, unless there is a permissive rule to the contrary.44 It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. [. . .] In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.45

So on the one hand, there is the principle of non-intervention—no state may exercise its power on the territory of another state—and on the other hand, states may

42

Ibid. S.S. “Lotus” (1927), p. 18. 44 Ibid. 45 Ibid. 43

2.2 Inferential Analysis of “Sovereignty” in International Law

19

do everything not explicitly prohibited by international law within their own jurisdiction. In both cases, more permissive and restrictive rules may exist—and these might, if we take Wimbledon into account, arise out of treaties, the making of which is an exercise of sovereignty in and of itself and which restrict the exercise of sovereign rights, not sovereignty itself. A year later, Max Huber gave a description of state sovereignty, sitting as sole arbitrator in a dispute over the Island of Palmas (also called Island of Miangas). The Netherlands claimed that the Island of Palmas was part of the Netherlands East Indies, while the United States claimed that Spain had held a title to the land based on discovery and transferred this title via a treaty to the United States after the Spanish-American war in 1898. In this Island of Palmas case, Huber held that Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the state in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. [. . .] Territorial sovereignty is, in general, a situation recognized and delimited in space, either by so-called natural frontiers as recognised by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of States within fixed boundaries.46

Huber’s emphasis on independence and the exclusiveness of exercising the functions of a state on one’s territory fit well with the aforementioned principle of non-intervention. Indeed, the right to independence and exclusivity that Huber describes as pivotal to the notion of sovereignty come with a reverse duty: Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the right of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.47

Huber furthermore considers the continuous and peaceful display of state functions as a constituent element of territorial sovereignty.48 The title of sovereignty can derive from such a continuous and peaceful display of the state functions, as was the case with the sovereignty over the Island of Palmas. This gives us a second entrance rule for sovereignty in international law, namely that a state displaying state

46

Island of Palmas Case (Netherlands, USA) (1928), p. 838. Ibid. 48 Ibid. 47

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functions continuously and peacefully on a territory can become sovereign over that territory by virtue of this display. • If a state continuously and peacefully (in relation to other states) displays state functions on a territory, that state is sovereign over the territory.49 Huber links a positive obligation to safeguard the rights of other States on one’s own territory to sovereignty. In Military and Paramilitary Activities in and against Nicaragua, the ICJ dealt with the question of the negative obligation to refrain from interfering with another state in more detail. In this case, the question was whether the United States of America had violated Nicaragua’s sovereignty by, inter alia, supporting the military and paramilitary actions by rebels in and against Nicaragua. The ICJ stated that the principle of non-intervention “involves the right of every sovereign State to conduct its affairs without outside interference”.50 This comprises the right to opt for a political and ideological system which could be described as a totalitarian dictatorship.51 The principle of non-intervention as emphasised by the ICJ in this case still paints a coherent picture with the previous cases considered. In the same judgement, however, the ICJ also held that states are sovereign also for the purpose of accepting a limitation of their sovereignty.52 Depending on one’s interpretation of the latter, this is a vastly different statement from the PCIJ’s announcement that states can limit their freedom regarding the exercise of sovereign rights by exercising their sovereignty.53 If states can limit their sovereignty (rather than the exercise of sovereign rights), this means that sovereignty is a matter of degree: some states are more sovereign than others, depending on how many limitations to their sovereignty they have accepted—by exercising their sovereignty. The more coherent interpretation is that the status of sovereignty is not a matter of degree: an entity either has this status or it does not. What can, however, be limited or transferred are the competences that an entity possesses as a consequence of being sovereign. In other words, the consequential rules of sovereignty may differ between states, but the status remains unchanged. This interpretation safeguards the notion of sovereign equality. Summarising and synthesising the case law considered above, one can identify the following consequential rules as typically attaching to sovereignty (ICDS):

49 Huber’s precise phrasing on this point is that the continuous and peaceful display of state functions is “as good as a title” (ibid.). This indicates, especially in the context of the case, that this “as good as a title”-title may conflict with and need to be weighed against other titles to the territory. 50 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua V. United States of America) (1986), p. 202. 51 Ibid. 52 Ibid. 53 I am interpreting the PCIJ’s statement in such a way that a limitation of a state’s freedom to exercise sovereign rights in a certain way, the state’s sovereignty itself is in no way limited. As mentioned above, however, this is a matter of interpretation: the PCIJ does not explicitly state that sovereignty is not limited.

2.2 Inferential Analysis of “Sovereignty” in International Law

21

competence to enter into international agreements prohibition of exercising state powers on territory of another state Statehood

Sovereignty permission to exercise, on own territory, functions of a state

etc.

Fig. 2.5 Sovereignty (ICDS)

1. firstly, the competence and permission to enter into international agreements and engagements by means of treaties and conventions; 2. secondly, the prohibition, save for the existence of a more permissive rule, regarding the exercise of powers on the territory of another state; 3. thirdly, the permission to exercise, on a particular territory, the functions of a state, to the exclusion of every other entity; 4. fourthly, the claim to exercising, on a particular territory, the functions of a state without outside interference; 5. fifthly, the permission to choose the political, economic, social, and cultural system of the state, even a totalitarian dictatorship, and to formulate a foreign policy; 6. sixthly, the prohibition of the use of force, in the absence of more permissive rules. Figure 2.5 shows this inferential analysis of sovereignty (ICDS) in part. The consequential rules mentioned above are by no means the only consequential rules attached to the status of sovereignty (ICDS), nor are they unchangeable. The emphasis on independence and non-intervention underlying the consequential rules mentioned above are important aspects of sovereignty (ICDS). This partial inferential analysis of sovereignty (ICDS) shows that understanding the constituted legal concept of sovereignty as a status that comes with entrance, exit and consequential rules can account for sovereign equality while explaining how a state can limit or expand its sovereign competences, for example by means of a treaty. In general, to say that a state is sovereign in this sense entails that the state has the exclusive claim, in the absence of a more restrictive rule, to exercise state functions on its territory without outside interference, and that it is prohibited, in

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the absence of a more permissive rule, from interfering in the exercise of state functions on the territory of any other state. Furthermore, states have the competence to make more restrictive or more permissive rules. This permission, prohibition and competence are attached (as consequential rules) to the status of sovereignty (ICDS), which is given by international law to those entities fulfilling the criteria for statehood (entrance rule). A state is sovereign over its territory; if there is a continuous and peaceful display of state functions on a given territory, territorial sovereignty can derive from this (entrance rule). It is not clear how a sovereign entity loses its sovereign status (that is, there is no clear exit rule). States can have comparatively few or many permissions, prohibitions, competences, and disabilities, depending mainly on the treaties they have concluded. An inferential analysis of “sovereignty” in international law indicates a number of unclear points with regard to the concept. The lack of exit rules is a clear example of this. International law does not, at this time, give a clear answer to the question of when a state loses its status of being sovereign. This becomes apparent in the discussions surrounding failed states.54 Moreover, the question when an entity becomes a state (a criterion for the entrance rule) is not entirely clear, either. I turn to the discussion whether recognition is a necessary element in Sect. 5.5.

2.3

Inferential Analysis of “Sovereignty” in National Law

The term “sovereignty” plays a role not only in international law, but also in the national law of the states that are sovereign according to international law. As already stated, an inferential analysis of an internal legal term can give only a snapshot of the term’s meaning according to a particular legal system at a particular time. For “sovereignty”, this means that there exist not only one but myriad constituted legal concepts of sovereignty in national law: in theory, there could be as many internal legal concepts of sovereignty (MCDS) as many as there are national legal systems, although there may be some legal systems that do not contain references to sovereignty (MCDS), in which case there would be more legal systems than internal legal concepts of sovereignty. While it would be an interesting exercise for a scholar of national (constitutional) law to analyse the internal legal concept of sovereignty of a particular jurisdiction, analysing every single legal system’s possible entrance, exit and consequential rules regarding the status of sovereignty goes beyond the scope of this work. Accordingly, the following section will not provide an inferential analysis of any particular system’s internal legal concept of sovereignty. If there were only internal/constituted legal concepts, comparative law and comparative legal scholarship would not be very fruitful endeavours. Sometimes, scholars and practitioners alike will talk about, for example, “murder” without 54

Zimmermann (2006).

2.3 Inferential Analysis of “Sovereignty” in National Law

23

referring to one specific legal system—this occurs in comparative law, in textbooks, or in doctrinal debate. The question might arise what all the internal legal concepts have in common, and the answer to this question cannot be system-dependent. Instead, any concept used in such discourse will be system-independent. Frändberg describes this as follows: When making statements on, say, British, French or Swedish law in some area, British, French or Swedish lawyers are usually not interested in assigning any meaning to the concepts under investigation other than precisely the meaning that is implied by British, French or Swedish legal rules. [. . .] However, sometimes our British, French or Swedish lawyers or jurists may feel a need of exchanging thoughts on legal matters between themselves on a more general level. They might want to discuss things like ownership, marriage or crime against property in a comparative perspective.55

I will refer to concepts such as this as legal doctrinal; they are constituted not by the law but stipulated for a purpose such as explicating or providing a neutral comparator.56 “Murder” is not the only example of a term that stands for both an internal legal and a legal doctrinal concept. Additionally, there are terms that stand for legal doctrinal concepts only, or for concepts that are generally legal doctrinal and internal legal only to a few select legal systems: one could think here of keywords and classifications put in the margins of compilations of laws, there to help students or even practitioners, sometimes defined by the law itself and sometimes by legal practice and scholarship.57 “Sovereignty”, too, is a term that stands for different kinds of concepts. In the following, I will consider the legal doctrinal concept of sovereignty instead of the internal legal ones of various jurisdictions. This does not take away that at times, reference will be made to specific legal systems. It is worth keeping in mind that constituted legal concepts of sovereignty can, in theory, be inconsistent with one another or in themselves. The legal doctrinal concept of sovereignty can serve as a tertium comparationis for the constituted legal concepts of sovereignty of (one or) several jurisdictions and serve to identify and criticise inconsistencies between them. In this way, the legal doctrinal concept can be a tool for academics of national and comparative law, but also for legislators and judges. While the internal legal concepts of sovereignty in national law are myriad and can vary, a legal doctrinal concept of sovereignty in national law is only useful if it is

55

Frändberg (2009), p. 6. Frändberg identifies these types of concepts, which he calls “system-independent L-concepts”, as ideal types. The difference in terminology does not indicate a diverging opinion from his on this point, but rather a difference in emphasis. As Frändberg also points out, these ideal types are also concepts of law: “[t]hey refer in a more indirect way to two or more, or even all, legal systems.” (ibid.) 57 The lines between “the law itself” and “legal practice” and “legal scholarship” cannot always be clearly drawn, and the above paragraph is not meant to imply that they can in all cases. Legal practice impacts and changes the law, arguments by practicing lawyers are taken into account and reproduced by courts, and sometimes the same holds true for arguments by legal scholars. 56

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possible to identify some common features across jurisdictions. A starting point is Dan Philpott’s definition. He holds that “[s]ome scholars have doubted whether a stable, essential notion of sovereignty exists. But there is in fact a definition that captures what sovereignty came to mean in early modern Europe and of which most subsequent definitions are a variant: supreme authority within a territory.”58 This definition is vague; it is not clear what “supreme authority” really entails, as both “supreme” and “authority” can be interpreted in different ways. Supremacy implies that there is no higher authority, but scholars have also considered sovereignty must be unlimited. Goldsworthy, for example, writes that “law-making authority is sovereign if it is unrestricted by norms”.59 At the same time, he holds that procedural limitations do not affect sovereignty so long as they “do not unduly impair” the ability of the sovereign institution “to change the substance of the law in any respect and at any time it chooses.”60 When it comes to (supreme) authority, there are different interpretations as well. In the United Kingdom, parliament—or more accurately, the King-In-Parliament— is sovereign because it can make or unmake any law whatever, while no other entity has the competence to overrule, abrogate or modify legal norms created by parliament.61 Supreme authority here refers to the power to legislate in final instance. This is still ambiguous: it could be the power of a constitutional legislator, competent to amend the constitution, or it might be a court competent to rule on constitutional matter, for example. Both of these options attribute the status of sovereignty to an entity within the state, with some authors claiming that it is necessary that there is one entity within the state that has supreme authority.62 Another interpretation of supreme authority is that legal norms are viewed as preemptive and final63 vis-à-vis the norms of other organisations, such as the church, sporting associations, schools, or any other body or entity that might make a claim to authority. In this case, sovereignty is attributed not to a single entity within the state, but to the state as a whole. I argue that sovereignty in national law (MCDS), much like sovereignty in international law (ICDS), is best understood as a status attributed to the state. Attached to this status via consequential rules are a number of powers and permissions. The consequential rules attached to the status and therefore the consequences that come with it can differ per legal system, but it is possible to make legal doctrinal remarks about what the status typically entails.

58

Philpott (2010), p. 1. Goldsworthy (1999), p. 12. 60 Ibid. 61 Dicey (1915), pp. 3 f. 62 Goldsworthy (1999), p. 261. 63 The term preemptive is taken from Joseph Raz, taken to mean that “the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.” Raz (1986). 59

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2.3.1

25

Consequences of MCDS

One of the consequences traditionally attached to the status of sovereignty (MCDS) relates to law-making powers. Bodin, for example, held that The first attribute of the sovereign prince therefore is the power to make law binding on all his subjects in general and on each in particular.64

and furthermore that All the other attributes and rights of sovereignty are included in this power of making and unmaking law, so that strictly speaking this is the unique attribute of sovereign power.65

For Hobbes, the essential rights of sovereignty are, at the very least, “the power of legislation, adjudication, enforcement, taxation, war-making” and the right of control of normative doctrine.66 Hobbes summarises that the sovereign possesses The whole power of prescribing the Rules, whereby every man may know, what Goods he may enjoy and what Actions he may doe, without being molested by any of his fellow Subjects.67

Famously, Dicey summarised parliamentary sovereignty as follows: [t]hat “Parliament” has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”68

Dicey’s definition also points to a second characteristic traditionally attached to the status of sovereignty, mentioned also above, namely that of superiority, supremacy or finality.69 Legislative supremacy in the United Kingdom is taken to mean that “no person or body” has “a right to override or set aside the legislation of Parliament”.70 Before the United Kingdom joined the European Union,71 these criteria were in principle fulfilled for all Acts of Parliament. The same does not hold true given that courts in the United Kingdom can, at the time of writing, set aside Acts of Parliament not in conformity with European Union law. The existence of constitutional review in other states allows either specialised courts or all courts to overrule or set aside acts of the legislator. In other words, in states with constitutional review—which is the majority of states in the world72—it is not the ordinary 64

Bodin (1955), pp. I, X. Ibid. 66 Lloyd and Sreedhar (2013). 67 Hobbes (2013), p. 85. 68 Dicey (1915), pp. 3 f. 69 “Sovereignty” is said to find its etymological origin in the Latin superanus, meaning the highest or the supreme. Kelsen (1959), p. 627. 70 Dicey (1915), pp. 3 f. 71 And presumably again after it leaves. 72 Only a handful of states in the world do not have some form of constitutional review, cf. Mavčič (2010). 65

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legislator who has legislative supremacy in this sense, because acts of the ordinary legislator can be overturned or set aside by courts with the competence of constitutional review. The constitutional legislator—often the legislator acting according to whichever procedure is prescribed for constitutional amendments—cannot thus be overruled and therefore fulfils the criteria for legislative supremacy. However, the procedure for constitutional amendments can differ greatly, depending on the legal system in question, as can the number and identity of the bodies involved in said procedure. In Australia, for example, both the Houses of Parliament and the people need to be involved, as Section 128 of the Australian Constitution stipulates that constitutional amendment bills pass both Houses of Parliament and are put before the people in a referendum. In Germany, meanwhile, the procedure involves Bundestag and Bundesrat passing amending bills with raised majorities.73 The French Constitution allows for constitutional amendments subject to either approval by the people via a referendum or by raised majorities in Parliament—that is, National Assembly and Senate—convened in Congress.74 What constitutes a raised majority also differs; in some states it means two-third majorities, in others threefifth. What even just these few examples show is that while it is possible to talk of the constitutional legislator as one entity, in most cases the constitutional legislator is in fact several bodies acting together in accordance with a specified procedure. Taking this into consideration, it becomes obvious that where above, Westminster Parliament is mentioned, it really means “King-in-Parliament”, or the monarch, the House of Commons, and the House of Lords acting together. This raises the question whether it is indeed one entity—the constitutional legislator—that can be said to have legislative supremacy, or several. There are two possibilities: either, several bodies acting in accordance with a specific procedure constitute one entity, in which case sovereignty is not divided, or they do not, in which case sovereignty is not indivisible. While theories of sovereignty generally treat several bodies acting together in accordance to a specified theory as one for the sake of sovereignty,75 this complication must nevertheless be considered in more detail, because the bodies regarded as one entity remain capable of acting independently from one another. As such, an individual body of the entity considered as a whole to be sovereign can influence the outcome of the constitutional amendment procedure. The following example showcases this complication: The Dutch constitution specifies the procedure for its amendments in Art. 137 and following. According to these articles, the constitutional legislator must be identified as consisting of the States-General, that is, the Second Chamber [Tweede Kamer] and First Chamber [Eerste Kamer], and the King. The amendment procedure is relatively straight-forward: a statute proposing an amendment must be passed in both Chambers. After dissolution and subsequent elections of the Second Chamber, the proposed amendments are considered in a second reading and may be adopted only

73

Art. 79(2) German Basic Law. Art. 89 French Constitution. 75 Cf. Dicey (1915). 74

2.3 Inferential Analysis of “Sovereignty” in National Law

27

with a raised majority of two-thirds of votes cast in both Chambers. This means that no Chamber acting alone can amend the constitution, but it also means that either of the Chambers, acting alone, can prevent the constitution from being amended. Is it possible to consider the constitutional legislator as supreme if one of the bodies of which it consists can prevent it from acting? The conventional answer to this question is clear: entities consisting of several bodies are considered to be one. The conventional answer can be explained and supported by the assumption that constituted sovereignty and legislative supremacy alike must be situated entirely in the legal world.76 This means that the actions of individual bodies do not matter so much as the counts-as rules and the legal consequences attached to them which transplant factual acts into the legal world. This is shown in the—very simplified77— picture in Fig. 2.6. The raising of hands in both the Second and First Chamber takes place in the physical and social world. A counts-as rule exists holding that raising your hand counts as voting, and another that these events taken together count as a singular event in the legal world, namely the adoption of a statute by the StatesGeneral. This understanding of composite entities as one entity will become relevant in the next section. Aside from legislative supremacy, adjudicative and executive powers, that is, powers relating to the interpretation of legal rules and to their enforcement as well as budgetary powers, including taxation, were traditionally attached to the status of sovereignty. The powers relating to the enforcement of norms and their link to sovereignty and the state are at times referred to also as the “monopoly on violence”.78 Hobbes in particular makes a strong point regarding the desirability of a sovereign having strong enforcement powers.79 As Lloyd and Sreedhar indicate, Hobbes considers that a number of consequences should attach to sovereignty: The powers of legislation, adjudication, enforcement, taxation, war-making (and the less familiar right of control of normative doctrine) are connected in such a way that a loss of one may thwart effective exercise of the rest; for example, legislation without interpretation and enforcement will not serve to regulate conduct.80

To summarise, some of the consequences traditionally attached to the status of sovereignty (MCDS) are the following: firstly, the sovereign entity has law-making powers (or, more generally: rule-creating powers). Secondly, it often also has the power to interpret the rules created by means of its law-making powers. It has these powers with regard to a particular territory or a particular topic or field. Within this territory, topic or field, its powers are preemptive and final. This means that the 76

Hage (2011). It ignores, for example, the role of government and monarch and narrows down the process to just one event in the physical and social world, whereas it of course takes several. However, it should serve to illustrate the point. 78 Krahmann (2013), p. 58. 79 Hobbes (2013). 80 Lloyd and Sreedhar (2013), p. 8. 77

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56 ‘yes’es

78 ‘yes’es

Positive vote 2e kamer

Counts-as rule: x amount of ‘yes’ es counts as positive vote

Adoption by S-G

Positive vote 1e kamer

Counts-as rule: positive votes in both chambers counts as adoption by S-G

Statute

WORLD OF LAW Fig. 2.6 The world of law

norms created by the sovereign entity are treated as supreme to those of any other organisation or entity. With regard to the Westphalian state, this means that the state’s rules, that is, its laws are hierarchically higher than those of other organisations, such as the church, the local chess club, or a football association. In the traditional Westphalian picture, sovereign entities are furthermore delineated by territory rather than by topic, although this does not take away that a topical delineation would be possible as well.81 This traditional Westphalian picture also explains the emphasis on independence and non-intervention that inform the internal legal concept of sovereignty in international law. In addition, executive powers and budgetary powers are traditionally attached to the status of sovereignty as well. The above is a list of consequences traditionally and typically attached to the status of sovereignty. However, understanding national sovereignty as a legal status also means understanding that the consequences attached to the status of sovereignty can change without the status itself changing. This is of particular relevance in contexts such as membership of a state to the European Union, but also with regard to matters such as transnational law and globalisation. The full implications will be considered in the next section.

81 Imagine a world in which not states but religious orders were regarded sovereign (for more religious people than the present author, this may not be a stretch of the imagination). Instead of sovereignty over a territory, the sovereignty of each religious order would likely be over the people belonging to its religion. Of course, a territorial distribution is also possible.

2.3 Inferential Analysis of “Sovereignty” in National Law

2.3.2

29

Attributed to State or State Organ?

Initially, after the Peace of Westphalia, sovereignty signified that it was the state rather than the church which had supreme authority, and as such sovereignty was attributed to the state as a whole. Historically speaking, then, sovereignty of the state, that is, supreme authority over a territory by the state, was the answer to the question whose authority prevailed ultimately, that of the state or that of the church. The question sovereignty initially answered was thus not which organ of the state has supreme authority, but whether it was the state at all—which, after Westphalia, it was. However, state and monarch were often equated, and as states developed from forms of absolute monarchy to constitutional monarchies or towards a republican form of government, and with the introduction of the notion of separation of powers, the state and a single governmental organ could no longer be equated. This might be the reason why there is a considerable amount of literature and academic debate surrounding the question of sovereignty as situated on a very different level than it was initially asked: on a level of state organs, rather than on a level of the state as a whole. When it comes to the entities to which the status of sovereignty (MCDS) is attached, a distinction can be made between those jurisdictions following the continental and those following the commonwealth model: in what I call the continental model, sovereignty is attributed to the state as a whole. In the commonwealth model, sovereignty is attributed not to the state as a whole, but to an individual organ within the state.82 The question where to attribute sovereignty (CDS) is complex, as Raphael indicates: A much disputed question [. . .] is where the sovereignty of a State is located. Does it reside in a legislature which is empowered to make statutes that can override rules of common law or repeal earlier statutes? Or in a supreme court that can determine whether an Act of the legislature is constitutional? Or does it reside in the constitution itself, or in the body that is empowered to amend the constitution? [. . .] The activities of the State are divided among different bodies, none of which may be supreme in all respects. In relation to other associations, however, and to other States, the State as a whole is regarded as sovereign.83

Already above, I have indicated that it is possible to situate sovereignty at the level of one entity within the state or attribute it to the state as a whole. Due to different historical developments, common law countries tend to situate sovereignty at the level of one entity within the state—most famously parliament—while civil law countries attribute it to the state as a whole84: hence the civil law and commonwealth models of sovereignty. In my view, the commonwealth model overlooks two important arguments that indicate that sovereignty is better attributed to the state as a whole: first, parliament is a composite entity. In the United Kingdom, parliament really means “King-in-Parliament”, an entity consisting of the monarch (currently a 82

Beaud (2012), pp. 271–273. Raphael (1976), pp. 54 f. 84 Beaud (2012), pp. 271–273. 83

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Queen rather than a King), the House of Commons and the House of Lords. Of course, both Houses are composite entities as well in that they are composed of Members of Parliament. Sovereignty is not attributed to an individual Member of Parliament. It is also not attributed to one of the Houses of Parliament, although Dicey already considered the possibility that “the sovereignty of Parliament” has transformed into “the sovereignty of the King and the House of Commons.”85 Nevertheless, he came to the conclusion that [. . .] the better opinion on the whole is that sovereignty still resides in the King and the two Houses of Parliament. The grounds for this opinion are, firstly, that the King and the two Houses acting together can most certainly enact or repeal any law whatever without in any way contravening the Parliament Act; and, secondly, that the House of Lords, while it cannot prevent the House of Commons from, in effect, passing under the Parliament Act any change of the constitution, provided always that the requirements of the Parliament Act are complied with, nevertheless can, as long as that Act remains in force, prohibit the passing of any Act the effectiveness of which depends upon its being passed without delay.86

This attributes sovereignty to the composite entity “King-in-Parliament” even though one of its elements, the House of Lords, does not play an equal role in the exercise of law-making power. In the same manner, one can argue that it is the composite entity “state” which is sovereign, with each of its organs (monarch, the Houses of Parliament, the courts, the government, etc.) acting in accordance with the competences given to them by the legal system. If there is one composite entity composed of several entities that in themselves are also composite, why should sovereignty—involving supremacy—be attributed at the level of one of the sub-entities, rather than the entity composed of all sub-entities?87 It no more makes sense to attribute sovereignty to a sub-entity of the state than it makes sense to attribute it to a sub-entity of the King-in-Parliament. Second, attributing sovereignty to one entity within the state and thereby attributing supremacy to one organ of the state over all other state organs conflicts with the notion of separation of powers put forward by Montesquieu.88 This puts the commonwealth model in conflict with political and philosophical arguments speaking for such a separation of power, such as preventing abuse of power.

2.3.3

Attributed to the People?

Up until now, I have considered the doctrinal legal concept of national sovereignty as attributing the status either to the composite entity “state” as a whole, or, in the 85

Dicey (1915), p. xlii. Ibid. 87 As an aside: this argument could also be employed to argue for sovereignty of the European Union, if one assumes that the European Union is a composite entity consisting of all its Member States as sub-entities. 88 de Montesquieu (1914). 86

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31

commonwealth-model, to an organ within the state. There is a development with regard to the legal concept of national sovereignty, however, that should not go without comment: a number of national legal systems attribute sovereignty neither to the state as such or to an organ within the state, but to the people(s) of that state, often in their constitutions.89 The attribution of the status of sovereignty to the people is interesting because it is generally regarded as an aspirational norm with no clear legal consequences. The example of article 20(2) of the German Basic Law helps illustrate this. Article 20 (2) is generally considered to be the expression of popular sovereignty, that is sovereignty of the people, despite the term Volkssouveränität not appearing in the provision itself. It reads as follows: Alle Staatsgewalt geht vom Volke aus. Sie wird vom Volke in Wahlen und Abstimmungen und durch besondere Organe der Gesetzgebung, der vollziehenden Gewalt und der Rechtsprechung ausgeübt.90

Commentaries to this provision explain that this provision identifies state power as the object of democratic legitimation. It requires that all exercise of state power can be traced back to the will of the people.91 Grzeszick holds that the people effectively influence the exercise of state power. Nevertheless, the provision is seen as a principle of legitimation and responsibility, not as one that confers a competence.92 At first glance, this may seem incongruous. This perceived incongruence is what Winterton refers to when he points to what he considers the irony of the fact that the Australian Constitution, which does not claim to be based upon popular sovereignty, gives a greater amount of control over it to the Australian people than the constitutions of other countries which claim to be based upon popular sovereignty.93 This is not a real incongruity, however: understanding sovereignty as a status that can be attributed to an entity such as the people without necessarily going hand in hand with the attribution of powers or competences that are (historically) associated with sovereignty explains why the people can be sovereign, legally speaking, despite the fact that no powers or competences are conferred upon them by this status. While it is conceptually consistent to attribute the status of sovereignty to the people by means of law without also attributing sovereign competences to the people, one may nevertheless ask whether it is useful to attribute the status to an entity that does not exercise any of the powers and competences usually associated

89 Examples can be found in the Portuguese Constitution (article 3), that of Thailand (section 3), of Russia (article 3), Greece (article 1(2)), Brazil (article 1) and of Germany (article 20(2)). 90 “All state authority derives from the people. It is exercised by the people through elections and votes and through specific organs of the legislature, of executive power and the judiciary.” 91 Grzeszick (2013). 92 “Die Regelung der Volkssouveränität in Art. 20 Abs. 2 Satz 1 ist deshalb keine Zuständigkeitsregelung, sondern enthält ein Legitimations- und Verantwortungsprinzip.” ibid. 93 Winterton (1998), pp. 7 f.

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with sovereignty. This question exceeds the scope of this book, but it is something to be considered in future research.

2.4

Implications

“Sovereignty” stands for sovereignty, and “being sovereign” stands for a relationship between one entity and others, namely that the one entity is sovereign vis-à-vis the others, or between an entity and a territory, in that the entity has sovereignty over the territory or is sovereign on the territory. The meanings of the terms “sovereignty” and “being sovereign” do not change in case individual entrance, consequential or exit rules are changed. This has interesting implications in the case of sovereignty that are of particular relevance in the context of discussions surrounding the European Union. In this context, the question is often raised whether—and if so, in how far—Member States of the European Union have transferred their sovereignty to the European Union, or if membership coincides with a loss of sovereignty. One of the arguments in the debates surrounding the referendum that led to the United Kingdom’s triggering of Article 50 to leave the European Union was to “take back sovereignty”.94 This argument and others like it fail to take into account that the status of sovereignty remains intact even when sovereign competences are transferred to another entity. The Dutch Raad van State, an independent organ advising the Dutch government on matters of legislation and administration, as well as the highest administrative court in the Netherlands, correctly understood this implication, while members of the Second Chamber of the Dutch Parliament did not. The Second Chamber of the Dutch Parliament asked for advice regarding the democratic control of a transfer of competences and sovereignty to the European Union, to which the Raad van State replied: In de motie worden zowel de overdracht van soevereiniteit als die van bevoegdheden genoemd. Hoewel beide begrippen doelen op een overdracht van beschikkingsmacht, is er toch sprake van een meer dan gradueel verschil. In de volkenrechtelijke context betekent soevereiniteit dat staten niet tegen hun wil kunnen worden gebonden (een afspraak vooronderstelt immers instemming). In staatsrechtelijke zin wordt met soevereiniteit gedoeld op de bevoegdheid van de staatsgemeenschap om de eigen staatsinrichting en wetten te kunnen wijzigen. In beide kaders wordt de soevereiniteit van staten als één en ondeelbaar beschouwd: een staat is soeverein of hij is dat niet. Dit sluit niet uit dat soevereine bevoegdheden verdeeld kunnen zijn; binnen een staatsverband, zoals bij federale staten, of in internationaal verband, zoals bij de Europese Unie. Een dergelijke verdeling van bevoegdheden impliceert echter geen verlies van soevereiniteit en zal veelal juist een bevestiging of versterking daarvan opleveren.

94

Farand (2017).

2.4 Implications

33

Gelijkstelling van verlies van soevereiniteit aan iedere beperking van beschikkingsmacht om eigen aangelegenheden autonoom te regelen en daarover te beslissen, zou betekenen dat er geen soevereine staten (meer) zijn.95

The Raad van State holds in its reply that while both sovereignty and the competences in question relate to decision-making, there is more than a gradual difference between them. According to the Raad van State, sovereignty is an all-ornothing matter: one is either sovereign or not. To equate a transfer of competences with a transfer of sovereignty would mean that there are no (more) sovereign states in the world. The Raad van State makes the distinction between “sovereignty” (soevereiniteit) and “sovereign competences” (soevereine bevoegdheden). The latter can be transferred or shared, but this does not impact sovereignty. This raises the question, however, how many consequential rules attached to the status of sovereignty can change before the concept of sovereignty ceases to be recognisable as such. Theoretically, the answer has to be all of them. This does not cohere well, however, with intuitions people have regarding sovereignty and its meaning. By way of example, imagine a pincushion. A number of pins are stuck in this pincushion. It is possible to remove some pins from the pincushion and add other pins without the pincushion becoming unrecognisable as a pincushion. If one were to take all of the pins out of the pincushion, it would still be a pincushion—but if one were to take all of the pins out of the pincushion and never put them back in, but rather start using a bowl to keep one’s pins, would the cushion still be a pincushion? Put differently, it may be possible that the status of sovereignty becomes meaningless if there are no longer any (sufficiently important) consequences attached to it. This consideration is of particular relevance in the discourse surrounding the transfer of sovereign competences from its Member States to the European Union. It also relates back to the issue briefly touched upon in the last section, namely whether it is useful to attribute municipal constituted sovereignty to the people when this attribution is not accompanied by the attribution of any competences. While viewing sovereignty (CDS) as a legal status, akin to the pincushion, may mean that the status will become meaningless or lose its function in the future, I

95 Raad van State (2014): Both the transfer of sovereignty and that of competences is mentioned in the motion. Even though both terms refer to a transfer of power, the difference is not just one of degree. In the context of international law, sovereignty means that states cannot be bound against their will (after all, an agreement requires the parties’ approval). In constitutional law, sovereignty refers to the competence of the state community to change the organisational setup of that state and its laws. In both fields, the sovereignty of the state is considered unitary and indivisible: a state either is or is not sovereign. This does not exclude that sovereign competences can be distributed: either within the state, as is the case in federal systems, or internationally, as in the European Union. However, such a distribution of competences does not imply a loss of sovereignty. Rather, it can often result in its confirmation or reinforcement. Equating every limitation of the power to regulate and decide on domestic affairs autonomously to a loss of sovereignty would mean that no sovereign states exist (any more). (Translation provided by Dr Sascha Hardt with minor changes by the author; any remaining mistakes are entirely the author’s.)

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nevertheless consider it to be the understanding of sovereignty which is the most consistent and with the greatest explanatory power: viewing sovereignty as a legal status safeguards sovereign equality and is consistent with sovereignty as an all-ornothing matter, rather than a matter of degree. Additionally, clearly separating the status of sovereignty from its consequences—the “sovereign competences” the Raad van State mentions—can help untangle and clarify discussions invoking “sovereignty” and involving high emotions, such as the discussion surrounding the United Kingdom’s exit from the European Union. In decisions as political—and as driven by emotion—as the referendum on the United Kingdom’s exit from the European Union, analytical clarity and precision can turn “taking our sovereignty back” into a rational discussion on which sovereign competences one wants to transfer to the European Union and which one does not want to transfer. An understanding that the transfer of competences does not equal a loss of sovereignty would have introduced nuance into the debate. Nevertheless, the fact that sovereignty and its consequences are often equated is understandable, given the fact that in the last centuries, the status and its consequences did generally coincide: initially, when the state was personified in the figure of a monarch, even after the introduction of the trias politica. The introduction of Montesquieu’s trias politica led to a division of sovereign competences within the state but did not involve any transfer of sovereign competences to an entity other than the state. Even the shift toward notions of popular sovereignty involved no shift of sovereign competences to an entity other than the state; what changed instead was the entity to which the status is attributed, from states to peoples. With the increased role for international organisations in monitoring human rights or trade agreements, to name but two examples, and certainly with the introduction of the European Union, the coincidence between the holder of sovereign competences and the holder of the status has decreased and competences have been transferred to entities other than the state. Understanding the status of sovereignty as a pincushion in the way defined above allows for a continued and consistent use of “sovereignty” in light of these shifts and developments. At the same time, it showcases the issue of usefulness of the concept. Ross considered that words like “ownership” had an ordering function,96 connecting entrance and exit rules and thereby limiting the number of inferential links required. The same may have been true for national constituted sovereignty, but if the status “sovereignty” no longer connects to (m)any of the consequences it has been connected to historically, this ordering function is increasingly lost.97

96

Ross (1957). It bears mentioning, here, that this does not mean that “sovereignty” cannot fulfil other functions (as well), nor does the conclusion that its ordering function is increasingly lost imply what, if anything, should be done about this.

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References

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References Beaud O (2012) Conceptions of the state. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law. Oxford University Press Besson S (2011) Sovereignty. Max Planck Encyclopedia of Public International Law. Oxford Public International Law Bodin J (1955) Les Six Livres du République (Six books of the Commonwealth) (trans: Tooley MJ). Blackwell, Oxford Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (1986) International Court of Justice Case of the S.S. “Wimbledon” (1923) Permanent Court of International Justice Charter of the United Nations (1945) 892 UNTS 119 Convention on the Rights and Duties of States (1933) 165 LNTS 19 Crawford J (2007) Statehood and recognition. In: The creation of states in international law, 2nd edn. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199228423.003. 0001 de Montesquieu B (1914) The spirit of laws (trans: Nugent T, revised by J. V. Prichard). Based on a public domain edition by G. Bell & Sons, Ltd., London. http://www.constitution.org/cm/sol.htm Dicey AV (1915) Introduction to the study of the law of the constitution, 8th edn. Macmillan, London Farand C (2017) The Brexit White Paper completely contradicts a key argument for Brexit. Independent Frändberg Å (2009) An essay on legal concept formation. In: Hage J, Von der Pfordten D (eds) Concepts in law, Law and philosophy library, vol 88. Springer Goldsworthy J (1999) The Sovereignty of Parliament: history and philosophy. Oxford University Press, Oxford Grzeszick B (2013) Maunz/Dürig, Grundgesetz-Kommentar 69, Ergänzungslieferung 2013. Grundsatz der Volkssouveränität, GG Art. 20 Rn. 60–77 Hage J (2009) The meaning of legal status words. In: Hage J, von der Pfordten D (eds) Concepts in law, vol 88. Springer Hage J (2011) A model of juridical acts: part 1: the world of law. Artif Intell Law 19(1):23–48. https://doi.org/10.1007/s10506-011-9105-4 Hage J (2013) Conceptual tools for legislators. Part 2: Pathways through the world of law. Theory Pract Legis 2(2):277–203 Halpin A (2007) Rights, duties, liabilities, and Hohfeld. Legal Theory 13(01):23–39. https://doi. org/10.1017/S1352325207070036 Hobbes T (2013) Leviathan. In: White E, Widger D (eds) Project Gutenberg Hohfeld WN (1913) Some fundamental legal conceptions as applied in judicial reasoning. Yale Law J 23:16–59 Island of Palmas case (Netherlands, USA) (1928) Permanent Court of Arbitration Kelsen H (1959) Sovereignty and international law. Geo Law J 48:627–640 Kornet N, Hardt S (2013) The Maastricht collection: selected national, European and international provisions from public and private law, 3rd edn. Europa Law Publishing Krahmann E (2013) The United States, PMSCs and the state monopoly on violence: leading the way towards norm change. Secur Dialogue 44(1):53–71. https://doi.org/10.1177/ 0967010612470292 Lloyd SA, Sreedhar S (2013) Hobbes’s moral and political philosophy. The Stanford Encyclopedia of Philosophy, Summer 2013 edn. http://plato.stanford.edu/archives/sum2013/entries/hobbesmoral/ Mavčič A (2010) A tabular presentation of constitutional/judicial review around the world Morse HN (1987) Applying the Hohfeld system to constitutional analysis. Whittier Law Rev 9:639–662

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Philpott D (2010) Sovereignty. The Stanford Encyclopedia of Philosophy, Summer 2010 Edition edn. http://plato.stanford.edu/archives/sum2010/entries/sovereignty/ Raad van State (2014) Voorlichting inzake de democratische controle bij overdracht van bevoegdheden en soevereiniteit. Kamerstukken II 2013/2014, 33 848, nr 15 Raphael DD (1976) Problems of political philosophy, revised edn. Macmillan Press Ltd, London Raz J (1986) The morality of freedom. Clarendon Press, Oxford Ross A (1957) Tû-tû. Harv Law Rev 70(5):812–825. https://doi.org/10.2307/1337744 S.S. “Lotus” (1927) Permanent Court of International Justice, vol Series A., No. 10. Permanent Court of International Justice Sartor G (2009) Understanding and applying legal concepts: an inquiry on inferential meaning. In: Hage J, von der Pfordten D (eds) Concepts in law. Springer Steinberg RH (2004) Who is sovereign commemorative issue – balance of power: redefining sovereignty in contemporary international law. Stan J Int Law 40:329–346 Troper M (2012) Sovereignty. In: Rosenfeld M, Sajó A (eds) The Oxford handbook of comparative constitutional law. Oxford University Press Winterton G (1998) Popular sovereignty and constitutional continuity. Fed Law Rev 26:1–14 Zimmermann A (2006) Continuity of states. Max Planck encyclopedia of public international law. Oxford University Press

Chapter 3

Sovereignty Outside of the Law

The previous chapter considered the concept of sovereignty within the world of law, identifying sovereignty (CDS) in national and international law as a legal status attributed to states. It goes without saying that the internal legal or legal doctrinal uses of “sovereignty” are not the only uses of the term. Many constitutions of the world reference, either directly or indirectly, a phenomenon named “popular sovereignty”. The Portuguese constitution provides, for example, that “sovereignty shall be single and indivisible and lie with the people”,1 the Thai constitution that “the sovereign power belongs to the Thai people”,2 the Russian one holds that “the bearer of sovereignty and the only source of power in the Russian Federation shall be its multinational people”,3 while the Greek states that “popular sovereignty is the foundation of government”4 and the Brazilian constitution posits that “all power emanates from the people”.5 Other constitutions contain similar references.6 These references can be understood as attributing the status of sovereignty to the people without at the same time attributing any sovereign competences to them— these continue to be held by the state or by other entities, but rarely the people.7 Attributing the status to the people without attaching consequences to the status is conceptually possible, as demonstrated in the previous chapter. However, one might

1

Constitution of the Portuguese Republic (2005), article 3. Constitution of Thailand (2007), section 3. 3 Constitution of Russia (1993), article 3. 4 Constitution of the Hellenic Republic of Greece (1975), article 1(2). 5 Constitution of Brazil (1988), article 1. 6 Cf. German Basic Law, article 20(2). 7 The Australian constitution illustrates in what ways it is possible to involve the people (or rather: the electorate) in the exercise of sovereign competences: here, those eligible to vote partake in the constitutional amendment procedure via a referendum. It is curious to note, however, that Australia does not attribute sovereignty to the people, cf. Winterton (1998). See Sect. 2.3.3 for a more detailed analysis. 2

© Springer Nature Switzerland AG 2019 A. M. Waltermann, Reconstructing Sovereignty, Law and Philosophy Library 132, https://doi.org/10.1007/978-3-030-30004-3_3

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question the meaning of the status, if it entails no or hardly any consequences.8 A possible answer is that the attribution of the status to the people has symbolic meaning, or that it is aspirational in nature, something to strive toward. A different starting point would be to interpret these norms not only as attributing the status of sovereignty to the people, but also as statements of fact: as recognition by law that law is a social phenomenon and that state power—which is created and regulated by law, at least in a Rechtsstaat—emanates, as a matter of fact, from the people. Taking this as a starting point, one might ask how it is possible that state power emanates from the people, and what is meant by state power in this context. This starting point implies that sovereignty is not (only) a legitimizing notion or legal fiction, but that state power actually and as a matter of fact emanates from the people. This understanding of popular sovereignty, briefly summarised, describes the extralegal power of a people to constitute, maintain and deconstruct a legal system. In the following, I will explain the elements of this definition, starting with the question why it is necessary that this be an extra-legal power and what this means (Sect. 3.1). Thereafter, I will elaborate on the core of popular sovereignty, namely the power to constitute, maintain and deconstruct a legal system (Sect. 3.2). In explaining how this can be done, I will draw inspiration from HLA Hart and Jean Hampton and their use of social conventions, while arguing that social rules are much better suited as a basis for constitutive sovereignty than a social convention (Sect. 3.2.2). In order to distinguish the conception of sovereignty I am writing about from other conceptions of sovereignty, I will hereafter refer to it as constitutive sovereignty. The following sections will consider sovereignty (CVS) first relative to the national legal system and then relative to international law.

3.1

Constitutive Sovereignty Is Extra-Legal

Constitutive sovereignty is extra-legal. This is necessarily the case if it constitutes the legal system: if there is no legal system yet before the (first) exercise of this type of sovereignty, it cannot itself derive from a legal norm, because no such norm exists.9 Albert Venn Dicey, writing in 1915, realised that “the actual exercise of authority by any sovereign whatever, and notably by Parliament, is bounded or controlled by two limitations”, one of which is “the possibility or certainty that [the sovereign’s] subjects, or a large number of them, will disobey or resist his laws.”10

8

In Sect. 2.4, this discussion was mainly phrased not in terms of the people having sovereignty, but the state, with competences transferred to other entities such as the European Union until the state has few(er) sovereign competences to itself. 9 Kalyvas (2005), p. 227, cf. also Raz (1979). 10 Dicey (1915), p. 30.

3.1 Constitutive Sovereignty Is Extra-Legal

56 ‘yes’es

78 ‘yes’es

Positive vote 2e kamer

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Counts-as rule: x amount of ‘yes’ es counts as positive vote

Adoption by S-G

Positive vote 1e kamer

Counts-as rule: positive votes in both chambers counts as adoption by S-G

Statute

WORLD OF LAW Fig. 3.1 The world of law

In distinguishing between the legal and the extra-legal, or the world of law and what is outside of it, I presuppose a particular view of law as an institutionalised part of social reality (see Chap. 2). That a large number of the sovereign’s subjects might resist the law is a possibility that will materialise outside the world of law, if it occurs at all. The view of law as an institutionalised part of social reality suggests that legal rules “derive their existence and status as legal rules from being made in accordance with rules that specify how to make legal rules.”11 As such, law is an institutional part of social reality, and we can identify the institutional system that is law as “the world of law”, which is distinct from the rest of social reality. Within the world of law, legal rules determine the existence of institutions, the powers these institutions have are dependent on legal rules, and legal rules determine what counts as an exercise of a legal power. An example might be helpful to illustrate this point: consider a parliament. The existence of the parliament is something prescribed by law, usually in the constitutional document of the state in question. The election method of its members is prescribed by law as well, and law also determines what counts as casting a vote, just as it determines how parliamentarians vote. Without law, making a cross on a piece of paper, checking off a name on a piece of paper, or shouting ‘aye’ or ‘nay’ in a room full of other people would not amount to a vote in this sense. Figure 3.1 illustrates this for the Dutch legislature, the bicameral StatenGeneraal (States-General), by way of example.

11

Hage (2011), pp. 28 f.

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3 Sovereignty Outside of the Law

This distinction between the institutionalised part of social reality here called “the world of law” and the rest of social reality is helpful when situating an action. Any action that contributes to the exercise of constitutive sovereignty (MCVS) is situated outside of the world of law. This makes constitutive sovereignty (MCVS) sociological rather than legal, although its relevancy for law cannot be understated, given that it is what constitutes the legal system.

3.2

The Core of Constitutive Sovereignty (MCVS)

Constitutive sovereignty (MCVS) shows how and in what way state power can be said to actually emanate from the people. In this context, I will equate state power with the legal system, given that the state’s institutions are created by legal rules of the system. To say that state power emanates from the people is to say that the people establish and maintain the legal system. How can they do so? I argue that they it is through recognition of the legal system, its institutions and their output as authoritative. The following thought experiment showcases the relevance of recognition: if, on a given territory, two groups of individuals have written a text they each call “constitution”, the question arises what turns a text with this label into a real constitution, especially if neither group consists of or even represents a majority of the people. It is not the act of writing a document that contains provisions which are, by virtue of their content, constitutional in nature, nor is labelling the document “constitution” sufficient or even necessary. Anyone can write such a document, but unless the norms contained in it are recognised and efficacious,12 this “constitution” will only be a number of words on a piece of paper. In this regard, a distinction can be made between the exercise of constitutive power in a legal vacuum, and the continuous acquiescence to and recognition of the constituted legal system.13 I call the act of recognition of a new legal system in a legal vacuum constituting and the continued recognition of an existing legal system maintenance. Accordingly, the people have the power to constitute and to maintain a legal system. In addition to these two powers, they are also able to cease 12 The conditions of recognition and efficacy play an important role in the theories of Ross and Hart respectively. Ross (1974) and Hart (2012). 13 Winterton (1998) points out these two uses of constitutive sovereignty in his article regarding the notion of popular sovereignty in Australia. He considers that the Australian Constitution might derive its authority either from the moment of constitution, that is, from the one specific point in time in which the Australian electors of that time (no longer alive today) accepted the constitution in a referendum, or it might derive its authority from the continued and continuous acquiescence with the constitution by the current Australian people. This dual view on constitutive sovereignty is acknowledged also by the judges of the Australian High Court (e.g. Theopanous (1994) 182 CLR 104 at 171). See Winterton (1998). However, both Winterton and the Australian High Court speak of legitimacy, while I will argue that it is not primarily the legitimacy of the constitution or the legal system as a whole that derives from recognition, but its existence as constitution or legal system in the first place.

3.2 The Core of Constitutive Sovereignty (MCVS)

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maintenance of an existing legal system and thereby deconstruct it. That this can be done is most clear in cases of revolution. The decisive factor for an exercise of constitutive sovereignty is recognition or acquiescence—but what does that mean, precisely, and how does it work? Jean Hampton has formulated a sophisticated theory of different degrees of recognition and acquiescence.14 Combining this theory with discoveries from analytical legal philosophy offers a convincing and exhaustive account of how political authority and the legal system emanates from the people.

3.2.1

The State and the Legal System Emanate from the People

In political philosophy, the source of political authority and the state has been found, for example, in a social contract15 or in reason.16 Hampton, meanwhile, finds it in the people’s recognition of state authority. She argues that for political authority to exist, a governing convention is necessary. Such a governing convention exists when two conditions are fulfilled: firstly, that there exists a convention to regard the norms created by the governing institution(s) as preemptive and final17; and secondly that there are means to enforce the norms created by the governing institution(s) and the willingness to use them. There is a third condition Hampton identifies that she does not consider necessary for the existence of the governing convention, namely that individuals consider the norms created the governing institution(s) as reasons to act accordingly.18 The governing convention can come about via a democratic process, but equally via conquest and warfare. Bringing about a governing convention via a democratic process could mean that people in a given community vote on leadership candidates until a salient option emerges and the convention is formed. In the case of warfare, the choice is one between accepting the conqueror’s leadership and receiving protection or rejecting it and being harmed.19 Hampton argues that

14

Hampton (1997). Locke (1698). 16 Finnis (2014). 17 The term “pre-emptive and final” is based on Joseph Raz’s theory of reasons. He defines preemptive reasons as follows: “The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.” Raz (1986), p. 46. This makes legal rules (norms generated by a political authority) into second-order reasons, meaning reasons that impact first-order reasons, in this case by excluding them. This is why preemptive reasons are often called exclusionary as well. 18 Hampton (1997), pp. 97 f. 19 Ibid. 15

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3 Sovereignty Outside of the Law Most philosophers interested in state creation haven’t used this warfare scenario in their arguments because it does not serve their justificatory interests. Any theorist interested in showing what kind of state we should create and maintain does not want to use stories of state creation such as the warfare scenario in which the mightiest but not necessarily the most just leadership faction would prevail. It is natural to present a just government, which takes account of the rights of each individual subject, as the product of an agreement process in which those rights are respected. But even an unjust scenario is appropriate if that scenario is a way of understanding the structural forces that have actually precipitated the creation of states, and hence political authority, in human communities throughout history.20

The governing convention is the source of authority for the governing institution; authority “comes from the people; it is invented by them and bestowed upon rulers through the governing convention”.21 Here the link to municipal constitutive sovereignty and the notion that all state power emanates from the people can be seen clearly. Via a governing convention as defined by Hampton, the people constitute the legal system which in turn constitutes the institutions of the state and attributes competences to them. The two conditions Hampton identifies for the existence of a governing convention are reminiscent of the two conditions Alf Ross identifies for the existence of valid rules and that HLA Hart gives for the existence of the rule of recognition; a social rule that determines what rules count as valid legal rules. Alf Ross used the example of chess to explain valid law. An outsider unfamiliar with the rules of chess, observing a game, might deduce from the general behaviour of the two individuals playing that it is a game but not the entirety or even the majority of the rules governing the game.22 A descriptive outsider’s perspective is therefore not helpful to understanding chess. The rules of chess, according to Ross, are directives. These directives are felt by each player to be socially binding; that is to say, a player not only feels himself spontaneously motivated (‘bound’) to a certain method of action but is at the same time certain that a breach of the rules will call forth a reaction (protest) on the part of his opponent. And in this way they are clearly distinguished from the rules of skill contained in the theory. A stupid move can arouse astonishment, but not protest.23

In order to establish which rules or which directives govern the game of chess, an introspective method must be adopted. Two criteria are relevant: the first is one of effectiveness or adherence. The rules are observed, if not all the time then by and large, and instances of non-observance are met with protest. The second criterion is the motivating force of the rules as felt by the players.24 In short, [. . .] we can say: a rule of chess ‘is valid’ means that within a given fellowship (which fundamentally comprises the two players of an actual game) this rule is effectively adhered

20 Ibid. One theorist who very strongly made use of the warfare scenario is, of course, Thomas Hobbes. 21 Ibid. 22 Ross (1974), pp. 11 f. 23 Ibid. 24 Ibid.

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to, because the players feel themselves to be socially bound by the directive contained in the rule.25

This conclusion equally holds for law. Both chess and law are constructs, in that [t]he phenomena of chess and the norms of chess are not mutually independent, each of them having their own reality; they are different sides of the same thing. No biological-physical action is as such regarded as a move of chess. It acquires this quality only by being interpreted in relation to the norms of chess. And conversely, no directive idea content has as such the character of a valid norm of chess. It acquires this quality only by the fact that it can, along with others, be effectively applied as a scheme of interpretation for the phenomena of chess. The phenomena of chess become phenomena of chess only when placed in relation to the norms of chess and vice versa.26

In other words, the game of chess only exists because the rules of chess constitute it, and the rules of chess only make sense because the game of chess exists. The same is true for law. Applying the conclusion from chess to law, we hold that the norms of law are “effectively followed, and followed because they are experienced and felt to be socially binding.”27 Hart’s rule of recognition is based on a similar idea. The rule of recognition tells us which rules are part of the system, i.e. which rules are valid. The rule of recognition itself, however, is a social rule in the same way the rules of chess are social rules. The rule of recognition is, then, [. . .] constituted by a form of social practice comprising both patterns of conduct regularly followed by most members of the group and a distinctive normative attitude to such patterns of conduct which I have called ‘acceptance’.28

In other words, the rule of recognition which determines which norms count as norms of the legal system is constituted by its efficacy and acceptance. Hart makes it clear that the matter of efficacy does not concern individual rules, but rather the system as a whole: If by ‘efficacy’ is meant that the fact that a rule of law which requires certain behaviour is obeyed more often than not, it is plain there is no necessary connection between the validity of any particular rule and its efficacy, unless the rule of recognition of the system includes among its criteria, as some do, the provision (sometimes referred to as a rule of obsolescence) that no rule is to count as a rule of the system if it has long ceased to be efficacious. From the inefficacy of a particular rule, which may or may not count against its validity, we must distinguish a general disregard of the rules of the system. This may be so complete in character and so protracted that we should say, in the case of a new system, that it had never established itself as the legal system of a given group, or, in the case of a once-established system, that it has ceased to be the legal system of the group.29

25

Ibid. Ibid. 27 Ibid. 28 Hart (2012), p. 255. 29 Ibid. 26

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Combining Hampton’s governing convention with Ross’ and Hart’s insights regarding law and its validity, one can say that the efficacy of a social practice together with the attitude of those involved in and affected by the practice together constitute the practice; the attitude of people in particular moves it from mere habit to rule. The social practice I am here interested in is that of regarding the state as authoritative, or, what I treat as equivalent in this book, the legal system as preemptive and final. Practically, this means people obey the law (that is, the law is efficacious), and they take a normative attitude vis-à-vis the law (for example, thinking that the law should be obeyed by them and others, and thinking that others have the same attitude about the law). The law, here, does not mean individual legal rules, but the institutionalised part of social reality called the legal system. To summarise: municipal constitutive sovereignty is the power of a people to constitute, maintain or deconstruct a legal system by constituting, maintaining or deconstructing a social rule to the effect that the norms of the system are preemptive and final. Such a social rule needs to be efficacious and it requires a particular attitude by the people in question. This raises the question, of course, what attitude is required. Hampton distinguishes between three possible attitudes an individual can take vis-à-vis the governing convention, corresponding to three types of relationships between those governed (that is, subject to the legal system) and those governing (that is, legislating, interpreting norms, and enforcing them). Hampton phrases these attitudes in terms of consent: there is endorsement consent, convention consent, and lastly mastery, a situation in which consent is absent.30 Hampton considers that [a] regime that receives what I call endorsement consent gets from its subjects not just activity that maintains it but also activity that conveys their endorsement and approval of it. A regime that has endorsement consent from most of its citizens will do more than simply survive: The considerable support from its subjects will make it vibrant and long-lived, capable of withstanding attacks from without and within. Beyond a kind of attitude toward the state, endorsement consent is a decision to support it because of one’s determination that it is a good thing to support. By giving this form of consent, the subject conveys her respect for the state, her loyalty to it, her identification with it, and her trust in it.31

It is important to note that a state is not by definition legitimate and justified because it receives endorsement consent from its citizens. Endorsement consent is an indicator of legitimacy, not the source of legitimacy.32 However, a state which receives the endorsement consent of most of its citizens is most likely one that is reasonably just; how justified the state is depends on how just it is.33

I do not think “consent” is the best term to use but will explain Hampton’s position first in her own terms before evaluating the terminology. 31 Hampton (1997), p. 96. 32 Unless one subscribes to a theory which makes legitimacy contingent solely on the attitudes of subjects towards the normative system. 33 Hampton (1997), p. 96. 30

3.2 The Core of Constitutive Sovereignty (MCVS)

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The existence of convention consent is largely explanatory: it explains why a regime exists with its particular governing convention as it is.34 It is, however, “exceedingly limited” in its justificatory strength.35 Hampton understands convention consent only as behaviour supportive of a governing convention and considers that [. . .] political authority isn’t conferred by this sort of consent from particular individuals; instead, it is a consent that, insofar as it is involved in constructing and maintaining the governing convention, is part of the collective act of inventing that authority. Moreover, given that this authority will (in general) have been invented by our societies long before we are born, this analysis also allows us to admit that Hume is right to say we are all, in a sense, born into a political system whose authority over us is not of our own making. Yet when we reach adulthood, our participation in this political system—in particular, our support of the rulership conventions that compose it—is what will sustain this invented authority during our lifetimes. In this sense, each of us is involved in maintaining (and perhaps at times reforming) this system of power and authority.36

Furthermore, Hampton argues that convention consent posits the outer limits of the competences of the governing body, be it a person or institution: Convention consent does not merely result in the empowerment of particular rulers; more fundamentally, it is responsible for the scope and structure of political authority in any particular regime.37

Convention consent, then, is what is necessary for constitutive sovereignty—it constitutes the governing convention and maintains it. The explanatory strength of this theory is supported further by its coherence with e.g. Australian case law38 and with influential theories of internal sovereignty such as those of Dicey or Goldsworthy, both of which hold that it is the people that determine the outer limits of parliamentary (read: municipal) sovereignty.39 Irrespective of its explanatory strength, convention consent does not equal endorsement of the normative system it creates and maintains, nor does it need to. Furthermore, individuals do not always act in accordance with the norms created by the governing institution(s). There may be situations in which self-interest outweighs the motivating factor provided by recognition of the rules. For some individuals, this may mean that [f]ulfilling one’s political obligations may be joyless and without enthusiasm; one may accept that one ought to obey a regime that one otherwise quite dislikes. The failure to give endorsement consent may prompt behaviour aimed at reform—which, in the extreme case,

34

Ibid. Ibid. 36 Ibid. 37 Ibid. 38 Cf. Winterton (1998). 39 Cf. Dicey (1915). 35

46

3 Sovereignty Outside of the Law may result in actions of civil disobedience. But all such reformist action presupposes that the regime to be reformed is authoritative and needs to be improved rather than deposed.40

In other words, the existence of an accepted and efficacious governing convention makes no statement of justification or justness of the constituted system. It is likely that in any state, there are individuals who endorse the state’s institutions and the rules they create, and that there are equally individuals that merely recognise those rules and institutions without actively endorsing them. In addition, there are likely always individuals who do not even recognise those rules and institutions as authoritative: these may be revolutionaries or oppressed individuals, anarchists or criminals. Hampton defines their relationship with the governing institutions and their rules as “mastery”. These individuals are “subject to the use of coercion in a way that disables [them] from participating in the process of creating or changing a governing convention”.41 This means that between these individuals and the governing institutions, no governing convention exists. [T]he master rules not because he has been rendered authoritative by virtue of the people’s participation in a governing convention but because of his superior coercive power. That coercive power may come about because of his superior technology or because of his control over a brutal enforcement cadre that is prepared to inflict terror on the population at his command. (Notice that there will have to be a convention within this cadre to follow only this master’s commands, meaning that there will be a political relationship between the master and these henchmen. [. . .] However, there is a non-political relationship of mastery between the master and the rest of the population.)42

Hampton mentions several examples of situations she identifies as mastery: the situation of blacks in South Africa until 1994, treatment of left-wing Chileans in the Pinochet regime, and that of Tibetans by China all prevent(ed) their involvement and participation in the creation, maintenance, or changing of the governing convention.43 The governing convention nevertheless exists, provided that the two conditions that are individually necessary and jointly sufficient for its existence are fulfilled, namely that 1. there exists a convention to regard the norms created by the governing institution (s) as preemptive and final 2. that there are means to enforce the norms of the governing institution(s) and the willingness to use these enforcement mechanisms. In other words, the governing convention on which the legal system is based exists where generally, people conform to the rules of the legal system (that is, the system is efficacious), and where the rules of the system are generally regarded as

40

Hampton (1997), p. 98. Ibid. 42 Ibid., at 90 f. 43 Ibid., at 91. 41

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preemptive and final.44 It is not necessary that all individuals consider the rules of the legal system as reasons to act accordingly.45 This means that there can be individuals who do not regard the rules of the system as preemptive and final and do not recognise the institutions that created them, and nevertheless, the legal system exists. What is necessary is not that all individuals subject to the rules recognise them as preemptive and final, accept them or give their consent (tacit or explicit). Instead, what is required for the existence of the legal system is that sufficiently many sufficiently important individuals regard the legal system as authoritative, and that the legal system is efficacious. Individuals can take a wide varied of attitudes toward the legal system, ranging from endorsement to being subject to mastery. Given this, and given also the fact that these attitudes do not resemble explicit or even tacit consent or agreement, but rather recognition of rules (or rather, a system of rules) as authoritative for whatever reason (ranging from endorsement to wanting to avoid sanctions46), I argue that the attitude individuals need to have is best characterised as “recognition” rather than “consent”, despite the terminology Hampton uses.47 To summarise, municipal constitutive sovereignty is the power of a people to constitute, maintain or deconstruct a legal system by constituting, maintain or deconstructing a social rule (which Hampton calls a governing convention) to the effect that the norms of the system are preemptive and final. In order for this social rule to exist, it must be efficacious and the people in question must take a normative attitude toward it, which I have characterised as recognition, but which can range from minimal recognition or acquiescence to endorsement.

3.2.2

Excursion: Social Conventions and Social Rules

I have defined constitutive sovereignty as the power of a people to constitute, maintain or deconstruct a legal system by constituting, maintaining or deconstructing a social rule to the effect that the rules of the system are preemptive and final. This definition is, to a large part, based on Hampton’s understanding of the source of political authority. Hampton, however, does not think that the source of political authority is a social rule; she bases it on a convention. Hart, too, in the Postscript to The Concept of Law holds that the rule of recognition, initially described as a social rule, is a social convention. In this section, I will consider whether a social convention or a social rule is the more accurate classification of the core of constitutive sovereignty as I have defined it. In order to do so, a closer look at

44

Or, to use Hart’s and Ross’s terminology, one might say where there exists a critical reflective attitude toward the rules of the system (Hart) or where the rules are felt to be binding (Ross). 45 Hampton (1997), pp. 86 ff. 46 Hart (2012), pp. 115 f. 47 Hampton herself points out that under her theory, authority derives not from consent as under social contract models, but from a convention. Hampton (1997), p. 82.

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both social conventions and social rules is necessary. Most of the literature in legal theory on the matter focuses on Hart’s rule of recognition. As I have shown, the conditions for the existence of a rule of recognition closely resemble those Hampton identifies for the governing convention. Accordingly, conclusions about the rule of recognition’s nature will apply mutatis mutandis for the governing convention and the nature of constitutive sovereignty. Marmor summarizes Hart’s conditions for the existence of a social rule (such as the ultimate rule of recognition) R in a society S as follows: 1. There is a regularity of behaviour according to R, in S: namely that most members of S regularly conform to R. 2. Most members of S manifest a normative attitude toward R, which Hart called ‘acceptance’. The idea of ‘acceptance’ consists of basically two components: (a) For most members of S, the existence of R constitutes reason for action in accordance with R. (b) The existence of R is employed by members of S both as grounds for criticizing deviant behaviour and as a justification for exerting social pressure on other members of S to conform to R.48

Hart himself pointed out in the Postscript that social rules like the ultimate rule of recognition are social conventions. Comparing the two conditions for existence above with the requirements Hampton posits for the governing convention, the similarities are apparent. It seems that all that is required for a convention to exist is regularity in behaviour (which is efficacious and, if necessarily, enforced), and a particular normative attitude of the population in which this regularity exists toward said regularity. This would make social conventions and social rules equivalent. However, there is more to social conventions than this. Lewis has analysed conventions, specifying and expanding on the work of Hume. According to him, conventions arise as the solution to recurring coordination problems: scenarios in which two or more individuals must coordinate their actions in order to achieve a preferred outcome. One example of such a situation is driving on the right (or the left) side of the road. Another is this: if a Skype call between my mother and me drops unexpectedly because my Wi-Fi cuts out, who should call back?49 If we both wait for the other to call back, we will not get to continue our conversation. If we both call back, we will each get the busy signal and will not manage to continue our conversation, either. A convention might posit that whoever called first has to call back in such a case, thereby solving the coordination problem. Lewis defines conventions as follows:

48

Marmor (2001), p. 195. This is an only somewhat updated version of an example not of my own making. Cf. Ibid., Rescorla (2015), 3.2. This is not a perfect example of what Lewis had in mind when he wrote about coordination problems, in that someone might have a preference who calls back, especially in a variation of this scenario in which the caller pays. Such a preference makes this an ‘imperfect’ coordination problem. 49

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A regularity R in the behavior of members of a population P when they are agents in a recurrent situation S is a convention if and only if it is true that, and it is common knowledge in P that, in almost any instance of S among members of P, (1) almost everyone conforms to R; (2) almost everyone expects almost everyone else to conform to R; (3) almost everyone has approximately the same preferences regarding all possible combinations of actions; (4) almost everyone prefers that any one more conform to R, on condition that almost everyone conform to R; (5) almost everyone would prefer that any one more conform to R0 , on condition that almost everyone conform to R0 , where R0 is some possible regularity in the behavior of members of P in S, such that almost no one in almost any instance of S among members of P could conform both to R0 and to R.50

The population P could be the population of any country in the world, for example Sweden. The recurring situation S might be driving a car, in which case the regularity in the behaviour of the Swedish people with regard to driving a car is that they drive on the right-hand side of the road. Almost everyone in Sweden in a situation to drive a car will drive it on the right side of the road, the occasional wrong-way driver notwithstanding. Swedish drivers certainly expect other drivers to drive on the right side of the road. Nevertheless, there is of course an alternative (R0 ): Swedes could drive on the left side of the road instead, and indeed have done so until 1967. This inclusion of an alternative in the definition of social conventions shows that conventions are essentially arbitrary: it matters little whether everyone drives on the right or the left side, so long as everyone drives on the same side—or at least, it matters more that everyone drive on the same side than it matters whether that is the left or the ride. There are some issues with Hart’s use of social conventions for legal theory in light of this, as Marmor points out, namely that rules of recognition hardly seem arbitrary, and that they do not seem to be the solution to recurring coordination problems.51 If rules of recognition are not the answer to recurring coordination problems, are they social conventions at all? Marmor thinks that this is the case because on his view, not all conventions need to solve recurring coordination problems. Before elaborating on his view, I would like to point out that Postema does not agree with Marmor that this problem exists at all: [A] coherent and unified legal system is possible only if conditions for the membership or validity of rules and norms in that system are established. This is accomplished by the practice of law-applying officials. In view of the high stakes involves, officials might disagree about what those conditions are or should be; still, they all recognize that, for the legal system to exist and maintain its unity, they must come to some agreement regarding those conditions. Thus, despite their disagreements (including disagreements of principle),

50 51

Lewis (2002), p. 78. Marmor (2001), pp. 201 f.

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3 Sovereignty Outside of the Law they recognize the deeper need to coordinate their law-applying decisions around a common set of criteria.52

I do not find this argument convincing for the following reasons: while there may be a need to coordinate law-applying decisions in order to create or maintain a coherent and unified legal system, this does not show that the unified legal system is the answer to a coordination problem. In my view, this is precisely what must be shown, however: the legal system is not a goal in itself but must be the answer to a recurring coordination problem itself. Marmor compares law to chess in this regard, writing that It seems rather awkward to claim that the rules constituting the game of chess are solutions to a recurrent coordination problem. Antecedent to the game of chess, there was simply no problem to solve. Of course, once the game is there to play, and it is played, it may give rise to certain coordination problems that might then get settled by additional conventions. But chess itself, as a game of a particular kind, is not a solution to a problem of coordination. ‘Let’s have a competitive intellectual game’ or something like this is not a coordination problem along the lines suggested by Lewis. If it were, then ‘Let’s have a just Constitution’ would also be a coordination problem, and, of course, it is not. Thus, the problem is this: either we stick to the idea of a coordination problem as a fairly structured set of conditions and preferences, in which case numerous conventions could not be described as solutions to such problems, or else we think of a coordination problem as something rather loose, applying to any set of circumstances where some form of collective action is pertinent [. . .].53

Hampton, similarly to Postema, considers that the state54 solves coordination problems. She holds that it legislates so as to solve coordination and PD [prisoner’s dilemma] problems in the community (via rules of property, contract, or marriage or rules of the criminal law); it adjudicates disputes, enforces the resolution of these disputes, and enforces law generally. To put it succinctly, political authority is understood by most philosophers to be an authority that demands obedience in order to secure order. All of the game-theoretic problems and the problems created by antisocial behavior are problems of order, requiring an institution that can enable people to achieve coordination, get the assurance necessary to make cooperation rational, and provide sanctions that encourage cooperative behavior in situations where it would otherwise be either irrational or at the very least unwelcome. While securing order in these various senses is surely not the only task of the state [. . .] this task is required in order for us to call any system of power and authority a genuine state.55

That individual legal rules solve individual coordination problems does not mean, however, that the institutionalised legal system solves an individual coordination

52

Postema (2011), p. 494. Marmor (2001), pp. 205 f. 54 I equate here the state with the legal system and with, for the purpose of connecting to Hampton’s research, political authority. Hampton, of course, talks primarily of political authority and equates this with the state and the governing institutions, but does not consider the legal system as such. However, the legal system is, in my view, the basis for the governing institutions: these are constituted by constitutional law. 55 Hampton (1997), pp. 74 f. 53

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problem, unless we regard “how do we solve coordination problems?” as a coordination problem. In the same way that “let’s have a just Constitution” is not a coordination problem, this is not, either. Postema, meanwhile, considers that while conventions must solve problems, these need not be perfect coordination problems: Following Hume, we can identify coordination elements in other kinds of games in which conflict is more pronounced, not only so-called Battle of the Sexes games, but also iterated prisoner’s dilemma and hawk/dove games with uncertain termination points. We can refer to these as ‘cooperation problems’ [. . .].56

Here, Postema appears to take the idea of a coordination problem (or a cooperation problem) more loosely than Marmor does, choosing the second path proposed by Marmor. Marmor’s solution to the problem as he perceives it, meanwhile is not to broaden the idea of coordination problems, but to maintain that not all conventions must be the response and answer to recurring coordination problems. Marmor defines conventionality as follows: A rule, R, is conventional, if and only if all the following conditions obtain: 1. There is a group of people, a population, P, that normally follows R in circumstances C. 2. There is a reason, or a combination of reasons, call it A, for members of P to follow R in circumstances C. 3. There is at least one other potential rule, S, that if members of P had actually followed in circumstances C, then A would have been a sufficient reason for members of P to follow S instead of R in circumstances C, and at least partly because S is the rule generally followed instead of R. The rules R and S are such that it is impossible (or pointless) to comply with both of them concomitantly in circumstances C.57

Within this framework, he then makes a distinction between three types of conventions, namely coordination conventions, constitutive conventions and deep conventions. Coordination conventions are the type that has been discussed so far. Given that constitutive sovereignty concerns the constitution (and maintenance) of the legal system, a closer look at constitutive conventions is in order. Marmor holds that constitutive conventions have two functions: they constitutive a practice, and at the same time regulate conduct within the practice.58 This is the case both for chess and for law, according to Marmor. In both examples, the constitutive convention comes in a system of rules, which is a further distinction between constitutive and coordination conventions, which usually stand isolated.59 The introduction of constitutive conventions seems to solve the second of the problems Marmor identified, namely that the rule of recognition does not provide an answer to a coordination problem. According to Marmor, it does not need to do so in order to be a convention.60 56

Postema (2011), p. 489. Marmor (2009), p. 2. 58 Ibid. 59 Ibid. 60 Marmor (2001). 57

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This leaves one remaining problem, namely whether the rule of recognition fulfils the condition of arbitrariness. In this regard, Marmor holds that, for example, “the normative supremacy of the US Constitution is not just one arbitrarily chosen alternative among several other rules of recognition that are equally acceptable”, and the same holds for the British rule of supremacy of Parliament.61 However, whether or not this is truly so depends on what one understands under “arbitrariness”. Marmor proposes the following definition: Given that A is the main reason[s] for members of a population, P, for following a rule, [R], in circumstances C, R is an arbitrary rule if and only if: there is at least one other rule, R0 , so that if most members of P were complying with R0 in circumstances C, then for all members of P, A would be sufficient reason to follow R0 instead of R. The rules R and R0 are such that it is normally impossible to comply with them concomitantly in circumstances C.62

Marmor argues, accordingly, that it is possible for a convention to be arbitrary even if the population in question has (strong) preferences concerning this convention, so long as these preferences do not outweigh the preference for coordination. In his later work, Marmor specifies that arbitrariness has two elements: first, the conventional rule must have an alternative. If there is no alternative rule that could be followed without a significant loss of function or purpose of the rule, it is not arbitrary.63 Secondly, the conventional rule is followed because others follow it, too. Compliance is dependent, at least partially, on the compliance of others.64 Are rules of recognition arbitrary in this sense? Marmor bases his reasoning why this is the case on two observations: First, we know that different legal systems, even ones that are very similar in all other respects, have different rules or [sic] recognition. Second, there is very clear sense in which the reasons for following the rules of recognition are compliance-dependent in the relevant sense. This is one of the points that Hart has rightly emphasized in the postscript, namely, that the reasons judges and other officials have for following certain norms about the identification of the sources of law in their legal systems are closely tied to the fact that other officials follow those same norms.65

Marmor regards these observations as uncontroversial. Dickson, meanwhile, argues that nothing in Hart’s original account of the rule of recognition should lead us to conclude that he regards this rule as a conventional rule wherein common official practice constitutes part of the reasons which each judge has for treating it as binding.66

Equally, Postema criticises Marmor’s account for failing to show that rules of recognition are compliance-dependent, and hence, for failing to show that the rule of

61

Ibid. Ibid. 63 Marmor (2009), p. 9. 64 Ibid. 65 Ibid. 66 Dickson (2007), p. 382. 62

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recognition is a convention.67 Nevertheless, Postema and Marmor agree that rules of recognition are conventions, if for different reasons, while Dickson disagrees. As I have already argued, I do not find Postema’s reason to regard rules of recognition as solutions to coordination problems or cooperation problems particularly convincing. Equally, it is not entirely clear whether the reason legal officials have for following the rule of recognition of their system is dependent on the compliance of others in the way required for it to be conventional in nature. This raises two questions, one of general theoretical interest, and one of immediate relevance to this book: the first concerns the nature of Hart’s ultimate rule of recognition, the second asks in how far it is possible or desirable to draw inspiration from two theories seemingly employing social conventions, when it is arguable whether they do in fact do so. Given that there is an alternative to regarding Hart’s ultimate rule of recognition and Hampton’s governing convention as social conventions and given that this alternative allows to keep the main features of these theories intact while eradicating the difficulties posed by requirements of arbitrariness and of having to solve a coordination problem. In the first edition of The Concept of Law, Hart did not claim that his rule of recognition was conventional in nature, but that it was a social rule. Given Dickson’s argument that Hart’s original characterisation of the rule of recognition does not fit the definition of a convention, understanding the nature of social rules might provide an alternative to conventionality as the inspiration for municipal constitutive sovereignty. Hart explains social rules by reference to (mere) habits, using the example of habitual obedience to law.68 There is certainly one point of similarity between social rules and habits: in both cases the behaviour in question (e.g. baring the head in church) must be general though not necessarily invariable; this means that it is repeated when occasion arises by most members of the group: so much is, as we have said, implied in the phrases, ‘They do it as a rule.’ But though there is this similarity there are three salient differences. First, for the group to have a habit it is enough that their behaviour in fact converges. Deviation from the regular course need not be a matter for any form of criticism. But such general convergence or even identity of behaviour is not enough to constitute the existence of a rule requiring that behaviour: where there is such a rule deviations are generally regarded as lapses or faults open to criticism, and threatened deviations meet with pressure for conformity, though the forms of criticism and pressure differ with different types of rule. Secondly, where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Criticism for deviation is regarded as legitimate in this sense, as are demands for compliance with the standard when deviation is threatened. Moreover, except by a minority of hardened offenders, such criticism and demands are generally regarded as legitimate, or made with good reasons, by both those who make them and those to whom they are made.69

67

Postema (2011), pp. 529 f. Hart here refers to Austin (1869). Nevertheless, habitual obedience is one element of how I define “treating the legal system as authoritative”. Accordingly, Hart’s view of this matter is acutely relevant to the current investigation into the nature of municipal constitutive sovereignty. 69 Hart (2012), pp. 55 f. 68

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Hart lists a third distinction which is implied in the prior two, namely that rules have a so-called internal aspect. This implies that there is a critical reflective attitude by members of the group in which the social rule exists. If this is so, they regard the pattern of behaviour prescribed by the rule as common standard, which is displayed in (self-)criticism, demands for conformity, regarding such demands as justified, and in normative terminology such as ‘ought’ or ‘must’.70 In case of habitual obedience to a king, or in the case of constitutive sovereignty to the legal system, a social rule to regard the output of legal system (or the king) as authoritative transforms habitual obedience into recognition of authority and a system based on coercion and sanctions into a system based on authority.71 Searle points out a further distinction, this one between conventions and rules, namely that conventions imply arbitrariness, but rules do not.72 Searle also emphasises that (social) rules can be constitutive,73 something Marmor has attempted to bring under the umbrella of conventions. This means that social rules can constitute practices and make that something counts as something else, often at the same time as regulating them. That certain pieces of paper count as (are) money is not a brute fact, that is, something to be found in the physical world, but a social fact based on the (social) rule that certain pieces of paper count as money.74 Given that the arbitrary nature of conventions, in addition with the question whether they must be the solution to recurring coordination problems, was the main issue with characterising the conception of constitutive sovereignty here developed as conventional, it seems there is no reason not to characterise it as a social rule instead. Hage gives the example of a group of hikers to illustrate how social rules may come into being and what their effect is. Suppose that one member of the group, say Henriette, utters strong opinions about which path to take to the top of the mountain and that most of the group members tend to act on these opinions. After having several times chosen a particular path because Henriette proposed to take it, most group members recognise the leading role of Henriette. They believe not only that Henriette has become the group leader, but also that most other group members hold the same belief, and that Henriette is the leader of the group because she is recognised as such by most group members. In this example, the brute social fact concerns the possession by Henriette of the status of leader of the group.75

Henriette’s leadership is a fact that depends on the recognition of the group; a social fact. If in our example about the hikers the group members normally recognise the duties imposed by the leader of the group, whoever that may be, it may be said that the group has the rule

70

Ibid. Ibid. 72 Searle (1995). 73 Searle (1995, 2010). 74 For a thorough discussion of social facts and social rules as well as their relationship to each other and to other kinds of facts and rules, see Hage (2018), III and IV in particular. 75 Ibid. 71

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that the group leader has the competence to impose duties. This rule exists through being recognised and therefore as a matter of social fact. The difference between having this rule and the recognition of the power of Henriette is the abstraction from the actual person having the competence. When a competence is not anymore ascribed to a particular person, but to a role – in this case the role of group leader – the acceptance of an ordinary social fact has become the acceptance of a social rule.76

The social rule in the example of the mountain climbers concerns the recognition of duties imposed by the leader of the group. However, it would not be a stretch to rephrase this social rule to say that the legislature can create rules, or to say that all rules created in accordance with other rules of an institutional system are authoritative. All three social rules describe the core of constitutive sovereignty; all three explain how state power (equating the leader, the legislature or the institutional system with the state) can emanate from the people (that is, the members of the group). Hage continues by pointing out that It is tempting, but wrong, to follow Hart (2012, p. 57) in assuming that the existence of a social rule involves the existence of a critical reflective attitude with regard to behaviour covered by the rule. This characterization of social rules is quite adequate for rules that prescribe behaviour, but less so for other kinds of rules such as power-conferring rules. A broader, and therefore more adequate, characterization of a social rule is that a social rule exists within a group if sufficiently many (sufficiently important) members of the group recognize the consequences of the rule when the rule is applicable.77

In light of the above, constitutive sovereignty is better understood as the power to constitute, maintain and deconstruct a social rule rather than a social convention. In particular the requirement of arbitrariness of social conventions is problematic in the case of municipal constitutive sovereignty. There are two elements to arbitrariness, and I would like to argue that both of them are problematic when it comes to treating the legal system as authoritative. The first element of arbitrariness is that there is an alternative regularity that could be followed instead for the same reason(s) or without loss of function or purpose. While the reasons why individuals treat the legal system as authoritative may be varied (and I will consider reasons in more detail when it comes to the second element of arbitrariness) and while the same holds true for the functions and purposes of a legal system, a strong case can be made that the function of the legal system is to create order. As Hampton holds, “[w]hile securing order in these various senses is surely not the only task of the state [. . .] this task is required in order for us to call any system of power and authority a genuine state.”78

76 Ibid. It is interesting to note that this transition from brute social fact to social rule corresponds to Hart’s criticism of Austin, wherein Austin’s habitually obeyed sovereign is sovereign as a matter of brute fact, while Hart’s description of a possible transition of authority from Rex I to Rex II is on the basis of a social rule, much as Hage here describes. This shows that social rules concerning which or whose norms to treat as authoritative can play in groups as small as the mountain climbers or as large as a whole kingdom. Cf. Hart (2012), pp. 55 ff. 77 Hage (2018), p. 85. 78 Ibid. but see also Raphael (1976), p. 46 and of course Hobbes (2013).

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Is there an alternative regularity that could be followed instead without the loss of this function? One might think of place in which it is the church rather than the state that secures order. However, I wonder if we would not consider this a non-secular state creating laws, rather than an alternative regularity. One of the defining elements of the legal system, it seems to me, is that it claims authority over other organisations.79 In secular states, the church is included in those “other organisations”, but that does not necessarily need to be the case. It may well be, and in some states is, part of the governing institutions of said state. Of course, if it is sufficient that not every legal system is identical, it is easy to state that there are alternatives. However, the level of abstraction at which to identify the alternative should be a higher one, it seems to me. The alternative to having some system of norms that is treated as authoritative and secures order (and I think it is likely that we would call any system that does so a legal one) is not having such a system of norms at all. This makes anarchy an alternative regularity, but anarchy would certainly mean a loss of function.80 I doubt that treating the legal system as authoritative is arbitrary in the sense that there exists an alternative regularity that could be followed instead without loss of the function of securing order. The second element of arbitrariness is that at least part of the reason why the legal system is treated as authoritative instead of the alternative is because others treat the legal system as authoritative. Even if we assume that there is an alternative (such as the church), I do not consider arbitrariness in this sense a given. There are many reasons why an individual may treat the legal system as authoritative. Some of them have been implicit in earlier sections of this paper. Hobbes and game theory alike show that it is rational for individuals to treat the legal system as authoritative because the threat of sanctions allows for coordination where otherwise, it would be individually rational but collectively irrational to cooperate.81 That it is rational for individuals to do so does not mean that this is the reason why individuals actually treat the legal system as authoritative. The same holds for the argument that the legal system is morally good or just or maximises utility. Nevertheless, all of these are possible candidates for reasons why individuals treat the legal system as authoritative, and none of them are immediately compliance-dependent, although it is true that the legal system can only fulfil its function of securing order if there is compliance. For this reason, there are in most, if not all legal systems, mechanisms to enforce compliance. I would argue that it is because of these mechanisms (sanctions in various forms) that people treat the legal system as authoritative, not because others do the same. To me, it seems that the argument “if you do not obey the law, you will be punished” is a more likely reason

79

Raphael (1976), p. 55. Consider, again Hobbes (2013). 81 Note that while specific legal rules (help) solve coordination problems, this does not mean that the legal system as a whole is necessarily the solution to a recurring coordination problem. While maintaining a unified legal system may require coordination (Postema argues that it does, Postema (2011), p. 494), this is a coordination problem that only arises once the legal system already exists. 80

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for compliance than “others do it, too”. Another likely reason for compliance is that people have internalised the idea that the legal system is authoritative in some way. On the whole, I do not think that the compliance of others is a sufficient reason for treating the legal system as authoritative. This means that the regularity that the legal system is treated as authoritative is not conventional because it lacks the arbitrary nature of conventions in at least one, of not both elements of arbitrariness. Social rules do not require arbitrariness in order to exist. In conclusion, the characterisation of constitutive sovereignty as creating, maintaining and deconstructing a social rule is more accurate than characterising it as creating, maintaining or deconstructing a social convention. This is primarily because of the requirement of arbitrariness of social conventions. Accordingly, I will speak from now on of a social rule or governing rule rather than a social convention or governing convention, except where quoting Hampton. However, quotes containing “social convention” should be read as “social rule” instead.

3.2.3

Defining the People

If constitutive sovereignty relative to the national or municipal legal system is to be understood as the extra-legal power of a people to create, maintain or deconstruct a legal system by creating, maintaining or deconstructing a social rule to the effect that the rules of the system are preemptive and final, one might ask how the holder of this conception of sovereignty, “the people”, is defined. Many constitutions contain references to “the people”, such as the famous phrase of “We the People” in the preamble of the Constitution of the United States of America and legally speaking, “the people” could be equated to enfranchised voters or to those with the nationality of the state in question. So if municipal constitutive sovereignty were exercised only at the moment of constitution, one could look to the inhabitants or nationals of the state in question at the time (if indeed there is already a state) or to the enfranchised voters at the time of constitution. This is one option under discussion in Australia.82 However, the exercise of municipal constitutive sovereignty is an on-going process, capturing not only the moment of creation or of deconstruction, but the continuous maintenance of the legal system. Accordingly, “the people” referenced cannot simply be the collective of individuals enfranchised to vote at the time of creation. In Germany, there is a discussion whether “the people” should refer only to the enfranchised, or whether this is too limiting: it excludes children by definition, for example.83 If one considers that national constitutive sovereignty can also be exercised in a legal vacuum, it becomes clear that a

82 83

Cf. Winterton (1998). Peschel-Gutzeit (1997).

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constitution can refer to “the people”, but it cannot define which individuals belong to this collective entity for the sake of municipal constitutive sovereignty. National constitutive sovereignty, as we have seen, is extra-legal. Lindahl suggests that there is nevertheless a link between the people’s identity and the legal power, in that the legal power constitutes the people by creating its identity.84 It is certainly true that a definition of the people found in law can have an impact on the identity of the people, but I would argue that this influence is comparable to the influence of the media on the identity of the people: it can be great, but it is not ultimately decisive. That this must be the case can be seen in situations of constructing the legal system, in which there is no legal power yet to define and constitute the people, and in situations of deconstructing the legal system via revolution, a process in which not only those individuals may be involved and identifying as part of “the people” as are defined as such in the constitution or another legal document. Consider a scenario wherein a government amends the law of its state (let us call this state Apartia) in such a way that one ethnic or religious minority is no longer legally viewed as possessing personhood. Suppose further that Apartia’s parliament amends the constitution to include the provision that “all state power emanates from the people of Apartia” with a reference to the statute that determines the enfranchised as defining the people of Apartia. This statute, of course, has been amended in such a way as to exclude the minority in question. Now suppose that Apartia is a parliamentary democracy, holding regular elections, but that due to the election system and other intricacies, votes cast have less of an impact on government policy than the lobby does. The media reports on this exclusion from personhood and people of the minority, and a large majority of Apartian inhabitants, both members and non-member of the minority in question, take to the street. A revolution takes place and the government falls. Was legal power decisive for constituting the people that exercised municipal constitutive sovereignty by deconstructing the legal system and the government it had constituted? Or did the people not constitute its own identity by rejecting the legal definition? To be clear, I am not arguing that law cannot define “people” as a legal concept. If a provision contains a definition of “the people of this state” and other provisions give legal rights or obligations to “the people of this state”, individuals will have those rights and duties if they fall under the definition given of “the people”. In this scenario, “the people” is a legal concept. In Sect. 2.3.3, it was considered that the status of municipal constituted sovereignty can be attributed to the people by law. “The people” in the aforementioned sentence is “the people” as defined by law. The holder of municipal constitutive sovereignty, meanwhile, is not a collective entity defined by law. It cannot be, as I have tried to show above. Accordingly, any legal concept of “the people” and the holder of sovereignty in this sense are necessarily distinct.

84

Lindahl (2000), p. 248.

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The difficulty of demarcating the identity of the people if one cannot rely on legal definitions is not a new phenomenon.85 Despite this, the concept of “a people” has received relatively little attention.86 Canovan considers that ‘People’ has many different political senses, and very few of those who use it notice when they slip from one sense to another. It is worthwhile to map those ambiguities, and doing so brings interesting things to light. In the first place it highlights the peculiarities of the English term ‘people’. Like its equivalents in many languages, it is derived from the Latin populus and has three basic senses: the people as sovereign; peoples as nations, and the ‘common people’ as opposed to the ruling elite. Uniquely, however (as far as I know) ‘people’ in English also means human beings as such, individuals in general. Although this use of the term is grammatically distinct, its meaning seeps into and colours the other uses, and that introduces two extra elements of political ambiguity. It makes the sovereign people look like a collection of individuals as well as a collective body, and it implies that ‘people’ and their rights are universal, crossing the boundaries that confine particular ‘peoples’.87

Of the three senses Canovan distinguishes, only the first is relevant for present purposes: the people as sovereign. How does one identify the people as sovereign, however? Canovan points out the difficulties with this question: Who are the ‘people’ who form the ultimate source of political authority? The adult population of each state in the United Nations? That is much too simple. Externally, we cannot take for granted that a state’s borders correspond to the boundaries of a people; internally, at the same time as referring to the polity as a whole, ‘the people’ as a category has often been narrower than the population, sometimes because it referred to an exclusive group of privileged citizens, and sometimes (conversely and confusingly) because it meant precisely those excluded from that elite, the ‘common people’.88

The Oxford Companion to Philosophy offers the following information under its definition of people: The whole body of enfranchised or qualified citizens, generally linked by a common language and history, considered in democratic theory as the ultimate source of political authority. The general slogan that political authority derives from the people is compatible with a large number of modes in which the will or consent of the people is made known to the political authority, and it is compatible with despotic as well as liberal forms of government. For example, according to Hobbes, individuals covenant with each other to submit their wills to the will of one who is thereby authorized to act on their behalf. The authority of this Leviathan therefore derives from the people, but it is an absolute and potentially despotic authority. Locke, on the other hand, grants the people power to alter the legislature when it acts contrary to the trust they have placed in it. Burke recommends yet another form of representation of the people—one in which there is a communion of interests and a sympathy in feelings and desires. This ‘virtual representation’ of a ‘natural aristocracy’ does not attach importance to a universal franchise. In the nineteenth century the idea of ‘the

85

Ochoa Espejo (2014), p. 467 highlights this issue with a focus on democratic states. Canovan (2004), p. 247. But see Ochoa Espejo (2014), p. 466 for a brief overview of different theorists dealing with the topic. 87 Canovan (2004), pp. 247 f. 88 Ibid. 86

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3 Sovereignty Outside of the Law people’ became identified in philosophers such as Hegel with ‘the nation’. The spirit of the people became a mystical entity, or Volkgeist, which identified and unified a nation.89

It seems that the notion of “a people” or “the people” is no more settled than that of sovereignty, with the link between people and political authority and the consequences of such a link not entirely clear. Nevertheless, some of the ambiguities that point toward different conceptions of “people” can help with the inquiry who is sovereign in the sense described in this chapter. Some of the questions Canovan asks provide a starting point: If ‘the sovereign people’ refers both to a collection of transitory individuals and to a collective entity that continues over the generations, how are we to understand the relation between collection and collectivity? Crucially, what does it mean to say that the people have/ has exercised their/its authority? Can we make sense in theoretical terms of the notion that individual people form an authoritative collective people?90

Canovan uses “collection” to refer to an ever-changing group of individuals, and “collectivity” to refer to an abstract entity that remains unchanged. The British people (in the sense of collectivity) is always the British people. The collection of individuals that at any given time form the British people, however, changes constantly: even without a clear criterion such as enfranchisement to determine the precise identity of the British people (in the sense of collection), I would like to argue that at least some, if not all, of the following examples are examples of a change in this collection. Consider a new baby with British nationality being born, consider a British citizen turning eighteen, consider a British national acquiring the nationality of another state and giving up British nationality in the process, consider someone gaining British nationality through naturalization, consider someone receiving a right of permanent residence in the United Kingdom, consider a wave of highlyskilled and very welcome migrant workers, and consider a wave of unskilled migrant workers. Citizenship as determined by law, I have already argued, cannot be the decisive criterion. Going forward, I would like to argue two things: firstly, the people as the holder of sovereignty in the sense of municipal constitutive sovereignty refers to the collection, not the collectivity. Secondly, the boundaries of the collection of the people are not clear or settled. For the purpose of the present work, it suffices to be able to identify certain cases rather than be able to clearly delineate the boundaries of the collection. For a complete operationalisation of the concept of “municipal constitutive sovereignty”, however, further research in this area is required. A useful definition for present purposes is the following: the collection of the people refers to all individuals to whom the legal system that is being constituted or maintained applies by virtue of its territorial or material scope. This definition is not without its problems: firstly, while legal norms have territorial, temporal and material scope, it is not immediately clear that a legal system does, too; secondly, this definition indicates a certain circularity: how can the legal system be part of the definition of the 89 90

Downie (2005). Canovan (2004), p. 250.

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people when the people constitute the legal system? I regard this circularity as a strength of the definition both because it showcases this problem and because it indicates the solution: the people, in constituting the legal system, constitutes also itself. To put it drastically: a group of individuals may declare its governance upon a larger group of individuals and if this governance is both efficacious and sufficiently accepted, the legal system is constituted and with it the collection of people.

3.2.4

The Two Sides of Municipal Constitutive Sovereignty

Hampton’s theory of sources of political power shows one side of constitutive sovereignty: it explains how the people have the power to constitute the normative system to which they are subject. This is here termed the positive side of constitutive sovereignty; positive because it posits something, namely the normative system, not necessarily because it is generally a positive thing. However, that is not the full extent of what municipal constitutive sovereignty means: there is also a negative side: the negative side of constitutive sovereignty is the power to deconstruct the normative system.91 This can, for example, take the form of revolution, of violent uprisings, or of widespread disobedience and resistance to the current regime. The positive and negative side of constitutive sovereignty are intertwined in that the negative side creates the legal vacuum required for the creation of a new normative system. However, Hampton’s argument regarding the continuity of convention consent shows that the exercise of particularly the positive side of constitutive sovereignty is not momentary. In other words, it does not take place only at one moment in time and then once the new normative system has been constituted, any exercise of constitutive sovereignty becomes impossible until the people decide to exercise the negative power of constitutive sovereignty, that is, to tear the old system down. Rather, the acquiescence to and support of the existing constituted system is also an exercise of municipal constitutive sovereignty. There are three possible forms of municipal constitutive sovereignty: that of creation, that of maintenance and that of deconstruction. The moment of creation or of deconstruction of a legal system might be more conspicuous than the on-going maintenance of the legal system. Nevertheless, creation, maintenance and deconstruction are all equally results of municipal constitutive sovereignty. However, Hampton has shown that in any given legal system at a given time, there can be individuals giving their endorsement consent, some giving only convention consent and others which are mastered. The very existence of situations of mastery, as well as that of state apparatuses with growing military strength and growing possibilities for censure and the enforcement thereof and supervision of citizen can make both the coordination needed for an uprising and

The term “negative” here was chosen as a contrast to “positive”, not to imply any kind of value judgement.

91

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the actual uprising (that is, the negative side of constitutive sovereignty) and the partaking in the creation and maintenance of the governing convention (that is, the positive side of constitutive sovereignty) difficult if not impossible. As constitutive sovereignty is situated not in the institutionalised part of social reality called the world of law but outside of it, things such as censure or a military apparatus can severely limit it, just as the fear of repercussions can severely limit the willingness of those who have to exercise it. Therefore, it is accurate to consider that municipal constitutive sovereignty comes in degrees. This is a statement of fact; that constitutive sovereignty itself should not be thus inhibited is another matter entirely. I will consider this in more detail in Sect. 3.3.1. The impact that situations of mastery have on the constituted normative system, meanwhile, is considered in Sect. 4.1.4.

3.2.5

Intermediate Conclusion: Municipal Constitutive Sovereignty So Far

Municipal constitutive sovereignty is an extra-legal power of the people to constitute, maintain and deconstruct a legal system by creating, maintaining or deconstructing a social rule to the effect that the norms of the system are preemptive and final. Creating, maintaining and deconstructing the social rule that the norms of the system are preemptive and final requires that two conditions are fulfilled: first, the social rule must be efficacious. In this context, efficaciousness may be a matter of enforcement of the norms of the system, particularly when maintenance of the social rule is concerned rather than its creation or deconstruction, but it may also be a matter of the people having internalised the rules. The relevant criterion is efficaciousness, not efficaciousness for a particular reason. Second, a particular attitude from the people is required. In this regard, Hart speaks of a critical reflective attitude and Hampton distinguishes between what she calls endorsement and convention consent. For reasons outlined in Sect. 3.2.1, I consider the terminology of acceptance or acquiescence more fitting. The creation, maintenance and deconstruction of the social rule which constitutes and maintains the legal system—and the absence of which deconstructs it—depends on the behaviour and attitude of the people. I have argued that this means the collection of individuals rather than the abstract collectivity often referred to as “a people” (see Sect. 3.2.3).

3.3 Implications of This Conception

3.3

63

Implications of This Conception

In the previous sections, I have outlined the meaning of sovereignty (MCVS). This conception of sovereignty needs to be put into context and its implications considered before one can determine whether it fulfils its purpose, that is, whether it is useful for the analysis and understanding of legal and social phenomena.

3.3.1

Sovereignty as a Matter of Degree

One of the questions any conception of sovereignty must contend with is whether sovereignty can be limited. In the context of constitutive sovereignty, there are two relevant factors to consider: firstly, the question of efficacy as such and secondly, the impact of the different attitudes, identified by Hampton, that an individual can take toward the legal system and the social rule it is constituted by. Hampton has shown that in any given legal system at a given time, there can be individuals giving their endorsement consent, some giving only convention consent, and others which are mastered. It is possible that in legal system A, a big majority of individuals give convention or even endorsement consent, while in system B, the number of people giving convention or endorsement consent is considerably lower, correlating to a higher number of individuals experiencing mastery. In such a case, the collection of individuals involved in the exercise of constitutive sovereignty is lower in system B than in system A. The number of individuals involved in the exercise of constitutive sovereignty does not necessarily impact the overall efficacy of the legal system thus constituted, as Hampton has convincingly shown. Nonetheless, factors such as a strong military/enforcement cadre and censure can make it difficult for individuals to partake in the creation and maintenance of the ‘governing rule’ or to partake in its deconstruction by means of a revolution. Moreover, a legal system can be more or less efficacious. These two factors, that efficacy is a matter of degree and that recognition or acceptance is a matter of degree mean that constitutive sovereignty is a matter of degree as well. One might criticise this finding on ideological and moral grounds, especially if one understands popular sovereignty to be legitimising. However, I consider the finding that constitutive sovereignty is a matter of degree a useful one: it allows for an investigation into how sovereign the people of a given state are, for the comparison between different states in this context and for a critique of those states that may claim that their state power emanates from the people but in which a large part of the population is in a situation of mastery.92

92

Of course, such a criticism and the fact that I mention it as a possibility here has as a silent premise the presupposition that it is (morally) desirable that the people are sovereign to as large a degree as possible.

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3.3.2

Exclusivity

Some conceptions of popular sovereignty in particular contain an element of exclusivity: only the people are sovereign and there can be no sovereignty next to that of the people. One such scholar, Kalyvas, claims that The notion of the constituent sovereign discredits any sovereign ambitions that the legislative branch may entertain. Parliamentary sovereignty finds in the constituent power its own impossibility. It is exposed as a usurpation of the constituent power by a constituted power, which reduces popular sovereignty to parliamentary representation and to the powers of elected officials.93

It is theoretically possible that sovereignty means only constitutive sovereignty. The element of supremacy, or prevalence, that appears to be part of what sovereignty means, would suggest that indeed there is exclusivity to it, that no other sovereign can exist next to constitutive sovereignty. This does not cohere with other conceptions such as that by Dicey, Goldsworthy of Winterton.94 The lack of fit with other conceptions is not a decisive argument in itself against such a claim to exclusivity. There would need to be good arguments to disregard common usage, but such arguments may be found. Sen, for example, holds Since the founders decided to frame a written constitution to secure the supremacy of popular will at the moment of the founding, the text had to be preserved from factional and self-interested politics which threatened to derogate from the superior constitutional text.95

Attributing (extra-legal) sovereignty exclusively to the people offers an argument for preserving the supremacy of the written constitution vis-à-vis the legislator who may be influenced by day to day politics. This is a powerful argument that I do not want to reject. Nonetheless, I do not think that any conception of sovereignty need be exclusive; that exclusivity is a necessary element of sovereignty. It is possible to stipulate conceptions of sovereignty that are complimentary, such as the extra-legal sovereignty of the people and the legal status of sovereignty of the state. Given that the legal status of sovereignty is independent of its consequences, there is nothing in that conception of sovereignty demanding that the legislator be able to change the constitution within the ordinary legislative procedure. In other words, the legal status of sovereignty coheres with both the political argument to preserve the supremacy of the written constitution and other conceptions of sovereignty that cover common usage, for example as regards parliamentary sovereignty in the United Kingdom. There is no logical or conceptual contradiction in extra-legal sovereignty and the legal status of sovereignty existing side by side. These are very different conceptions of sovereignty which play in different parts of social reality (with the legal status

93

Kalyvas (2005), p. 229. See Chap. 6 for a more detailed look at their theories. 95 Sen (2011), p. 142. For a more detailed consideration of the Indian conception of sovereignty, see Sect. 6.3.1. 94

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found in the institutionalised part of social reality of the world of law) that do not conflict. Political arguments why extra-legal sovereignty should be seen as exclusive can be translated into discussions regarding the consequences that a legal system should attach to the status of sovereignty and can, in this way, still be accounted for.

3.3.3

Constitutive Sovereignty and Legitimacy

The conception of extra-legal sovereignty of the people I have described is undemanding: it does not require that the legal regime being constituted is legitimate, nor does it require that the collection of people constituting or maintaining the legal regime by constituting or maintaining the social rule that forms the heart of my conception of sovereignty do so for a particular reason. The reasons why individuals take a certain social attitude or adhere to the norms of the system, thereby instantiating the social rule, and their attitudes to anyone not adhering or doing the same can differ. If the conception of extra-legal sovereignty of the people is undemanding in the way we have just described, the question can and should be raised how to distinguish between an oppressive regime and one based on the sovereignty of the people. There are two important aspects to an answer to this question. The first is that the question already implies that a distinction can and must be made between oppressive regimes and those based on sovereignty; that a regime based on popular sovereignty cannot be oppressive. This implies an understanding of popular sovereignty as something that legitimises, while the conception of extra-legal sovereignty I put forward serves mainly as an explanatory tool. However, even under this understanding of sovereignty (CDS), one can make some distinction; this is the second answer to the above question. Here, the distinction Hampton makes between different forms of consent as kinds of attitude toward the regime is important. As previously shown, she distinguishes between endorsement, convention consent and mastery. An individual can have an attitude of endorsement toward the regime, which is an indicator of the regime being justified. Hampton considers that [a] regime that receives what I call endorsement consent gets from its subjects not just activity that maintains it but also activity that conveys their endorsement and approval of it. A regime that has endorsement consent from most of its citizens will do more than simply survive: The considerable support from its subjects will make it vibrant and long-lived, capable of withstanding attacks from without and within. Beyond a kind of attitude toward the state, endorsement consent is a decision to support it because of one’s determination that it is a good thing to support. By giving this form of consent, the subject conveys her respect for the state, her loyalty to it, her identification with it, and her trust in it.96

96

Hampton (1997).

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Endorsement is an indicator of legitimacy of the regime, but only an indicator: it is not a source of legitimacy.97 A regime is not by definition legitimate and justified by virtue of its citizens’ endorsement of it. However, it is likely that citizens would endorse a state that is reasonably just. Still, how justified and legitimate the state is depends on how just it is; in order to determine this, we need a theory of justice and legitimacy, not the public opinion polls.98 An individual can also give convention consent, which Hampton understands as behaviour supportive of the convention (read: social rule)—in short, behaviour that instantiates the social rule. This can be done unwittingly, that a deliberate choice by the individual to give convention consent is not required. This may mean that [f]ulfilling one’s political obligations may be joyless and without enthusiasm; one may accept that one ought to obey a regime that one otherwise quite dislikes. The failure to give endorsement consent may prompt behaviour aimed at reform—which, in the extreme case, may result in actions of civil disobedience. But all such reformist action presupposes that the regime to be reformed is authoritative and needs to be improved rather than deposed.99

Lastly, an individual may experience mastery. In this case, the individual is subject to the use of coercion to such a degree that the individual cannot participate in the creation, instantiation or changing of the governing convention anymore.100 A criminal neither conforming to the criminal law nor accepting any kind of authority of the system over her would be subject to mastery in much the same way that a revolutionary would be. The difference between the two lies in the fact that we might consider the claim of the revolutionary not to be subject to the system justified, while we do not consider that this is the case for the claim of the criminal not to be subject to the system. Again, we need a substantive theory of justice to make any kind of statement about legitimacy. Any given regime will have individuals endorsing it, giving the bare minimum convention consent, and individuals subject to mastery. The more individuals are subject to mastery, the more likely it is that the regime is illegitimate,101 but in the absence of a substantive theory of what makes a just state, this, too, is indicative rather than conclusive. This understanding of constitutive sovereignty being undemanding and having explanatory more than legitimising value also shows in its (lack of) link to democracy. Hampton argues that convention consent leads to political authority, but that it need not necessarily be the outcome of a democratic process.102 Kalyvas, in contrast, argues that

97 Unless one subscribes to a theory which makes legitimacy contingent solely on the attitudes of subjects towards the normative system. 98 Hampton (1997), p. 96. 99 Ibid. 100 Ibid. 101 Consider, for example, South Africa during Apartheid. 102 Cf. Hampton (1997), pp. 84 f.

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[b]ecause the concept of the constituent sovereign resituates the normative ideals of political freedom and collective autonomy at the center of democratic theory, it points at a distinctive theory of democratic legitimacy.103

He goes even further to consider that [n]ot any act can claim to be constituent and not any actor can claim to be a founder, even if the actor and the act have been successful, that is, effective in creating a new constitutional document. Should a person or group appropriate the power to constitute a legal order at the exclusion of all those who will be its addressees, the ensuing constitutional document should be regarded as invalid, unauthorized, the result of an arbitrary act of usurpation that violates the normative prescription of the constituent act. Such an act would not only amount to an incorrect use of the term to constitute, but it would also violate the normative content of its semantic meaning.104

There are various possibilities as to how one should understand what is meant by effective or successful constitution. One possibility is that it is merely the writing of a constitutional document. However, this does not seem very likely, as it is the effects of the document that are more relevant than the document itself. Another possibility, then, is that the decisive factor is whether or not the attempt succeeds in constituting a normative system; in other words, whether the constitution is recognised. As Hampton’s theory of political authority shows, recognition can come in degrees, from convention consent to endorsement consent. The connection between constitutive sovereignty and democratic legitimacy that Kalyvas insists on suggests that he does not consider convention consent sufficient.105 One could stipulate that democracy, legitimacy or endorsement consent, or any combination of the three, is a necessary part of the concept of constitutive sovereignty; this is what Kalyvas does here. As a political or ideological argument against morally unjust governments, this holds a persuasive appeal. The purpose of this book, however, is not to stipulate an ideal political theory, but rather to explore conceptions of sovereignty that help in understanding existing legal phenomena. As such, ideological appeal is secondary to explanatory strength. It cannot be denied that sovereignty has been claimed—and this claim accepted by both people and other nations—by non-democratic governments.106 Hampton’s theory of convention consent explains this. It falls outside the scope of this book to discuss whether Kalyvas’ stipulation should become part of the concept of sovereignty, but the existence of not or not very democratic states which are nevertheless recognised as sovereign by other states and

103

Kalyvas (2005), p. 237. Ibid. 105 Kalyvas’ wording of “at the exclusion of all those who will be its addressees” suggests that he means to exclude situations of mastery from successful constitution. This point is not in contention. What is, however, is that the alternative to situations of mastery is necessarily democratic. Hampton’s argument shows that this is not the case. 106 Freedom House reports that of 195 countries in the world, 122 were electoral democracies in 2013, making for a total percentage of 63%. This is not taking into account the degree to which they are classified as free by the same NGO, in other words, it does not take into account whether there are any factors limiting the exercise of constitutive sovereignty. Freedom House (2014). 104

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their own peoples shows that at the time of writing, it is not. In other words, a theory which does not necessarily link constitutive sovereignty to principles of democracy has more explanatory power, even though it may be less desirable politically and ideologically speaking. Therefore, the following statement from a commentary on German constitutional law captures the relationship between constitutive sovereignty and democracy more accurately when it holds that (mere) recognition of a new constitution by the majority of the people subject to it says very little about the democratic content of the constitutive process: Eine verfassungsgebende Gewalt, die als dem Grundgesetz vorausliegend gedacht wird, muss sich nicht notwendig von der Volkssouveränität im Sinne der grundgesetzlichen Ordnung herleiten. Die bloße Anerkennung einer verfassungsgebenden Gewalt oder einer neuen Verfassung durch die Mehrheit des Staatsvolkes sagt noch wenig über den demokratischen Gehalt des Verfassungsgebungsprozesses aus.107

While denying the absolute necessity of a link between municipal constitutive sovereignty and democracy, this statement nevertheless manages to capture that municipal constitutive sovereignty is (at least partly) a matter of acceptance, that it finds its basis in a social rule. In other words, there can be no legal order without a governing convention or rule of recognition, to use the terminology of Hampton and Hart respectively. It furthermore captures the spirit of the outer limits of constituted sovereignty which are provided by municipal constitutive sovereignty, namely the power to disobey, to revolt, or to stage a coup.108 That a legal system needs to be accepted or recognised does not necessarily imply that the legal system’s conception needs to have come about in a democratic process. The existence of the legal system is contingent to the recognition of those with the power to either recognise or not recognise it. Consider the example of a coup by an elite minority. What if this elite minority writes up a constitutional document which is widely celebrated by the people despite the fact that the document was not the result of a democratic process and does not give them democratic input in the future? The people might celebrate this new constitution for a number of reasons: perhaps the leader of the elite minority is vastly charismatic, or perhaps they are convinced by the content of the document. The regime based on this document is certainly non-democratic, and it may be unjust, but equally, it could be a regime that safeguards human rights, flourishes economically and has the approval of all citizens. What we see is that there is no necessary link between the recognition and acceptance of the people of a regime, its qualification as being just or unjust, and the level of democracy of the constitutive

107

Herdegen (2013), p. 10: A constitutive power, assumed to exist prior to the constitution, does not necessarily derive from popular sovereignty within the meaning of the constitutional order. The mere recognition of a constitutive power or a new constitution by the people does yet say little about the level of democracy of the constitutive process. (Translation provided by Dr Sascha Hardt.) 108 Here, the negative side of municipal constitutive sovereignty is used to demonstrate how municipal constitutive sovereignty can posit the outer limits. The positive side of municipal constitutive sovereignty would, conversely, be the power to obey the law.

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process.109 This does not deny that there may well be a correlation between popular sovereignty, democracy and the moral qualification of a state, but it denies that democracy is a necessary element of popular sovereignty. Popular sovereignty, understood as an explanatory device rather than one that legitimises, does not require democracy, though it is compatible with it. One link that needs to be investigated, however, is that between the existence of a legal order and mastery. Mastery means that there is no recognition of the legal order, and no governing convention between mastered and government, and yet countries such as Chile under Pinochet or South Africa before Mandela were states and undeniably had legal systems. This issue is considered in greater detail in Sect. 4.1.4 of this book.

3.4

International Constitutive Sovereignty (ICVS)

Until now, I have stipulated two concepts of sovereignty: sovereignty (CDS) which can be found relative to national legal systems or the international legal system, and sovereignty (MCVS). Sovereignty (CDS) is a legal status attributed to an entity by a particular legal system; sovereignty (MCVS) the extra-legal sovereignty of a people to constitute, maintain and deconstruct a legal system by constituting, maintaining and deconstructing a social rule to the effect that the norms of the system are preemptive and final. These two conceptions of sovereignty and the different contexts in which they play (different national legal systems, international law, etc.) cover most of the contexts in which “sovereignty” commonly plays a role as regards law, namely the constitution of the national legal system (commonly referred to as popular sovereignty) and the supremacy of the legal system vis-à-vis other normative systems (state sovereignty in both national and international law). In the following, I analyse a conception of sovereignty that does not form part of common usage. However, just as sovereignty as a legal status plays a role both in the context of national law and in the context of international law, extra-legal sovereignty in the sense of the power to create, maintain and deconstruct a legal system plays not only in the context of national law. Understanding sovereignty also as the extra-legal power of states to create, maintain and deconstruct the international legal system can lead to new insights in the understanding of international sovereignty, its origins, and much of the controversy regarding the obligatory nature of international law.

109

Cf. Herdegen (2013), p. 10.

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3.4.1

States Constitute International Law

States are not isolated units without any contact between them. Therefore, it is possible to reason analogously from the rationale for having laws between people for having laws between states. Here, too, law is a tool for the maintenance of order.110 A further analogy to be made is that between individuals and states—of course, states are not persons in the same way that individuals are, but legal personality is ascribed to them, the actions of state officials are attributed to the state. The Montevideo Convention calls states “person[s] of international law”.111 Within the world of law, states are (legal) persons. This does not mean that they can automatically be considered persons outside the world of law as well. However, there is an entire field of study dedicated to the behaviour of state as self-interested actors in the international arena, capable of making prudential choices and therefore of being motivated by reason,112 a perspective that can be contrasted to that taken by international law.113 It is therefore possible to consider states also as having and exercising powers, and of considering the behaviour of states from a sociological perspective. States can follow the law or reject it; state officials can use different types of rhetoric regarding their international legal obligations, disregard them or sign new treaties, justify or demand in international conferences—in other words, state behaviour cannot be reduced to rule-based automatisms. For states as for individuals, that they should follow legal rules is a statement on a very different kind than to say that they do in fact follow legal rules. One power that states can exercise is constitutive sovereignty relative to the international legal system: the power of states and state actors to constitute, maintain and deconstruct the international legal system. This power is, just as constitutive sovereignty (MCVS), exercised through the creation and maintenance or deconstruction of a constitutive social rule, that is, the Hamptonian governing convention of the international legal system. What, however, does this mean? To reiterate, Hampton has formulated a number of conditions against which to test for the existence of convention consent, which is the minimum requirement of political authority. These conditions are: 1. There exists a convention to regard the norms created by the governing institution(s) as preemptive and final. 2. There are means to enforce the norms created by the governing institution(s), and the willingness to use them; in other words, enforcement is possible and actual.

110

Raphael (1976), p. 46. Convention on the Rights and Duties of States (1933). 112 Cf. Korab-Karpowicz (2013). International relations is defined as “An academic discipline originally concerned with the political relations between states but now embracing non-state political actors at the global scale and drawing on the full range of social sciences.” Rogers et al. (2013). 113 Cf. Fleming (2017). 111

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3. Individuals consider the norms created by the governing institution(s) as a reason to act accordingly; in other words, individuals recognise the authority of the governing institution(s).114

The third condition is not a necessary one, making Hampton’s formulation very similar to Hart’s understanding of the rule of recognition, which is limited to two conditions, namely efficacy and a social attitude of acceptance. While phrased differently, the condition of regarding the norms created by the governing institution(s) as preemptive and final corresponds to the social attitude of acceptance Hart requires. One can also equate the requirement of enforcement with the requirement of efficacy—actually, efficacy may be more accurate a requirement for the existence of a social convention in this case, because while enforcement is certainly a very important reason when it comes to motivating either individuals or state actors to obey the law, it is not the only possible reason. Efficacy leaves room also for other reasons, while still requiring the same result: that the law is generally obeyed. Regardless of specific phrasing, it is immediately clear that these conditions are not obviously met when it comes to the international community. An explanation for this is the distinction between political authority and a legal system. Hampton’s theory concerns the establishment of political authority. That there is no political authority—in the sense of a world government—on the international plane should be obvious. Furthermore, there is very little in terms of enforcement mechanisms, and even where such mechanisms exist, the political will to use them is often lacking. In other words, enforcement is rarely possible and even more rarely actual. Focusing on efficacy instead of enforcement does not clearly resolve this issue, either, as there are many instances in which international law is not followed. It is not obviously clear that international law is efficacious, then. The first and third condition, however, are no less problematic. Does a social rule to regard norms created by the governing institution(s) as preemptive and final exist, and if so, which entity or entities should be identified as the governing institution(s)? Keeping in mind that there is a distinction between the set of states taken collectively, and individual states, much in the same way as there is a distinction between the people (as a collection) and individuals, and keeping also in mind that this research is not about the constitution of a world government but the constitution, maintenance and possible deconstruction of the international legal system, the question of governing institutions becomes less relevant than the question whether there are legal rules which are recognised as preemptive and final. The relevant question becomes whether states consider the norms of international law as a reason to act accordingly. Do states consider the norms created by states as preemptive and final? What is the social attitude of states towards international legal norms, assuming that states can have attitudes analogously to human beings? It can and has been questioned whether states take this critical reflective attitude to the norms of international law.115 Any definite answer to this question must be left to sociologists, of

114 115

Hampton (1997), pp. 97 f. Cf. Posner (2002).

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which I am not one, but there are some indicators that states adopt an attitude of acceptance of international legal norms, if not always necessarily for themselves then when it comes to the actions of other states. Furthermore, states argue about the content of international law, sometimes in front of international courts or arbitration panels, and couch their rhetoric in terms of international rights and duties. There are of course also instances where this is not the case, and in which international legal norms are disregarded. Taking an external viewpoint to international law, we can ask whether these instances are too many to speak of the existence of a social rule that is both accepted and efficacious, or whether there are sufficient instantiations of the social rule by state actors to speak of a social attitude of acceptance. Here, the question whether the international legal order is efficacious comes into play again: how are instances handled in which states—irrespective of their own social attitude towards international law—disregard it? Enforcement of the norms e.g. in the form of imposing a penalty for non-performance of an obligation would be an instantiation of the governing convention and work towards fulfilling the second criterion Hart formulated. It would furthermore be a sign that states consider international legal rules reasons for actions not only for themselves but for other states as well. One might consider that the enforcement of (some) international legal norms is at least possible. Looking at Chapter VII of the Charter of the United Nations, the Security Council has the competence to [. . .] determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.116

Articles 41 and 42 respectively hold The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

and Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

There are instances in which these enforcement mechanisms have been used, but the arguments that political will is lacking or that states might not comply with Security Council resolutions to this effect are not without sway. That it is states who must do so and enforce the law against other states does not logically prevent the enforcement of norms: to argue that Security Council actions under Chapter VII

116

Charter of the United Nations (1945), Article 39.

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cannot be considered an (effective) enforcement mechanism because it relies on action by states would be analogous to saying that a state’s enforcement cadre cannot be considered effective because it relies on action by individuals such as police officers. More relevant, then, is the question whether or not states actually do comply with these resolutions and whether they actually enforce the norms of international law. The potential (and often actual) lack of political will to make use of the enforcement mechanisms that do exist touches on the social rule that constitutes and maintains international law, in that a use of existing mechanisms to enforce the obligations, duties, et cetera that make up international law would be an instantiation of this social rule. Conversely, while not making use of enforcement mechanisms in individual cases does not negate the existence of the social rule, a continued disregard for them would mean that the social rule fades for lack of instantiations. At this stage, it is important to recall that constitutive sovereignty—as opposed to constituted sovereignty—is a matter of degree in the sense that the social rule can be weaker or stronger, depending on how well-instantiated it is, i.e. in what way constitutive sovereignty is exercised. To assess the relative strength of the social rule requires taking an external view to it, which explains the criticism levelled against international law at times.117 It would thus appear that, studied from this external viewpoint, the social rule underlying international law is comparatively weak.118 However, it must be asked whether this model of a social rule underlying the international legal system accurately captures the nature of international law. In the following, this question will be briefly considered.

3.4.2

Social Rule or Contract?

With regard to constitutive sovereignty (MCVS), I have followed Hampton’s argument that the national legal system is based not on a social contract, but rather on a social convention such as, for example, the rule of recognition as developed by Hart, although I maintain that this basis is more accurately characterised as a social rule than as a social convention.119 Hampton introduces the conditions for convention consent, the minimum attitude required for the existence of the relevant social rule, with the following words: According to the traditional social contract analysis, which assumes that each individual possesses the authority to rule himself that he then confers on the ruler, a political regime has authority only over those who have, in effect, given it to them. [. . .] [t]his is a very unsatisfactory model of political authority, not least because it fails to capture the commonsense idea that political authority extends over a territory rather than only over those who happen to have given authority through their explicit consent (an event that, in any case,

117

Cf. Goldsmith and Posner (2005). Hart himself considered it to be so weak that he thought international law was not law at all. Hart (2012), pp. 236 f. 119 See Sect. 3.2.2. 118

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3 Sovereignty Outside of the Law rarely seems to have occurred in the history of real states). Albeit a kind of consent model, the convention model works much differently and represents the conceptual topology of political authority as far more complicated than the (overly simple) social contract model represents it. In order to see that topology, imagine, first, that we are anthropologists seeking to determine whether a political authority exists in a territory. We would look for two conditions that are jointly necessary and sufficient for the existence of such an authority in this territory.120

These conditions are, as previously mentioned, the following: 1. There exists a convention to regard the norms created by the governing institution(s) as preemptive and final. 2. There are means to enforce the norms created by the governing institution(s), and the willingness to use them; in other words, enforcement is possible and actual.

The link between the first and the second condition is instantiation. It is apparent that neither condition is met to the fullest degree, but both are met at least to some degree when it comes to the international legal order. The potential conclusion to be drawn from this is that there is a social rule underlying international law and that the international legal order therefore exists as a legal order, but that the social rule underlying it is less strong than that underlying a given national legal order.121 This conclusion is specific to the convention model of authority. The convention model is, however, not the only possible model of the source of a legal order: it is possible that constitutive sovereignty (ICVS) is better captured by a social contract model than by Hampton’s convention model. Arguments in favour of this position would be that the external dimension is less concerned with a particular territory, unless one counts “the entirety of the world” as such, and that states, far more than individual human beings, are held not to be subject to laws unless they have agreed to them. The traditional view on international law certainly coheres very well with a social contract model. However, the existence of, in particular, ius cogens is indicative at the very least of the fact that a move towards a convention model from the social contract model might provide a better explanation of the international legal system. The convention model explains how a state can be considered subject to legal rules it has not itself consented to, while this very consent would be the basis for obligation under the contract model. Ius cogens is considered, by states, as a motivating reason not just for themselves, but for other states as well. The convention model is better suited, then, to capturing and explaining the constitution of the international legal system, including ius cogens, than the contract model. It furthermore bears mentioning that the existence of a contract already presumes a legal system. In light of all these considerations, the conclusion is not far-fetched that states have the power to constitute the authority of international law, and that indeed they are motivated to do so by self-interest122 but that the social rule underlying 120

Hampton (1997), p. 97. This of course depends also on the state. 122 Cf. Goldsmith and Posner (2005). 121

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international law is weaker, largely due to unwillingness to introduce effective enforcement mechanisms than the social rule underlying a given national legal system. This view coheres, again, with many a criticism levelled at international law.123 To conclude, constitutive sovereignty relative to international law, just as constitutive sovereignty relative to a national legal system, is the power on the one hand to constitute, both initially and by ways of maintenance, a legal system—in this case the system of international law rather than a national legal system—and it is equally, on the other hand, the power to deconstruct said system. While on the national level, in many states the positive side of constitutive sovereignty is exercised more than the negative (deconstructive) side, and while situations of mastery on the national level can inhibit the exercise of constitutive sovereignty, with regard to the external dimension enforcement and instantiation of the social rule both are practiced to a lesser degree than on the national plane.124 Even though this leads, under the convention model of political authority, to the conclusion that political authority in the external dimension is weaker than in many a nation state, the convention model has strong explanatory force with regards to both the source of international law and many of the criticisms levelled at it. In the following, I will explore who is sovereign in the constitutive sense when it comes to international law.

3.4.3

Who Is Sovereign (ICVS)?

Just as collection of individuals—“a people”—are sovereign in the constitutive sense when it comes to a national legal system, the collection of states is sovereign in the constitutive sense when it comes to the international legal system. That the sovereign entity in this case is the collection of states rather than of other actors can be explained by the fact that states are still the main actors on the international plane. However, the considerable rise in intergovernmental organisations and the growing importance of non-governmental organisations as well as multi-national corporations on the international level means that these entities might also need to be included in the collection: their actions, too, can strengthen or weaken the social rule that constitutes and maintains international law. Accordingly, in the long run, the collection of international actors constituting and maintaining (and potentially deconstructing) international law may well include entities other than states. When it comes to the international dimension, states can be viewed analogous to people in the municipal dimension. They constitute the international legal system,

123

Cf. Koskenniemi (2005). Again, this of course depends on the individual states chosen as comparator, but overall this appears to be the case. As an aside, it is furthermore the case that international enforcement might grow stronger over time.

124

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they can dissent and direct reform measures towards changes in the content of international law; they can even revolt against international law, usually in the form of war. It is clear that it cannot be organisations such as the United Nations which are sovereign in this sense because these institutions rely on international legal acts from which they derive their competences and in accordance to which they act. In other words, they are constituted rather than constituting themselves. It is states which constitute them. However, even though analogous to individuals in the comparison between the national and international dimension, states are not individuals. This is particularly relevant in that there are usually constitutional rules concerning the question which entity, body or office-holder(s) has or have the competence to act on the international level. Constitutive sovereignty, whether it concerns a national or the international legal system, is the power to construct, to maintain and to deconstruct a normative system. In the case of constitutive sovereignty (MCVS), the normative system in question is the national legal system, and in the case of constitutive sovereignty (ICVS), it is the international legal system. I have argued that constitutive sovereignty (MCVS) can come in degrees and can be limited by situations of what Hampton calls mastery. In contrast to the national level, however, there is no world government which could similarly influence the collection of states or of international actors that currently makes up the constitutive sovereign (ICVS). Instead, a limitation might be found in the fact that the constitutive sovereign (ICVS) is not a collection of natural persons, that is, human beings, but rather one of legal persons. One could argue that states are limited because they act through state officials and these state officials might pursue their own interests or make mistakes. One could also argue that because a state is composed of different bureaucratic entities, there can be no argument of the state as such acting; these different bureaucracies might also pursue different goals.125 However, this would be akin to arguing that an individual is inherently limited because his stomach might crave sugar, but his brain might suggest that losing weight would be the better path to take. It is true that states are legal persons and as such act through state officials or the acts of representatives attributed to the state. This is not, however, a limitation as such.126

3.4.4

Concluding Remarks

To summarise, constitutive sovereignty, whether relating to a national legal system or the international one, comprises the power to constitute and maintain a legal system, on the one hand, and to deconstruct it, on the other. Constitutive sovereignty (ICVS) means that these powers are geared toward the international legal system

125 126

Baylis et al. (2013), p. 4. The question of whether and in what ways states (can) act will be the object of future research.

References

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rather than a national one, constituting and maintaining international law. While peoples are the holders of constitutive sovereignty (MCVS), the social rule underlying the international legal system is instantiated by actions of state officials attributed to the state as a whole, meaning that the holder of constitutive sovereignty (ICVS) is the collection of states that form the international community. An argument could be made that states are limited in what they can do on the international level by bureaucracy, internal division or internal rules, but I have argued that this does not constitute a real limitation to constitutive sovereignty. While the existence of enforcement mechanisms and the political will to use them are debatable on the international level, and as such the social rule is comparatively weaker than on the national level of many states, the convention model nevertheless manages to better capture and explain the reality of international relations and law than the consent model does. One might ask, with respect to constitutive sovereignty (ICVS) why it should be called “sovereignty”. Indeed, both constitutive and constituted sovereignty relative to the national legal system and constituted sovereignty (ICVS) are based on, correspond with and refine traditional views on sovereignty: political or popular sovereignty, internal sovereignty, and state sovereignty respectively. With constitutive sovereignty (ICVS), however, there is no immediate correspondence to any common usage of the term sovereignty. It is nevertheless called sovereignty here for reasons of consistency and for the analogy with constitutive sovereignty (MCVS) as well as its relationship with constituted sovereignty (ICDS), which it of course constitutes. This does not take away that an argument could be made that another name for it might be less confusing. However, it bears mentioning also that this same argument can be made for any of the other concepts of sovereignty as well. Section 4.2 deals with the issue of nomenclature in more detail.127 The introduction of this concept into the sovereignty discourse allows, for example, for the transposition of insights made within constitutional theory about constitutive sovereignty (MCVS) and its relationship with constituted sovereignty (MCDS). Because of its similarity to constitutive sovereignty (MCVS), which indubitably corresponds to a well-established understanding of sovereignty, constitutive sovereignty (ICVS), too, is denoted by the term “sovereignty” despite the lack of corresponding established concept.

References Austin J (1869) The province of jurisprudence determined. John Murray Baylis J, Smith S, Owens P (2013) The globalization of world politics: an introduction to international relations. Oxford University Press Canovan M (2004) Populism for political theorists? J Polit Ideologies 9(3):241–252

127

See Sect. 4.2 of this book.

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Charter of the United Nations (1945) 892 UNTS 119 Convention on the Rights and Duties of States (1933) 165 LNTS 19 Dicey AV (1915) Introduction to the study of the law of the constitution, 8th edn. Macmillan, London Dickson J (2007) Is the rule of recognition really a conventional rule? Oxf J Leg Stud 27 (3):373–402 Downie RS (2005) People. In: Honderich T (ed) The Oxford companion to philosophy. Oxford University Press Finnis J (2014) Aquinas’ moral, political, and legal philosophy. The Stanford Encyclopedia of Philosophy, Summer 2014 edition. http://plato.stanford.edu/archives/sum2014/entries/aquinasmoral-political/ Fleming S (2017) Moral agents and legal persons: the ethics and the law of state responsibility. Int Theory 9(3):466–489 Freedom House (2014) Number and percentages of electoral democracies. FIW 1989–2014 Goldsmith JL, Posner E (2005) The limits of international law. Oxford University Press Hage J (2011) A model of juridical acts: part 1: the world of law. Artif Intell Law 19(1):23–48. https://doi.org/10.1007/s10506-011-9105-4 Hage J (2018) Foundations and building blocks of law. Eleven International Publishing Hampton J (1997) Political philosophy. Dimensions of philosophy series. Westview Press Hart HLA (2012) The concept of law, 3rd edn. Clarendon Press Herdegen M (2013) Verfassungsgebende und verfassungsändernde Gewalt. In: Maunz T, Dürig G (ed) Grundgesetz-Kommentar, vol 69. Ergänzungslieferung. Beck-Online, pp Rn 7-12 Hobbes T (2013) Leviathan. In: White E, Widger D (eds) Project Gutenberg Kalyvas A (2005) Popular sovereignty, democracy, and the constituent power. Constellations 12 (2):223–244 Korab-Karpowicz WJ (2013) Political realism in international relations. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/archives/sum2013/entries/realism-intl-relations/ Koskenniemi M (2005) From apology to Utopia: the structure of international legal argument, 2nd edn. Cambridge University Press Lewis D (2002) Convention: a philosophical study. Blackwell Publishers Lindahl H (2000) European integration: popular sovereignty and a politics of boundaries. Eur Law J 6(3):239–256 Locke J (1698) Two treatises of government. Awnsham and John Churchill Marmor A (2001) Legal conventionalism. In: Coleman J (ed) Hart’s postscript. Oxford University Press Marmor A (2009) Social conventions: from language to law. Princeton Monographs in Philosophy. Princeton University Press, Princeton Ochoa Espejo P (2014) People, territory, and legitimacy in democratic states. Am J Polit Sci 58 (2):466–478 Peschel-Gutzeit LM (1997) Unvollständige Legitimation der Staatsgewalt oder: Geht alle Staatsgewalt nur vom volljährigen Volk aus? NWJ 1997, 2861 Posner EA (2002) Do states have a moral obligation to obey international law. Stan Law Rev 55:1901–1920 Postema GJ (2011) A treatise of legal philosophy and general jurisprudence, Vol 11: Legal philosophy in the twentieth century: the common law world. Springer Raphael DD (1976) Problems of political philosophy, revised edition. Macmillan Press Ltd, London Raz J (1979) Kelsen’s theory of the basic norm. In: The authority of law: essays on law and morality. Oxford University Press, pp 122–145 Raz J (1986) The morality of freedom. Clarendon Press, Oxford Rescorla M (2015) Convention. Stanford Encyclopedia of Philosophy, Summer 2015 edn. https:// plato.stanford.edu/archives/sum2015/entries/convention Rogers A, Castree N, Kitchin R (2013) International relations. In: A dictionary of human geography. Oxford University Press

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Ross A (1974) On law and justice. University of California Press Searle JR (1995) The construction of social reality. The Free Press Searle JR (2010) Making the social world. Oxford University Press Sen S (2011) The Constitution of India: popular sovereignty and democratic transformations. Oxford University Press, Delhi. https://doi.org/10.1093/acprof:oso/9780198071600.001.0001 Winterton G (1998) Popular sovereignty and constitutional continuity. Fed Law Rev 26:1–14

Chapter 4

Questions About Sovereignty

At the beginning of this book, I have indicated that there are many points regarding sovereignty on which there is disagreement. A conception of sovereignty needs to be clear on at least the following points: first, the holder of sovereignty; second, the meaning of sovereignty; third, its character of being absolute or limited, including the possibility of degrees of sovereignty; fourth, its character of legal or extra-legal; lastly, its character of being exclusive or not, including its relationship to other conceptions of sovereignty if it is not exclusive. In this chapter, I want to consider some of these points in more detail. I will begin by pointing out that constitutive and constituted sovereignty are not mutually exclusive but rather complimentary and consider their relationship with one another in Sect. 4.1 of this chapter. In Sect. 4.3, I will focus on the holder of sovereignty, touching also again on the meanings of constitutive and constituted sovereignty and whether they are legal or extra-legal. Section 4.4 considers the question whether constitutive and constituted sovereignty are absolute or limited and whether they can come in degrees or not. Section 4.2, meanwhile, considers a question not mentioned in the list above but that I nonetheless consider relevant, namely whether sovereignty is necessary. Some scholars, such as Kalyvas, claim that constitutive or popular sovereignty excludes other forms of sovereignty from existing, at least on the same territory: The notion of the constituent sovereign discredits any sovereign ambitions that the legislative branch may entertain. Parliamentary sovereignty finds in the constituent power its own impossibility. It is exposed as a usurpation of the constituent power by a constituted power, which reduces popular sovereignty to parliamentary representation and to the powers of elected officials.1

I have already argued in Sect. 3.3.2 that constitutive sovereignty is not exclusive in this sense. Given that the conceptions of sovereignty I develop are not mutually

1

Kalyvas (2005), p. 229.

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exclusive, it makes sense to consider the relationship between them. I will do so in the following section.

4.1

Relationship Between Sovereignties

Up until this point, I have discussed constitutive and constituted sovereignty largely independently of one another. Moreover, I have not considered in any detail the relationships between the different legal systems relative to which constitutive and constituted sovereignty can be found. What connections I have made so far have not been the focus of the discussion. The following section changes that. It starts with an analysis of the relationship between constitutive and constituted sovereignty in general, before analysing the interaction between constitutive sovereignty relative to international law, held by the collection of states (or, going one step further, the collection of international actors) and the constituted national legal system, as well as analysing the interaction between the constituted international legal system and constitutive sovereignty relative to the national level.

4.1.1

Constituted and Constitutive

The two conceptions of sovereignty proposed in this work are constitutive and constituted sovereignty. These are two distinct conceptions of sovereignty and keeping them separate on the conceptual level helps understand, untangle and avoid what one might call the “chicken and egg” problem of sovereignty, or what may be termed its paradoxical nature.2 The paradox with regard to conceptions of popular sovereignty in particular is this: how can the people be both subject to authority (or legal norms) and the source of it, both constitutive sovereign and subject to the rules? Separating constitutive from constituted sovereignty and clearly delineating the scope of each conception of sovereignty shows that there is no paradox. The constitutive sovereign (that is, the collection of people when it comes to a national legal system or the collection of states/international actors when it comes to international law) holds the power to constitute, maintain and deconstruct the legal system. The thus constituted and maintained legal system contains the entrance, exit and consequential rules that define the status of sovereignty. If the constitutive sovereign deconstructs the legal system, it deconstructs constituted sovereignty along with the system that attributes it to an entity. This relationship can be visualised as in Fig. 4.1.

2

Hampton (1997), p. 101.

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Fig. 4.1 Relationship between constitutive and constituted sovereignty

The relationship between constitutive and constituted is implied already in the terminology: constitutive sovereignty constitutes constituted sovereignty. Less obvious is the relationship between constituted sovereignty (MCDS) and constitutive sovereignty (ICVS), or the relationship between constituted sovereignty (ICDS) and constitutive sovereignty (MCVS).

4.1.2

National Constituted and International Constitutive

International constitutive sovereignty is the power to constitute a system of norms to regulate relations between entities on the international level. Initially, these entities were only states.3 States constituted the system of international law but today, international law assigns permissions, duties, rights, and competences to various entities, not only to states. It also determines what it considers acts of state and when acts by individuals such as state officials are attributed to the state as acts of that state.4 Because acts of legal officials are attributed to the state by international law and because legal officials depend on and are constrained by the rules of their national legal system, it is the case that some instantiations of the social rule underlying

3

To a degree, this still holds true, but non-state actors are gaining influence on the international plane. 4 The Draft Articles on the Responsibility of States for Internationally Wrongful Acts GA Res. 56/83, Report of the ILC, 53rd session, A/56/10, while non-binding, provide an example thereof in Chapter II, such as Article 4: “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.”

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international law rely on competences given to state officials on the national level. However, while a state official can act only within the limits of the competences given to him or her on the national level, that is, under the ultimate control of the national constituted sovereign, this is mitigated by the assumption of legality on the international plane. The assumption of legality, as the name already suggests, means that it is assumed that the actions by a state official are legal in the sense of not being ultra vires, that is, not exceeding his or her given competences. This assumption allows for the attribution of the acts of state officials on the international level to the state and can therefore, on a very different level and outside the world of law, influence instantiations of the social rule. In this context, one may ask the following: if international constitutive sovereignty constitutes international constituted sovereignty, how can international constituted sovereignty have an impact on international constitutive sovereignty? This question misses that while there is an initial point of constitution, before which international constituted sovereignty necessarily could not have existed, this point of constitution is long past and we are now in an on-going process of constitution whereby international constituted sovereignty and the international legal system both exist and thus can have an impact on the continued exercise of international constitutive sovereignty. Hampton’s words that people are born into legal systems they did not themselves create, and nevertheless can instantiate the governing convention hold mutatis mutandis for states.5 Historically speaking, then, the attribution of actions by certain individuals to the state has occurred for different reasons and via different rationale, but today, international law specifies when acts of state officials—or sometimes even of private parties—are attributable to the state. Even in cases of ultra vires acts, the act can be attributable to the state: The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.6

Hence, an argument using the assumption of legality under international law to mitigate the limitation of a requirement of internally-granted competences for both acts within the world of (international) law and for acts which are outside of it, but which instantiate its social rule is not a confusion of the various levels. Rather, it is an example of how the different levels impact one another. This covers the relationship between national constituted sovereignty and international constitutive sovereignty, with some influence between international constituted and international constitutive sovereignty as well. In the next section, the

5

Hampton (1997), p. 71. International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, Chapter IV, Art. 7. Admittedly, the articles are overall concerned with the responsibility for internationally wrongful acts, rather than with acts to states in general; nevertheless, the section from which the quoted article is taken talks about attribution of acts to states in more general terms, and is titled “Attribution of Conduct to a State”, Chapter II.

6

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relationship between international constituted sovereignty and national constitutive sovereignty is analysed.

4.1.3

International Constituted Sovereignty and National Constitutive Sovereignty

In the advisory opinion of the International Court of Justice on the unilateral declaration of independence of Kosovo, the question was raised whether international law contains a prohibition of such a unilateral declaration of independence. Considering that a declaration of independence by the representatives of a people can be considered an exercise of national constitutive sovereignty, this advisory opinion in essence asks whether there is a prohibition under international law against this particular form of constitutive sovereignty geared toward constituting a new national legal system.7 One consideration in the case is the question if the principle of territorial integrity—which is an important element of state sovereignty, read international constituted sovereignty—implicitly prohibits the unilateral declaration of independence.8 The Court held that no general prohibition of unilateral declarations of independence can be inferred from the practice of the Security Council.9 Indeed, the Court concluded that general international law contains no such prohibition. While the Court then continued by examining specific documents—namely Security Council resolution 1244 (1999) and the Constitutional Framework—also form part of international law and must be taken into account in answering the question posed,10 what is more interesting for the study of the concept of sovereignty is the statement by the Court that The court arrives at the conclusion that [. . .] the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside of the framework of their interim administration.11

These persons—representatives of the people of Kosovo—were not prohibited by international law from unilaterally declaring the independence of Kosovo and thus

7

It bears mentioning, here, that the question is whether international law prohibits such an exercise, not whether international constituted sovereignty prohibits it. Nevertheless, we will see that international constituted sovereignty forms part of the argument which was taken into account in answering the question. 8 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (2010), p. 80. 9 Ibid. 10 Ibid. 11 Ibid.

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from declaring Kosovo to be an independent and sovereign state.12 While the Court did not consider the question whether international law contains an express permission to do this, it at least does not contain a prohibition. The court further identifies that they were acting in an extra-legal fashion with regard to the Constitutional Framework. The unilateral declaration is an example of exercise of constitutive sovereignty not in its continuing and on-going function, but rather in the original, constituting function. It clearly demonstrates how the moment of constitution necessarily departs from an existing legal framework and is not based on a competence, i.e. not based on existing law and taking place outside the world of law. Rather, it is the people exercising—through its democratically elected representatives, in this case—the power to constitute a new legal order. The conclusion thus appears to be that international law does not contain a prohibition of this kind of exercise of municipal constitutive sovereignty, and equally, that international constituted sovereignty does not imply such a prohibition despite the element of territorial integrity. Particularly the latter is interesting, as the Court holds that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”.13 The principles of territorial integrity does not address peoples within states; it addresses states vis-à-vis other states.

4.1.4

The Impact of Mastery on Sovereignty

Lastly, the relationship between constituted sovereignty and constitutive sovereignty relative to the national legal system as well as the role of international constituted sovereignty in this context must be discussed at the hand of a question raised earlier on in this book: what is the impact of mastery on the municipal/national constituted sovereign? Its Impact on the National Constituted System If it is the constitutive sovereign which constitutes, by means of a social rule, the state by constituting the national legal system, and if the collection of states is the holder of international constitutive sovereignty and if, lastly, an individual state is the holder of international constituted sovereignty, how can there be sovereignty relative to the international legal system in a situation in which national/municipal constitutive sovereignty is absent? In other words: are municipal constituted sovereignty, international constitutive and international constituted sovereignty not all contingent on municipal constitutive sovereignty? At the heart of national constitutive sovereignty lies a social rule to the effect that the norms of the system are preemptive and final, which is the source of authority of the legal system thus constituted. For its existence, this social rule requires at least

12 13

Ibid. Ibid.

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convention consent. Repeating Hampton’s criteria for convention consent, what is needed is that: 1. There exists a convention to regard the norms created by the governing institution(s) as preemptive and final. 2. There are means to enforce the norms created by the governing institution(s), and the willingness to use them; in other words, enforcement is possible and actual. 3. Individuals consider the norms created by the governing institution(s) as a reason to act accordingly; in other words, individuals recognise the authority of the governing institution(s).14

In situations where there is a relationship of mastery, rather than political authority, between governing and governed, the mastered individuals are unlikely to fulfil the third condition. The only reason they might have for acting in accordance with the norms created by the governing institution(s) would be fear of the enforcement cadre. This does not, however, imply that the normative system collapses when not all three conditions are met. Those individuals who do not accept the third condition [. . .] understand that by virtue of the empowerment convention, a political authority exists in their society, but they do not support it and seek to oppose it. The traditional social contract analysis says that by virtue of their refusal to give convention consent to the regime, the regime is not authoritative over them, but the convention model represents the plight of such people rather differently. It maintains that they are indeed subject to the power of an authoritative regime in their territory—a regime that is authoritative because it has been made so by the actions of others rather than themselves, but it also recognizes that they will not believe they are politically obligated to the regime.15

This is what Hampton means when she explains that “Hume is right to say we are all, in a sense, born into a political system whose authority over us is not of our own making”.16 It shows that it is not individuals but a collection of individuals— people—holding constitutive sovereignty on the national level. Provided that the first two conditions are fulfilled, there is political authority over a territory. Hampton also specifies that in situations of mastery, there is no social rule being instantiated between governing and mastered, but there is one between governing and the members of the enforcement cadre which enable the governing to continue the situation of mastery. As such, the first condition for the existence of convention consent remains fulfilled, even if it is not fulfilled by the majority of individuals subject to this authority. The existence of this social rule which is sufficiently instantiated between governing and members of the enforcement cadre makes the deconstruction of the legal system, that is, the negative side of constitutive sovereignty, more difficult for mastered individuals in states where mastery is present to a great degree. The deconstruction of the legal system, too, takes a collective effort, but this collective effort is made difficult and exceedingly dangerous, if not impossible, by tactics of

14

Hampton (1997), pp. 97 f. Ibid. 16 Ibid. 15

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censure or the involvement of the enforcement cadre in the form of state police or military or both. As such, the convention theory of political authority accepts that [. . .] the state is a dangerous institution that can operate in ways that make it morally indefensible in particular cases. It therefore refuses to offer a justification of all states qua states but rather offers justifications of particular states dependent upon how good their overall moral performance is—a test that some states may well fail.17

It falls outside the scope of this book to assess the moral defensibility of individual states. What this argument suggests, however, is that the existence of mastery, even of widespread mastery, does not necessarily and automatically imply that national constituted, international constitutive and international constituted sovereignty are not present. This is, one the one hand, due to the fact that the exercise of national constitutive sovereignty is not momentary but rather an on-going process: the political system— that is, the state, the legal order—is constituted initially from a legal vacuum and thereafter, exercising national constitutive sovereignty is a matter of maintenance and acquiescence, rather than creation, until such point that the national constitutive sovereign exercises the negative side of national constitutive sovereignty. On the other hand, the fact that the collection of states rather than any one individual state holds international constitutive sovereignty means that the deconstruction of one state would not lead to a collapse of international constitutive sovereignty. A complete deconstruction of an individual state would mean, however, that international law can no longer attach the status of sovereign to this entity, as such a status cannot be attached to something that does not exist. This does not take away, however, that the exit rules of the status of sovereignty in international law are not clearly defined, as I have argued in Sect. 2.2. Irrespective of this answer to the question, I have argued that convention consent is rather undemanding, and that convention consent and mastery—or even endorsement consent and mastery—can be present at the same time in the same legal system with regards to different individuals or even different peoples (in the sense of collectivity18) in one state. For as long as the social rule exists between the governing and a sufficient number of governed to keep the system functioning, that is, via enforcement of commands of the governing and the suppression of dissenting voices, the legal system remains constituted.19 In other words, as long as the system remains efficacious, it continues to exist. It remains rather unspecific what is needed to “keep the system functioning”, but as this is a matter outside the world of law,

17

Ibid. See Sect. 3.2.3. 19 With regard to the phrasing of keeping the system functioning, think of Hart’s requirement that a legal system must be effective (Hart 2012, pp. 103 f.), and to Raphael’s statement that no sovereign can hold a gun to the heads of all their (mastered) citizen at all times, as well as Hampton’s considerations regarding the enforcement cadre necessary to keep up a system of mastery, and the fact that between those of the enforcement cadre and the sovereign, there is a political relationship. Hampton (1997), pp. 90 f.; Raphael (1976), p. 61. 18

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precise legal specifications cannot be found or stipulated for it. The conclusion appears to be, then, that once constituted, national constituted sovereignty continues until such exercise of the negative function of national constitutive sovereignty that they are deconstructed and replaced by something else. Impact on and Implications for International Law In the previous section, I have argued that once constituted, it takes an act of revolution to deconstruct the legal system.20 What, if any, is the impact of such an act of revolution on the sovereignties relative to international law? Even where the national legal system undergoes drastic change in the sense of the social rule being deconstructed and a new one being constituted, international constituted sovereignty usually remains intact. The national social rule changes, but only in few cases does this have an effect on the international legal personality of the state. In cases of secession, and in cases where one state splits into several, the internal changes have an immediate impact on external personality and as such, on the holder of international constituted sovereignty. If the deconstruction of the national legal system is so far-reaching that the previously sovereign (ICDS) state no longer exists, international law cannot attach the status of sovereignty to this entity anymore. Generally speaking, however, national constituted sovereignty and, to a considerably larger degree also international constitutive and constituted sovereignty do not cease to exist when national constitutive sovereignty ceases. Although the historical development of international constitutive sovereignty and international constituted sovereignty could not have occurred the way it did without the national constitutive sovereignty of a number of states, these sovereignties are not contingent on it. It is this independence of constituted sovereignty relative to international law from national sovereignty that explains how a state the internal structure, social rule and government of which have changed completely remains subject to international law in much the same way that a new human being born into an existing legal system is subject to the rules of said system. Thus, while initially, it took national constitutive sovereignty in a number of states to constitute legal systems, which were ascribed legal personality as states and became the constitutive sovereigns of the international legal system, now that this system is in existence, it would indeed take an act of revolution on the international level to deconstruct said legal system. In short, the two dimensions—national and international—do not rely on one another. This does not mean, however, that they cannot influence each other. Secession is a clear example of how changes on the national level can affect the external/international dimension, but equally, the external might affect the internal/ national. There is, for example, some evidence that situations of mastery, characterised by coercion and widespread human rights violations against the mastered people, has implications for both international and even national

20 Naturally, in some states, the possibility of reform rather than revolution exists. However, we are here concerned with situations of widespread mastery which make the possibility of reform rather than revolution rather unlikely. Furthermore, reform does not deconstruct the governing convention so much as change it.

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constituted sovereignty: in 1984, for example, the Security Council declared null and void the newly-introduced racist constitution of South Africa.21 According to the international community, that constitution was not a valid legal instrument due to the situation of mastery it derived from and would perpetuate.22 Equally, the notions of the Responsibility to Protect and of humanitarian interventions indicate a move from limited potential for impact of the international legal order on the national towards the potential for more impact. What this means is that while international constituted sovereignty contains the doctrine of non-intervention as a core assumption, an element that is based on the mutual recognition and respect of national constituted sovereignty and the national legal system, there is a move towards recognition and respect of the national constitutive sovereign instead. This is captured in the following statement by Besson: Seen differently, the sovereigns behind international law are peoples within States, and no longer States only.23

Some argue that the notion of Responsibility to Protect and that of humanitarian interventions violate the (international, constituted) sovereignty of the state in question.24 However, both notions are part of the world of law—controversial and debated though they may be, they rely largely on the competences of the United Nation’s Security Council and are couched in legal terms by those invoking them or arguing against them. Equally, Security Council Resolution 554 was the result of an exercise of competences by the Security Council. I will consider the case of the notion of Responsibility to Protect in greater detail in Chap. 5 of this book. For now, the following point should be made: the conclusion that because the construction of political authority is ultimately done by the people and that because national constitutive sovereignty appears to be the initial foundation of legal systems, constituted forms of sovereignty necessarily need to include safeguards protecting peoples from mastery is as wrong as the conclusion that national constitutive sovereignty necessarily implies democracy. As such, “popular sovereignty”, that is, the fact that it is peoples which are sovereign in the constitutive sense relative to the national legal system, does not necessarily require democracy or safeguards on the international level. It must furthermore be noted that where such safeguards exist, this may be incidental to the fact that the peoples protected are the national constitutive sovereign, rather than because of it. In other words, there are various reasons—political, moral—to introduce safeguards for the protection of peoples, and that peoples are the municipal constitutive sovereign may be one of them, but

21

UNSC (1984). However, departing from the specific case of South Africa, it should be specified that generally, due to the fact that international law and the national law are separate bodies (or separate worlds) of law—subject, of course, to one’s understanding of law—any such international declaration of invalidity does not have legal consequences within the national system. 23 Besson (2011), p. 49. 24 Muller (2013), pp. 51–55. 22

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national constitutive sovereignty does not necessitate or demand the introduction of safeguards. Even though the introduction of safeguards for the protection of the national constitutive sovereign, be they incidental or contingent to this characteristic, is not a necessary component of any of the conceptions of sovereignty I put forward, an increasing number of such safeguards exists: human rights are receiving more attention, international courts and tribunals prosecute crimes against humanity, and actions supporting mastery, from censure to systematic oppression of (parts of) the population receive international attention, both in the media and from international bodies and other states. The debate around the notion of an international Responsibility to Protect, and around humanitarian interventions are further indicators of a value climate that increasingly gives weight to safeguarding peoples and individuals and granting them rights over the independence of states and state governments to do as they will on their territory. While international constituted sovereignty remains an argument which is invoked against outside interference, this need not be the case: it is not and would not be conceptually inconsistent for the international legal system to include rules that prohibit certain acts, such as genocide, regardless of the fact that the states prohibited from performing this act are sovereign. Equally, it would not be conceptually inconsistent for international law to introduce entry rules for the status of sovereignty that assign this status only to those entities who have an impeccable human rights record.25 The idea to constrain international sovereignty or to make it contingent to something, irrespective to what, only appears a contradiction of the absoluteness of sovereignty if one fails to keep constitutive and constituted sovereignty conceptually separate.

4.1.5

Concluding Remarks

To conclude, then, it must be said that the conceptions of sovereignty I propose are distinct from one another. Moreover, constitutive and constituted sovereignty both exist relative to legal systems. This means that at the moment, it is possible to speak of constitutive sovereignty relative to the various national legal systems, the constituted sovereignty as defined by a given national legal system, constitutive sovereignty relative to international law and constituted sovereignty as defined by international law. In theory, and depending on one’s understanding of a legal system, there could be many more sovereign entities, but the two conceptions of sovereignty would cover these as well. The fact that constitutive and constituted sovereignty are distinct from one another but can be found relative to different legal systems leads to the potential

25 This is, of course, rather unrealistic at current times and any such introduction would fail for lack of political will. Nevertheless, it would be conceptually possible.

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for one level to have an impact on another level. The possibility of occurrences such as the act of constitution, revolution, secession or humanitarian interventions shows that this is the case and what form such an influence could take. Their relationship is not simply one of starting at national constitutive sovereignty and moving through the steps to international constituted sovereignty, but rather more complex and nuanced. As such, the conceptions of sovereignty relative to different normative systems can also be a useful tool in the analysis of situations of, for example, secession or revolution, in order to differentiate on which levels various actions take place. Considering the relationship between these conceptions of sovereignty, it is clear that there is no progression in a straight line from constitutive sovereignty relative to national law to national constituted sovereignty to constitutive sovereignty of the international legal system to international constituted sovereignty. To assume this form of progression would not accurately capture their relationship. Constitutive sovereignty relative to the national legal system constitutes the national legal system within which constituted sovereignty is situated. After the initial moment of constitution from a legal vacuum, national constitutive sovereignty largely plays a maintaining or acquiescing role in that acting in accordance with the rules of the national constituted sovereign instantiates a social rule to the effect that the legal rules are preemptive and final. In this sense, the two mutually influence each other and an act taking place within the world of law can, at the same time, instantiate the social rule on which that very same world of law is based. The same holds true for the relationship between constitutive sovereignty and constituted sovereignty relative to the international legal system.

4.2

Is the Concept of Sovereignty Necessary?

The term “sovereignty” is used in various ways. So far, this book has been focused on creating a coherent theory of sovereignty—or perhaps more accurately, a theory of sovereignties, namely constitutive and constituted sovereignty. This leaves open the question whether it is useful or necessary to have a coherent theory of sovereignty, or to have any concept(ion) of sovereignty at all. I address this question in the following. Eleftheriadis (2010) holds that sovereignty, if taken seriously is and “always has been incompatible with the rule of law and with constitutional law itself”26 and indeed that “sovereignty and law are [. . .] mutually exclusive”.27 Neil MacCormick holds that “sovereignty is neither necessary to the existence of law and state nor even desirable”.28 While this author would disagree with Eleftheriadis because, as the

26

Eleftheriadis (2010), p. 539. Ibid. 28 MacCormick (1999), p. 129. 27

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previous chapters have hopefully shown, it is possible to construct a theory of sovereignties which is not mutually exclusive with law or incompatible with constitutional law, the question raised here remains. Is it necessary or useful to have a concept of sovereignty or several conceptions of sovereignty at all? This question will not be considered in great depth because the fact remains that the concept of sovereignty exists and is used and the scope of the present research does not extend to ideological considerations of whether this is desirable or if the concepts should be taken to mean something they are not currently taken to mean. Nevertheless, there are a few points the mentioning of which is of value here and follows, in the author’s opinion, from the argumentation so far. First and foremost, it is certainly the case that each of the uses of the term “sovereignty” could be replaced by another term without any loss of meaning. Instead of national constitutive sovereignty, one might simply talk about the sources of political authority—as Hampton does—or about the foundation of a legal system or the basis of normativity of law, or some other expression. Instead of national constituted sovereignty, one could talk about the highest legislative authority, or about constitutional amendment competences. Instead of international constituted sovereignty, one could talk about the rights, duties, competences, etc. that a state has under international law, about the doctrine of non-intervention and of the equality of states. That the term “sovereignty” has been used to refer to all of these things has certainly led to some confusion, especially—but not only—as regards the distinction between constitutive and constituted sovereignty that leads to the figurative “chicken-and-egg” scenario, conceptually speaking, and the question how absolute power can be compatible with the rule of law.29 That it is possible to untangle these conceptual confusions and create a coherent theory of sovereignties does not necessarily mean that this is the most desirable path. Perhaps it would indeed, as MacCormick argues, be better if we did away with the use of sovereignty entirely, or if instead of calling the different meanings of sovereignty constitutive, or constituted, we came up with new words for them that do not all contain the term “sovereignty” somehow. Alternatively, one could do what Hohfeld, quoting Justice Franklin quoting Hobbes, suggests, namely to consider that Instead of rejecting convenient terms because they are ambiguous or not comprehensive, it is better to explain their meanings, or, in the language of old Hobbes, ‘to snuff them with distinctions and definitions,’ so as to give a better light.30

An attempt has been made, here, to untangle the meanings of sovereignty and to define them in a theory of two sovereignties. Would it be more convenient to stipulate wholly new terms rather than to simply stipulate that the existing term “sovereignty” should be used with an addendum so as to specify which meaning of the term is employed? The latter would require a complete departure from existing

29 30

Cf. again Eleftheriadis (2010). Hohfeld (1917), p. 714.

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discourse and is, for this reason, considered rather unlikely to be caused by a single author. However, the reader might disagree and there is no reason why, in the future, such a departure should not take place. For now, it suffices to remember that the term “sovereignty” is the one used, and to have untangled the ways in which it is used and what it is understood to mean respectively, depending on the context of its usage. So, to answer the question whether the concept of sovereignty is necessary: it is not, but it is perhaps still more convenient than the alternative, without negative consequences provided that its meanings are not confused and are clearly denoted.31

4.3

Sovereignty Relative to What?

I have developed two conceptions of sovereignty, namely constitutive and constituted sovereignty. In the previous sections, I have described and analysed these conceptions in general, and then particularly vis-à-vis the national or municipal legal system and vis-à-vis international law. As indicated earlier, considering constitutive and constituted sovereignty as relative to the systems of municipal and international law is not meant to be an indication that there is a necessary connection between these legal systems and the conceptions of sovereignty I have developed. Both constitutive sovereignty and constituted sovereignty always exist relative to a legal system: constitutive sovereignty constitutes the legal system, constituted sovereignty is constituted by the legal system. There is, accordingly, a conceptual connection to a legal system, but whether that legal system is that of a nation state, that of international law, that of the European Union or any other legal system does not matter. What matters for constitutive sovereignty is that there is a group of individuals (be they natural persons or not) that collectively constitutes, maintains and potentially deconstructs a social rule (which might be termed a ‘governing rule’) to the effect that the norms of the system are preemptive and final. What matters for constituted sovereignty is that there are entrance rules attributing the status of sovereignty to an entity. Consequential and exit rules are not strictly required, although the status of sovereignty may not be useful without any consequences attached to it. This also implies that where the legal system does not attribute sovereignty to an entity, constituted sovereignty does not exist relative to that system. I have written about constitutive and constituted sovereignty relative to the municipal and international legal systems respectively in this book as two paradigmatic cases of legal systems,32 with the hope of clarifying the conceptions of

31

However, consider also Sect. 2.4 of this book where I argue that municipal constituted sovereignty may not be useful if the divide between the entity holding the status of sovereignty and the entity or entities holding sovereign competences grows too large. 32 Although one may argue about international law.

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constitutive and constituted sovereignty in this way. They can and should be used vis-à-vis any legal system and in any context in which their use can be illuminating.

4.4

Limited or Not?

One question often asked with regard to sovereignty is whether it is absolute or limited. In this section, I will answer this question for both constitutive and constituted sovereignty, focusing on the latter. With regard to limitations in general, a (terminological) distinction will be useful. On the one hand, there are legal limitations—constituted by the legal order—which can be considered in terms of duties, no-claims, competences, or disabilities. On the other hand, there are limits such as those which Dicey termed the internal and external limit of sovereignty—the threat of the constitutive sovereign exercising its power by revolting and the fact that the constituted sovereign consists of people who are the product of their time and upbringing. Particularly the latter limitation belongs to sociological studies rather than legal studies, influencing behaviour without being in any way recognised in the world of law. With regard to legal limitations, it is possible to further distinguish between limitations which are procedural in nature and those which are material. Historically, subjecting the municipal constituted sovereign to legal limitations appears to have gone from procedural to both procedural and material. In der Entwicklungsgeschichte des modernen Verfassungsstaates hat die Bindung der verfassungsändernden Gewalt zunächst in formalen Schranken Ausdruck gefunden, etwa in besonderen Zustimmungserfordernissen (Zweidrittelmehrheit in beiden Häusern des Kongresses und Dreiviertelmehrheit der Einzelstaaten) und der Dokumentation von Änderungen in Verfassungszusätzen (amendments) in der Verfassung der USA (Art. V). Materielle Schranken der verfassungsändernden Gewalt formulierte schon zu Beginn des 19. Jahrhunderts die Verfassung Norwegens (§ 110 Satz 3) von 1814. In Deutschland hat sich erst mit dem Grundgesetz eine materiell-rechtliche Beschränkung des verfassungsändernden Gesetzgebers (Art. 79 Abs. 3 GG) durchgesetzt.33

Procedural limitations on the constituted sovereign can be found even in the United Kingdom, where Acts of Parliament must be passed in accordance with the legislative procedure. In other words, not any act of Westminster Parliament has the

33

Herdegen (2013), p. 7: In the historical development of the modern constitutional state, the constitutional legislator being bound as an emending power first found expression in formal limitations, such as special approval requirements (for instance a majority of two thirds in both Houses of Congress, in addition to a majority of three quarters) and the documentation of changes made in the form of constitutional amendments to the US Constitution (art. V). Material limitations to the power of the constitutional legislator were already formulated at the beginning of the nineteenth century in the Norwegian constitution of 1814 (§110, 3rd sentence). In Germany, a material limitation of the amending powers of the constitutional legislator was only introduced with the Basic Law of the Federal Republic (art. 79 (3) GG).

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force of an Act of Parliament—motions, for example, do not. Substantive limitations such as eternity clauses are less common than procedural limitations. How does this relate to constituted sovereignty? Constituted sovereignty is a legal status that is independent of the consequences that are attached to it. This means that the status itself cannot be limited and is absolute: either an entity has this status, or it does not have this status. It is, however, very much possible to limit or change the consequences attached to this status, meaning that there may be differences in the competences, claims or duties that two equally and fully sovereign entities have. The status applies to them in the same way, but the consequences attached to the status may differ. This explains why, given this understanding of sovereignty, it is conceptually wrong to speak of undue limitations on sovereignty or to claim that sovereignty and constitutionalism are incompatible.34 It furthermore explains how states with very different factual and legal situations can be said to be equally sovereign and therefore coheres with one of the fundamental principles of international law, namely sovereign equality. A dilemma is said to exist with regard to the concept of sovereignty: how can it be subject to any kind of limitation if sovereignty is that which constitutes? This dilemma describes the assumption that sovereignty cannot be subject to legal limitations, because such limitations presuppose the legal system which sovereignty constitutes. However, this is a conceptual confusion that cannot arise when the distinction between constitutive and constituted sovereignty is made and it is recognised that these are two different concepts of sovereignty. The status of sovereignty (CDS) cannot be subject to limitations not because it is prior to the legal system—which it is not—but because it is a legal status. The consequences that are attached to it can be limited. When it comes to constitutive sovereignty, meanwhile, I have already explained in Sect. 3.3.1 that it is a matter of degree and can be limited by a number of factors, from censure and a strong military/enforcement apparatus on the side of the state that oppresses (part of) the population to indifference, apathy or a lack of education. To conclude, constitutive sovereignty is a matter of degree and can be limited, while constituted sovereignty is absolute and cannot be limited, although the consequences attached to the status of sovereignty can change.

References Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (2010) I.C.J. Report. International Court of Justice Besson S (2011) Sovereignty. Max Planck Encyclopedia of Public International Law. Oxford Public International Law Eleftheriadis P (2010) Law and sovereignty. Law Philos 29(5):535–569. https://doi.org/10.1007/ s10982-010-9077-7

34

Contrast this to Goldsworthy (1999) and Eleftheriadis (2010).

References

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Goldsworthy J (1999) The Sovereignty of Parliament: history and philosophy. Oxford University Press, Oxford Hampton J (1997) Political philosophy. Dimensions of philosophy series. Westview Press Hart HLA (2012) The concept of law, 3rd edn. Clarendon Press Herdegen M (2013) Verfassungsgebende und verfassungsändernde Gewalt. In: Maunz T, Dürig G (eds) Grundgesetz-Kommentar, vol 69. Ergänzungslieferung. Beck-Online, pp Rn 7-12 Hohfeld WN (1917) Fundamental legal concepts as applied in judicial reasoning. Yale Law J 26 (8):710–770 Kalyvas A (2005) Popular sovereignty, democracy, and the constituent power. Constellations 12 (2):223–244 MacCormick N (1999) Questioning sovereignty: law, state, and nation in the European Commonwealth. Law, state, and practical reason. Oxford University Press, Oxford. https://doi.org/10. 1093/acprof:oso/9780198268765.001.0001 Muller W (2013) China’s sovereignty in international law: from historical grievance to pragmatic tool. China-EU Law J 1(3–4):35–59. https://doi.org/10.1007/s12689-012-0011-3 Raphael DD (1976) Problems of political philosophy, revised edn. Macmillan Press Ltd, London UNSC (1984) Resolution 554

Chapter 5

Sovereignty in Context

In the previous chapters, I have developed the two conceptions of sovereignty proposed on an abstract and theoretical level. I hope to have shown that they are conceptually and analytically coherent—but what remains to be seen is whether they are useful. In the following, I will therefore apply the conceptions of constitutive and constituted sovereignty to current questions and issues that involve the notion of sovereignty. My aim in doing so is to show that the insights developed in the previous chapters of the book can shed light on more practical issues. To do so, I will consider first the case of secessionist movements in Scotland, Catalonia and Quebec to see what help constitutive and constituted sovereignty can be in this context. Second, I will analyse the relationship between the European Union and its Member States; third, I will consider the question whether there can be religious states, that is, states which are constituted not by the people but by a religious entity; fourth, I will consider the (perceived) tension between state sovereignty and humanitarian intervention, and lastly, what the relationship between sovereignty and recognition in international law is. These topics have been the subject of a considerable amount of academic debate and literature. The purpose of this chapter is not to cover that body of literature, but rather to provide a starting point for future debates and a visualisation of how the theory of different concepts of sovereignty developed in this book can be applied to current discourse. This also means that this chapter does not seek to provide definite answers or end the on-going discussions on these topics; instead, it seeks to rephrase the discussions in a conceptually clearer light. Nevertheless, conclusions will be drawn where possible.

© Springer Nature Switzerland AG 2019 A. M. Waltermann, Reconstructing Sovereignty, Law and Philosophy Library 132, https://doi.org/10.1007/978-3-030-30004-3_5

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5 Sovereignty in Context

Sovereignty and Secession: Scotland, Catalonia, and Quebec

Invocations of self-determination often go hand in hand with claims to sovereignty by a group defining itself or being defined as a people.1 This people may then seek to gain independence and statehood. Gaining statehood requires seceding from the state on whose territory they currently live and whose laws govern them. In this context, which I will explore using the examples of Scotland, Catalonia and Quebec, it is useful to distinguish first between several kinds of secession. In what might be called secession in the classic sense, a group in a portion of the territory of a state attempt to create a new state there; secessionists attempt to exit, leaving behind the original state in reduced form. Second, there is irredentist secession, wherein the attempt is not to create a new state, but to merge the seceding territory with a neighboring state. This typically occurs when the majority in the seceding area are of the same ethno-national [sic] as that which is predominant in the neighboring state. A third case, exemplified by the dissolution of Czechoslovakia, occurs when there is agreement between the populations or at least the leaders of two regions (which together comprise the whole territory of the state), to split the state into two new states. A fourth case is that of externally-imposed partition of an existing state into two or more new states. In the past partition usually occurred when a deal was struck between two powerful neighboring states at the expense of the state that was partitioned, as with the partitioning of Poland between Nazi Germany and the Soviet Union.2

This section focuses primarily on the first, classic sense of secession. Nevertheless, it is interesting to briefly consider the three other types of secession and how they relate to sovereignty, in particular to constitutive sovereignty relative to a national legal system. The irredentist secession, in which part of an existing state does not become independent but instead merges with a neighbouring state, requires that part of the population of one state ceases to recognise the social rule at the heart of that state’s legal system, and instead wishes to and actually recognises the governing rule of the neighbouring state. As long as the laws of the current state are still applied to them, this can be classified as a situation of mastery. In the case of agreement to split, there are two groups within an existing state wishing to and ultimately recognising two differing governing rules, thus constituting two separate states and thereby also deconstructing the existing state by ceasing to maintain its governing rule. A movement to do so can come from the two peoples, but it is equally possible that the split is instigated by political leaders or an elite not representing the people and (merely) accepted by the two peoples. The fourth case of an externally imposed split is perhaps more interesting to consider: even though the partition is externally imposed, this does not mean that the constitutive sovereignty of a people cannot or does not play a role: the people on whom the partition is imposed still need to maintain (that is, recognise and

1 2

Generally both. Buchanan (2013), p. 1.

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instantiate) the governing rule of the imposed state. This means that while they did not constitute the state initially, they nevertheless exercise their sovereignty (MCVS) with each act that instantiates the governing rule of the imposed state and, equally (although in the negative sense) with each act that disregards or actively counteracts it. A situation in which the people in question try to counteract or disregard the governing rule, only to have the rules of the legal system nevertheless enforced would, again, be one of mastery. An example of an externally-imposed partition and of a people at least partially mastered was the German Democratic Republic (GDR), in which the negative side of constitutive sovereignty was exercised initially not by opposing the regime but by leaving it,3 or at least attempting to, and in 1989 more explicitly.4 When it comes to the classic sense of secession, a distinction can be made with regard to the way such a secession may occur, or the way in which a wish for selfdetermination is handled: in a situation such as the Scottish one, in which a compromise between the entity that holds the status of constituted sovereignty relative to the national legal system—in this case the United Kingdom—and the entity claiming constitutive sovereignty—in this case the Scottish people—can be reached, self-determination does not pose a threat to the legal order the people wish to leave. By contrast, in situations such as that of Catalonia, the Catalan people seemingly wish to secede from Spain or at least hold a referendum on the matter, while Spain’s wishes are diametrically opposed to theirs. In the classic sense of secession, one can distinguish secession or secessionist attempts on a consensual basis, and those taking place against the wishes of the state that is left in a reduced form. Despite the fact that no secession has actually taken place in any of the three examples at the time of writing,5 Scotland and Quebec can be understood as secessionist attempts with consent, whereas Catalonia is one without it. In the following, all three examples will be discussed, starting with Catalonia.

5.1.1

Catalonia

In autumn of 2014, the head of the regional government of Catalonia at the time, Artur Mas, signed a decree regarding a referendum of the Catalan people on the question whether they want Catalonia to be a state and whether they want it to be independent.6 This call for a referendum has been labelled “illegal” by the Spanish government7 and the referendum was suspended by the Spanish Constitutional

3

Thompson (1996), p. 275. Ibid. 5 Late June 2018. 6 BBC News (2014a). 7 Ibid. 4

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Court.8 On November 9th, 2014, a symbolic independence referendum nevertheless took place. In this referendum, 80.7% of voters opted for independence, with a voter turnout of about 2.3 million people, accounting for approximately 40% of those eligible to vote. At the time, the Spanish deputy prime minster held that “[n]o government, nobody, is above the law because nobody is above the sovereign will of all the Spanish people.”9 On October 1st, 2017, another referendum was held in Catalonia on the question if voters wanted Catalonia to become an independent state in the form of a republic.10 In this referendum, approximately 90% of voters voted for independence, with under half (42.3%) of those eligible to vote doing so.11 These numbers must be interpreted in light of irregularities, such as individuals voting more than once,12 but also the police using excessive force in executing a court order to prevent the poll.13 This referendum, just as the last, was illegal from a viewpoint of Spanish constitutional law.14 In its aftermath, the Spanish government triggered article 155 of the Spanish constitution for the first time. This article reads: If a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government, after having lodged a complaint with the President of the Selfgoverning Community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the Senate, take all measures necessary to compel the Community to meet said obligations, or to protect the abovementioned general interest.15

This article authorises the Spanish government to take ‘all measures necessary’. In this context, the Spanish government sought to take control of the Catalan region and to order regional elections for January 2018.16 In reaction to this, a speaker of the Catalan regional government stated that Catalan authorities, including the police, will not follow orders from the Spanish government,17 while one party called for widespread civil disobedience in Catalonia.18 On 27 October 2017, after a declaration of independence by the Catalan parliament, the Spanish Senate approved the measures sought by the Spanish government.19 Moreover, Carles Puigdemont, the Catalan president at the time, and a number of other political figures are charged with, in Puigdemont’s case, rebellion, 8

Mitchell (2014). Gyldenkerne (2014). 10 BBC News (2017a). 11 Tagesschau.de (2017a). 12 Elconfidencial (2017). 13 Human Rights Watch (2017). 14 Tagesschau.de (2017a). 15 Article 155(1), translation by Comparative Constitutions Project. 16 Tagesschau.de (2017e). 17 BBC News (2017b) and Tagesschau.de (2017d). 18 Tagesschau.de (2017c). 19 Parra (2017) and Sharman (2017). 9

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sedition and misuse of public funds regarding the Catalan declaration of independence.20 Puigdemont has called the measures by the Spanish government an “inacceptable attack on democracy” and an “attack against Catalonia”.21 Already in 2013, the Catalan regional parliament declared Catalonia to be a sovereign entity.22 This places the conflict squarely within a discourse on sovereignty and legality. Arguments both for and against the referenda and Catalan independence can be couched in terms of popular sovereignty—either that of the Catalan people, or that of all Spanish people taken together—or in terms of the sovereignty of the Spanish Constitution, legal system, or state. To untangle which understandings of sovereignty are involved can bring clarity to the perspectives involved: arguments involving the Catalan or the Spanish people invoke constitutive sovereignty; arguments regarding the legality or constitutionality of the referenda and move toward independence invoke constituted sovereignty relative to the Spanish legal system. The latter kind of arguments place the discourse in the world of law of the Spanish national legal system, which is constituted by the entirety of the Spanish people, including but not limited to the Catalan people. With regard to the relationship between the Spanish government (representing the Spanish legal system) and the Catalan people—the governing and the governed— mastery, convention consent and endorsement consent can all be present at the same time on the same territory and toward the same governing rule. Some Catalan individuals’ relationship with the Spanish government and the Spanish legal system as a whole will be one of mastery, while others still give convention or even endorsement consent to the social rule constituting the Spanish legal system. In this context, it is also interesting to note again that the notion of a people is not clearly or legally defined.23 The statute of autonomy for Catalonia calls it a “nation” or “nationality”, although the Spanish Constitutional Court has ruled that there is no legal value behind the wording.24 The difficulty in defining and determining when a group of individuals counts as a people makes assessing the weight of arguments invoking the Catalan or the Spanish people more difficult. With regard to questions of the legality of both referenda, it must be said that a determination on the legality of referenda in general and specific referenda in particular is a matter of Spanish law.25 From the perspective of Spanish law, both referenda are illegal and unconstitutional. This means that in the current situation,

20

Burgen and Oltermann (2018). Tagesschau.de (2017b). 22 VilaWeb (2013). 23 Cf. Sect. 3.2.3. 24 Govan (2010), nota bene that for the sake of constitutive rather than constituted sovereignty, a court ruling is not authoritative, although it may have the same impact as if it were, depending on how it is perceived by the people in question. 25 An international right to self-determination might play a role here as well. Thürer and Burri (2008). 21

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Catalan independence cannot be achieved legally, according to Spanish law. It does not mean, however, that Catalan independence is impossible: it bears keeping in mind that constitutive sovereignty is extra-legal and does not require a legal basis or competence. Instead, it depends on the recognition and efficaciousness of a possible Catalan legal system. Factors that play a role in this regard are the attitudes and actions of the Catalan people, but also, particularly with regard to efficaciousness, the actions of the Spanish government in response to a potential push toward independence. The fact that Catalan regional police did not close down schools and other polling stations on October 1st as ordered by the Spanish government26 indicates that an assessment of the efficaciousness of a potentially independent Catalan legal order is difficult. This is especially true also in light of the Spanish government triggering Article 155 of the Spanish Constitution for the first time in Spanish history. The attitudes and actions of the Catalan people are equally difficult to predict, if not more so. The call for civil disobedience that has been issued came from a party not part of the Catalan government,27 while the regional government and parliament consider suing the Spanish government. In other words, there still seems to be the intention to solve the conflict by legal and political means, rather than by outright revolution. This indicates that at least some Catalan officials still take an internal viewpoint to the Spanish legal system. Nevertheless, municipal constitutive sovereignty remains a matter of sociological fact. While it is possible to analyse the legal situation, it is not possible to predict the future. At the time of writing,28 it seems unlikely, however, that Catalan independence will come from the events described above. In the hypothetical situation that Catalonia does become a republic independent from the Spanish state, the secession that has led to it will have been illegal from the Spanish perspective. From the perspective of the hypothetical Catalan legal system, however, it will have been legal. The determination of the (il)legality of the secession depends, accordingly, on the relative viewpoint taken.

5.1.2

Quebec

In Canada, the question of the legality of a unilateral secession under Canadian and under international law was considered by the Canadian Supreme Court with regard to Quebec. The Court held, inter alia, that “secession of a province ‘under the Constitution’ could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework.”29 However, “[a] clear majority vote in Quebec on a clear question in 26

Jones (2017). AP Associated Press (2017). 28 July 2018. 29 Reference Re Secession of Quebec (1998), p. 149. 27

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favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.”30 With regard to international law, the Court found that “[a]lthough there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession.”31 This judgement reflects the distinction, although it is not explicitly made, between constituted and constitutive sovereignty and the fact that questions of sovereignty are also questions dependent on who is defined as the holder of sovereignty: considering the whole of the Canadian people(s) as constitutively sovereign and the Canadian constitution and legal system as constituted sovereign, there is no right to secession, certainly not of unilateral secession. However, narrowing the focus to the Quebec people and their constitutive sovereignty, the Canadian Supreme Court identifies that action on their part in, for example, the form of a referendum, would confer legitimacy on the secessionist movement. Equally, the fact that there is no right to secede under the current constituted legal framework does not take away the possibility of a de facto secession using extra-legal, and possibly illegal,32 means.33 The conclusion the Court draws from this is that any secession and any secessionist movement requires negotiations from both sides,34 certainly if legal means are to be used to achieve a de facto secession. This introduces a legal duty on both sides of the movement, which is distinct from moral evaluations of a potential secession, as well as being distinct from any judgement on the factual possibility of secession.

5.1.3

Scotland

In the Scottish case, political agreements resulted in the Scottish Independence Referendum Act 2013 on the basis of which a referendum about the question whether Scotland should be an independent country was asked and ultimately answered by the Scottish people in the negative.35 The legal situation with regard to unilateral secession had been quite clear: Scotland did not have the competence to legislate on a referendum before it was granted to it by Westminster Parliament in the Referendum Act 2013. Nevertheless, the same conclusions with regard to de facto, moral and legal analyses holds true here: they are conceptually distinct and

30

Ibid. Ibid. 32 From the perspective of the existing legal system. 33 Cf. Hampton (1997), p. 249. 34 Reference Re Secession of Quebec (1998), p. 88. 35 BBC News (2014c). 31

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arguments about one or the other are situated in different realms of discourse and should not be conflated. While the above-mentioned legal obligation to negotiate is part of the Canadian legal system, and thus not an argument or a motivator in the Scottish case, the Scottish referendum and the political process leading up to it nevertheless demonstrate what such a negotiation can look like. The time leading up to the Scottish referendum also showed the myriad of issues and factors to be considered in case of a possible referendum, such as currency, and membership of international organisations. With regard to all three cases covered here, there already exists a people— Catalan, Scottish or Quebec—that identifies as such. However, it should be noted that an exercise of constitutive sovereignty can constitute not only a legal system but, at the same time, a people. The constitution of the United States of America, for example, created not only the legal system but also constituted the US-American people. Nevertheless, historical developments can mean that a group of individuals already identifies as a people before the moment of constitution of their legal system. This may go hand in hand with the existence of devolution or federalism but does not need to. We also see that particularly in the cases of Scotland and Quebec, the original state worked with the potentially secessionist movement to some extent: granting the legal means for a secession through a referendum or implementing a duty to negotiate. This is by no means always the case: in situations of mastery, the exercise of constitutive sovereignty is suppressed for example by means of military, propaganda or the curtailing of rights such as free speech allowing for coordination. As such, it is doubtful, for example, whether most individuals in North Korea can exercise constitutive sovereignty, be it in its maintaining or in its deconstructive sense. What the above analysis shows is that sovereignty is a relative concept—not in the sense to which “absolute” is the antonym, but rather in the sense of being relative to something. What is meant here is that sovereignty, especially when it comes to national legal systems, is relative to its holder: the concept of sovereignty does not change, but whether we talk about the sovereignty of the Catalan people or that of the Spanish people as a whole makes a difference with regard to which conclusions must be drawn from involving the concept of sovereignty in the debate. This makes sovereignty a poor trump card to pull in arguments where different perspectives or differing claims to sovereignty are involved.

5.2 Municipal Constituted Sovereignty and the European Union

5.2

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Municipal Constituted Sovereignty and the European Union

One issue often raised with regard to the European Union is whether its Member States are still sovereign, or whether there is a clash between the sovereignty of a Member State and that of the European Union.36 Equally, there are calls for more popular sovereignty in the EU. On the basis of a few questions, we will explore where the European Union is situated within the framework of sovereignty developed in this book. This question touches mainly upon constituted sovereignty and will be analysed in the following.

5.2.1

Are the Member States of the European Union Still Sovereign?

I have defined constituted sovereignty as a legal status that is attributed to an entity by a legal system. It is possible for the legal system to attach consequences to this status by means of consequential rules. Traditionally, powers regarding legislation, adjudication and administration, including also powers relating to budgets are associated with the status of sovereignty on the national level. Many of these powers have been transferred to the European Union or are impacted or limited in some way. This might lead one to conclude that the European Union somehow limits or takes away the sovereignty of its Member States. This conclusion, however, would be hasty. While a legal status often has legal consequences attached to it, it is possible to change the consequential rules attaching the legal consequences to the legal status. Accordingly, it is possible to change the consequences or even remove some consequences that previously attached to the status from it. The legal status does not change, but the consequences attached to it might. This is what it means for the legal status to be independent of its consequences. Applying this to the context of the European Union, the transfer of powers from Member States to the European Union is a change of the consequential rules relating to the status of sovereignty. I have elaborated on this already in Sect. 2.4, but nevertheless want to stress one point here. Imagine, for a moment, the following scenario: a state ratifies treaty after treaty, diligently approved by its national parliament in accordance with all constitutional procedures and with full approval of its people, transferring competences to an international organisation. The only competence this state retains for itself is the competence to leave said international organisation, thereby regaining all transferred

36

For an in-depth analysis of the various conflicts that can be identified with regard to the sovereignty of the European Union vis-à-vis its Member States, cf. de Witte (1995).

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competences. Would such a state be considered sovereign by most people? I consider this to be unlikely. The fact that the conception of constituted sovereignty I propose leads to such counter-intuitive results might seem to speak against it. In my view, it demonstrates something important about our intuitions about sovereignty and about the current legal landscape, however: in an increasingly globalised and pluralistic world, a conception of sovereignty that necessarily coincides with the “traditional” sovereign powers may be outdated and no longer able to capture legal reality. Tamanaha captures a similar thought when he writes that [i]n the era of globalization, which appears to be giving rise to a proliferation of legal forms, along with a simultaneous coming together (on the global level) and a breaking apart (at the local level), the conceptual dominance of the state law model of law may become a hindrance to our ability to take account of legal developments.37

The conception of constituted sovereignty I propose showcases this. It has the benefit, moreover, of disallowing invocations of sovereignty and claims regarding a loss of sovereignty in debates such as that surrounding the British exit from the European Union. Constituted sovereignty shows that any such invocation is insufficiently precise.

5.2.2

Is the European Union Sovereign?

If sovereignty is a status attributed to an entity by a legal system, one can ask whether the European Union is sovereign, relative to a particular legal system. This question raises two additional questions: firstly, whether there is a legal system of the European Union; secondly, and if so, whether this legal system attributes sovereignty to the European Union (or one of its organs). Looking at the coming into being of the European Union from a historical viewpoint shows that it was created on the basis of treaties under international law, and its powers and institutional set-up are still regulated by treaties. Under international law, it is an exercise of sovereign power to accept limitations to one’s own set of powers: obligations of a state e.g. on the basis of ratified treaties are not an impairment or curtailing of sovereignty, but rather a consequence of its exercise.38 This view is also echoed by actors on the European level. Advocate General Kokott, for example, points out that “the principle stated in the first sentence of Article 5

37

Tamanaha (2001), p. 32. See e.g. Case of the S.S. “Wimbledon” (1923), p. 35; cf. also Koskenniemi (2010), pp. 225 ff. for a more elaborate view on this notion. Koskenniemi finds the limitation of this view in the “autolimitation” and paradoxical nature it allegedly invokes; however, separating constitutive and constituted sovereignty avoids that charge. 38

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(1) TEU of conferred powers in order to define the competences of the Union is both an expression of that [the Member States’] sovereignty and a safeguard of it.”39 According to this view, the European Union is an international organisation. States have transferred powers to this international organisation, allowing it to act within the limits of its conferred powers. This does not touch upon the constituted sovereignty of these states, as argued above. It shows, however, that equating the status of sovereignty with (some of) its consequences leads to confusion. The fact that some powers usually exercised by sovereign entities have been transferred to it does not yet make the European Union sovereign. Under this view, the European Union is sui generis not in the sense that it is not an international organisation, and not in the sense that it has its own kind of sovereignty, but only in the limited sense that far more far-reaching powers have been transferred to it than to any other international organisation. This understanding of European Union law challenges many traditional views, such as the idea that international law does not address citizens of states but states itself. What it does not challenge, however, is the sovereignty of its Member States as understood in this book. Is this view convincing, however? An argument could equally be made that the European legal order is not a subset of international law, but rather its own, entirely new—and properly sui generis—legal order. I will consider this possibility in the following paragraphs, but first want to reflect briefly on why viewing the European legal order as a subset of international law might make sense. Firstly, as already mentioned, the history of the European Union and that it still finds its basis in treaties speak for this view. This is also supported by the fact that if the people(s) were to revolt against the European Union, this would mean a revolution against their own states and the state apparatus that has created the European Union and applies and enforces its laws. This supports the view that the European Union—and with it the limitation of sovereign powers of the Member States—are an exercise of international constituted sovereignty. Moreover, I will argue that the requirement of conceptual parsimony is a strong argument for this view—but of course, conceptual parsimony should not stand in the way of theory corresponding with states of affairs in the world. If the European Union is a truly sui generis legal order instead of a subset of international law, this raises the question who constituted and continues to constitute this legal order. In the context of the theory developed in this book, there are two possibilities. On the one hand, a European people could constitute a European legal system (and potentially itself at the same time) which would supersede and make superfluous the national legal systems of the current Member States. In a manner of speaking, such a development could be described as the opposite of a secessionist movement. If a European people constitutes a European legal system and continues to use its constitutive sovereignty to maintain that legal system by instantiating its

39

View of Advocate General Kokott, Case C-370/12, Thomas Pringle v Government of Ireland, [2012], ECLI:EU:C:2012:675, at 137. The Court in its judgement followed the conclusion proposed by AG Kokott, but did not mention the word “sovereignty” in its judgement.

110

5 Sovereignty in Context Do you ever think of yourself as not only (nationality), but also European? Does this happen often, sometimes or never? 04/1990

80%

64%

48%

32%

16%

0% Often

Never Sometimes

Belgium

Ireland

DK - Don’t know

Denmark Germany Italy Luxembourg UK

Spain Greece The Netherlands EU

France Portugal

Fig. 5.1 Euro Barometer 1990. ©European Union, 1995–2010. Reproduction is authorised, provided the source is acknowledged and mentioned

governing rule, we could speak of one European state, with the current (then: former) nation-states no longer existing. Constituted sovereignty would then be situated on a European level and this level would replace the current state-level. On the other hand, the possibility exists that a people or peoples constitute not only the national legal system but also a European legal system, via constitutive sovereignty. This would be the case where a people or peoples instantiate, through their actions, not one but several governing conventions, one for the national legal system and one for the European legal system. The first of these two options would require that there exists a European people instantiating such a governing rule, or a group of individuals likely to constitute itself as a people while constituting the legal system. The European Commission has been monitoring and evaluating public opinion on issues regarding the EU since 1972. These public opinion polls are captured in the so-called Euro Barometer.40 One question asked is how often individuals think of themselves as European in addition to belonging to their own nationality (see Fig. 5.1). Comparing the public opinion on this question from 1990 with the public opinion on the same question in 2006—now taking into account more states so as to reflect

40

European Commission (2015).

5.2 Municipal Constituted Sovereignty and the European Union

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Do you ever think of yourself as not only (nationality), but also European? Does this happen often, sometimes or never? 09/2006 70% 56% 42% 28% 14% 0%

Often

Never Sometimes

DK - Don’t know

Belgium Denmark Germany Greece Spain France Ireland Italy Luxembourg The Netherlands Austria Portugal Finland Sweden UK EU Czech Republic Estonia Republic of Cyprus Latvia Lithuania Hungary Malta Poland Slovenia Slovakia Bulgaria Croatia Turkey Romania Member of Turkish Cypriot community

Fig. 5.2 Euro Barometer 2006. ©European Union, 1995–2010. Reproduction is authorised, provided the source is acknowledged and mentioned

the developments since 1990—indicates that the majority of European peoples do not consider themselves one European people (see Fig. 5.2). This suggests that it is not a European people that have constituted the European Union, at least historically. This does not take away the possibility that a European people might gradually develop or constitute itself through the process of constituting a European legal system. What it means is that historically speaking, the European Union has been constituted by governments and states. The historical development of the European Union does not, however, preclude the possibility that eventually, it will be the constitutive sovereignty held by a European people that eventually constitutes the European Union; it merely states that this is not currently the case. If, as I have argued, the European Union is constituted by states rather than people (s), this indicates that it is an international organisation and that European Union law is a subset of international law. One might consider, however, the possibility of adding a third level to the analysis of sovereignty, namely constitutive sovereignty of states relative to the European Union. Do the Member States of the European Union act in ways that constitute and maintain a social rule to the effect that the rules of the European Union are preemptive and final, distinct from international law, and do they take a critical reflective attitude to it? Answering this sociological question goes beyond the scope of this work, but an argument could be made for it. Where

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considering constitutive sovereignty of states relative to the European Union is a useful tool for analysis, it should be used. Where it is not useful, conceptual parsimony speaks against it. It is not possible to give a conclusive answer as to the place of the European Union in the framework of this book without further research, both sociological in nature and regarding the nature of legal systems. Nonetheless, I have to have shown that the conceptions of constitutive and constituted sovereignty developed in this book can be useful in the context of the European Union.

5.3

Not the People but God?

In 2014, the group previously known as “Islamic State in Iraq and Levant” (ISIL) or “Islamic State in Iraq and al-Sham” or “Islamic State in Iraq and Syria” (ISIS) declared that they are now called “Islamic State” (IS).41 At the same time, they also declared a worldwide caliphate.42 This declaration involved declaring null all “emirates, groups, states, and organizations”.43 Much can and has been said about the existence and legitimacy of IS,44 as well as its human rights abuses, war crimes and crimes against humanity.45 Many of the questions raised by its existence—such as how to act in response to it46—cannot be covered here, as they fall outside of the scope of this book. However, the question of whether IS can claim sovereignty and, if so, on what basis, is very much relevant here. The IS’ claim to or declaration of a caliphate entails a declaration of a state ruled by a single political and religious leader, in this case Abu Bakr al-Baghdadi.47 While we have seen that constituted sovereignty relative to the national legal system initially answered the question whether religious or political authority should reign supreme, this is nevertheless an unequivocal claim of sovereignty. The rhetoric involved in this claim is that al-Baghdadi has the authority because he is Mohammed’s successor.48 As such, his claim to political authority is based on religious grounds. This raises the question whether constituted sovereignty can have as its basis a theological entity or claim, or in other words whether constitutive sovereignty is necessarily sociological, or if it can be exercised by a deity or its proxy, constituting the legal system.

41

On the issue of names: Irshaid (2014). Euronews (2014). 43 Isis Spokesman Declares Caliphate, Rebrands Group as “Islamic State” (2014) (emphasis added). 44 Australian Government and BBC News (2014d). 45 Amnesty International (2014). 46 UNSC (2014). 47 BBC News (2014d). 48 BBC News (2014b). 42

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According to the theory developed in this book, and in contrast to the rhetoric used for example by IS, the answer must be negative: constitutive sovereignty relative to a municipal legal system is necessarily exercised by a people and it is the people, their adherence to the governing rule at the heart of that system, and their social attitude towards that same governing rule that constitutes and maintains the legal system. However, given that constitutive sovereignty is rather undemanding in nature, the reasons that people take a certain social attitude or effectively adhere to the norms of the system (thereby instantiating the social rule underlying the system) and their attitudes to any non-adherence can differ. In other words, it is very much possible that the people are convinced of religious rhetoric and claims and therefore take the required attitude (of convention or even endorsement consent) to the normative system, as well as adhere to the norms of the system. In other words, while the people constituting the system might believe that it is not them but a theological entity doing so, it nevertheless remains the people doing the actual constituting, no matter what reasons they might have for it or what their beliefs in this regard might be. A further point of interest might be applying the distinction between convention consent, endorsement consent, and mastery to the people living on the territory currently controlled by IS. According to the BBC and its sources, IS controls a territory of about 40,000 m2 within Iraq and Syria, although some estimate the controlled territory to be as large as 90,000 m2. In this territory roughly eight million people live under full or partial IS control. The number of people actively fighting for IS is estimated to be around 31,000, of which 30% are believed to be convinced by the ideology, with “the remainder joining out of fear or coercion.”49 While not a lot of definite information is known, some conclusions can nevertheless be drawn: the fact that some of the fighters are believed to be involved only out of fear or coercion implies that they do not give their endorsement consent and it is likely that they do not even give convention consent to the governing convention that underlies IS’ claim to authority. Nevertheless, I have argued that a legal system requires social attitude and efficacy and, while the social attitude element here is one of acquiescence at best, the efficacy of the system is given. The great disparity between the number of fighters and the number of people living under the partial or full control of IS, often suffering from grave human rights violations, can be explained via the distinction between mastered people living under the control of a regime and the enforcement cadre of that regime. The individuals in the enforcement cadre give at least convention if not endorsement consent to the regime—in this case, the fighters convinced by the ideology can be classified as giving endorsement consent—while ensuring the efficacy of the legal system and making deconstruction of the system via the negative side of constitutive sovereignty more difficult, if not impossible, for the mastered individuals. What the example of IS, and in particular the analysis of the situation in terms of convention and endorsement consent as well as mastery, also shows is that the

49

BBC News (2014d).

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existence of a legal system or a claim to authority is distinct from its legitimacy. In other words, the theory developed in this book can be used to determine whether a legal system exists and what form(s) of sovereignty are present or can be attributed to the system, but the same theory cannot be used to determine the legitimacy of the system, nor does sovereignty in itself indicate that the sovereign state is legitimate. IS is one example, and one which carries negative connotations for most of the world. Nevertheless, the argument as to why the even in cases where sovereignty is claimed on religious grounds, it still emanates from the people regardless of religious rhetoric holds for all states present and former making such a claim.

5.4

Humanitarian Intervention

The tension between the notion of humanitarian intervention and state sovereignty (in the sense of international constituted sovereignty) has been the topic of frequent discussion, in general,50 with regard to the policies of individual states,51 or with regard to specific situations.52 This tension derives from an understanding of sovereignty that relies heavily on the doctrine of non-intervention, and the idea that on its own territory, a state is permitted to do whatever it pleases. This understanding of sovereignty seems at odds with the idea that (some) human rights must be protected and that certain gross and wide-spread human rights violations are so significant as to trump the doctrine of non-intervention and call for action by states other than the one on whose territory these violations occur, especially when it is that state committing the violations in the first place. The notion of humanitarian intervention is closely related to the concept of Responsibility to Protect (R2P). Either notion also includes an element of humanitarian assistance; the main focus here will, however, be on forcible, that is, on military, intervention by one or several states on the territory of another state on humanitarian grounds. As such, humanitarian intervention is used as “an autonomous justification for the use of armed force in another State distinct from other legal justifications” and defined as “the use of force to protect people in another State from gross and systematic human rights violations committed against them, or more generally to avert a humanitarian catastrophe, when the target State is unwilling or unable to act.”53 This definition is broad and [. . .] could be applied to almost any instance of use of military force that has been claimed to have a humanitarian objective or to have been based on humanitarian considerations. The

50

Cronin (2007) and Weinert (2007). Wu (2010). 52 Henderson (2014). 53 Lowe and Tzanakopoulos (2011), A.3. 51

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term is not one of art, however: it does not appear in any international treaties; and it cannot be said that its boundaries are yet clearly delineated.54

A frequent argument that humanitarian intervention is justified on moral grounds sometimes yields the reply that few, if any, actual interventions have been motivated solely by humanitarian considerations and that states usually follow their own interest as opposed to that of a foreign populace in deciding whether to intervene. Nardin (2013) responds to this objection that it might not be the motive that matters, but rather the consequences.55 This consequentialist approach to the evaluation of whether an intervention is morally justified is interesting, especially because the argument from motive that it responds to is frequently made. It does, however, contradict the idea of just cause: that a state may enter a war only for the right reason, which is seen as (one of) the most fundamental rule(s) of ius ad bellum.56 Regardless, it bears keeping in mind that it is an argument towards moral justification. Arguments toward moral justification and arguments toward legal justification are not the same. Hence, the question here is not whether humanitarian interventions are or can be morally justified, but rather whether there is a legal rule on the basis of which they are permitted or, more specifically, no legal rule on the basis of which they are prohibited.57 With regard to general international law, the doctrine of non-intervention connected to the status of sovereignty appears to constitute a legal rule prohibiting intervention. The questions are therefore whether the doctrine of non-intervention prohibits intervention absolutely, that is, without exception and in all cases, whether there is a permissive rule in certain cases, and what status this permissive rule has. The first of these is a question which the International Commission on Intervention and State Sovereignty (ICISS) also considered when they developed the concept of Responsibility to Protect. They hold that there is considerable consent on six criteria for the justification of military intervention on humanitarian grounds: right authority, just cause, right intention, last resort, proportional means and reasonable prospects.58 The question of right authority is particularly interesting to our inquiry into whether there exists a permissive rule regarding humanitarian intervention in the international legal system. In the Charter of the United Nations, the doctrine of non-intervention is found in Article 2.4 with regard to other states, and in Article 2.7 with regard to the United Nations itself. Nevertheless, Article 24 gives the Security Council the mandate to take action for the maintenance of international peace and security. Chapter VII finally specifies

54

Ibid. Cf. Nardin (2013), pp. 70 f. 56 Orend (2008), 2.1. It conflicts with the idea of “right intentions” to an even greater extent. 57 Whether a permissive rule or merely the lack of a prohibition is required depends on whether the system generally allows all things not expressly prohibited, or whether it allows only those things expressly permitted. 58 International Commission on Intervention and State Sovereignty (2001), 4.16. 55

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The action the Security Council may take when it “determine[s] the existence of any threat to the peace, breach of the peace, or act of aggression” (Article 39). Such action may fall short of the use of force, and consist of such measures as embargoes, sanctions and the severance of diplomatic relations (Article 41). However, should the Council consider that such measures are likely to be inadequate, “it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security” – in other words, it may resort to or permit the use of military force (Article 42).59

While there are of course many other questions to answer and aspects to consider, such as clearly defining “international peace and security” or “necessary” as well as questions of political will, veto powers by the Permanent Five in the Security Council and many more, what this shows is that there is a possibility for (military) intervention on the territory of a state. The analysis of international constituted sovereignty in this book has shown that while the doctrine of non-intervention by other states and full power on a state’s own territory come attached to this concept of sovereignty, they are not necessary to it. International constituted sovereignty is a status that international law applies to certain entities, namely states, and this status comes with consequential rules attached. Some of these rules are, for example, concerned with non-intervention, but these are not unchangeable. The consequential rules of sovereignty can change without the status of sovereignty changing.60 Understanding international constituted sovereignty in this manner means that the tension between humanitarian intervention and sovereignty is misplaced and does not actually exist, provided that that the rules which seem to conflict are both attached to the status of sovereignty. Instead of debating whether the notion of sovereignty and the notion of humanitarian intervention can co-exist, what should be debated is whether a “more restrictive rule” prohibiting states from certain acts even on their own territory exists, and equally, whether a “more permissive rule” exists, giving other states the permission to intervene on the territory of the first state. This is not a debate or process that necessarily involves the concept of sovereignty, unless “sovereignty” is misunderstood to mean something that it does not. This means that the often-perceived tension and incompatibility between state sovereignty on the one hand and humanitarian intervention on the other hand depends entirely on the state of positive international law. If a permissive rule to the effect of humanitarian intervention exists, there is no conflict between sovereignty and humanitarian intervention, unless the permissive rule does not attach to the status of sovereignty. If no such attached, permissive rule exists, however, the doctrine of non-intervention which is attached to the notion of sovereignty trumps the (in this case impermissible) humanitarian intervention. If a permissive rule exists, but is not attached to the status of sovereignty, again positive international law is decisive: a conflict rule will decide which trumps the other.

59

Ibid. For a more in-depth discussion of this point, please refer to the sections on international constituted sovereignty in this book. 60

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Concretely and currently, this means that on the assumption that membership to the United Nations with all this entails is attached to the status of sovereignty, humanitarian interventions do not violate sovereignty, provided that they are authorised by the Security Council under Chapter VII. This is the case because there are norms providing for the possibility that the Security Council authorise action. In other words, the world of law of which international constituted sovereignty, and then namely the doctrine of non-intervention, is part, contains also the competences for the Security Council to do this. That means that there is no violation of a right of exclusive handling of internal affairs, but rather that any such right that may exist is contingent on the Security Council not exercising its competence to create the permission for other states to interfere in the internal affairs of a state. In short, while there is an obvious conflict, already visible in the nomenclature, between the doctrine of non-intervention (which is attached to the concept of international constituted sovereignty) and humanitarian intervention, it is not necessarily true that there is a conflict between state sovereignty and humanitarian intervention. This is because sovereignty is not equivalent to non-intervention; instead, non-intervention is but one thing attached to the status of sovereignty. Instead of using sovereignty as a claim against intervention, the discourse in cases of potential humanitarian intervention should be focused on the question whether there is a permissive rule and whether this permissive rule is attached to the status of sovereignty or, if it is not, whether conflict rules of international law—e.g. lex specialis—allow for it to trump the more general doctrine of non-intervention. This is a question that can be answered in the abstract, after which any debate surrounding humanitarian intervention will not need to content with the issue of sovereignty anymore, but merely test the criteria for humanitarian intervention in the specific case.61

5.5

The Role of Recognition

In the case of Kosovo, representatives of the people issued a unilateral declaration of independence, the legality of which was considered by the International Court of Justice. The judgement has been discussed elsewhere in this book,62 but leaving aside the Court’s judgement as such for a moment, we can use the case of Kosovo as an example to consider in more detail the role of recognition on the international plane. The unilateral declaration of independence was simultaneously an exercise of municipal constitutive sovereignty and claimed international constituted sovereignty for the thus constituted municipal legal order. The claim for international constituted sovereignty follows from the claim of statehood for Kosovo on the international

61 This is, of course, provided that the question is answered positively. If the doctrine of non-intervention trumps the permissive rule, humanitarian intervention is always impermissible. 62 Cf. Sect. 4.1.3.

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level, since the entrance rule of international constituted sovereignty relates to statehood. However, recognition has not been unequivocally granted to Kosovo, with its statehood still disputed by a number of states. Is recognition necessary for statehood and therefore for the existence of international constituted sovereignty, or is an exercise of municipal constitutive sovereignty sufficient for the constitution of the municipal legal system and the claim to international constituted sovereignty at the same time? There are two diverging theories on whether recognition is necessary for statehood, namely the constitutive and the declaratory theory. The constitutive theory claims that recognition is constitutive of statehood, that is, that a certain (but not clearly defined) level of recognition is necessary for an entity to be considered a state. The declaratory theory, meanwhile, holds that recognition is merely indicative of statehood, and that the determination of statehood is independent of recognition.63 Already in 1846, Wheaton considered that Sovereignty is acquired by a State, either at the origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent. This principle applies as well to internal as to external sovereignty. But an important distinction is to be noticed . . . between these two species of sovereignty. The internal sovereignty of a State does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty . . . The external sovereignty of any State, on the other hand, may require recognition by other States in order to render it perfect and complete.64

Municipal constitutive sovereignty is, first and foremost, municipal, meaning that it is directed at the constitution, maintenance or deconstruction of the municipal legal system. A successful exercise of municipal constitutive sovereignty, for example with the intent to split from an existing legal system to create a new one has, in first instance, implications for the municipal level only: firstly, for the municipal level of the state that is being left, because its governing rule ceases to apply (that is, is deconstructed) on part of its territory; secondly, for the municipal level of the newly created state, because its governing rule is created, accepted and maintained through the exercise of municipal constitutive sovereignty. This exercise of municipal constitutive sovereignty by the population of the newly created state is directed at the creation of a national legal system, although it often comes with claims directed internationally as well—for recognition by the state left, and for recognition on the international plane in general. This means that recognition is certainly not necessary for the constitution and existence of the municipal legal system—something which makes sense also conceptually speaking, given that the municipal legal system is constituted by the municipal constitutive sovereign, that is, the people. However, while municipal constituted sovereignty relies on municipal constitutive sovereignty for its existence, at least initially, the link to international constituted

63 64

Crawford (2007), pp. 4 f. and 19 ff. Ibid. citing Wheaton’s Elements of International Law (3rd edn, 1846).

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sovereignty is not so immediate. In other words, a successful secession means that as a matter of fact (and as a matter of law of the newly created state), municipal constitutive sovereignty has been exercised and a new (municipal) legal system constituted. A successful secession does not mean, necessarily, that the newly created legal order is also recognised by other legal orders, that is, as a state by other states on the external plane. The division between internal and external plane and the fact that international constitutive sovereignty is situated—same as its internal counterpart—outside of the world of law means that the people(s) that have recognised and thereby constituted the new legal order are not the same entities as need to recognise the state on the external plane. This leads from questions of for example secession—an internal matter—to the question of state recognition. If there are norms on the international level to determine when a newly created municipal legal order counts as a state for the application of international constituted sovereignty, that is, when it counts as a subject of international law, recognition of a newly created legal order fulfilling those criteria is declaratory instead of constitutive, unless one of the criteria is sufficient recognition by other entities. Accepting the declaratory role of state recognition means that any non-acceptance or non-recognition of a legal order fulfilling the criteria by an existing state is at the same time a non-instantiation of the international governing convention and thus an exercise of international constitutive sovereignty. It means both at the same time “we do not recognise you as a state” and “we do not recognise the rules that determine that you are a state, which are part of international law, meaning we take an external viewpoint to international law (on this matter)”65 The alternative view to the declaratory theory of recognition is that it is constitutive: without the recognition of other states, a state is not a state, even though it might appear to be one from the outside. On this view, it is the recognition of other states in itself rather than criteria such as population, territory or the existence of municipal constituted sovereignty that confers statehood—and with it international constituted sovereignty and all that it contains—upon an municipal legal order. Crawford (2007) argues that recognition is generally meant “as an act, if not of political approval” then “at least of political accommodation”,66 that state practice does not generally support the constitutive theory,67 and that the constitutive theory faces both practical and logical problems.68 Crawford’s argument suggests that the declaratory theory is more likely to be correct, but he also recognises that for it to A state might claim that it is “on this matter only” and that they otherwise accept international law but taking an internal or an external standpoint to international law or indeed any kind of legal system is not a matter of picking and choosing which rules to take an internal standpoint to, but rather an all-or-nothing matter. If the standpoint is internal, one must move within the legal system to amend or repeal rules with which one does not agree, if the legal system provides for such procedures; taking an external point of view means not accepting the system as a whole. 66 Crawford (2007), p. 26. 67 Ibid. 68 Ibid. 65

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work, there must be precise and workable criteria on the basis of which it can be determined when an entity counts as a state and thus possesses international constituted sovereignty. “If there are no such criteria,” he holds, “or if they are so imprecise as to be practically useless, then the constitutive position will have returned, as it were, by the back door.”69 Keeping in mind the distinction between world of law and social/factual world, there are essentially four possibilities regarding the role of recognition. First, recognition could be situated entirely outside the world of law, recognition of the newly emerged municipal order as an equal and a subject of the existing international legal order. Second, recognition could be a factual act which has legal consequences within the world of law. This requires, in contrast to the first, that there are rules within the world of law regulating what consequences should be attached to recognition. Third, there are rules within the world of law which criteria need to be fulfilled for an entity to count as a state. Statehood is then a characteristic or a status of all entities which fulfil these criteria, and the recognition by other states of that state’s statehood is unnecessary, unless required by the rules. Fourth, either sufficient recognition or the fulfilment of certain requirements contained in legal rules are decisive for statehood, perhaps depending on the situation.70 The first option coincides with the constitutive theory of recognition, the last with the declaratory one. The second is an unlikely hybrid between the two—unlikely, because there are no rules that determine how much recognition is sufficient for the legal consequences to take effect, unless one considers voting procedures for membership to the United Nations as such. A fifth possibility would be that recognition is not necessary and neither are rules of international law, that statehood and therefore international constituted sovereignty hinge exclusively on an exercise of municipal constitutive sovereignty and that any municipal legal order is automatically—without recognition or rule-application—internationally sovereign as well. This possibility, however, does not cohere with state practice, as evidenced for example by the on-going discussion surrounding Kosovo’s statehood. This brings up back to either the declaratory or the constitutive view on the role of recognition, or a combination of the two. Taking into account the distinction between internal (municipal) and external (international) level, as well as the distinction between what takes place within the world of law and what takes place outside of it, both the constitutive and declaratory role of recognition cohere with the understanding of different types of sovereignty developed in this book. A constitutive role would mean that recognition of a municipal legal order on the external plane has the same effect as welcoming a new chess-player to chess-club: they will be allowed to play, but equally they will be held to the rules of chess while playing. The declaratory role of recognition

69

Ibid. This option is closely linked to the argument Vidmar makes holding that “that the effects of international recognition and non-recognition are determined by the underlying territorial situation and the mode of State creation.” Vidmar (2012), p. 387.

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meanwhile means that anyone can be a member of the chess club, provided that they fulfil certain criteria and show up at the meetings. Membership to the club is less arbitrary and better regulated under this understanding of it. While both are possible, what remains true is that if recognition is constitutive, it is difficult to argue that a new municipal legal order should have certain duties—such as non-intervention— without recognising them as a state, unless those duties are laid-down for non-state entities in international law. Meanwhile, the consequences of accepting the declaratory theory is accepting that unjustified non-recognition of a municipal legal order which fulfils the criteria laid down in rules of international law means weakening the governing convention of international law.

5.6

Concluding Remarks

Sovereignty, in its various conceptions, has not only been the subject of theoretical discussion by scholars of law, philosophy, and international relations, amongst other fields; it has also played an important role in many issues of our current times. I have considered the dynamic and relationship between the European Union and its Member States, the notion of humanitarian intervention, discourse surrounding entities such as Islamic State and in the discourse surrounding secessionist movements within states as examples. In such discussions, different kinds of arguments on different levels are made; it pays to keep them as conceptually distinct as the different conceptions of sovereignty which are invoked, as well as the holders of sovereignty to whom those invocations are relative. In the context of secession, different holders invoke different kinds of sovereignty. The arguments advanced by the overarching state usually feature both the constitutive sovereignty of the entire people(s) of the state as well as the constituted sovereignty of the legal system according to which a secession is (or, depending on the system, is not) illegal. Arguments by the secessionist, by contrast, invoke the constitutive sovereignty of the people wishing to secede. This demonstrates that sovereignty is not simply a trump card to be played with the intention of ending a discussion. Instead, there can be different claims to sovereignty, and claims to different kinds of sovereignty. In the discourse surrounding the European Union and its sovereignty vis-à-vis the sovereignty of its Member States, the analyses of types of sovereignty situated on different levels reveal how legal pluralism, popular sovereignty and questions of competences are interconnected both in legal theory and legal reality as expressed, for example, by courts. This reveals that often, it is not a discussion about who is sovereign but a discussion about who has which legal competences or, more often, a political and ideological discussion of where decisionmaking power should be situated and for what reasons. The term “sovereignty” can be shorthand for this question, but the discussion is unlikely to be fruitful unless participants are clear about what they mean with the shorthand they use. I have also shown that the argument that a state (or an alleged state) is constituted by divine authority is inaccurate; while such rhetoric exists both in history and in

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more recent times e.g. in the case of IS, such arguments remain rhetorical and it is not divine authority constituting the state, if indeed it is constituted. Rather, it is the people giving it convention or endorsement consent and instantiating the governing rule of the state entity in question. What is very well possible, however, is that the rhetoric invoking divine authority is what convinced people to give their convention consent/to instantiate the governing rule. In short, what an application of the notion of sovereignty to current issues shows is that not only theoretically, but also in practical political discourse it is vital to distinguish concepts of sovereignty, and to be precise as to which holder of sovereignty reference is being made. On a legal, analytical and academic level, conceptual clarity has value of its own. Also in political discourse, however, where sometimes it may be favourable to muddle the water, an awareness of the different meanings of “sovereignty” may help to avoid obvious fallacies, or to point them out when an opponent makes them, thereby scoring points in the political arena. On any level, distinguishing clearly between meanings of “sovereignty” allows us to understand questions of our time better and prevents the term “sovereignty” from becoming the empty catchphrase it is sometimes accused of being.

References Amnesty International (2014) Iraq: escape from hell: torture and sexual slavery in Islamic State captivity in Iraq. London AP Associated Press (2017) Pro-independence Catalan party calls for civil disobedience. Business Insider Australian Government. Islamic State. http://www.nationalsecurity.gov.au/ Listedterroristorganisations/Pages/IslamicState.aspx. Accessed 23 Feb 2015 BBC News (2014a) Catalonia president signs independence referendum decree. http://www.bbc. com/news/world-europe-29390774. Accessed 22 Feb 2015 BBC News (2014b) Isis rebels declare ‘Islamic state’ in Iraq and Syria. http://www.bbc.com/news/ world-middle-east-28082962. Accessed 23 Feb 2015 BBC News (2014c) Scottish referendum: Scotland votes ‘No’ to independence. http://m.bbc.com/ news/uk-scotland-29270441. Accessed 12 Mar 2015 BBC News (2014d) What is Islamic State? http://www.bbc.com/news/world-middle-east29052144. Accessed 23 Feb 2015 BBC News (2017a) Catalonia referendum: does the region want to leave Spain? BBC News. http:// www.bbc.com/news/world-europe-29478415. Accessed 23 Oct 2017 BBC News (2017b) Catalonia Spain: officials ‘won’t follow orders from Madrid’. BBC News. http://www.bbc.com/news/world-europe-41719081. Accessed 23 Oct 2017 Buchanan A (2013) Secession. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/ archives/sum2013/entries/secession/ Burgen S, Oltermann P (2018) Catalan leader Carles Puigdemont remanded in custody in Germany. https://www.theguardian.com/world/2018/mar/26/catalan-leader-carles-puigdemont-remandedin-custody-in-germany. Accessed 11 July 2018 Case of the S.S. “Wimbledon” (1923) Permanent Court of International Justice Comparative Constitutions Project. Constitute. https://www.constituteproject.org/?lang¼en Crawford J (2007) Statehood and recognition. In: The creation of states in international law, 2 edn. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199228423.003.0001

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Cronin B (2007) The tension between sovereignty and intervention in the prevention of genocide. Hum Rights Rev 8(4):293–305. https://doi.org/10.1007/s12142-007-0024-4 de Witte B (1995) Sovereignty and European integration: the weight of legal tradition. Maastricht J Eur Comp Law:145–173 Elconfidencial (2017) Irregularidades en el referéndum: gente que vota cuatro veces, votos ‘extranjeros’. https://www.elconfidencial.com/espana/cataluna/2017-10-01/irregularidadesvotaciones-referendum-cataluna_1453255/. Accessed June 2018 Euronews (2014) ISIL renames itself ‘Islamic State’ and declares Caliphate in captured territory. Euronews. https://www.euronews.com/2014/06/30/isil-renames-itself-islamic-state-anddeclares-caliphate-in-captured-territory. Accessed 23 Feb 2015 European Commission (2015) Public opinion: Eurobarometer surveys. European Commission. http://ec.europa.eu/public_opinion/index_en.htm. Accessed 02 Mar 2015 Govan F (2010) Catalonia can call itself a ‘nation’, rules Spain’s top court. The Telegraph. http:// www.telegraph.co.uk/news/worldnews/europe/spain/7861118/Catalonia-can-call-itself-anation-rules-Spains-top-court.html. Accessed 12 Mar 2015 Gyldenkerne E (2014) Catalonian leader orders referendum on independence from Spain. http:// www.reuters.com/article/2014/09/27/us-spain-catalonia-idUSKCN0HM09120140927. Accessed 22 Feb 2015 Hampton J (1997) Political philosophy. Dimensions of philosophy series. Westview Press Henderson C (2014) The Arab Spring and the Notion of External State Sovereignty in International Law. Liverpool Law Rev 35(2):175–192. https://doi.org/10.1007/s10991-014-9152-5 Human Rights Watch (2017) Spain: Police used excessive force in Catalonia. https://www.hrw.org/ news/2017/10/12/spain-police-used-excessive-force-catalonia. Accessed June 2018 International Commission on Intervention and State Sovereignty (2001) The responsibility to protect. Ottawa Irshaid F (2014) Isis, Isil or Da’ish? What to call militants in Iraq. http://www.bbc.com/news/worldmiddle-east-27994277. Accessed 23 Feb 2015 ISIS Spokesman Declares Caliphate, Rebrands Group as “Islamic State” (2014) Jihadist News. SITE Monitoring Service Jihadist Threat Jones S (2017) Spain to deploy police to prevent Catalan independence vote. The Guardian, https:// www.theguardian.com/world/2017/sep/26/spain-deploys-police-to-prevent-catalan-indepen dence-vote-catalonia. Accessed June 2018 Koskenniemi M (2010) Conclusions: vocabularies of sovereignty – powers of a paradox. In: Kalmo H, Skinner Q (eds) Sovereignty in fragments. The past, present and future of a contested concept. Cambridge University Press, Cambridge Lowe V, Tzanakopoulos A (2011) Humanitarian intervention. Max Planck Encyclopedia of Public International Law. Oxford University Press Mitchell P (2014) Spain’s Constitutional Court suspends Catalan independence referendum. http:// www.wsws.org/en/articles/2014/10/04/cata-o04.html. Accessed 22 Feb 2015 Nardin T (2013) From right to intervene to duty to protect: Michael Walzer on humanitarian intervention. Eur J Int Law 24(1):67–82. https://doi.org/10.1093/ejil/chs085 Orend B (2008) War. Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/archives/ fall2008/entries/war/#2 Parra A (2017) Catalan independence: Spanish Senate approves measures to take direct control of Catalonia. https://www.independent.co.uk/news/world/europe/catalan-independence-spain-sen ate-direct-rule-control-catalonia-parliament-a8023361.html. Accessed 11 July 2018 Reference Re Secession of Quebec (1998) Supreme Court of Canada Sharman J (2017) Catalonia declares independence as Spain prepares to impose direct rule. Independent. Accessed 11 July 2018 Tagesschau.de (2017a) 90 Prozent für Unabhängigkeit. Tagesschau.de. https://www.tagesschau.de/ ausland/katalonien-unabhaengigkeitsreferendum-111.html. Accessed 23 Oct 2017 Tagesschau.de (2017b) Inakzeptabler Angriff auf die Demokratie. Tagesschau.de. https://www. tagesschau.de/ausland/katalonien-puigdemont-111.html. Accessed 23 Oct 2017

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Tagesschau.de (2017c) Katalonien droht Madrid mit Klage. Tagesschau.de. https://www. tagesschau.de/ausland/katalonien-puigdemont-119.html. Accessed 23 Oct 2017 Tagesschau.de (2017d) Katalonien will Anweisungen ignorieren. Tagesschau.de. https://www. tagesschau.de/ausland/katalonien-puigdemont-117.html. Accessed 23 Oct 2017 Tagesschau.de (2017e) Kataloniens Parlament ist jetzt am Zug. Tagesschau.de. https://www. tagesschau.de/ausland/katalonien-puigdemont-115.html. Accessed 23 Oct 2017 Tamanaha BZ (2001) Socio-Legal Positivism and a General Jurisprudence. Oxf J Leg Stud 21 (1):1–32. https://doi.org/10.1093/ojls/21.1.1 Thompson M (1996) Why and how East Germans rebelled. Theor Soc 25(2):263–299. https://doi. org/10.1007/BF00161143 Thürer D, Burri T (2008) Self-determination. Max Planck Encyclopedia of Public International Law. Oxford University Press UNSC (2014) Resolution 2178. vol S/RES/2178 (2014) Vidmar J (2012) Explaining the legal effects of recognition. Int Comp Law Q 61(02):361–387. https://doi.org/10.1017/S0020589312000164 VilaWeb (2013) Declaration of sovereignty and of the right to decide of the Catalan nation. http:// www.vilaweb.cat/noticia/4076896/20130124/declaration-of-sovereignty-and-of-the-right-todecide-of-the-catalan-nation.html Weinert M (2007) Bridging the human rights—sovereignty divide: theoretical foundations of a democratic sovereignty. Hum Rights Rev 8(2):5–32. https://doi.org/10.1007/BF02881664 Wu C (2010) Sovereignty, human rights, and responsibility: changes in China’s response to international humanitarian crises. J Chin Polit Sci 15(1):71–97. https://doi.org/10.1007/ s11366-009-9083-5

Chapter 6

Other Accounts

In the previous part of the book, the meanings of “sovereignty” were analysed and a coherent framework of different kinds of sovereignty was developed. In this part of the book, various accounts of sovereignty are described and analysed, using both Hohfeldian terminology and the framework developed in the previous section to elucidate and clarify the existing discourse on sovereignty. The accounts of sovereignty analysed in this part of the book are grouped together by the entity which they hold to be sovereign: monarchs, parliaments, peoples and states. In this manner, historical concepts of sovereignty (e.g. Bodin, Dicey), constitutional (e.g. Goldsworthy’s) and international legal discourse are all represented. In line with the aim of this book, this chapter is not meant to offer a comprehensive overview of existing theories regarding sovereignty.1 Instead, this chapter is illustrative in nature. Specifically, it is meant to illustrate three things: first, it is meant to give an indication of the wealth of different conceptions of sovereignty that exist in more detail than the first chapter did; second, it is meant to illustrate how the conceptual framework developed in earlier chapters relates to other conceptions of sovereignty; third, it is meant to illustrate in particular the clearer analytical framework offered by making the distinction between constitutive (extra-legal) and constituted (legal, part of the world of law). In line with these aims, the theories discussed in this chapter fall into two categories: the theories of Bodin, Hobbes, Dicey and (perhaps to a lesser extent) Kelsen are theories of such importance to the topic that are any theoretical work on sovereignty needs to be situated vis-à-vis these theories. The conceptions of sovereignty by Goldsworthy is theoretically interesting and illustrates some of the aforementioned points, as do the Indian, Australian,

1 For the reader interested in a more comprehensive account, see Bartelson (1995), which seeks to “provide a conceptual history of sovereignty [. . .]”.

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German and Chinese conceptions of sovereignty.2 All of these theories illustrate one or several point of theoretical interest.

6.1

Monarchical Sovereignty

Jean Bodin is generally credited with the introduction of the modern concept of sovereignty.3 His idea of sovereignty concerned the sovereignty of princes or kings—monarchs. The starting point of this section will thus be the sovereignty of monarchs, as sovereignty in its modern form was first ascribed to them. In addition to Bodin, also the Hobbesian Leviathan will be considered as a sovereign in this sense. It bears mentioning, at this stage, that Bodin and Hobbes had similar aims in writing their understandings of sovereignty, namely to enable the functioning and stability of government, for which they each considered that a great deal of power and competences were necessary.

6.1.1

Jean Bodin’s Theory of Sovereignty

Jean Bodin (1530–1596) was not the first to use the word “sovereignty”.4 He held, however, that The term needs careful definition, because although it is the distinguishing mark of a commonwealth, and an understanding of its nature fundamental to any treatment of politics, no jurist or political philosopher has in fact attempted to define it.5

Given that Bodin was a proponent of the French monarchy, it should come as no surprise that his treatise on sovereignty considers the prince of the commonwealth the holder of sovereignty. However, he equally mentions the possibilities of popular reign, aristocracy and the full transfer of sovereign power from the prince to another entity.6 As such, it is not a necessary element of sovereignty that the prince be its holder. The prince—or another entity—can become sovereign in a number of ways: the people can renounce and alienate its sovereign power and invest the prince with it,

2

Referring to these theories by nationality does not mean to indicate that there cannot be or are no alternative conceptions emerging from those countries. 3 Cf. Maritain (1950), p. 344. 4 Consider Marsilius of Padua, Bartolus of Saxoferrato and potentially also Cicero or Plato, who might not have employed the word itself, but possibly a concept (roughly) equivalent to the one Bodin referred to. For a more detailed consideration of particularly the first two writers, see Maiolo (2007). 5 Bodin (1955), pp. I and VIII. 6 Ibid.

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making the prince the sole sovereign. It must be, according to Bodin, full investiture and not merely consent, because when the prince relies on the consent of the people, he only exercises authority by the sufferance of the people, making them rather than the prince sovereign. Another option to gain sovereignty is by conquest.7 The traditional view on how a people can alienate its inherent sovereign power and invest an entity with sovereignty is the social contract, but Hampton’s convention model offers a more convincing alternative.8 Within the convention model, Hampton holds that different possibilities exist for the creation of the governing convention: one is a democratic process, the other is acquiescence to conquest.9 What Bodin’s statement that cases where the prince has power only by the sufferance of the people mean he is not sovereign at all shows is that Bodin does not make the distinction between constitutive and constituted sovereignty. Sovereignty as such is not dividable, although sovereign powers and competences can be delegated. The true sovereign remains always seized of his power. Just as a feudal lord who grants lands to another retains his eminent domain over them, so the ruler who delegates authority to judge and command, whether it be for a short period, or during pleasure, remains seized of those rights of jurisdiction actually exercised by another in the form of a revocable grant, or precarious tenancy. For this reason the law requires the governor of a province, or the prince’s lieutenant, to make a formal surrender of the authority committed to him, at the expiration of his term of office. In this respect there is no difference between the highest officer of state and his humblest subordinate. If it were otherwise, and the absolute authority delegated by the prince to a lieutenant was regarded as itself sovereign power, the latter could use it against his prince who would thereby forfeit his eminence, and the subject could command his lord, the servant his master. This is a manifest absurdity, considering that the sovereign is always excepted personally, as a matter of right, in all delegations of authority, however extensive. However much he gives there always remains a reserve of right in his own person, whereby he may command, or intervene by way of prevention, confirmation, evocation, or any other way he thinks fit, in all matters delegated to a subject, whether in virtue of an office or a commission. Any authority exercised in virtue of an office or a commission can be revoked, or made tenable for as long or short a period as the sovereign wills.10

In other words, it is only in the moment that a sovereign loses his absolute authority, that he loses his sovereignty and transfers it to whoever has gained absolute authority in last instance. Any more limited transfer of competences does not equate to a transfer of sovereignty. This understanding of sovereignty is reflected also in more modern understandings of sovereignty: it is possible to delegate competences or transfer them to another entity (such as the European Union) without a loss of sovereignty, provided the transfer is not irrevocable.

7

Ibid. One example of the social contract model will be discussed in the following, namely Hobbes’ theory of sovereignty. 9 Hampton (1997), p. 83. 10 Bodin (1955), pp. I and VIII. 8

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Sovereignty—held by the prince or possibly another entity and being undividable—is defined by Bodin as Supreme power over citizens and subjects, unrestrained by laws.11

However, while the prince can, in principle, amend and annul any law, this is only provided that the law “does not involve a principle of natural justice” and that “with the alteration of the law the profit of some does not do damage to others without just cause.”12 In addition to this, the prince is bound by the law of nations only in as far as it corresponds to the laws of nature or divine law. Furthermore, Bodin states that it is in the sovereign’s best interest to uphold even those laws he is not bound by. This, and his assertion that sovereignty acquired by conquest is, despite its initial illegality, true sovereignty, seems to imply that sovereignty is a matter which can be acquired not (only) through changes in the legal world, but rather changes in the factual world. Hence, Bodin did not make a distinction between constitutive and constituted sovereignty. This distinction, however, could be particularly elucidating as regards the issue of investiture or acquisition of sovereignty, and furthermore explains why it is beneficial for the (municipal constituted) sovereign to uphold even those laws he is not bound by. Here, Bodin indirectly seems to acknowledge the power of the people to revolt, without actually elaborating on the role of the people in a state. That he did not do this follows from the aim he wished to achieve: a theory designed to strengthen the government and allow for stability would not do well to mention the impact a revolution by the people could have and how it fits within the system. While Bodin’s definition of sovereignty as supreme power, unrestrained by law, appears to exclude any kind of limitation, this is not entirely correct: For Bodin a sovereign is “not bound” (absolutus) by the civil or positive laws which he or his predecessors had promulgated. Nevertheless a sovereign is always bound to natural and divine law. Sovereignty, according to Bodin, is as supreme as one wishes, but is also limited by natural and divine law. The Kings of France were glorious because their sovereignty was limited by divine and natural law.13

This raises the questions whether there is a right of the people to resist or overthrow a sovereign who does not obey the commands of natural law. JB Scott picks up on this when he describes that [. . .] the ultimate purpose of government is “the benefit of the commonwealth.” Bodin states a general principle which applies to this entire subject: “But by whatever right a prince obtains his authority, whether by law, testament, popular election, or lot, it is just to fulfil those obligations which were undertaken for the good of the state.” This should be a limitation upon the king of the utmost important—a check flowing directly from natural law itself, which requires the fulfilment of obligations as an act of justice; for, as Bodin declares, to act “otherwise” for selfish purposes would be “contrary to the laws of nature.” But here a question arises to which he offers no answer: Who is to determine “the good of the people”? Should the decision be that of the prince, or of the people? In view of the care with

11

Scott (1939), p. 332. Bodin (1955), pp. I and VIII. 13 Turchetti (2012), p. 4. 12

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which Bodin has safeguarded his prince’s sovereignty, it may be assumed that he would have been unwilling to limit that sovereignty by leaving so important a question to the people’s decision.14

Bodin considers that It is however never proper for the subject to disobey the laws of the prince under the pretext that honour and justice require it.15

One could thus deduce that Bodin considered that the subjects of the sovereign did not have the authority to proclaim a violation of natural or divine law by their prince, meaning that while the prince was bound by natural and divine law, any violation on his part was not actionable. Regarding the limitations imposed on the sovereign prince under Bodin’s theory, an emphasis can be placed on the applicability of natural and divine law which imposes on the prince a certain code of conduct and morality,16 or alternatively on the lack of actionability and enforceability of this limitation.17 Depending on one’s viewpoint, one can classify Bodin’s sovereign as subject to limitations, or as essentially unbound under a thin veneer of respectability and legitimacy granted by the allusion to natural and divine law. Even in the latter case, the reason for this veneer of legitimacy and respectability and the rhetoric of natural and divine law were necessary because of the municipal constitutive sovereignty of the people— because of their power, in particular, to revolt, to overthrow the system. That Bodin did not (want to) acknowledge this power does not mean he did not take it into account. In short, Bodin’s plan for ridding his country of the political ills from which it was then suffering consisted in setting up a strong central government, with a monarch subject to so-called fundamental laws, but himself the source of the laws of the realm and not subject to those laws. This plan required that the rights of the people be limited in order that the power of the sovereign might be expanded. Peace and order were to be brought about through emphasis on the supremacy of the personal ruler. To be sure, Bodin’s sovereign was limited, as has been shown, by certain categories of law: what we may term the divine law and the law of nature, containing those universal precepts which could not be denied by a ruler without placing himself beyond the pale of enlightened society.18

Following this understanding of the purpose of Bodin’s theory of sovereignty, his telos is comparable to that of later political philosophers, particularly perhaps Thomas Hobbes whose main concern was to argue that effective government— whatever its form—must have absolute authority.19 Hobbes’ understanding of sovereignty is considered in the following. 14

Scott (1939), p. 338. Bodin (1955), pp. I and VIII. 16 Cf. Turchetti (2012). 17 Cf. Maritain (1950), p. 354. 18 Scott (1939), p. 341. 19 Lloyd and Sreedhar (2013), p. 8. 15

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6 Other Accounts

Thomas Hobbes’ Theory of Sovereignty

Thomas Hobbes’ political philosophy sets out a theory of sovereignty that, much like Bodin’s, considers sovereignty to be absolute—and much like in the case of Bodin, absolute here does not, in fact, mean absolute in a sense of unlimited. According to Hobbes, there are essentially two ways of acquiring sovereignty— one is by acquisition, the other by institution. Sovereignty by institution is present where individuals agree to give up their rights and to transfer them to a sovereign who will protect them and regulate their behaviour in a society so as to avoid the state of nature in which life is “solitary, poore, nasty, brutish, and short”, to cite Hobbes’ perhaps most famous phrasing.20 Sovereignty by acquisition describes the case in which a people promises obedience to an aggressor in exchange for protection. Either case—institution or acquisition—represents a social contract, and in either case the motivation of the people is fear, either of the conqueror or of one another.21 These are, in essence, the scenarios in which Hampton holds a social convention—rather than a social contract—is created. Similarly to Bodin, Hobbes is a proponent of monarchy, and, again similarly to Bodin, Hobbes also identifies different forms of government in each of which a different entity is the holder of sovereignty: in a monarchy, it is the monarch who is sovereign, in an aristocracy it is an assembly representing only a part of the people, and in a democracy it is an assembly representing all of the people. These three are, according to Hobbes, the only types of government—oligarchy or tyranny or even anarchy are simply variations on the above.22 For each of the three forms of government, [. . .] the power of Soveraignty is the same in whomsoever it be placed.23

In other words, Hobbes holds that the content of sovereignty is independent from the holder of sovereignty, meaning that the holder is essentially interchangeable. This characteristic is shared by the conceptions of sovereignty I have developed. Nonetheless, Hobbes makes an argument for monarchy. He states that placing sovereign power in the hands of several persons rather than just one person has a number of disadvantages, such as the likelihood of inconsistencies arising from numbers, favouritism of more people than a monarch would favour, a larger divide between public and private interests of the representatives, with private winning out over the public due to the nature of man, and the possibility of disagreement within the sovereign assembly, which might lead to civil war in the worst case.24 To avoid this kind of scenario or a return to the state of nature, a government needs to be effective, and in order to be, Hobbes considers it must have “the essential 20

Hobbes (2013), p. 57. Lloyd and Sreedhar (2013), p. 7. 22 Hobbes (2013), pp. 94 f. 23 Ibid. The spelling has been taken over from the cited text. 24 Ibid. 21

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rights of sovereignty” and then namely all of them in absolute measure.25 These “essential rights” are at the very least “the power of legislation, adjudication, enforcement, taxation, war-making” and the right of control of normative doctrine.26 In the framework of the conceptions of sovereignty I have developed, this constitutes an argument why it is beneficial to attach certain competences (of legislation, adjudication, etc.) to the status of sovereignty. One very important aspect of Hobbes’ theory of sovereignty, and something that can also be found in Bodin’s theory, is that the sovereign is not subject to the civil (that is, positive) law. Hobbes explains this with the following reasoning, relating to the above-mentioned competence of the sovereign to legislate: The Soveraign of a Common-wealth, be it an Assembly, or one Man, is not subject to the Civill Lawes. For having power to make, and repeale Lawes, he may when he pleaseth, free himselfe from that subjection, by repealing those Lawes that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: Nor is it possible for any person to be bound to himselfe; because he that can bind, can release; and therefore he that is bound to himself onely, is not bound.27

This is a similar argument to Bodin’s: auto-limitation is not possible, and hence the sovereign—who can amend or repeal laws—cannot be bound. When it comes to the issue of divided or unitary sovereignty, Hobbes holds that sovereignty is “incommunicable, and inseparable”.28 Lloyd offers an explanation and elaboration on this simple statement: The powers of legislation, adjudication, enforcement, taxation, war-making (and the less familiar right of control of normative doctrine) are connected in such a way that a loss of one may thwart effective exercise of the rest; for example, legislation without interpretation and enforcement will not serve to regulate conduct. Only a government that possesses all of what Hobbes terms the “essential rights of sovereignty” can be reliably effective, since where partial sets of these rights are held by different bodies that disagree in their judgments as to what is to be done, paralysis of effective government, or degeneration into a civil war to settle their dispute, may occur. Similarly, to impose limitation on the authority of the government is to invite irresoluble disputes over whether it has overstepped those limits. If each person is to decide for herself whether the government should be obeyed, factional disagreement—and war to settle the issue, or at least paralysis of effective government—are quite possible. To refer resolution of the question to some further authority, itself also limited and so open to challenge for overstepping its bounds, would be to initiate an infinite regress of non-authoritative ‘authorities’ (where the buck never stops). To refer it to a further authority itself unlimited, would be just to relocate the seat of absolute sovereignty.29

Nevertheless, the power of the people to revolt and to overthrow a government— in other words, the negative side of municipal constitutive sovereignty—is taken into

25

Lloyd and Sreedhar (2013). Ibid. 27 Hobbes (2013), p. 128. 28 Ibid. 29 Lloyd and Sreedhar (2013), p. 8. 26

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consideration and has impacted the development of the theory. However, Hobbes’ understanding of sovereignty showcases one of the points contained also in the framework developed in this book, namely that constitutional or international human rights constraints are not a necessary element of the concept of sovereignty as such, and how this relates to situations of mastery. It appears a matter of interpretation whether Hobbes’ sovereignty is unlimited in theory, in application, or not at all. The text itself seems to point in various directions and scholars are equally divided on the matter. What is certainly the case is that the Hobbesian sovereign is no more limited than the sovereign of Bodin’s theory.

6.1.3

Concluding Remarks: Monarchical Sovereignty

Taking Bodin’s and Hobbes’ understandings of sovereignty as exemplifying historical understandings of the sovereignty of monarchs, some conclusions can be drawn. First of all, understandings of monarchical sovereignty fall under the concept of municipal constituted sovereignty. However, the boundaries of what takes place within the world of law and what takes place outside of it are not clearly drawn in these theories. Furthermore, both Hobbes and Bodin neglect to explore the full extent of municipal constitutive sovereignty, although some sections of their work strongly suggest that they were aware of the role which the people (can) play both in creating and in overthrowing the sovereignty of the monarch. Bodin’s and Hobbes’ understandings of sovereignty have a few elements in common. While they are both proponents of the monarchy and their theories focus on the sovereignty of monarchs, neither considers it a necessary element of sovereignty that it is the monarch who is the holder of sovereignty. Both acknowledge that it could be another entity, such as an assembly representing part or the whole of the population. The meaning of sovereignty is not, according to either of them, dependent on who is the holder of it. Equally, both Bodin and Hobbes call sovereignty “absolute”, but it is a qualified absoluteness—which appears a contradiction in terms. What is meant here is that while the sovereign can essentially do as he pleases because he is not bound by the positive law of the state, given that he can change it, natural or divine law limits what he can legitimately do. Nevertheless, any violation of natural or divine law is not actionable and no positive legal remedies are available for citizen against a sovereign violating natural law. It is clear that the distinction I make between the world of law in which constituted sovereignty is situated and the extra-legal nature of constitutive sovereignty is not made in the theories by Bodin and Hobbes. While they speak of legal powers (legislative, judicial, executive) and seem aware of the role the people (can) play in creating and overthrowing the monarch, there is no clear distinction drawn

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here, nor is it easy to clearly draw a distinction between what is legal30 and what is extra-legal.

6.2

Parliamentary Sovereignty

In the United Kingdom in particular, the doctrine of parliamentary sovereignty is one of the fundamental doctrines of constitutional law. The primary historical account of the doctrine of parliamentary sovereignty is Albert Venn Dicey’s formulation of it; a more recent account is found in the works of Jeffrey Goldsworthy. Theories of parliamentary sovereignty fall under the concept of municipal constituted sovereignty in the framework I have developed in this book.

6.2.1

Dicey’s Theory of Parliamentary Sovereignty

Albert Venn Dicey’s Introduction to the study of the law of the constitution exemplifies the move of British constitutional doctrine from the Hobbesian Leviathan and Austin’s habitually obeyed sovereign to parliamentary sovereignty. More than Blackstone or Blake, then, Dicey is credited with the theory of parliamentary sovereignty. According to him, Parliament is defined as the King or Queen, the House of Lords, and the House of Commons acting together.31 As such, they may be [. . .] aptly described as the ‘King in Parliament,’ and constitute Parliament.32

The holder of sovereignty is thus an entity composed of more than one body. Dicey, having seen the Parliament Act of 1911 pass and having considered its implications, asked whether it makes sense to consider the entire composite entity sovereign when one of the bodies has less of a role to play in the process by which the entity acts. On the one hand, he holds: The simple truth is that the Parliament Act has given to the House of Commons, or, in plain language, to the majority thereof, the power of passing any Bill whatever, provided always that the conditions of the Parliament Act, section 2, are complied with. But these provisions do leave to the House of Lords a suspensive veto which may prevent a Bill from becoming an Act of Parliament.33

30

In the sense of being part of the world of law. Dicey (1915), p. xxxvi. 32 Ibid. 33 Ibid. 31

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He continues that In these circumstances it is arguable that the Parliament Act has transformed the sovereignty of Parliament into the sovereignty of the King and the House of Commons.34

On the other hand, however, he argues that [. . .] the better opinion on the whole is that sovereignty still resides in the King and the two Houses of Parliament. The grounds for this opinion are, firstly, that the King and the two Houses acting together can most certainly enact or repeal any law whatever without in any way contravening the Parliament Act; and, secondly, that the House of Lords, while it cannot prevent the House of Commons from, in effect, passing under the Parliament Act any change of the constitution, provided always that the requirements of the Parliament Act are complied with, nevertheless can, as long as that Act remains in force, prohibit the passing of any Act the effectiveness of which depends upon its being passed without delay.35

Despite the distribution of competences within the composite entity and of roles within the procedure according to which the composite entity acts, the composite entity counts as the holder of sovereignty. According to Dicey, this is parliament in the British system, although he makes reference to other sovereign entities as well.36 In short, in the United Kingdom it is Westminster Parliament which is sovereign, but it may be another entity in another legal system. This clarifies who is sovereign. What, however, does it mean to be sovereign according to Dicey? He summarises the doctrine as follows: The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that ‘Parliament’ has ‘the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’37

Given that the competence to make or unmake any law whatever is fundamental to this definition, it bears mentioning that A law may, for our present purpose, be defined as ‘any rule which will be enforced by the Courts.’38

Elaborating on the definition of parliamentary sovereignty, Dicey distinguishes a positive and a negative side of parliamentary sovereignty: The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts. The same principle, looked at from its negative side, may be thus stated: There is no person or body of persons who can, under the English constitution, make rules which override or derogate from an Act of Parliament, or which (to express the same thing in other words) will be enforced by the Courts in contravention of an Act of Parliament.39

34

Ibid. Ibid. 36 E.g. Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 35

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This distinction between the positive and negative side of parliamentary sovereignty translates into Hohfeldian terminology by means of competence and disability, whereby the competences of Parliament to legislate, to amend laws and to repeal them, and to exercise all these competences is accompanied by the disability on the side of all other entities to make rules overriding or derogating from an Act of Parliament. It is noteworthy here that this disability does not touch upon interpretation of Acts of Parliament by the courts. Especially given that the courts combine their interpretations with a rhetoric suggesting that they are not creating new rules but rather clarifying or interpreting the will of Parliament, the supremacy that is necessary for parliamentary sovereignty is not touched upon by the interpretation of courts. Aside from the sovereignty of parliament, which is municipal constituted sovereignty, Dicey also considers the role of the people and whether it is not the electorate which is sovereign, rather than parliament: The electors can in the long run always enforce their will. But the Courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors. The political sense of the word “sovereignty” is, it is true, fully as important as the legal sense or more so.40

While not using the same terminology, this is in essence a description of the distinction between the world of law, wherein municipal constituted sovereignty is situated, and what is outside of it. It acknowledges the importance of the sovereignty of the people, their municipal constitutive sovereignty, without confusing it with parliamentary sovereignty, which is constituted. Dicey makes this distinction also with regard to the limitation of parliamentary sovereignty, holding that The power and jurisdiction of Parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.41

However, he also holds that the actual exercise of authority by any sovereign whatever, and notably by Parliament, is bounded or controlled by two limitations. Of these one is an external, the other is an internal limitation. The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws. This limitation exists even under the most despotic monarchies. A Roman Emperor, or a French King during the middle of the eighteenth century, was (as is the Russian Czar at the present day) in strictness a “sovereign” in the legal sense of that term. He had absolute legislative authority. Any law made by him was binding, and there was no power in the empire or kingdom which could annul such law. It may also be true, -- though here we are passing from the legal to the political sense of sovereignty, --that the will of an absolute monarch is in

40

Ibid. Ibid. citing Coke (1817), p. 36: “Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined either for causes or persons within any bounds.” 41

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general obeyed by the bulk of his subjects. But it would be an error to suppose that the most absolute ruler who ever existed could in reality make or change every law at his pleasure.42

In other words, a sovereign may have the competence to pass or amend any law whatever, such as a law that all blue-eyed babies must be killed 5 days after birth, but this competence is situated within the world of law; outside of it, municipal constitutive sovereignty of the people means that they might disobey or even deconstruct the entire legal system if they are outraged enough (and situations of mastery do not prevent them from exercising their sovereignty). As such, The exact point at which the external limitation begins to operate, that is, the point at which subjects will offer serious or insuperable resistance to the commands of a ruler whom they generally obey, is never fixed with precision.43

The external limitation identified by Dicey falls under municipal constitutive sovereignty in the framework developed in this book. What, however, of the internal limitation? Dicey considers that The internal limit to the exercise of sovereignty arises from the nature of the sovereign power itself. Even a despot exercises his powers in accordance with his character, which is itself moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs.44

In other words, the holder of sovereignty is a product of time and circumstances when it comes to the opinions and beliefs held, and as such there is a sociological limitation shaping e.g. policies of Parliament. This is not a limitation that need concern us here, but it again underlines the distinction between the world of law and the outside world: within the world of law, the holder of sovereignty—in this case Westminster Parliament—is considered one entity acting in accordance with a certain procedure. Outside the world of law, we can consider the individual Members of Parliament and their background to analyse their voting behaviour and understand, at least potentially, the policy choices they make. These things have a direct impact on the world of law, but the world of law is indifferent to the why of, for example, voting patterns. While the external and internal limits always apply to the exercise of sovereign powers and as such always delineate, more or less precisely, the boundaries of what a sovereign can, in fact, achieve for all of his power, this does not mean that all sovereigns will necessarily be faced with these constraints in equal measure. Given their nature, the sovereign is unlikely to be entirely aware of the internal limit, and under certain circumstances, unlikely to be faced with the external limit: Where a Parliament truly represents the people, the divergence between the external and the internal limit to the exercise of sovereign power can hardly arise, or if it arises, must soon disappear. Speaking roughly, the permanent wishes of the representative portion of Parliament can hardly in the long run differ from the wishes of the English people, or at any rate of

42

Dicey (1915), p. 30. Ibid. 44 Ibid. 43

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the electors; that which the majority of the House of Commons command, the majority of the English people usually desire.45

Dicey’s theory of parliamentary sovereignty offers a clear example of municipal constituted sovereignty which does not neglect the relationship with municipal constitutive sovereignty. Built on Dicey’s understanding of parliamentary sovereignty is Goldsworthy’s theory, a theory which develops Dicey’s in light of more modern insights and questions.

6.2.2

Goldsworthy’s Theory of Parliamentary Sovereignty

Jeffrey Goldsworthy makes the same distinction as Dicey regarding legislative sovereignty and political sovereignty, with the focus of his work also being the former rather than the latter. His theory of parliamentary sovereignty builds upon Dicey’s and develops it further, taking into account more recent developments in analytical jurisprudence and applying it to questions of our time. Goldsworthy states that he considers Parliament “as a whole, including the Crown as well as both Houses” rather than the two Houses or just the House of Commons46: he considers parliament as a composite entity. This composite entity finds its constitution in fundamental laws: [. . .] rather than being a transcendent creator of all laws, a sovereign law-maker is itself created by fundamental laws. These identify the law-maker, and if it is not a natural person, may determine its ‘constitution’, in the sense of its composition. ‘Parliament’, for example, is not a natural person, but a complex artificial institution that is defined and structured by law. Fundamental laws may also prescribe the procedure that the law-maker must follow, and the form in which it must express itself, if it is to exercise its law-making authority successfully. Laws of these kinds provide criteria that determine whether or not its deliberations have resulted in laws.47

“Fundamental laws”, here, could be considered a reference to the rule of recognition or the governing rule of the British legal system. Goldsworthy holds, however, that these fundamental laws are consistent with the sovereignty of parliament only in so far as they do not “unduly impair its ability to change [. . .] the law”.48 Where internal or external restraints—for example, requirements of unanimity or even qualified majorities such as two-thirds—make it difficult or impossible for a legislature to act, the conclusion that parliament remains sovereign because it is theoretically free to amend the law whenever it so chooses becomes debatable, for it may be theoretically free, but practically limited.49 This suggests that parliament needs to

45

Ibid. Goldsworthy (1999), p. 9. 47 Ibid. 48 Ibid. 49 Ibid. 46

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have not only the relevant legal competences but also the practical ability to exercise those competences. Goldsworthy also holds that the acceptance by senior officials of the British legal system of parliamentary sovereignty as the prevailing doctrine of constitutional law is more decisive. The empirical test for the existence of parliamentary sovereignty is whether senior officials of all three branches of government accept parliament as sovereign. Does it need to be parliament, however, which is sovereign? Goldsworthy holds that It is not a logical or practical necessity that Parliament should have ultimate legal authority to decide what the law is. But it is a practical necessity that some institution have ultimate authority to decide any legal question that may arise, even if it is a different institution with respect to different types of question.50

Goldsworthy’s theory of parliamentary sovereignty is one that situates sovereignty at the level of an organ of the state, or an individual state institution, as opposed to the state as a whole. This raises two questions—one is whether it really is a practical necessity that one institution has the ultimate authority to decide any legal question, the other is whether it can still be called sovereignty if for different types of questions, different institutions have the ultimate authority to decide. Goldsworthy makes the argument that the chain of legal authority must necessarily end somewhere—there can be no infinite regress of appeals and overruling— and “whichever institution has ultimate authority to decide a question must be trusted to exercise it responsibly” because the possibility of abuse cannot be eradicated entirely. It is then a political choice to trust parliament rather than another institution, e.g. a small elite of constitutional judges. “Political choice” here should be taken to mean an extra-legal choice by senior officials to accept one rule of recognition over another. There are, according to Goldsworthy, good reasons for choosing parliamentary sovereignty rather than assigning sovereignty to another entity.51 However, this does not take away from the possibility that theoretically, this could be done. What would be required is that senior officials are convinced to accept such a rule of recognition.52 Yet none of this answers the question whether there can be one or several sovereigns. Goldsworthy makes it clear that there can only be one per legal issue, shifting the focus to the question whether there can be more than one legal question for which an ultimate decision-maker is required. Goldsworthy does not provide us with an answer to this question, likely because the focus of his theory is legislative sovereignty. Accordingly, the conclusion is that there can only be one entity to decide in cases of legislative debate. While his writing seems to suggest that he considers legislative sovereignty synonymous with sovereignty, he does hold that

50

Ibid. Ibid. 52 Ibid. 51

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The legislative sovereignty of the Crown in Parliament is compatible with the Crown having unquestioned authority to reject Bills passed by both Houses, and to exercise prerogative powers regardless of their approval.53 (emphasis added)

While one could argue that this is an argument in favour of the assumption that there can be several sovereign entities in a state, it is the case that under British law, parliament can legislate to limit the royal prerogatives exercised by the government, meaning that parliament remains the ultimate decision-maker also in this case. With law as the main focal point of his enquiry, sovereignty is indivisible because any legal issue is or can be decided by law and parliament is the ultimate legislator. Parliament is currently sovereign, then, but Goldsworthy holds that this might change in the future: It does not follow that the doctrine of parliamentary sovereignty cannot be changed. There are many examples of fundamental legal rules changing as a result of official consensus changing. In the Australia Act 1986 (UK), the United Kingdom Parliament relinquished its authority to alter Australian law. If it attempted to resume that authority by repealing the Act, Australian courts would almost certainly refuse to accept the validity of the repeal, even if this meant repudiating the doctrine of parliamentary sovereignty that they themselves accepted many years ago. But this change in the allegiance of Australian courts is part of a change in the allegiance of all senior legal officials, and citizens, in Australia, and would therefore be universally accepted there as legitimate. Indeed, a refusal by Australian courts to subscribe to that general change in allegiance would provoke political conflict between them and the other branches of government. Another example involving essentially the same process in reverse, is the way in which a nation can surrender its independence by merging with a larger political entity. This may be the future in store for Britain, if it ever comes to be generally accepted by British legal officials that Parliament has lost its authority to withdraw from the European Community. That point has not yet been reached, because if Parliament were tomorrow to legislate to terminate Britain’s membership of the Community, British courts would almost certainly acquiesce. It follows that Parliament still retains ultimate legal sovereignty, even though the rules governing its exercise of that sovereignty have changed.54

An interesting point55 regarding the relationship between the United Kingdom and the European Union with regard to a potential shift of sovereignty from Westminster parliament to the EU or an institution of the EU is the following: what the doctrine of parliamentary sovereignty as it is currently understood and contained in the rule of recognition of the system “does not permit Parliament to do is limit its own sovereign power.”56 What would thus be required for parliament to cease being the holder of sovereignty is not an act of parliament, but rather a change in the rule of recognition, that is, acceptance not only by Parliament, but also by senior officials of the other branches of government, not as a matter of law, but as a matter of fact. 53

Ibid. Ibid. 55 This may be a point of theoretical rather than practical interest, but it is nevertheless a point of interest. 56 Goldsworthy (1999), p. 14. 54

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So far, we have focused on the holder on sovereignty and what factual requirements are necessary for it to attach to that holder. This does not tell us what sovereignty means according to Goldsworthy. In terms of content, Dicey identified two criteria for parliamentary sovereignty, namely the positive “right to make or unmake any law whatever”, and the negative criterion that “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”,57 Goldsworthy considers that “if the negative criterion is satisfied then the positive one is too.”58 This is so because If no person or body, including the courts, can override or set aside legislation, then Parliament’s legislative authority is not restricted by any rule that the courts can enforce— and that is to say that it is not restricted by any law, which amounts to saying that Parliament has the legal right to make or unmake any law whatever.59

Goldsworthy suggests further that Dicey’s definition of sovereignty should be qualified: “law-making authority is sovereign if it is unrestricted by norms that either are judicially enforceable,”60 or which satisfy the following criteria, namely that they are [. . .] indistinguishable in form and function from other rules that are unquestionably laws. That condition is satisfied if they are expressed in written, canonical form, in formally enacted legal instruments, such as constitutions; are expected to be obeyed by legal institutions other than courts; are in fact generally obeyed by those institutions; and, despite borderline problems of vagueness and ambiguity, are sufficiently clear that some possible actions of those institutions would plainly be inconsistent with them.61

A parliament can be limited or restricted, however, by rules imposed on it, e.g. by a written constitution which is supported by the rule of recognition, where those rules determine the form and procedure of the legislative process without which an act of parliament is not recognised as law, provided that those rules do not limit parliament in such a way that it can no longer change those rules itself: Fundamental laws governing these matters of composition, procedure, and form are consistent with an institution possessing sovereign law-making authority, as long as they do not unduly impair its ability to change the substance of the law in any respect and at any time it chooses.62

As already elaborated upon above, the condition that it does not unduly impair the ability of parliament to change the law refers not only to theoretical limitations, but also very much to factual ones. This blurs the lines between sovereignty as a legal status and sovereignty as factual power, seemingly situating Goldsworthy’s theory in

57

Ibid. citing Dicey (1915), p. 40. Goldsworthy (1999), p. 10. 59 Ibid. 60 Ibid. 61 Ibid. 62 Ibid. 58

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the realm of the latter. As mentioned above, Goldsworthy admits that this understanding of a sovereign parliament being limited in this way means that Sovereignty is a matter of degree.63

According to Goldsworthy’s theory, then, parliament can be more or less sovereign, depending on the degree of limitation upon it. A parliament which can limit the power of future parliaments is more sovereign than a parliament which cannot do so, just as a parliament with no restrictions regarding composition, procedure and form is more sovereign than one under such restrictions. Such procedural requirements thus constitute limitations on parliament restricting its sovereignty without, however, taking sovereignty from parliament. Parliament remains sovereign, but less sovereign. Another question that features strongly in the debate surrounding the doctrine of parliamentary sovereignty, and therefore also in Goldsworthy’s treatise of it, concerns the issue of whether Parliament truly is unrestricted in its law-making power in terms of content. In other words, can parliament make any law whatever, provided that it is made in the correct form and in accordance with the right procedure? Opponents claim that such an unlimited power would be wholly nonsensical, for it would allow Parliament to make laws requiring that all blue-eyed babies be killed, laws which deprive Jews of their citizenship or prevent Christians from marrying outside their own denomination, or laws confiscating the property of redheads or only red-headed women. The list of possible examples could go on; the question remains whether such laws, if passed by Parliament in accordance with the proper procedures and in the correct form, would have to be considered a law by other officials of the system (the judiciary, the executive) and bind subjects. Goldsworthy states quite clearly that Although it [this argument] may show that it is unreasonable for officials to believe that Parliament has unlimited law-making authority, it does not overcome the fact that they do so. That fact is sufficient to establish that, as a matter of law, Parliament has unlimited authority, even if in this respect the law is unreasonable.64

It is noteworthy here that Goldsworthy specifies that this unlimited law-making authority exists as a matter of law, that is, in the world of law. This does not take away, in other words, that parliament would risk a revolution if they were to make a wholly unreasonable and discriminatory law. Dicey captured this when he wrote that the exercise of authority “by any sovereign whatever, and notably by Parliament” remains subject to limitations, particularly to the limitation provided for by possibility of popular resistance.65 Is it still true, then, that parliament’s unlimited law-making authority exists as a matter of law? Despite membership to the European Union, it is certainly true that parliament still has the competence to legislate on any matter whatsoever, but what is 63

Ibid. Ibid. 65 Ibid. citing Dicey (1915), pp. 76–77 and 79. 64

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no longer true is that that there is no legal recourse against such legislation. If parliament were to legislate in a manner inconsistent with EU law, such an Act of Parliament would not automatically be void (as it would be if they did not have the competence to legislate on the matter), but courts now have the competence to set aside such an Act of Parliament, meaning that in the hierarchy of norms, the Act of Parliament is no longer highest. Does this mean Westminster parliament is not sovereign? Goldsworthy considers two options. The practical consequence of the decision [the Factortame judgement] is that British legislation inconsistent with applicable EC laws will be ‘disapplied’ unless Parliament either: (a) makes it quite clear, by express words or necessary implication, that it specifically intends the legislation to be applied notwithstanding the inconsistency; or if this is held to be insufficient to make the legislation applicable, (b) enacts legislation formally withdrawing Britain from the European Community.66

It is unclear whether (a) would be sufficient, or whether only (b) would suffice to prevent courts from disapplying an Act of parliament inconsistent with applicable EU law.67 Goldsworthy holds that if (a) is sufficient, this is consistent with parliamentary sovereignty, but if only (b) suffices, Westminster Parliament has in fact “abdicated part of its sovereignty, even if it retains the power to recover it.”68 Goldsworthy discusses a number of possibilities how to reconcile the European Communities Act of 1972 and its consequences with the notion of parliamentary sovereignty, such as statutory interpretation, or the notion that the EC Act gives limitations only in form rather than substance.69 Another option would be that the EC Act is a ‘constitutional statute’.70 If this is the case, and if (a) does not suffice, two conclusions are possible—one is that as Goldsworthy states, Westminster is no longer (as) sovereign, the other is that Goldsworthy’s account of sovereignty no longer holds. If indeed there are constitutional and ordinary statutes in the United Kingdom, this would mean that nowadays—and contrary to what Dicey said71— there is a distinction between Westminster Parliament acting as ordinary legislator, and Westminster Parliament acting as constitutional legislator.72 Only Westminster Parliament acting as constitutional legislator can repeal the European Communities Act of 1972, and only Westminster Parliament acting as constitutional legislator is sovereign in that they have the competence to ‘recover’ the competences previously abdicated. These competences themselves, then, do not form part of parliamentary 66

Goldsworthy (2010), p. 287. Goldsworthy (1999), p. 287. 68 Goldsworthy (2010), p. 288. 69 Ibid. 70 Cf. Thoburn v Sunderland City Council [2002] EWHC 195 Admin at 62: “We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.” 71 Dicey (1915), p. 37. 72 The argument can be made that this distinction is purely theoretical, as there is no difference in e.g. voting procedures. However, if implied repeal is not possible for the European Communities Act and any inconsistency with European Union law will be disapplied by courts unless at least explicitly noted as intentional; this is in itself a procedural requirement, if a minor one. 67

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sovereignty. This is the—admittedly unorthodox—understanding of municipal constituted sovereignty on the organ-level put forward in this book. Goldsworthy’s notion of parliamentary sovereignty shows how difficult it is to reconcile a traditional understanding of parliamentary sovereignty with the current legal reality of European Union membership of the UK. While perhaps such a task is not impossible, an alternative understanding of parliamentary sovereignty as constitutional legislative authority coheres well with more recent case law and suggests greater similarities between the current constitutional landscape in the United Kingdom and that of European civil law countries than hitherto foreseen, particularly with regard to a distinction between ordinary and constitutional legislator. However, it remains to be seen what the impact of the British exit from the European Union after the triggering of Article 50 of the Treaty on European Union on the above will be.

6.2.3

Concluding Remarks: Parliamentary Sovereignty

While the theories of Dicey and Goldsworthy are primarily applicable to the United Kingdom, they nonetheless serve an illustrative purpose particularly as regards the distinction between constitutive and constituted sovereignty. Dicey clearly points out that there is a political sense of sovereignty next to the legal sense he writes about; the relationship between the political and the legal senses of sovereignty is akin to the relationship between constitutive and constituted sovereignty. Political sovereignty (as constitutive sovereignty in my framework) posits a limit to the actual (factual) exercise of (legal/parliamentary/constituted) sovereignty. This limit to the exercise does not mean that the competences of the constituted sovereign are limited, however. Goldsworthy adds the dimension of legal limitations to this, making legal sovereignty a matter of degree in his theory. In contrast, I have argued that the legal status of constituted sovereignty is independent of consequential rules and its absoluteness not touched by substantive or procedural ‘limitations’.73 The theories by Dicey and Goldsworthy and the limitations they consider showcase the importance of considering the distinction between the legal and extra-legal as well as the question of limitations.

6.3

Popular Sovereignty

In Sect. 6.2, we have seen a distinction being made between legal and political sovereignty, with the latter belonging to the people but not being actionable. While Dicey makes mention of it only to contrast it with parliamentary sovereignty,

73

See Sect. 4.4.

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conceptions of popular sovereignty deserve consideration in their own right as well. This chapter thus deals with various conceptions of popular sovereignty, most of which would be municipal constitutive sovereignty (MCVS) in the framework I have developed in this book. Having just discussed parliamentary sovereignty, this chapter will start with a theory which deliberately departs from parliamentary sovereignty and juxtaposes it to a conception of popular sovereignty.

6.3.1

The Indian Conception of Popular Sovereignty

The formation of the Constituent Assembly of India, the move to independence from Britain, as well as the drafting of the Indian Constitution of 194974 have led to a break from British constitutional tradition. Instead of parliamentary sovereignty, it is the people of India which is considered sovereign. The founding of the constitution is considered an expression of popular will.75 The break from British constitutional doctrine can be found particularly in the limitation of government by the constitution, the introduction of judicial review of the constitutionality of legislation and decisions by the executive, and the rigidity of the constitution, i.e. the fact that it cannot be amended via the ordinary legislative procedure.76 Sarbani Sen has developed a theory of constitutionalism and popular sovereignty that will be taken, here, to exemplify a country’s conception of popular sovereignty deriving from an anti-colonial struggle, as institutionalising those experiences are part of the author’s intention.77 Sen holds that The framers recognized that though the revolutionary movement stood for the idea of sovereignty in the hands of the people to resist arbitrary exercise of authority, such irregular and revolutionary periods of direct popular participation would inevitably be shortlived.78

So it was only at the time of the framing of the constitution that sovereignty was exercised directly by the people, and even then it might be called into question how direct this exercise truly was, given that the constitution was drafted by the Constituent Assembly. Nevertheless, supremacy is assigned to this act, and it is assigned to the people: Since the founders decided to frame a written constitution to secure the supremacy of popular will at the moment of the founding, the text had to be preserved from factional and self-interested politics which threatened to derogate from the superior constitutional text.79

74

Entered into force 1950. Sen (2011), p. 111. 76 Cf. Ibid. 77 Ibid. holding that “The text is a conscious effort to institutionalize the country’s revolutionary experience during its anti-colonial struggle.” 78 Ibid. 79 Ibid. 75

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Assigning supremacy to the popular will at the moment of founding was not done lightly, with debate regarding the legitimacy of the Constituent Assembly vis-à-vis future legislative assemblies elected by the people. Nevertheless, the Constituent Assembly chose to assign supremacy to the constitutional text and to safeguard it by means of judicial review on the one hand, and a special legislative procedure for constitutional amendments on the other hand. The rationale for these choices can be found in the belief that An electoral mandate did not vest sovereignty in parliament.80

Rather, Sen’s conception of sovereignty seems to limit the exercise thereof by the people to the moment of constitution, that is, to the original writing of the Indian Constitution by the Constituent Assembly. Under “conditions of normal politics, popular sovereignty could only exist in a ‘proceduralized’ sense”, influencing channels of legitimate law-making.81 So while sovereignty did not cease to rest with the people after the establishment of the Constitution, only in periods of “constitutional politics” was the will of the people truly expressed—even elected institutions cannot, under Sen’s conception, truly represent the people.82 Rather, only the founding was an expression of popular will, whereas representative institutions symbolise electoral victories, but these electoral victories cannot be considered an actual expression of popular will—they are only a metaphor.83 On the one hand, then, there is the expression of the popular will which took place only at the moment of revolution and constitution-positing. On the other hand, there is limited power in the hands of the government. It is limited because the people have imposed, at the time of constitution-positing, limits on the exercise thereof. Several such limits can be identified: A first limit exists in the competence of judicial review in the hands of the judiciary.84 A second limit is imposed by the rigidity of the constitution, safeguarded by the procedure laid down in Article 368 of the Indian Constitution.85 The relationship between these limits is explained in the following. The existence of judicial review does not suppose [. . .] a superiority of the judicial to the legislative branch. It only supposed that the power of the people was superior to both, and when the legislative will, as expressed in its statutes, stood in opposition to that of the people, declared in the constitution, the latter had to prevail. Fundamental constitutional change could occur not by the ordinary acts of representatives, but through the special higher law-making track prescribed by the founders, that enabled future proponents of change to claim genuinely that they had overwhelming popular support for their initiatives only after they had cleared its obstacles.86

80

Ibid. Ibid. 82 Ibid. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid. 81

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Indeed, only The founding was a direct act of popular sovereign authority, and any future change in the constitutional text could only occur through other such extraordinary efforts that could claim to speak in the voice of the people.87

The rationale for the introduction of judicial review is a clear break with British constitutional doctrine can be found in the following argument, partly quoted already above: Since the founders decided to frame a written constitution to secure the supremacy of popular will at the moment of the founding, the text had to be preserved from factional and self-interested politics which threatened to derogate from the superior constitutional text. Recognizing the superiority of exercises of sovereign power by the people also implied that when legislative assemblies or the government acted under pressures of expediency, these acts needed to be reviewed by an institution that stood aside from the clash of interests and could support and preserve enduring constitutional principles validated by the people themselves.88

This argument also emphasises that under Sen’s conception of popular sovereignty, it is through the people that the constitutional text at the basis of the legal system is validated. The people have constituted the competences of the government; this means also that the government only has those competences as conferred to them in the constitution. While Sen distinguishes between the people and the government and ascribes power to the people and competences—legislative both in ordinary procedure and in the constitutional amendment procedure, judicial—to the government, it is only the people which is held to be sovereign according to Sen. The legislatures could never be sovereign; no set of men, representatives or not, could set themselves up against the general voice of the people.89

A noteworthy feature of Sen’s conception of popular sovereignty is that Conceptually, sovereign power, by its very definition, cannot be subjected to a constitution.90

The sovereignty of the people is thus necessarily extra-legal and outside of the constitutional framework, constituting it but not part of it. This is in line with Sen’s determination that the expression of popular will could only occur in extraordinary moments, not in times of normal politics regulated by the constitution. As such, Sen has penned a convincing theory of municipal constitutive sovereignty (MCVS) and how it constructs and shapes the limits of municipal/national constituted sovereignty (MCDS). While Sen argues that under the Indian conception, there is no sovereignty for parliament, which would mean that there is no municipal constituted sovereignty

87

Ibid. Ibid. 89 Ibid. 90 Ibid. 88

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(MCDS), this may be due to Sen’s understanding of sovereignty, which does not make a distinction between the different types. Understanding sovereignty of the people and sovereignty of parliament to be mutually exclusive, Sen holds the people to be sovereign and denies parliamentary sovereignty. Seen as a departure from the constitutional doctrine of the UK in a post-colonial India, this insistence on popular sovereignty to the exclusion of other forms of sovereignty is very comprehensible.

6.3.2

The Australian Conception of Popular Sovereignty

Another jurisdiction in which a move from parliamentary to popular sovereignty has been subject of debate is Australia. In the 1990s, Australia seemed to experience what has been described as constitutional turmoil, as a glorious revolution, and as a shift in the fundamental paradigm of constitutional doctrine.91 Case law led commentators to believe that Australian constitutional doctrine was shifting from parliamentary sovereignty to popular sovereignty. In the following, this shift and the conception of popular sovereignty that crystallised will be considered at the example of the theory of sovereignty developed by George Winterton. Winterton distinguishes between two senses of sovereignty: On the one hand, “sovereignty” can be used to refer to the source of authority of the Australian Constitution; on the other hand, it refers to the “location of the power to amend the Constitution”,92 that is, the competence to do so. It is not necessary that one entity is sovereign in both senses; rather, it is entirely possible— and even likely—that different entities are sovereign in the different senses.93 In the Australian context, one source of authority of the Constitution clearly used to be the Parliament of the United Kingdom, until such time that the UK Parliament passed the Australia Act 1986, renouncing its competence to legislate for Australia.94 However, as the draft constitution of 1899 and 1900 was approved by the Australian electors (usually equated with the people), an argument could—and has—been made that the authority of the Constitution derives from the people and their approval of the Constitution. Here, Winterton rightly points out two possible views: either it derives its authority from the moment of constitution, that is, from the one specific moment in time in which Australian electors—no longer living now— accepted it in a referendum, or it derives its authority from the continued acquiescence with the constitution by the current Australian people. This view on

91

Winterton (1998), p. 1. Ibid. 93 Ibid. 94 For detailed consideration whether, and if so in which way, the UK parliament can limit its own legislative power in this way and what this means for the sovereignty of the UK parliament, c.f. Turpin (2007), pp. 66–71. 92

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sovereignty is acknowledged in by judges of the Australian High Court. Deane J held that a [. . .] compact between the Australian people, rather than the past authority of the United Kingdom Parliament under the common law . . . [offers] a more acceptable contemporary explanation of the authority of the basic law of the Constitution.95

The distinction between deriving the authority of the Constitution from the original moment of adoption and from continued acceptance of the people is acknowledged, although authority is held to derive not from one or the other, but rather from both taken together: The present legitimacy of the Constitution . . . lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people.96

This view on the source of authority of the Australian Constitution and with it the entire legal system corresponds closely with Hampton’s theory of convention consent. Equating the two also explains how the legitimacy of the Australian Constitution can be taken to lie in both the original moment of adoption, and in the continuous and on-going acquiescence of the Australian people to it. The other view on sovereignty is that sovereign is who has the competence to amend the constitution. Winterton holds that here, it is far clearer that it is the people who are sovereign in this sense, because Section 128 of the Australian Constitution requires that proposals for constitutional amendments are put before the electors in a referendum. According to Winterton, Ironically, the Australian Constitution, which claims neither to be based upon popular sovereignty nor adoption by “We the People”, can justifiably claim a basis in popular sovereignty since the Australian people directly approved its adoption and have controlled its content since 1901.97

He considers that this is ironic mainly because the constitutions of the United States, India, Germany, Portugal and Greece, which do claim to be based upon popular sovereignty or the adoption by the people, do not give the same extent of control regarding the content of their constitutions to their respective people. Winterton here combines the two views on sovereignty—on the one hand, Australia can justifiably claim popular sovereignty because the Australian people approved the constitution, on the other hand, the claim is justified because the people are directly involved in the constitutional amendment process. However, the people do not have the competence to amend the constitution on their own. Instead, the amendment procedure prescribes that the Australian parliament must pass a bill containing the proposal for constitutional amendment, which is then submitted to the people (equated, again, with electors) in a referendum. This places sovereignty in the second sense not in the people acting alone, but rather in the “Commonwealth 95

Winterton (1998), p. 7 citing Breavington (1988) 169 CLR 41, 123. Ibid. citing Theophanous (1994) 182 CLR 104, 171. 97 Ibid. 96

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Parliament acting with the approval of the people expressed at referenda by the majorities specified” in the Constitution.98 In other words, the people are not sovereign in the second sense identified by Winterton, betraying some conceptual confusion in his theory. Rather, a composite entity involving the people and acting in accordance with a certain procedure is sovereign in the municipal constituted sense (MCDS). The main sense in which a people can—and indeed must—be sovereign is extra-legal99: this is municipal constitutive sovereignty (MCVS).

6.3.3

The German Conception of Popular Sovereignty

Popular sovereignty does not always mark a departure from parliamentary sovereignty, and not all systems have British constitutional doctrine as their point of departure. Germany is one such system. Art. 20 (2) of the German Basic Law (i.e. the German Constitution) provides that Alle Staatsgewalt geht vom Volke aus. Sie wird vom Volke in Wahlen und Abstimmungen und durch besondere Organe der Gesetzgebung, der vollziehenden Gewalt und der Rechtsprechung ausgeübt.

The first sentence of this provision translates to “all state power emanates from the people” and is generally considered to be the expression of popular sovereignty, despite the term popular sovereignty (Volkssouveränität) not actually making an appearance in the provision itself. Commentaries to this provision explain the German concept of popular sovereignty as state power being the object of democratic legitimation with the people being the subject which legitimates. Popular sovereignty requires that all exercise of state power can be traced back to the will of the people.100 However, while this codification of popular sovereignty requires that the people can, in effect, have an influence on the exercise of state power, it is not a provision which confers a competence. Rather, popular sovereignty is principle of legitimation and responsibility.101 This raises a number of questions, such as what state power is and how the people can have an influence on it. Regarding the exercise of state power, that expression— and thus what needs to be legitimised—contains all kinds of exercises of state power: action by the legislative, executive and judiciary. State power in the sense of this provision can be exercised not just by organs on the federal level, of the Länder—the federal states—and the municipalities, but by juridical persons of public law. Any official action by these organs with Entscheidungscharakter—the character of a

98

Ibid. citing Sawer (1987), pp. 45 and 75. Winterton (1998) acknowledges this. 100 Grzeszick (2013a). 101 Ibid. 99

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decision—constitutes an exercise of state power.102 This specifies the object of legitimation, leaving open the question of how the people can influence the exercise of state power. Popular sovereignty under Art. 20 (2) refers to other concepts such as representative democracy and legitimacy, and the second sentence of this provision gives some indication of how the people exercise their sovereignty, that is, in which way they are capable of influencing the exercise of state power: elections and referenda as well as via special organs of the legislative, the executive and the judiciary. This does not account for the extra-legal ways in which people can exercise their power to constitute a legal system, but it gives some further guidance and offers clarification of the ways in which individuals can, in Germany, give their convention or even their endorsement consent. In other words, constitutive sovereignty in Germany—something extra-legal by nature—can be exercised through legal means. In cases such as elections, voting is a juridical act, but it is also a means to exercise municipal constitutive sovereignty.

6.3.4

Concluding Remarks: Popular Sovereignty

Interestingly, theories of municipal constituted sovereignty such as parliamentary sovereignty do not claim that there are no other concepts of sovereignty beside them. Rather, they (sometimes explicitly) leave room for other forms of sovereignty, whether these be called political sovereignty, popular sovereignty or municipal constitutive sovereignty. Meanwhile, conceptions of popular sovereignty or municipal constitutive sovereignty claim for themselves to a far greater degree that it is peoples that are sovereign to the exclusion of any other (constituted) body. From a standpoint internal to the concept, this makes sense, but it neglects to look beyond the borders of one concept to see that there are other concepts equally called “sovereignty”. One potential explanation for the insistence on exclusivity found in theories such as the one by Sen103 and also others,104 is the idea that if it is peoples that are recognised as the sole sovereign, further rights might be granted to them or they might have a greater role to play in decision-making on national and international levels both.105 This would coincide—and might have contributed—to the conceptual change which Besson notes: that more often now it is argued that the sovereign

102

Grzeszick (2013b). Sen (2011). 104 Cf. Kalyvas (2005). 105 This assertion is made without having looked into the mentioned authors’ heads and without having consulted them, so in no way should it be taken as an insinuation that the mentioned authors hold this belief. 103

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behind international law is peoples within states, instead of states themselves.106 However welcome such shifts might be, and however valid the sentiment and theory behind it, technically speaking it is not necessary to insist on it for the sake of attributing importance to peoples: municipal constitutive sovereignty is necessarily a sovereignty of the people and is necessarily present in every legal system. Indeed, without municipal constitutive sovereignty, no legal system would exist. Thus, while municipal constitutive sovereignty is relatively undemanding, in the sense of not requiring democracy or even awareness of it by the peoples exercising it, its importance cannot be understated and should not be overlooked.

6.4

State Sovereignty

The previous chapters of this part of the book have considered theories of monarchical, parliamentary and popular sovereignty; theories which fall into the category of municipal sovereignty. In this chapter, we turn to the international plane and consider state sovereignty, that is, international sovereignty of the state vis-à-vis other states or supranational organisations. As before, the notion of sovereignty in a variety of sources will be considered, focusing on academic considerations of state sovereignty in particular so as to avoid overlap with the inferential analysis of Chap. 2. There is, of course, a great wealth of literature on the topic of state sovereignty and not all of it—or even a large part of it—can be considered here. The chosen texts should—again—be understood as illustrative, rather than as an attempt at providing an exhaustive overview of existing literature.

6.4.1

Hans Kelsen

In 1960, Hans Kelsen published the article Sovereignty and International Law in the Georgetown Law Journal, summarising the thoughts more extensively developed in Das Problem der Souveränität und die Theorie des Völkerrechts. Kelsen himself is not a proponent of state sovereignty, but, as the doctrine of state sovereignty is the object he considers in the aforementioned article, his work is treated here under the heading of state sovereignty. He considers that the etymological origin of the term sovereignty derives from the Latin superanus and refers to “the quality of being a supreme power or supreme order of human behavior”, a special quality of the state.107 He notes further that There are, however, authors who, in spite of their assertion that sovereignty is an essential quality of the state, admit that even the “sovereign” states are bound by the norms of morals

106 107

Besson (2011), p. 49. Kelsen (1959), p. 627.

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in general, or the Christian moral order in particular, and hence that they are subjected to this order. To be sovereign seems to be incompatible with being subject to a normative order; thus to maintain the idea of the state as a supreme authority this term is understood to mean only that the state is not subject to a legal order superior to its own legal order, i.e. the national law.108

However, this becomes problematic when taking into account the unity of normative systems. Kelsen’s argument, briefly summarised, goes as follows: It is not logically possible that a normative system contains norms which are both assumed to be valid by the system but contradict each other. The international legal order delegates to the national legal order the determination of both actors and subjects of international law, as well as its content, therefore international law and national law cannot be separated in the manner assumed by theories of dualism. Rather, monism must be assumed. As regards monism, there are two possibilities: either international law is considered to have primacy and to constitute the various national legal orders, or primacy of the national legal order is assumed, in which case only one state can be considered to be sovereign, namely that from whence the considerations of primacy depart.109 The meaning of sovereignty differs depending on which of these constructions is assumed. If it is national law which is presumed to have primacy, then “it is this primacy of national law which in the traditional theory is presented as sovereignty of the state.”110 If the primacy of international law is assumed, the term sovereignty expresses that “the national legal order is subject only to the international and to no other legal order”, that is, that the state is legally independent of other states.111 Sovereignty according to Kelsen is either “supreme legislative power” or “freedom of action of the state”, that is “unlimited competence of the national order”.112 Which of the two it is depends on whether one assumes the primacy of national law or of international law, meaning that even though Kelsen gives two possible definitions, there can only be sovereignty in one sense according to him. If he is correct about this, it would mean that the theory of sovereignties—in the plural—developed in this book cannot hold. To understand Kelsen’s argument why it can only be the one or the other, it is necessary to be aware of Kelsen’s understanding of what constitutes a legal order. Notably, two of the main features of Kelsen’s Pure Theory of Law are relevant here. Firstly, Kelsen holds that every norm in a given legal system ultimately derives its validity from a Grundnorm, one basic norm. Secondly, the validity of this basic norm must be assumed; it cannot be found in either political ideology or ideas of morality or derived from the natural or social sciences on the other.113 With regard to sovereignty—on the assumption of the primacy of national law—this means that it is

108

Ibid. Ibid. 110 Ibid. 111 Ibid. 112 Ibid. 113 Marmor (2010). 109

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Not an apperceptible or otherwise objectively recognizable quality of a real thing; it is a presupposition, viz., the presupposed assumption of a system of norms as a supreme normative order whose validity is not to be derived from a superior order. Whether the state is sovereign cannot be answered through an inquiry into its natural or social reality. The sovereignty of the state, as seen from the viewpoint of a theory of law, is not a certain amount or degree of real power. Even states which in comparison with the so-called “Great powers” do not have any significant power are regarded as equally sovereign as these great powers. The question whether a state is sovereign is only the question of whether one presupposes a national legal order as a supreme order.114

This seems to fit well with municipal constituted sovereignty understood as a legal status. If one assumes the primacy of national law, however, Kelsen points out that it is only possible to assume the primacy of the law of one state, rather than sovereign equality: This construction of the relation between national and international law, it is true, may start from any state, but always only from one state; and only the state which is the starting point of the construction can be presupposed as sovereign. The relation of this state to the other states is established by international law which, as a consequence of the primacy of national law, is to be conceived of as part of this national law of the state that is the starting point. According to international law, other communities are “states” in their relation to this state only if recognized as such by the state which is the starting point, i.e. only if in the opinion of the competent organ of this state they fulfill the conditions prescribed by international law. If international law is part of the national law of the recognizing state, the reason of the legal existence of the other states, i.e. the reason of the validity of the other national legal orders, lies in the law of the recognizing state, i.e. in the national legal order on the basis of which the recognition takes place. As a consequence of the primacy of national law the other states must be regarded as subordinated to this national legal order which includes international law as part of it. Hence, they cannot be presupposed as sovereign.115

This argument still rests on Kelsen’s claim that all legal norms ultimately derive their validity from a Grundnorm and that all legal norms deriving their validity from the same Grundnorm belong to the same legal system. Kelsen’s theory of law has contributed greatly to legal philosophy of the twentieth century and so his understanding of sovereignty will be considered in greater detail. However, already at this stage it can and must be said that Kelsen’s Grundnorm differs from the Hartian rule of recognition in that the rule of recognition is based in social attitude and efficacy, both of which belong to the realm of social science, whereas the Grundnorm is assumed.116 The theory of sovereignties developed in this book finds its basis in Hart’s, and, following Hart, also in Hampton’s understanding of the basis of a normative system. This does not mean, however, that Kelsen’s conception of sovereignty cannot be considered. Instead, Kelsen’s theory will require careful situating within the framework here developed: the link between municipal constitutive and municipal constituted sovereignty, as well as the link between

114

Kelsen (1959), p. 631. Ibid. 116 In other words, the Grundnorm is an assumed ought whereas the rule of recognition is an ought based on an is, namely the power possessed by the people. 115

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international constitutive and international constituted sovereignty is severed when a Grundnorm is presumed rather than based in social practise and attitude. In other words, Kelsen’s theory is not and cannot be about constitutive sovereignty. Hence, I will consider how Kelsen’s insights compare to constituted sovereignty only. Kelsen distinguishes between two possible understandings of the term “sovereignty”: on the one hand, it can mean supreme legal authority and that the state is not subject to any legal order but its own; on the other hand, it can mean legal authority which is supreme except for its subjugation to international law, that is, that the state is not subject to any legal order but the international. However, even where the primacy of national law is assumed, Kelsen points out that international law is superior to national law in the narrow sense—the difference is that international law is now considered part of national law in the wider sense. The national law in the narrower sense is subordinated to the international law which is part of the national law in the wider sense, and hence the national law in the narrower sense is not sovereign; just as the national law of the other, the recognized, states is not sovereign because subordinated to the international law that is part of the national law of the recognizing state.117

While Kelsen specifically states that both views on primacy—and thus sovereignty—are possible, it is unlikely that the view that only the national legal system of one state is sovereign is acceptable to the proponents of national sovereignty—and furthermore, it does not coincide with the assumption of sovereign equality that forms such a fundamental part of international law.118 If the implications Kelsen attaches to the primacy of national law are not acceptable, two options remain: either the primacy of international law must be assumed, or an option outside of Kelsen’s argument must be sought. Kelsen’s argument rests on the unity of norms: the assumption that all norms are part of one system, deriving from one Grundnorm. The assumption of the unity of norms can be called into question, however. It does not fit the traditional view on law which practitioners and scholars alike have and teach, namely that there are a variety of legal systems—some limited to a certain territory and some independent of territory, such as the law of the European Union, the lex mercatoria or international law. Of course, merely because it is the traditional view on law does not mean that it is necessarily the correct view. An alternative would be to accept Kelsen’s assumption of the unity of norms, but to contest his point that all norms of the system must derive from only one Grundnorm. Under this model, all legal norms would be part of the same legal system, although some norms may have different temporal and spatial applications and restrictions thereto. According to Kelsen, in this case all legal norms necessarily need to derive from one single Grundnorm, but it is not clear why this need be the case and why there could not be different Grundnorms for norms within the same legal system, or norms belonging to different legal systems derived from the same Grundnorm.119 Joseph 117

Kelsen (1959), p. 634. Ibid. 119 Marmor (2010), p. 1. 118

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155

Raz argued these points in The Authority of Law. Regarding the latter issue, he gives the example of the peaceful secession of one state from another: The first axiom asserts that all the laws belonging to one chain of validity are part of one and the same legal system. If this axiom were correct, certain ways of peacefully granting independence to new states would become impossible. Suppose that country A had a colony B, and that both countries were governed by the same legal system. Suppose further that A has granted independence to B by a law conferring exclusive and unlimited legislative powers over B to a representative assembly elected by the inhabitants of B. Finally, let it be assumed that this representative assembly has adopted a constitution which is generally recognized by the inhabitants of B, and according to which elections were held and further laws were made. The government, courts, and the population of B regard themselves as an independent state with an independent legal system. They are recognized by all other nations including A. The courts of A regard the constitution and laws of B as a separate legal system distinct from their own. Despite all these facts it follows from Kelsen’s first axiom that the constitution and laws of B are part of the legal system of A. For B’s constitution and consequently all the laws made on its basis were authorized by the independence-granting law of A and consequently belong to the same chain of validity and to the same system.120

Indeed, for Kelsen there is no inconsistency in holding that the constitution and laws of B are part of the legal system of A. However, Kelsen’s mistake is in disregarding the facts and considering only the content of the laws. For his theory the only important feature is that the legal system of A has a law authorizing all the laws of B. That the courts and population of B do not consider this law as part of their own legal system is irrelevant. But the attitude of the population and the courts is of the utmost importance in deciding the identity and unity of a legal system in the sense in which this concept is commonly used.121

Regarding the issue that norms of the same legal system can derive from more than one Grundnorm, Raz argues that Kelsen admits, at least by implication, that disregarding the basic norm, all the positive laws of a system may belong to more than one validity chain. Some may owe their validity to a customary constitution while others derive their validity from an enacted constitution. It is only the basic norm that unites them in such a case in one chain of validity by authorizing both constitutions.122

Assuming a legally minded observer from outside a legal system were to observe the legal system and note that there are norms of customary law and norms of positive (written) law, Kelsen’s comment would be that it is the Grundnorm from which both derive their validity. However, It seems that he [the observer] can only identify the legal system with the help of the basic norm whereas the basic norm can be identified only after the identity of the legal system has been established. Even if our diligent observer succeeds in establishing that at least two sets of norms are effective in the society, one, a set of customary norms, the other, of enacted norms, there will be nothing a Kelsenite can say to help him decide whether or not they form one system or two. There is nothing in the theory to prevent two legal systems from applying

120

Raz (1979), pp. 127 f. Ibid. 122 Ibid. 121

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to the same territory. Everything depends on the ability to identify the basic norm, but it cannot be identified before the identity of the legal system is known. Therefore, the basic norm cannot solve the problem of identity and unity of legal systems, and Kelsen has no other solution.123

In other words, Kelsen’s conclusions follow from an internally coherent argument, but necessitate the assumption of disputable axioms. These axioms neither conform to the traditional view of the law, nor are they undisputed in legal philosophical circles, in part precisely of the former reason. What remains to be made explicit, then, is that the understanding of sovereignties developed in this book neither conforms to nor accepts Kelsen’s most fundamental axiom. Instead, it takes a more Hartian approach which accounts for constitutive as well as constituted sovereignty, and therefore allows for conceptions of popular sovereignty to be incorporated and explained as theories of sovereignty as well as other types of theories. A Kelsenite approach cannot explain how conceptions of popular sovereignty are linked to the foundation and source of a legal system, whereas the Hart-inspired notion of constitutive sovereignty does. Even though Kelsen’s understanding of the legal order and the separation of law and social science in a pure legal theory is not accepted here, we see that the elements of legislative authority and supremacy which form cornerstones particularly of the notion of municipal constituted sovereignty and which are recognised and protected in turn by international constituted sovereignty return also in Kelsen’s theory of sovereignty. In the following, we will explore whether this holds true also for other theories of sovereignty.

6.4.2

Chinese Sovereignty

Sovereignty is sometimes held to be an imperialist concept, imposed by Western states and used by them to justify or further colonialism.124 While the origins of the concept are, historically speaking, undeniably Western, that does not mean that the concept today is not employed also by non-Western states, some of them former colonies. India’s conception of popular sovereignty is one such example, the following section on the Chinese understanding of state sovereignty is another. Wim Muller considers the Chinese conception of sovereignty in China’s sovereignty in international law: from historical grievance to pragmatic tool.125 As stated, the concept of sovereignty is Western in origin and so China came into contact with it not upon its conception. It was not until after the Opium Wars (1839–1842) that China started “to make use of [the concept of sovereignty] to defend itself against foreign invasions and assert China’s sovereign equality”, and

123

Ibid. Cf. Strang (1996). 125 Muller (2013). 124

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even then such use was infrequent.126 China became more involved in the international community and in international organisations, first and foremost the United Nations, in the 1970s—rather recently indeed, considering that Western states have been using the Westphalian notion of sovereignty since after the signing of the Treaties of Westphalia (1648).127 In current times, China has embraced the concept of sovereignty as a means to promote and protect territorial integrity and non-intervention: Chinese references to sovereignty usually entail protection of either China’s own independence or its unwillingness to interfere in what its government considers the internal affairs of other states—for example, recent statements by China’s representative to the Security Council calling on UNSMIS to ‘fully respect Syria’s sovereignty and dignity’ and on states to respect ‘the sovereignty, independence and territorial integrity of Libya’ and the ‘sovereignty and territorial integrity of Serbia’ regarding the Kosovo question. Even better known are the numerous statements in which the Chinese government has asserted that ‘the issue of human rights falls by and large within the sovereignty of each country.’128

Muller considers that “both the call for respect towards other states’ sovereignty and the invocations of its own reflect unwillingness on the part of the Chinese government to meddle in other states’ business or let them meddle in its own.”129 In other words, the doctrine of non-intervention is the focal point of the Chinese conception of state sovereignty. Already in 1978, Kim suggested that China had embraced the Western system centred around state sovereignty, with a logic to “carry the logic of state sovereignty to an untenable extreme” likely born from a siege mentality arising from China’s history of unequal treaties.130 While Muller’s inquiry indicates that this trend has continued, China’s insistence on sovereignty has nevertheless not been absolute.131 There are instances in which China did not insist on non-interference, provided that interfering action was authorised by the United Nations’ Security Council and/or requested by the state itself.132 Carlson (2004) holds that Chinese policy on this matter is one of biding its time and picking its fights.133 Given that China is often seen as one of the main protectors of sovereignty,134 it is noteworthy that its recent position towards sovereignty and particularly the issue of intervention in other states is not “much of an outlier when compared with other states within the international system.”135 China’s position on sovereignty can thus be understood as exemplifying, at least to some degree, the

126

Ibid. Ibid. 128 Ibid. 129 Ibid. 130 Kim (1978), p. 347. 131 Muller (2013), p. 51. 132 Ibid. 133 Carlson (2004), p. 14. 134 Cf. Muller (2013), p. 35; Carlson (2004), p. 9. 135 Carlson (2004), p. 25. 127

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position of developing countries, many of which have suffered injustices at the hand of Western imperialist nations throughout history and now use the concept of sovereignty to prevent further interventions in their internal affairs and to promote their own freedom and equality. In other words, despite not being free of a certain irony, China’s insistence on state sovereignty and non-intervention can be classified as anti-imperialist, with a “need for the democratization of international relations, and the imperative of peaceful dialogue based on the principle of equality between all civilizations in the world”, as is the case for other developing countries as well.136 China’s permanent seat in the Security Council means simply that it has a voice and a vote, and equally that it is—more often than other developing states—in a position where it is under pressure to explain its political choices.137 That these are political— and pragmatic—choices does not detract from the fact that they influence the legal concept of state sovereignty as developed by both state practice, opinio iuris, and the case law of international courts with regard to the issue. In short, territorial integrity, the doctrine of non-intervention and independence are key components of the Chinese conception of state sovereignty, meaning that China’s position is largely orthodox, oriented to the classical positivist model of sovereignty which was developed and elaborated on in the Island of Palmas and the Lotus cases respectively.138 Nevertheless, it is not completely static and subject to developments, particularly with regard to notions of humanitarian intervention. As such, China’s understanding of sovereignty appears to fit neatly with the notion of international constituted sovereignty developed here.

6.4.3

Concluding Remarks: State Sovereignty

While theories of municipal constituted sovereignty generally account for municipal constitutive sovereignty and theories of municipal constitutive sovereignty consider municipal constituted sovereignty (even in cases where it is then rejected), the same cannot be said with regard to international constituted sovereignty. It is interesting to note that Kelsen’s theory, by virtue of its fundamental axioms, cannot explain how conceptions of constitutive sovereignty link to the foundation and source of a legal system. Equally, the Chinese conception of sovereignty, which can be considered as exemplifying the orthodox sovereignty doctrine of international law makes no reference to international constitutive sovereignty or any related notion. It does, however, cohere well with international constituted sovereignty as developed in this book.

136

Muller (2013), p. 55. Carlson (2004), p. 25. 138 Muller (2013), p. 46. 137

6.5 Concluding Remarks

6.5

159

Concluding Remarks

The aim of this chapter was threefold: firstly, to give some indication of different theories of sovereignty; secondly, to relate the conceptual framework of sovereignty developed in this book to some existing theories of sovereignty; and thirdly, to illustrate the benefits of the analytical framework developed in this book, in particular the distinction between constitutive (extra-legal) and constituted (legal) sovereignty. Bodin’s and Hobbes’ theories of sovereignty relate the concept to the monarch, although they both acknowledge that it need not be the monarch who is the holder of sovereignty. Sovereignty does not change if another entity becomes the holder of it. This is similar to the conceptions of sovereignty developed in this book that do not change whether they are relative to the people, the state, or the international community, on the municipal level or the international one. A difference between their theories and that developed in this book concerns limitations of sovereignty: constituted sovereignty as developed in this book is constituted by the rules of a legal system and as such determined by the rules of that system. Bodin and Hobbes, meanwhile, consider sovereignty absolute (with only divine law a possible limitation) and the sovereign above the positive laws of the state. While neither acknowledges other types of sovereignty, both Bodin and Hobbes (implicitly) leave room for constitutive sovereignty next to the monarchical sovereignty they describe. Dicey and Goldsworthy consider parliament (a composite entity consisting of the House of Commons, House of Lords and King or Queen of the United Kingdom) as sovereign. As such, their conceptions of sovereignty are situated on the organ-level, whereas I have argued for situating it on the level of the state as a whole.139 For Dicey, sovereignty means that Parliament has “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”; Goldsworthy considers the latter element of Dicey’s definition sufficient. Both explicitly recognises the sovereignty of the people—or rather, of the electors.140 They regard this as a distinction between legislative and political sovereignty, with legislative sovereignty situated in the world of law and political sovereignty being extra-legal. Goldsworthy considers sovereignty not absolute but as a matter of degree: parliament can be more or less sovereign, depending on the degree of limitation upon it. This is a direct contrast to Bodin and Hobbes who consider sovereignty to be absolute; it is also a contrast to the conception of constituted sovereignty I have developed. Constituted sovereignty as a legal status is independent from the consequential rules attached to it, meaning that ‘limitations’ on the legislative power, for example, are not limitations of sovereignty.141 Constituted sovereignty as I have

139

See Sect. 2.3.2. But see Sect. 3.2.3. 141 See Sect. 4.4 for more detail on this. 140

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developed is therefore absolute, but from this it does not follow that the sovereign is not subject to any positive laws, as Bodin and Hobbes hold. In contrast to the explicit acknowledgement of political sovereignty by the electorate as seen in the theories of Dicey and Goldsworthy, conceptions of popular sovereignty are more likely to claim exclusivity—that there are no other types of sovereignty next to popular sovereignty.142 It is interesting to note here that some conceptions of popular sovereignty (the Indian conception developed by Sen very explicitly so) consider popular sovereignty to be extra-legal, while others are not as clear on this—Winterton argues, for example, that while the Australian constitution does not explicitly claim to be based upon popular sovereignty, it has a more justifiable claim to popular sovereignty than India, Germany or others that do make an explicit claim to popular sovereignty because the people are involved in the constitutional amendment procedure. The conceptual framework of this book and the distinction between the extra-legal constitutive sovereignty and the legal constituted sovereignty allow to untangle the different senses of sovereignty at play here more clearly. Moreover, the distinction allows for the two kinds of sovereignty to co-exist instead of regarding them as mutually exclusive, better accounting for the varied conceptions of sovereignty that do not ascribe it to the people. Next to monarchical and parliamentary sovereignty, state sovereignty falls under the heading of conceptions that do not ascribe sovereignty to the people as well. Instead, states are seen as the holder of sovereignty. State sovereignty is legal in nature and here, the boundaries between legal and extra-legal seem clearer, with the extra-legal not a concern in theories of state sovereignty. All of this illustrates that the distinction between constitutive and constituted sovereignty and understanding constituted sovereignty as a legal status independent of its consequences allows for a clear understanding of the issues many of the theories considered in this chapter touch upon, such as limitations or exclusivity. Moreover, it is possible to clearly position the theory developed in this book vis-à-vis other theories, to compare and contrast and thereby gain additional insights.

References Bartelson J (1995) A genealogy of sovereignty. Cambridge University Press Besson S (2011) Sovereignty. Max Planck Encyclopedia of Public International Law. Oxford Public International Law Bodin J (1955) Les Six Livres du République (Six books of the Commonwealth) (trans: Tooley MJ). Blackwell, Oxford Carlson A (2004) Helping to keep the peace (albeit reluctantly): China’s recent stance on sovereignty and multilateral intervention. Pacific Aff 77(1):9–27 Coke E (1817) The fourth part of the institutes of the laws of England; concerning the jurisdiction of courts. W. Clarke and Sons, London

142

Section 3.3.2 addresses the matter of exclusivity.

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Dicey AV (1915) Introduction to the study of the law of the constitution, 8th edn. Macmillan, London Goldsworthy J (1999) The Sovereignty of Parliament: history and philosophy. Oxford University Press, Oxford Goldsworthy J (2010) Parliamentary sovereignty: contemporary debates. Cambridge University Press Grzeszick B (2013a) Maunz/Dürig, Grundgesetz-Kommentar 69, Ergänzungslieferung 2013. Grundsatz der Volkssouveränität, GG Art. 20 Rn. 60-77 Grzeszick B (2013b) Maunz/Dürig, Grundgesetz-Kommentar 69, Ergänzungslieferung 2013. Staatsgewalt, Rn 89-106 Hampton J (1997) Political philosophy. Dimensions of philosophy series. Westview Press Hobbes T (2013) Leviathan. In: White E, Widger D (eds) Project Gutenberg Kalyvas A (2005) Popular sovereignty, democracy, and the constituent power. Constellations 12 (2):223–244 Kelsen H (1959) Sovereignty and international law. Geo Law J 48:627–640 Kim SS (1978) People’s Republic of China and the Charter-based international legal order. Am J Int Law 72:317–349 Lloyd SA, Sreedhar S (2013) Hobbes’s moral and political philosophy. The Stanford Encyclopedia of Philosophy, Summer 2013 edn. http://plato.stanford.edu/archives/sum2013/entries/hobbesmoral/ Maiolo F (2007) Medieval sovereignty. Eburon Academic Publishers, Delft Maritain J (1950) The concept of sovereignty. Am Polit Sci Rev 44(2):343–357. https://doi.org/10. 2307/1950275 Marmor A (2010) The pure theory of law. The Stanford Encyclopedia of Philosophy, Fall 2010 Edition edn. http://plato.stanford.edu/archives/fall2010/entries/lawphil-theory/ Muller W (2013) China’s sovereignty in international law: from historical grievance to pragmatic tool. China-EU Law J 1(3–4):35–59. https://doi.org/10.1007/s12689-012-0011-3 Raz J (1979) Kelsen’s theory of the basic norm. In: The authority of law: essays on law and morality. Oxford University Press, pp 122–145 Sawer G (1987) Government and law. In: Miller JDB (ed) Australians & British: social and political connections, pp 45, 75 Scott JB (1939) Jean Bodin The transition from medieval to modern thought: Chapter XXIII. Law State Int Community 1:324–352 Sen S (2011) The Constitution of India: popular sovereignty and democratic transformations. Oxford University Press, Delhi. https://doi.org/10.1093/acprof:oso/9780198071600.001.0001 Strang D (1996) Contested sovereignty: the social construction of colonial imperialism. Camb Stud Int Relat 46:22–49 Turchetti M (2012) Jean Bodin. The Stanford Encyclopedia of Philosophy, Winter 2012 edn. http:// plato.stanford.edu/archives/win2012/entries/bodin/ Turpin CTA (2007) British government and the constitution: text and materials. Cambridge University Press, Cambridge Winterton G (1998) Popular sovereignty and constitutional continuity. Fed Law Rev 26:1–14

Chapter 7

Conclusion

The aim of this book has been to explicate the concept of sovereignty. I start from the premise that sovereignty is taken to mean many different things in many different contexts and that it is not possible to find a lowest common denominator that is not so broad or vague as to be practically useless for the purpose of analysing and understanding legal phenomena. To rectify this, I have developed two conceptions of sovereignty: constitutive and constituted sovereignty. Constitutive sovereignty is the extra-legal power of a collection of actors to constitute, maintain and deconstruct a legal system by means of a social rule (‘governing rule’) to the effect that the norms of the legal system are preemptive and binding. Constituted sovereignty is a legal status attributed to an entity by means of legal rules which often comes with legal consequences attached to it but is independent of those consequences. These two conceptions of sovereignty are relative to legal systems, meaning that they can be found vis-à-vis different legal systems. Their meaning does not change depending on context, but the holder of sovereignty and the consequences attached to the status (in the case of constituted sovereignty) can and do change.

7.1

Constitutive Sovereignty

Constitutive sovereignty is, as the name already suggests, something that constitutes. This raises three questions, however: firstly, what is constituted, secondly, how is this done, and thirdly, who does it? The first and the last of these three questions are more easily answered than the second. Constitutive sovereignty constitutes a legal system. On the municipal/ national level, this is the state, or the legal system for which the state stands and on which it is based. On the international level, this is the international legal order. Constitutive sovereignty is exercised by a collection of actors, acting collectively. On the national level, these entities are individuals and the group is a people (in the © Springer Nature Switzerland AG 2019 A. M. Waltermann, Reconstructing Sovereignty, Law and Philosophy Library 132, https://doi.org/10.1007/978-3-030-30004-3_7

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sense of collection) or even a set of peoples. Already here, it is important to note that it is not individuals acting on their own who are sovereign in this sense, but only taken together. On the international level, these entities are currently states, again acting together rather than independently. The second question takes more explaining, and also shows how it is that individual entities are not sovereign, but many individual entities (be they states or actual individuals within states) acting together can be and are. Three different types of exercising constitutive sovereignty can be distinguished: at the actual moment of constitution in which people or states first accept that they are governed by a legal system (e.g. when a new constitution is accepted), during a state of maintenance in which abiding by the laws of the constituted system instantiates the governing convention/rule of recognition of that system, and when deconstructing the system (e.g. in case of rebellion or even secession against the wishes of the nation seceded from). These may be called, on the one hand, the positive side of constitutive sovereignty (initial constitution and subsequent maintenance of the legal system) and, on the other hand, the negative side of constitutive sovereignty (deconstruction of the legal system in question). These three different types, or the distinction between the positive and negative side of it, do not yet explain how constitutive sovereignty is exercised, only that it can be exercised with different effects. Constitutive sovereignty describes the instantiation or non-instantiation of what Jean Hampton calls a governing convention and what HLA Hart calls a rule of recognition, although I have argued that this governing convention/rule of recognition is best characterised as a social rule rather than a convention. The example of chess nicely illustrates what this is: assuming that a number of individuals join a chess club, they accept—perhaps even without having read it—that the rulebook governing how chess is played will be applicable to all games of chess they play. They might not know every single rule of chess, and they do not in advance (or with hindsight) determine which rules they accept as being applicable to their games of chess. Instead, they accept that if they are to play chess, the rules of chess apply, and that if they play chess and do not apply the rules, the rules will nevertheless be enforced. In short, they take a certain mental attitude towards the rules of chess (they accept them as applicable) and the rules are enforced even when they do not stick to them. These are the two components of a social rule: social attitude and efficacy. It should be noted, here, that the social attitude does not necessarily need to be one of praise or even consent: acceptance should be understood as an unambitious term here. The bare minimum standard is one of acquiescence. Efficacy means, of course, that the rules we thus accept are actually—at least usually—complied with. Accepting the rule underlying the legal system means taking an internal viewpoint to the system of law which is based on it. In other words, we can argue about whether or not the rulebook of chess applies to the playing of chess, but once we accept that the rulebook governs chess games, we cannot at the same time hold that individual rules within the rulebook in general do not govern our games, or at least not if the rulebook specifies that those rules are applicable. What we can do is give descriptive accounts of who in the chess club has the competence to amend the rulebook, we can argue that some rules should be amended, and probably, we can

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leave the chess club again, which amounts to our saying that this specific rulebook no longer applies to us. It is much the same with a legal system. Once a legal system is constituted and until it is deconstructed, the rules of that system apply. This does not take away that citizens, legal practitioners and legal scholars can study those rules, argue about them, or work on having them changed, but it does mean that they do so within the framework of that legal system and in accordance with its rules—and that if they do break the rules of the system, for whatever reason, this will mean enforcement against them. Accordingly, the social attitude they—as a group—take, and the enforcement of rules irrespective of our individual views regarding the system as a whole or regarding individual rules within that system together constitute and maintain the legal system. Individual actions in themselves, whether they are geared towards accepting or deconstructing the system, do not constitute or deconstruct it in themselves, but they contribute to the constitution, maintenance or deconstruction of the system. If one individual thinks the rules do not apply to him (or her), they will be considered a criminal, asked to pay a fine or otherwise sanctioned, depending on what rules they break. If the vast majority of individuals thinks the rules do not apply, and all individuals also act accordingly, most likely the system will fall. There are complications here, of course, such as when there is a small but very powerful enforcement cadre which does still hold the rules applicable and enforces them against the majority. In such a case, the governing rule is upheld only by the minority and for the majority, a situation of mastery has arisen. Of course, it is relatively rare that the lines are quite so clearly drawn. Any action by an individual which applies the rules of the legal system (cf. any move made according to the rules in the chess rulebook) and any instance in which the rules are applied (either because an individual has made a move according to the rules or because an individual was sanctioned for not following the rules) instantiates the governing rule and thereby strengthens it. Any non-application or non-enforcement of the rules also means that the governing rule is weakened. For neither, the individual needs to even be aware that they are instantiating or non-instantiating the governing convention. Even without that knowledge or deliberateness, individual actions contribute to the constitution, maintenance or deconstruction of the legal system, but it is not the individual action standing alone that constitutes, maintains or deconstructs the system; it is the entirety of individual actions taken collectively.1 This answers how constitutive sovereignty is exercised: through the collection of individual actions either instantiating or not instantiating the social rule that constitutes a legal system. This can be done on the national level, that is, when people constitute a state, or it can be done on the international level, that is, when states adhere to (read: instantiate) or disregard international law. On the international level, however, the enforcement mechanisms and the political will to use them are less pronounced than on the national plane (depending on the state taken as a comparator, of course), which means that the social rule constituting and maintaining

1

NB: Collectively does not mean “in any coordinated, collective fashion”.

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international law is comparatively weaker than that of the national legal system. I have not, in this book, focused on the constitution, maintenance and deconstruction of legal systems outside of what has traditionally been called the Westphalian duo, but I believe that the two conceptions of sovereignty I have developed, and in particular constitutive sovereignty, would apply mutatis mutandis to phenomena of transnational law. On the national level, the idea that all power within a state emanates from the people is often termed “popular sovereignty”. The concept of municipal constitutive sovereignty—that is, constitutive sovereignty relative to the municipal legal system—specifies how and in what way this is done and what it entails, or rather, what it does not entail: given the relatively unambitious scope of the requirement of acceptance/social attitude, municipal constitutive sovereignty does not necessarily require democracy. It does not in itself mean that any state in which municipal constitutive sovereignty is present is also a just or justified state. Instead, it explains where state power comes from (the people) and how this is done (a social rule); this does not entail any kind of judgement as to what kind of state it is or what form the state must take. On the international level, there is no corresponding commonplace understanding of sovereignty to which to link international constitutive sovereignty. Nevertheless, states acting collectively constitute the international legal system via the same mechanisms (social rule) by means of which individuals acting collectively constitute internal legal systems. I have argued that international constitutive sovereignty has explanatory value and fills a lacuna in our current understanding of sovereignty and the foundations of legal systems, as well as their connections. Admittedly: states as such cannot act in the same way that individuals can act. Instead, the actions of state officials are attributed to the state as a whole and therefore count as actions by the state. Actions by state officials can be limited by a lack of competence given to them in the national legal system, although this is mitigated by the assumption of legality on the international level. Hence, municipal and international constitutive sovereignty can be compared and summarised under the same header of constitutive sovereignty. It should also be noted that both municipal and international constitutive sovereignty are matters of social attitudes and facts. This means that for the constitution of a legal system, e.g. in the case of secession from an existing state, questions of legality or illegality are only relevant when taking an internal viewpoint to the legal system and can only be evaluated from within the world of law. Constitutive sovereignty, however, is extra-legal. This means that constitution or deconstruction of a legal system does not find its basis in the world of law, but within social facts. Whether a group of individuals (a people) has the legal competence to secede is a very different question from whether they can de facto do so, from whether they have the power (instead of competence) to constitute a new legal order.

7.2 Constituted Sovereignty

7.2

167

Constituted Sovereignty

Constituted sovereignty is situated within the world of law, in contrast to constitutive sovereignty, which is situated outside of it. In other words, constituted sovereignty is an internal legal concept, although I have described the doctrinal variant of it.2 Constituted sovereignty describes the legal status of sovereignty that is attached to an entity (which then becomes the holder of sovereignty) by the rules of a legal system. The rules determining when the status applied are called entrance rules; in addition, there are also exit rules which determine when the status ceases to apply and consequential rules which determine which consequences attach to the status. Traditionally, consequences attaching to the status of sovereignty from the perspective of national law have been those relating to law-making, adjudication, and the execution of laws. It is important to note, however, that the status as such is independent of its consequences. This means that the consequences can change without the status changing and that the consequences need not necessarily attach to the status. This explains how it is possible to attribute the status of sovereignty to the people without attaching the consequences of law-making, adjudicative and executive competences to that entity as well. It also demonstrates that it is possible to transfer ‘sovereign’ competences to international organisations such as the European Union without a loss, limitation or transfer of sovereignty. As with constitutive sovereignty, constituted sovereignty is relative to a legal system and I have, in this book, considered it relative to national legal systems (municipal constituted sovereignty) and relative to international law (international constituted sovereignty). This does not take away that it can exist relative to other legal systems, provided such legal systems attribute sovereignty to an entity by means of legal rules, nor does it mean that all municipal legal systems necessarily attribute sovereignty to an entity or that it is a conceptual necessity for constituted sovereignty to exist in each legal system. Considering constituted sovereignty relative to the national legal system (MCDS), a distinction can be made regarding the level on which MCDS is situated: this can be done either at a state- or at the organ-level. MCDS on the state level attributes the status of sovereignty to the state as a whole. This understanding of sovereignty derives from the Peace of Westphalia and settles the question whether church or state have superior authority, although it is equally valid for questions of superiority regarding any other organisation or association creating a system of norms valid on the territory of the state. On the organ level, the attribution is shifted to an individual organ within the state, and the question is less whether it is the state or another organisation which is sovereign, but which organ of the state has the final say. Understanding MCDS as situated on the organ level fails to take into account that organs can act as composite entities and that the state is such an entity. With regard to international constituted sovereignty, there is no question as to which level this type of sovereignty should be attributed to: the sovereign in this 2

See Chap. 3. Inferential analysis of “sovereignty” in national law.

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7 Conclusion

sense is always a state,3 and currently, the following consequences attach to this status: a state has the exclusive right, in the absence of a more restrictive rule, to exercise state functions on its territory without outside interference, and that it is prohibited, in the absence of a more permissive rule, from interfering in the exercise of state functions on the territory of any other state. Furthermore, states have the competence to make more restrictive or more permissive rules. It is not clear how a sovereign entity loses its sovereign status (that is, there is no clear exit rule). Understanding ICDS as a status means that states are not “more or less” sovereign but that sovereignty is a legal status applying equally to each of them, even where restrictive or permissive rules limit or expand their duties or their competences. As such, international constituted sovereignty describes the base assumptions around which international law is built. The question might be raised how states can be both the authors and subjects of international law. This question, however, fails to take into account the distinction between constitutive and constituted sovereignty.

7.3

A Look to the Future

In this book, I have explicated or reconstructed the concept of sovereignty by developing two conceptions of it: constitutive and constituted sovereignty. In Chap. 5, I have applied these conceptions to different questions of our time, from secession to the European Union, and in Chap. 6 compared and contrasted my conceptions of sovereignty to other accounts, illustrating how the distinction between constitutive and constituted can serve a clarifying function. Sovereignty has been and remains a key concept with regard to many issues, including but not limited to the relationship between the European Union and its members, questions of secession, and humanitarian intervention, in constitutional and international adjudication as much as in constitutional and international legal theory. It is my hope that the conceptions of sovereignty I have developed will prove useful in analysing and understanding different questions relating to legal phenomena. The theory developed in this book has focused on an explanatory and exploratory account rather than on any ideological considerations or evaluative statements, situating it within the legal positivistic tradition. Explaining how a legal system is constituted does not offer any tools to evaluate said legal system. Similarly, giving criteria to identify the sovereign within a legal system does not make any kind of statement about whether or not it is good that this entity in particular should be sovereign, much less whether or not it is good that any entity should be sovereign. Equally, untangling different meanings of sovereignty does not entail that the different concepts will no longer be used in academic, political or legal discourse, nor that they will not develop further. What the analysis of this book offers is the

3 Always, but not necessarily—this could change if the entrance rules for the status of sovereignty were changed.

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tools for conceptual clarity, for the sake of analytical and academic discourse but also for the sake of avoiding fallacies in political discourse and in allowing those involved in discourses in which “sovereignty” plays a role to identify what is meant by “sovereignty” and whether it describes the real issue at hand. Some issues have remained open; I would like to highlight three here: firstly, as mentioned before, this book did not (try to) offer criteria for valuating legal systems and their legitimacy. Here, political philosophy and other strands of legal theory can be of use. Secondly, the conceptions of sovereignty in this book are relative to legal systems, but the concept of a legal system itself could be subject of further attention, as I have pointed out when writing on the question whether the European Union is a subset of international law or a sui generis legal system. Lastly, the conception of constitutive sovereignty relative to international law presupposes that states can be understood to act in a way comparable to human beings. The question if and how non-human entities can act requires further research; I intend to work on this in the future. This book has provided a rational reconstruction of “sovereignty” that is prescriptive in that it offers a precise and consistent theory of the different meanings of sovereignty, but not in that it answers questions involving sovereignty as such. In this way, the book does not seek to end discussions surrounding sovereignty; rather, it seeks to give useful analytical tools—in the form of different concepts of sovereignty—for the on-going discussions that still exist and will likely continue to exist for a long time.