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The Principles of Constitutionalism$

N. W. Barber

Print publication date: 2018

Print ISBN-13: 9780198808145

Published to Oxford Scholarship Online: September 2018

DOI: 10.1093/oso/9780198808145.001.0001

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Sovereignty

Sovereignty

Chapter:
(p.21) 2 Sovereignty
Source:
The Principles of Constitutionalism
Author(s):

N. W. Barber

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198808145.003.0002

Abstract and Keywords

This chapter presents sovereignty as a normative principle but, in so doing, will also explain its descriptive aspect. The first part of the chapter connects sovereignty to an account of the state. Sovereignty captures two groups of elements that are necessary features of this institution: on the one hand, the characteristic authority claims made by the state; and, on the other, the demand that these claims be—to some extent—effective. The second part of the chapter considers the importance of sovereignty: the moral reasons that we have for creating institutions that possess its characteristics. Third, the chapter considers whether there are some situations in which sovereignty is unattractive or, perhaps, situations in which non-state institutions are preferable locations for sovereignty. The chapter concludes by arguing that for the vast majority of people today, sovereignty is of significant moral value.

Keywords:   sovereignty, state, constitutionalism, origins of states, social groups, invisible hand

Is sovereignty a principle of constitutionalism? For some, this chapter will have started off on the wrong foot: for them, sovereignty is a description—or a wilful mis-description—of facts that exist in the world. On this understanding of the term, sovereignty purports to capture an attribute of states. This may be a necessary feature of the institution, a characteristic all states must possess,1 or, more darkly, it may amount to, in the words of Stephen Krasner, a form of ‘organised hypocrisy’; a passionate assertion of the existence of certain facts that, in reality, are not attributes of states.2 For some, sovereignty has become—or maybe always was—a work of fiction. There is, as we shall see, a core of truth in both of these claims: that sovereignty is a necessary attribute of states and, also, embodies an untruth. Resolving this apparent paradox will be one of the tasks of this chapter. Krasner’s characterization of sovereignty as an exercise in hypocrisy points us towards another aspect of sovereignty: its normative dimension. As has been said, hypocrisy is the tribute that vice pays to virtue: that people present sovereignty as important—even whilst aware that states routinely, and for good reasons, fail to meet its demands—suggests there is something morally valuable about sovereignty. Indeed, in political arguments sovereignty is commonly invoked as something worth preserving or strengthening: politicians routinely complain of actions that harm the sovereignty of their states.

This chapter will present sovereignty as a normative principle but, in so doing, will also explain its descriptive aspect. The first part of this chapter will connect sovereignty to an account of the state. Sovereignty captures two groups of elements that are necessary features of this institution: on the one hand, the characteristic authority claims made by the state; and, on the other, the demand that these claims be—to some extent and in some (p.22) form—effective. On this understanding of sovereignty and states, all states are, necessarily, characterized by sovereignty. The second part of the chapter will consider the importance of sovereignty: the moral reasons that we have for creating institutions that possess its characteristics. As sovereignty is a core feature of this institution, this account will also provide a starting point for an account of the value of the state—but as an account of sovereignty is not identical with an account of the state, a defence of sovereignty is not a simultaneous defence of the state. Thirdly, the chapter will consider whether there are some situations in which sovereignty is unattractive or, perhaps, situations in which non-state institutions are preferable locations for sovereignty. The chapter will conclude by arguing that for the vast majority of people today, sovereignty, and, moreover, sovereignty mediated through the state, is of significant value.

There is a complicated relationship between the normative and the descriptive in this chapter.3 The chapter begins with the descriptive—an account of sovereignty that, it is hoped, will resonate with the reader’s understanding of that term—and then proceeds to the normative—examining the reasons why sovereignty is valuable. But the ordering could have been inverted; the account of sovereignty developed in the first section is informed by the normative analysis in the second. Taken as a principle of constitutionalism, sovereignty is a moral principle and, as discussed in the last chapter, as a moral principle its best interpretation is the one that renders it most morally attractive. The theorist is limited by the broad common understanding of sovereignty—if she departs too far from this she is no longer providing an account of sovereignty, but rather of some other principle—but within this constraint there is a wide interpretative latitude. It is possible, of course, that contrary to the arguments of this chapter, and despite all this interpretive effort, sovereignty remains stubbornly unattractive. Perhaps no good moral reasons can be identified for sovereignty; if so, sovereignty may be a mistake, a constitutional fetish that lacks any merit.

A second intertwining of the normative and descriptive arises at the point of connection between the account of sovereignty and an account of the state. As I have argued elsewhere, when providing an account of a social institution, such as the state, one of the tests of the success of the account is its capacity to pick out features of the institution that are important to us; features that are (p.23) morally salient. If it can be shown that the attributes of the state identified by sovereignty are morally important, this exercise will provide a justification for the inclusion of these features within the account of the state.

Finally, the justification of sovereignty will depend upon some empirical claims about human nature and human society. The claim that certain constitutional structures are needed for, or are conducive to, well-being turns, in part, on human nature and on the operation of society. Our limited capacities to gather information, to reason correctly, and to then act on the products of this reasoning are important steps in an argument for the state and, moreover, should shape the construction of that institution. An important function of the state is to provide an institutional structure through which human deficiencies in each of these three areas—knowledge, rationality, and good will—can be mitigated or cured. Moral arguments about the value of sovereignty will, therefore, rest on empirical claims about human capacities. Some of these empirical claims may be obvious—people are plainly not omniscient—but others may be more debatable. The account of sovereignty developed in this chapter may, then, be contested on both normative and empirical grounds; the argument may fail because it mistakes the proper ends of human interaction, or it may misunderstand the institutional structures that are conducive to bringing about these ends.

The Four Aspects of Sovereignty

Sovereignty is a word with many meanings, a homonym of impressive proportion. This chapter considers state sovereignty,4 but there are a number of related, but distinct, senses that could be accorded to the term. There is legal sovereignty,5 the capacity of a legislature to make law on any matter it chooses; popular sovereignty,6 the ultimate right of the people to decide on the government of their state; and the sovereign, his or herself—the monarch who stands at the head of the state.7 There are profound differences between these (p.24) ideas—and it would be a mistake to think of them as emanations of a single concept—but the varying meanings share a number of factors. First, they all concern purported authority relationships, amounting to a claimed, and sometimes actual, entitlement to tell others what they ought to do: the legal sovereign is empowered to enact laws that others within the system should obey; the people, under the doctrine of popular sovereignty, are entitled to set the constitutional path of the state—a path which officials and institutions are then obliged to follow; and when the head of state is described as sovereign the term implies that she occupies a position of constitutional authority, entitled to issue commands within certain areas. Secondly, they all carry an implication of finality: that the decision is ultimate, and cannot be unpicked by another body.8 Under parliamentary sovereignty, the laws enacted by a sovereign legislature should not be overturned by judges, unless, perhaps, the legislature has empowered them to do so. Popular sovereignty denies others in the state the right to subvert the decisions of the people; it is the people who get to decide on the government of the polity. And the intra vires decisions of a sovereign head of state are final within the executive decision-making structure. Finally, all three of these senses of sovereignty concern the location of constitutional power: they are concerned with the construction and operation of the state.

Like these other uses of the term, state sovereignty is concerned with authority relationships, finality, and the structuring of the state. Unlike the other three senses that are tied to institutions within the state—the legislature, the citizenry, the head of state—state sovereignty relates to the state itself, taken as a whole: consequently, whilst the other senses of sovereignty invoked claims of authority and finality, these were claims that were confined within particular constitutional fields. State sovereignty, in contrast, relates to the totality of the state and the totality of state power. It is the state, as a whole, that is sovereign, and, as an aspect of sovereignty, asserts an entitlement to determine how power is divided between its institutions—both in terms of the process by which the division of power is decided, and the ultimate scheme of division that is adopted.9 In treating sovereignty as an attribute of the state as a whole rather than as an attribute of an institution or person within the state, this chapter departs from many of the classical accounts of the doctrine, as found most prominently in the work of Bodin and Hobbes.10 It will be argued that it is, in part, this mistaken search for a (p.25) single sovereign body within the state that has made the principle of sovereignty seem unattractive.

State sovereignty embodies a claim about authority and, for it to be present in the world, this authority claim must have an ascertainable impact on those within the territory of the state; sovereignty embodies an authority claim that is, in some respects, effective. The claims that characterize sovereignty and the demand of effectiveness are the first two aspects of the principle. Cross cutting these is a further divide: between the internal and external aspects of sovereignty. Internally, sovereignty is concerned with the capacity of the state to effectively govern its territory and people. Externally, sovereignty requires that it is the state that does this governing; it—and not some non-state body—decides how its territory and people should be governed.

(i) The Claims of Sovereignty

The state claims authority over its people and over those within its territory; it claims to have the final say about how these people ought to behave.11 Whilst there are many bodies within the state that purport to exercise limited authority—companies, unions, schools, for instance, all claim to be entitled to exercise authority in limited ways in limited areas—the state makes a far broader assertion of authority: every area of its nationals’ lives, and the lives of those within its borders, comes within its reach.12 For those writing on the state, this authority claim is one of the characteristics that define its nature. Perhaps the most famous account of the state that places authority claims at its core is that of Max Weber. Weber’s characterization of the state is often the starting point for discussion of the institution; he described it as ‘a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’.13 Scholars have often focused on invocation of force as the central part of the definition, but, given that force need only be exerted when the state’s authority is challenged, it could be argued that authority, not force, is the primary part of the definition.14 The state issues commands that are backed by force: these are distinguishable from the demands of the gunman, though, in that the state claims that it ought to be (p.26) obeyed; it purports to exercise legitimate authority, and, when it resorts to force it is entitled to do so because of the failure of the individual to recognize its right to command.

The precise nature of the state’s authority claim is debatable. For Weber, the state claims that all exercises of authority within its borders are either legitimated by it—expressly or tacitly—or are illegitimate, a threat to the state.15 Les Green, in contrast, argues that the state claims to be the supreme authority in its territory;16 whilst the state claims to be entitled to remove or fetter other authorities within its boundaries, it does not claim that these bodies find the source of their authority in its express or tacit permission. In this respect, Green’s account is preferable to Weber’s. It is possible that the state might acknowledge that authority relations within other social institutions have an independent, non-derivative, existence: the state need not claim that it has validated or established authority relations within the institution of the family, to give one example.17 Furthermore, the state need not claim that it is entitled to interfere with these other authority relationships. When other institutions are functioning properly, the state might conclude that interference with them would be unjust; that they fall beyond the state’s proper jurisdiction.

Reflection on the authority claims made by the state brings us back round to sovereignty. Internal sovereignty relates to the ability of the state to exercise control within its territory. As a claim, internal sovereignty relates to the way in which the state presents itself to its members and to those who operate within its territory; as Neil Walker puts it, sovereignty is, in part, a speech act;18 if the supposed state concedes that its authority does not extend to some folk within its territory or population, its sovereignty—and its statehood—will be called into question. The most common articulation of this element of sovereignty is through the issuing of commands: when the state orders a person to act, the action is only conditional to the extent that the state permits it. So, it may be that the person is given permission not to act—or that the command can be set aside by another (non-state) body—but, according to the claims embodied in sovereignty, these exceptions must either be mandated by the state or endorsed by it. More specifically, whilst the state may recognize limits on its authority, and may recognize other bodies within its territory have non-derivative authority, it is the state that makes these determinations. (p.27) There are moral limits on the extent to which the state should interfere with bodies within its territory, and so situations in which the state should recognize the proper authority of other bodies, but, according to sovereignty, it is for the state to decide on these limits. As we shall see, it is an important aspect of sovereignty that the state claims jurisdiction to determine the jurisdiction of other institutions within its borders—even if it goes on to decide that it would have been wrong for it not to accept their non-derivative authority.

The claims of the state also speak to external sovereignty: the autonomy the state enjoys from other entities, including other states but also including powerful actors within its borders, that exist outside of its constitutional structures.19 The state’s sovereign claim to exert authority over its people and territory includes a claim of independence from external control: it is the state that decides how it exercises its power. If a state cedes authority to another body, sovereignty, and statehood, is lost. When, for example, Scotland and England agreed to combine into the United Kingdom, each abandoned its old set of sovereignty claims in the joint recognition of the authority of a new set of constitutional institutions.20

External sovereignty is most commonly considered in the context of international relations—the capacity of the state to act independently of other states and international organizations—but its implications are wider than this. The state also claims to act autonomously of private bodies, such as trade unions, multinational companies, churches, and the like. These bodies may lobby and persuade the state but, if the claims of sovereignty are vindicated, they may not command; the state is not subject to the control of another institution.

The claims that are characteristic of sovereignty—in both internal and external respects—have an assertion of finality at their core.21 Not only does the state purport to tell people how they ought to behave, it also asserts that the decisions of its institutions may only be legitimately challenged within its constitutional structures. The state, as a whole, has the final say about the rights and duties of its nationals and those within its territory. Other groups within the community, other states and international bodies, may debate with the state, but, ultimately, it is the state that decides. This element of (p.28) finality, the assertion of the entitlement to make the ultimate decision, is crucial to sovereignty, and brings to mind the work of one of sovereignty’s most controversial theorists: Carl Schmitt. For Schmitt, the sovereign was ‘he who decides on the exception’.22 In the moment of the exception—a status identified by the sovereign—the sovereign steps forward to decide on the applicability of the state’s legal order23 and—perhaps as a result of this—determines the extent of the state’s membership, sorting the friend from the enemy.24 It is only a small exaggeration to say that for Schmitt the sovereign takes the place of God within the cosmology of constitutional thought.25 It is the existence of the sovereign that permits the miracle that enables the existence of the state, defining the group that constitutes its members, and willing the operation of its legal order.26

The account of sovereignty given in this chapter resembles that of Schmitt’s in a number of respects: as in Schmitt’s account, sovereignty is presented as a necessary feature of the state, and, as with Schmitt, sovereignty is tied to decisions and to finality. But there are important differences. First, Schmitt’s model of sovereignty presents sovereignty as vesting in a person within the constitutional order. Sometimes Schmitt claimed that an institution could possess sovereignty, but the logic of the exception militates against this.27 If an institution stepped forward in a moment of crisis to determine the applicability of the legal order, what if the crisis infected that institution? Then the fragmentation of the institution might reveal a smaller group or sub-institution that could make this decision—and the process could continue, until the ‘sovereign’ individual is revealed.

There are several difficulties with Schmitt’s conception of sovereignty. Most fundamentally, perhaps, it is hard to see why we should assume that there is one person (or institution, come to that) who will possess the capacity to resolve, or identify, every constitutional crisis.28 It could be that different crises will be addressed by different constitutional actors; the effective decision-maker may be identified by, perhaps empowered by, the circumstances of (p.29) the crisis.29 Though Schmitt is correct to argue that the constitution cannot provide for every emergency, constitutional rules—legal rules—often succeed in heading off crises or in providing structures through which these crises can be resolved without recourse to extra-constitutional action.30 Secondly, Schmitt’s conception of sovereignty focuses on the extremes, whereas this chapter presents sovereignty as a day-to-day feature of the state. The invocation of finality is a common aspect of constitutional life: legislatures get to decide on the contents of statutes; courts have the final say about disputes over the legal rights of individuals; administrators, when acting within jurisdiction, get to set and apply policies. Far from being exceptional, the closure that sovereignty enables and requires is a routine, and essential, part of the activities of the state.

(ii) The Effectiveness of the Claims

Consideration of the authority claims at the core of sovereignty shows that the internal and external aspects of sovereignty are two sides of the same coin. Internally, the state claims authority over its people and territory; it asserts that it has the final say about their rights and obligations. Externally, the state claims to be entitled to exercise this power free from outside control; it is the state that decides. At this point, the reader might be reminded of Krasner’s allegation that sovereignty is ‘organised hypocrisy’: after all, in reality even the most powerful of modern states do not live up to these claims. As a matter of internal sovereignty, all states struggle, and frequently fail, to exercise control over their people, and this failure can arise in a number of ways. Most obviously, people break the law, and often get away with their law-breaking. But the state may also fail to exercise control when people do what an apparent state says, but not because that body has said it. The European Union, for instance, makes claims that seem very similar to, if not identical with, those of the state, but its capacity to control its people depends almost entirely on the willingness of the Member States to command their citizens to obey.31 As a matter of external sovereignty, all states are under constant pressure from their fellow states and from other institutions.32 Even super-powers, such as America and China, are influenced by bodies outside of their constitutional (p.30) orders, and states of more modest means may find, on occasion, that their conduct is all but determined by powerful actors. Krasner is, then, correct to identify something paradoxical at the heart of sovereignty: the claims at the core of the principle are ones that are never completely successful and, moreover, most thoughtful members of the state know this full well. Those who protest against actions that violate or undermine sovereignty might appear mendacious for this reason; criticizing others for acting contrary to a purportedly valuable state of affairs that, they know, does not actually exist.

The apparent paradox of sovereignty can be resolved through reflection on the requirement of effectiveness. Whilst the claims of sovereignty are absolutes, the existence of sovereignty is a matter of degree.33 It is not enough that the state makes these claims, for the state to exist in the world—and for the political ordering to be characterized by sovereignty—these claims must be effective to some extent. In this respect it is incorrect, or at least misleading, to say, as Michael Oakeshott did, that sovereignty is a form of authority and not a form of power.34 Sovereignty lies at the intersection of authority claims and power; it is a particular type of authority claim that has some practical power behind it.35 Where sovereignty exists the institutions articulating its claims must, to some extent and in some way, make good on these claims.

Returning to Weber’s account of the state, in addition to an assertion of authority, Weber argued that the state must also succeed in persuading its subjects that it is entitled to govern them; it is not sufficient that they treat the state as an authority, they must also endorse its claim to legitimacy.36 As a broad empirical assertion, there is probably something to this: states in which only a very small portion of the people accept the legitimacy of their rulers are likely to be unstable, and may struggle to maintain control of their population over time.37 But governments that rely on threats and bribes to secure their power can exist for long periods of time—and may sometimes prove more stable than states that enjoy broad popular support. Les Green advances the more cautious—and more plausible—assertion that the test of effectiveness should be taken as relating to the capacity of the state to successfully alter the way people behave: people must act as the state requires and, moreover, (p.31) act in this way because of this requirement. In Joseph Raz’s terminology, the state must be a de facto authority.38 In contrast to Weber’s account of the state, in Green’s account the state’s commands must generally be effective, but this effectiveness need not rest on an endorsement of the state’s claim to exercise authority.39

The requirement of effectiveness plays out in different ways in terms of internal and external sovereignty. As a matter of internal sovereignty, the state must succeed in exercising control over the people within its territory. For the state to exercise control, it is not enough that people simply act in the way that the state commands—a fantasist who commanded everyone to behave as they please is not exercising control over their behaviour—they must act in this way because of, at least in part, the state’s commands. To foreshadow the discussion of the rule of law in a later chapter, this requires that the state’s commands do, indeed, make the difference to people’s conduct that they purport to make. As a matter of external sovereignty, the state must maintain the capacity to make decisions—to exercise its control over its people and territory—in an autonomous fashion. It may listen to other institutions and individuals, but, ultimately, it is the state that decides on the way it governs.

Both of these two aspects of effectiveness are matters of degree. To possess sovereignty the state must satisfy the requirement of effectiveness to some minimal extent.40 A set of institutions that completely failed to govern would not possess sovereignty, and would not constitute a state. Similarly, a set of institutions that was completely subservient to another body—whose decisions were dictated by that other body—would also lack sovereignty; at best, it would be a ‘puppet state’, an entity which had the outside form of a state, but lacked its true content. Beyond this minimum, states can enjoy greater or lesser sovereignty. Some states have a firm control over their territories: their capacity to successfully command their people is very high whilst other states may possess less control.

Beyond a certain minimal level, the external sovereignty of states is, again, a matter of degree.41 All states must, and, indeed, should, listen to and consider the representations of non-state institutions before acting. As we shall see, part of the value—perhaps a very significant part of the value—of states is their capacity to facilitate and encourage the activities of non-state (p.32) groups. The creation and enhancement of civic society, the arena of non-state institutions that exist within the state, is one of the purposes for which states exist. Similarly, at a higher level, the creation of an international community, and fostering of positive relationships between states in this realm, is also one of the state’s tasks. In each of these instances, the state needs to engage with and consider the views and interests of these external groups before acting. Very powerful states may be able to act with almost complete autonomy—free to decide to what extent they consider the representations of external parties—but, more commonly, most states must take account of the views of other states and groups before exercising their power.

Politicians who protest about the violation of sovereignty may, sometimes, not be guilty of mendacity. Lobbying and pressure brought from within and outside the state do not necessarily run against sovereignty. Sovereignty is retained, unimpeded, when the state considers representations made by other bodies and is made aware of the possible repercussions of its actions. Sovereignty is threatened, though, when these other bodies are able to dictate to the state. Politicians may rightly protest if a powerful corporation or neighbouring country seeks to command action; such a shift in power would take public decision-making out of the hands of the citizenry. Politicians may also rightly warn if decisions of the state risk imperilling sovereignty: for example, it is possible that some forms of international arrangement place too great a constraint on the state.

The Value of Sovereignty

If sovereignty is to qualify as a principle of constitutionalism it must be morally attractive; there must be reasons why we should create an institutional structure that is characterized by its demands. It is worth noting at the outset that the obvious candidate for defence of sovereignty—the importance of coordination—is not quite enough for the task; it is not immediately obvious why the particular type of authority embodied in sovereignty is needed in order to coordinate communities. As we shall see, bodies that lack sovereignty can still exercise authority and, moreover, there are ways of achieving coordination that do not require authority at all—inducements and threats can be equally effective. A defence of sovereignty must show why the finality claims at the core of the principle are valuable, why it is advantageous to have a political structure that claims to have the ultimate say about how people within its territory ought to behave. Three connected arguments can be made for the value of sovereignty.

(p.33) (i) The Argument from Subsidiarity and Democracy

A crucial question faced by democracies is: who decides who decides? Subsidiarity, examined later in this book, asserts, in part, that decisions should be made by those who are affected by them. This raises two further questions. First, how should we go about determining who is affected by a decision, and, secondly, who should decide on the application of this test. Subsidiarity and sovereignty interlock in the answering of this second question.

Like other questions about the exercise of public power, the subsidiarity question should normally be answered democratically—either by the citizenry directly or by institutions that are under their control. The bodies that decide on the subsidiarity principle will have to assess a great many factors that raise questions of both empirical and normative uncertainty. Subsidiarity raises empirical questions about the range of people affected by a decision and the extent to which they are affected. It also raises difficult moral questions about when people who are affected by a decision may rightly be excluded from taking that decision in order to enhance the democratic effectiveness of the decision-making body. Sovereignty enables the state to act as the institution that decides on the allocation of public power within its institutional structures; the state has the final say about the creation and jurisdiction of public bodies. The state may exercise this capacity in a number of ways. It may establish a constitutional convention which then creates a lasting federal structure, or—perhaps—the constitution will allocate these decisions to a central legislature, which may modify the allocation of powers to the regions of the state over time. In any event, it is at the level of the state that initial decisions about subsidiarity are made and, where the state is a democratic one, these questions will have been answered by a body that is—more or less directly—under the control of the citizenry. The finality that sovereignty confers is valuable in these instances because it prevents the decision about the allocation of powers being reopened by another body outside of the constitution, and, in turn, it prevents specific decisions, taken within the scope of those powers allocated being reopened. Sovereignty consequently allows for closure within constitutional structures: a point at which deliberation concludes, and action can begin.

There is one question engaged by subsidiarity that cannot normally42 be answered democratically:43 the question of where the boundaries of the state itself should be drawn. The sizes of the constituencies that ought to make (p.34) decisions in the public realm form a spectrum. At one extreme lie parish councils, village-level authorities that consist of small groups of people, whilst at the other lies the international community, a political unit of enormous size. States lie in between these two extremes, and sovereignty, an essential attribute of statehood, is a capacity that should vest at some point on this spectrum. Subsidiarity tells us that states can be too big and too small. Where a state is too big, the number of issues decided at the national level is too few to support the creation of a viable democratic unit. The notion that the British Empire could—or should—develop into a fully democratic state, with an elected Imperial Parliament, failed for this reason.44 There simply were not enough issues shared by—say—Britain and Australia to allow for the creation of a vibrant shared legislature. If one were created it would either lack legitimacy—by deciding questions that ought to be allocated to smaller democratic units—or prove moribund—deciding very little indeed. States can also be too small. Unless there are special reasons for their existence, micro-states are unjust in two respects. First, they fail to allow their citizens the capacity to exercise control over the decisions that are made about them. It is their neighbouring states that decide questions relating to foreign and domestic policy; the micro-states must fit in with these decisions as best they can. Secondly, they fail to allow their citizens to take responsibility for these decisions. The flipside of small states’ failure to exercise control over these decisions is their lack of responsibility for them. The hard decisions about defence, foreign policy, and many other topics, are made elsewhere. And for the essential infrastructure states rely upon—transport, education, health-care—small states are heavily reliant on their neighbours: there are, for instance, significant limits on the capacity of small states to develop the capacities to train doctors and teachers, to establish universities, and to conduct research. The injustice of these small states is twofold: it is unjust to deny the citizens of the small states a say in these matters, and it is also unjust to allow them to escape the burdens placed on their larger neighbours.

Subsidiarity speaks to the level at which sovereignty should be allocated. As things presently stand, the creation of an international democratic unit, a world state, is implausible. Though some scholars, such as Richard Falk and Andrew Strauss, have provided tempting accounts of a body of this type,45 it is hard to imagine the political difficulties of creating such an assembly being overcome. Indeed, even if an elected international assembly were created, (p.35) it is questionable whether such a body could function successfully.46 Falk and Strauss cite the European Parliament as evidence that assemblies at an international level are possible, and can flourish, but for many within the European Union the example might point the other way.47 The European Parliament, responsible for a far smaller constituency than a global legislature would serve, still struggles to engage voters.48 If an international assembly were created in the image of the European Parliament cultural, linguistic, and historical factors would all weigh against its success.49 For now, sovereignty—questions about the finality of public decision-making—needs to be vested beneath the level of the global community if it is to be exercised democratically, and it is through states—rather than directly—that peoples engage in the international realm.50

(ii) The State as the Facilitator of Other Social Institutions Through Civil Society

The state is one social institution amongst many. Within the state there are families, companies, trade unions, charities—a vast range of other types of social institution, some of which are very similar to the state, some of which are profoundly different. An important difference between the state and most other institutions operating within its borders relates to their area of concern; the range of people whose interests the institution exists to advance. The state’s area of concern is extensive, encompassing all of its members; their well-being is the defining purpose of the state. Most other institutions within the state have far narrower ranges of concern. Within the family, for example, parents care for their children—and for each other—to a far greater extent than they care for strangers or acquaintances. Within the company, the business is run to enrich the shareholders—and, perhaps, to benefit its employees.51 These organizations rely on a sort of moral myopia to function; they require their participants to set aside, at least temporarily, the essential moral equality of persons.

(p.36) As we shall see when examining civil society, there are significant benefits to be gained by permitting this limitation of range of concern: sometimes restricting the range of considerations of which an actor is required to take account will serve to advance the overall well-being of the community. So, for example, forms of invisible hand arguments have been used to justify the limitation of concern in the context of both the family and the company. Plato’s model of child-care—in which families are abolished and state experts raise children—has a veneer of justice: by ensuring all children would receive the same level of care and opportunity the partiality of the family, in which some receive better care than others, is either cured or mitigated.52 But it has been argued that the special, intimate, care found within the family is hard, if not impossible, to duplicate within the state—or charity—sector.53 A state that contains the institution of the family, that permits or even encourages this partiality, may prove more successful in advancing the overall well-being of its citizenry than one which seeks to provide the same type of care directly. A similar argument can be made for the partiality of concern that characterizes the company. It is arguable that businesses pursuing profit may, through operation of the market, ensure a more efficient distribution of resources than the best endeavours of a central planner.54 Once more, the state, by allowing this partiality to flourish, may do more good than if it sought to take over these tasks itself.

The examples given in the previous paragraph were sketches of common invisible hand arguments: situations in which the common good is better achieved when actors limit their range of concern rather than seek to advance that common good directly. Invisible hand systems, and the role of the state in their functioning, will be discussed in more detail later in this book. For now, it is enough to note that some who write on invisible hand systems see them as set in opposition to, or in tension with, the state; these are ‘spontaneous orders’55 that have emerged without any outside designer and, moreover, it is sometimes claimed, any attempt to interfere with such systems is liable to make them function less well.56 Whilst this may sometimes be true, often, (p.37) perhaps even normally, systems of this type require the existence of an external authority to regulate and supplement them if they are to be morally defensible.

Setting aside the need to establish or modify the operation of invisible hand systems themselves, states have a role to play in creating an environment in which the moral myopia of other social institutions is permissible or, sometimes, justifiable. In the context of the family the state provides, or should provide, a base-level guarantee of care for all children. It should make sure that children who are not within a family are given care and support. It should also make sure that the sorts of abuses and dysfunctions to which the institution of the family is prone are guarded against, and corrected. Similarly, in the corporate world, the state provides, or should provide, a base-level guarantee of care for actors in that arena. It should not allow members of unsuccessful companies to starve, for example, if they fail to prosper in the marketplace. And, again, it should guard against the dysfunctions that corporations can fall prey to: amongst many other things, the state should prevent the emergence of monopolies within the market. In each of these cases, the background role of the state is crucial to permitting the limitation of moral concern that makes the family and the corporation possible. It is only where people know that there is another institution that is better able than them to address these issues that they are (morally) entitled to shut them out of consideration. So, a business person is able to compete against other companies, knowing that the success of her enterprise will not lead to the ruination of the owners and employees of other businesses, and parents can prioritize the care of their own children, knowing that other children will be cared for in other ways.

In these instances, the state acts as what we might term ‘the group of groups’. The social group that is the state encompasses most of the members of the social groups that make up families and companies within its territory. Part of the task of the state is to ensure that the non-state bodies within its territory and population, even those—which comprise the vast majority—that have constricted areas of concern, contribute towards the overall well-being of state members. Whilst parents and company directors enjoy the benefits brought by the limitation of their range of moral concern, in their role as citizens their area of concern broadens: as citizens, they should consider the well-being of the citizenry as a whole. As citizens, they are responsible for the functioning of the state. And, through the state, they have a responsibility to ensure that the structures are in place that allow them to benefit from a restricted area of moral concern in other contexts.

The role of the state in establishing and regulating invisible hand systems will be considered in the chapter on civil society. For now, it is sufficient to note the connection between this task and sovereignty. In order to regulate (p.38) and support the institutions that operate within the state, the state must assert jurisdiction over them. The state must claim—and must, if it is to be effective, be successful, in some sense—the authority to shape and limit these bodies. It determines, for example, what types of power relationships are acceptable within these institutions—how parents should treat their children, the controls that shareholders should exercise over the board of directors—and how these institutions should engage with each other and with other bodies in society. It is sometimes argued that institutions such as the family are primary: that they take precedence, in some sense, over the state.57 There may be some historical truth in this—it could be that the institution of the state emerged from the institution of the family—but reflection on the range of concern of these institutions suggests the opposite in terms of the hierarchy of authority. Members of families and companies should—when the state is functioning reasonably well—recognize that it is the institution with the broader, encompassing, reach of concern that ought to have the final say about the structuring of bodies with a more limited range of concern. And it is for them, in their capacity as citizens, to decide how these powers should be deployed. It should be noted that the state’s decisions can, of course, be foolish or unjust: merely because the state has the final say about the structure and functioning of families and companies, it does not follow that the decisions it makes about these bodies will always be correct.

(iii) The State as the Medium of Engagement at the International Level

The previous section discussed the moral myopia of institutions within the state, and the role of the state in mitigating or curing this limitation of concern. But it could be argued that the state itself is characterized by a form of moral myopia. The state’s range of concern is tied to the well-being of its members, but what of non-nationals, foreigners who are not members of the state? At first blush, the focused concern of the state appears to run against the basic moral equality of persons. The life of a Russian is as morally significant as the life of an American, so why should the Russian state pursue the interests of the Russian, largely ignoring the American, whilst America pursues the interests of the American, whilst largely ignoring the Russian?

(p.39) Once again, the answer is found in the benefits of limited concern. First, each state is better placed to minister to its own nationals than to members of other states. One of the most powerful arguments for subsidiarity is that decisions should be made by the people affected by them because—all else being equal—this group has the information and motivation to make the best possible decision. It is far from a universal truth, but it seems likely states are better placed to look after the well-being of their own members than to look after the well-being of members of other states. Secondly, when the state is functioning properly, citizens exercise control over the state: the decisions of the state are, more or less directly, their decisions. There is value in people having a voice, and a vote, in collective decisions that affect their lives. As Jeremy Waldron puts it, participation is ‘the right of rights’; it is an expression of the equal importance of those subject to the state, and an affirmation of their rational capacity to engage in decision-making.58 It is therefore problematic, and it at least requires an explanation, if the citizenry of one state make decisions that affect the people of another—even if the decision works to the benefit of those others. The intervention may have reduced the capacity of the people of that other state to govern themselves. Whilst intervention in the affairs of other states without the agreement of those states may sometimes—perhaps even quite frequently—be justified, these interventions should be undertaken with caution.59 Just as a state should recognize the moral value of sovereignty for its own people, it should also recognize the moral value of sovereignty for the citizens of other states.60

These arguments resemble the arguments developed for the attractions of institutions within the state, discussed in the previous section, but there is an important difference. In the previous section the state was able to act as the group of groups, ensuring that the restricted range of concern of institutions within society worked towards the overall good and, partly because of the authority claims central to sovereignty, was able to correct problems that arose within and around these institutions. The presence of the state permitted, and sometimes justified, this narrowness of concern. The international arena lacks a governing entity with wide-ranging powers to review how states interact and—given the implausibility of creating an effective elected body at the global level—there are good reasons why it would be a mistake, at present, to seek to create one.

(p.40) In the absence of a central sovereign global authority, it falls to the state to determine how and when it should interact with other states (and non-state entities outside of its territory); or, to put the point another way, the citizenry should decide how justice, fairness, self-interest—considerations which should include respect for the sovereignty of other states—condition the international activities of the state. One of the points of sovereignty is to create a vehicle—the state—through which members of the polity can engage with other people and entities beyond the state’s borders.

In a valuable recent paper, Timothy Endicott discusses the apparent paradox of sovereign states acting in international law: the paradox that sovereignty appears to connote a lack of external limits and yet states appear able to bind themselves through treaties under international law without losing sovereignty.61 As Endicott shows, this supposed paradox rests on a misunderstanding of the nature of sovereignty. States possess sovereignty because they need sovereignty in order to succeed as states; to achieve the purposes that the state exists to pursue. Binding itself through treaties is a way of achieving some of the tasks that face the state. The ability to create binding duties helps the state acquit the (moral) duties it owes the peoples of other states, and helps the state advance the well-being of its own people by ensuring peace and facilitating trade, amongst other things. The nature of sovereignty must be understood in the context of these objectives: it is not lost when the liberty of the state to act is restricted in order to achieve these valuable objectives.

Consequently, as Endicott explains, part of the value of sovereignty is that it enables the people of the state to participate in international relations.62 To put the point in the terms used in this chapter, sovereignty is valuable because it allows the citizens to exercise control over decisions that transcend the highest democratic unit: the state. Where there are decisions that need to be taken that span states, these decisions should be the product of agreements between institutions that are controlled by the citizens of those states. Endicott suggests that when states enter into treaties they limit their sovereignty, in that they lose their unfettered capacity for action. To a certain extent this is correct: having signed a treaty, the states are now bound as a matter of international law.63 But in a more fundamental sense, the state’s freedom of action remains: states can break treaties.64 Within their own constitutional structures, their sovereign nature implies that there is no higher authority (p.41) outside of the constitution that can compel them to honour the undertakings they have given. In this respect—as a matter of the domestic constitution—international obligations are like promises: generally, they ought to be kept, but it is down to individuals to decide when they ought to be broken.65 Like the attitudes of individuals towards promise-breaking, different states may allow themselves different latitudes towards the breaching of treaties: some constitutions may make it hard for state institutions to break treaties, other constitutions may make it comparatively easy.

Parenthetically, it is worth noting that the capacity to break treaties illuminates one of the crucial differences between a confederation and a federation.66 A state can enter into either of these arrangements through a treaty, but only retains its identity as a state—and its sovereignty—in a confederation. In a confederation any one of the constituent states could withdraw, irrespective of the terms of the treaty that bind them together. In a federation, in contrast, the constituent elements lack sovereignty, and only have the power allocated to them by the constitution. This may give regions the power to secede from the federation, but the fact that the constitution needs to confer this power is a tacit recognition of the non-sovereign nature of the regions: they can only leave the federation through these procedures. When the Lisbon Treaty created a structure through which Member States could withdraw from the European Union this may have appeared to be a concession to the Eurosceptics, a formal recognition of the possibility of exit.67 Looked at another way, though, this provision nudged the Union towards a federalist model, a constitutional structure in which states have become regions of a sovereign entity which require the permission of that entity to secede.

Is the Creation of a State Always Desirable?

In one of the most quoted passages of constitutional theory, Thomas Hobbes wrote that in the absence of a state there is:

… no place for Industry, because the fruit thereof is uncertain: and consequently no Culture of the Earth, no Navigation, nor use of the commodities that may be (p.42) imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.68

This is the supposed state of nature, the situation that, on Hobbes’ account, should be contrasted with the order normally brought by the state. There are a number of different ways we could understand Hobbes’ use of the state of nature in Leviathan.69 In part, it acts as a thought experiment: it is the contrast between the state of nature and submission to the sovereign that explains why individuals should (morally or, if a distinction can be drawn, prudentially) accept the authority of a sovereign and, in so doing, bring into existence the state. But it also is presented as an historical tale; as the process by which the state emerged.70 It is the instability, the patent unattractiveness, of the pre-state world that motivates the creation of the state,71 and it is arguable that Hobbes thought that before the state—or absent the state—people really did live in a condition of war against all.72 These two readings of Hobbes are not as far apart as might first be supposed. After all, the attractions of the moral argument for the shift from the state of nature to the acceptance of the authority of the sovereign depend on the unattractiveness of life without a state. If life without a state is not as bad as Hobbes paints it, the force of the argument for the creation of a state is reduced. Indeed, if some communities function better without the structures of the state, the argument is turned on its head: perhaps there are some situations in which people ought not impose the trappings of the state upon their community. A more nuanced understanding of life outside of the state may reveal that the state is far from a universal blessing.

Robin Dunbar has documented a correlation between primate group size and the neo-cortex. Roughly speaking, the larger the average neo-cortex, the larger the social group the primates tend to form. Applying this correlation to humans, Dunbar has argued that we have the capacity to have a meaningful (p.43) relationship with about 150 people.73 Perhaps not coincidentally, this is the same number as found in the form of social grouping labelled by some anthropologists as ‘bands’; a grouping that is likely to have been the earliest form of human community and one which still exists in some areas.74 It seems likely that Aristotle was right and Hobbes wrong on at least this issue: we are born ‘fit for society’.75 As with other social animals, it appears humans possess an evolved mental capacity that enables us to cooperate with our fellows. Within these bands of up to about 150 people the type of relationships existing between members goes beyond mere recognition; we can know these people reasonably well, and relatively reliably assess their characters. In such a group each individual could, then, possess a good knowledge of each of their fellows. These groups lack the formal structures of the state simply because they do not need them: the same work is done through shared knowledge, common expectations, and social capital. At the most basic level, collaboration within these groups may rest on a ‘tit-for-tat’ attitude: group members who help others are rewarded by assistance in turn, whilst those who act selfishly are denied this benefit. Actions that benefit the group are encouraged, whereas those that benefit the individual at the expense of the group are discouraged. But the interaction within the group may become far more sophisticated than this simple model suggests. Members may be able to gauge the skills and capacities of their fellows with some accuracy. Some individuals within the group may be regarded as possessing expertise within particular areas of life—they may be especially good at treating illness, hunting, or manufacturing tools—whilst others may exercise a broader leadership role. Lines of authority may, then, exist within these small groups, and these may be backed by coercion: the group may pressure its members to accept the decisions of these experts and leaders.76

(p.44) Small communities, like bands, may have complex structures of authority, shaped and determined by social rules applied within the group, but these groups are not states. They may lack both formalized institutional structures and also the capacity to craft, adjudicate, and apply formalized rules. Consequently, such groups may not make the type of authority claim characteristic of sovereignty. It is a standing error to think that these small groups are unable to provide for the well-being of their members. Many lawyers overestimate the need for formalized rules and adjudicative institutions. Jeremy Bentham, for example, thought that property—and, by extension, the market—required their existence.77 But evidence of the institution of property—and the institution of trade—long predate evidence of law and the state.78 These institutions can exist without law, instead being created through the operation of social rules that have developed within the group over time.79 And the monuments and earthworks of the prehistoric world may show that these small groups were able to act cooperatively—perhaps negotiating agreements at the group level—to undertake large, labour-intensive, projects.

In some situations it might be a mistake for groups like these to seek to, or be pressured to, become more state-like. Small communities may lack the resources and the need to develop the features of a state. The sort of informal social structures that are characteristic of small groups may work well in some situations: shared expectations and mutual knowledge can be powerful organizational mechanisms. When everyone knows everyone else, the need for institutions like courts and legislatures that set and apply formalized rules for the group is vastly reduced. Small groups may be able to reach decisions through consensus without requiring any special, pre-determined, institutional structures to reach this outcome. It may even be that attempting to create a more formal institutional structure would make it harder for the group to respond to changing circumstances, and might make decision-making less transparent and inclusive, as a small portion of the group exercised control over the new institutional structures.

The last few paragraphs were carefully phrased. Many small communities will possess features that resemble those of states and legal orders. Hobbes’ (p.45) account of the emergence of the state presented it as springing fully-formed out of the state of nature; people in that unhappy condition resolving to submit to a sovereign to escape their fate. Aristotle’s account of the emergence of the state, in contrast, presented it as the end point of a developing series of social institutions. Aristotle’s story started with the family, an institution that exists to benefit its members, but which is (normally) characterized by a shared biological connection between those individuals.80 As time goes by, the limitations of very small groups becomes evident, and families joined together into villages, an institution that, again, exists for the benefit of its members but no longer requires a biological link between them.81 And then, villages, in their turn, united into large communities: the city-states, in which people, according to Aristotle, could achieve their fullest flourishing.82

As an historical account of the emergence of the state, Aristotle’s model is open to question. States may be formed for lots of reasons, and we should not assume that there is a single story that explains the emergence of the state at different times and in different places.83 But it is a strength of Aristotle’s account that it shows how small groups can accrete state-like attributes; that there is a spectrum of social institutions, one that starts with the family and ends with the state, and groups can progress along this spectrum. The small bands, discussed a few paragraphs ago, may sometimes completely lack the attributes of a state—they may resemble large family groups—but the line between these bands and tribes—a collection of social institutions that do possess some state-like features—is a soft one.84 In some instances the group may possess the internal structures that enable the authority claims of sovereignty to be made, even if the group still lacks all of the features of a state.85 Indeed, there can be situations where it may be impossible, or at least unproductive, to decide whether an institution should be thought of as a tribal group or as a state. Where on this spectrum a group should stop, how many of the features of the state it ought to seek to acquire, will depend on its particular circumstances.

(p.46) A Note on the Supposed Passing of State Sovereignty

Claims of the death, or at least the transfiguration, of sovereignty are commonplace, with scholars queuing up to write its obituary. Some have argued that sovereignty is now obsolete, that we live—in Neil MacCormick’s term—in post-sovereign states.86 Others have argued that, at least in Europe, there is ‘shared’87 or ‘pooled’ sovereignty,88 or, perhaps, that sovereignty has been ‘limited’ through the agreement of the Member States of the European Union.89 In some respects these claims are less novel than they might first appear. A number of early twentieth-century scholars drew attention to the importance of other social groups within and outside the state, and the impact these groups have on the state’s capacity to act.90 Long before the creation of the European Union, much was made of the ways in which other international bodies, such as the Roman Catholic Church, influenced state policy.91 Whilst the earlier generation of sovereignty sceptics wrote about the role of churches and trade unions, and speculated on the possible role of the League of Nations, their successors now write on multinational companies92 and international bodies such as the European Union and the United Nations. The implications for sovereignty are similar: in light of these changes, the old finalities of sovereignty appear passé, a relic of a stage of constitutional development that the state has now out-grown. These authors either reconceptualize sovereignty as something that can be partitioned—shared or divided between different constitutional structures—or argue for its abandonment as a principle of constitutionalism.

To an extent, these attacks on sovereignty may be motivated by a restricted understanding of what the principle of sovereignty entails. As we have seen, (p.47) an account of sovereignty that focused entirely on the claims characteristic of sovereignty without considering the element of effectiveness could make the principle appear unrealistic. No state, at any point of time, has either exercised complete control over its territory and people, or has been completely free of all external pressure when making decisions. Once it is recognized that whilst the claims at the core of sovereignty may be unqualified, the effectiveness of those claims is invariably constrained, some of the challenges raised by the sovereignty-sceptics become explicable within the existing structures of the sovereignty principle. So, for instance, the recognition that there might be multiple and competing sites of constitutional authority is—at least from the perspective of sovereignty—unremarkable.93 The state is sovereign, but within the state constitutional power is normally divided between institutions, and these institutions can, and often do, disagree about the extent of power they possess. Equally unremarkable, international organizations, such as the European Union, to which the state belongs, may not fully accept the state’s sovereignty. Reasoning within the boundaries of international law, these bodies may well argue that the obligations of international law are inviolate, that the state is debarred from breaching its obligations.94 But these assertions advanced by international bodies do not, in themselves, bring to an end the sovereignty of the state; as a matter of the domestic constitution it is down to the state to decide the extent to which these international obligations bind.

Even when the autonomy of the state is under serious challenge, sovereignty may still remain. The criteria of effectiveness allow for a great deal of flexibility. A set of institutions may assert sovereignty over an area and a people, and yet only be effective within a subset of these: the boundaries of the state may not be synonymous with its boundaries under international law or with its own understanding of its boundaries. Both North and South Korea claim sovereignty over the whole of the Korean peninsula, but neither succeeds in issuing commands that are effective in the other’s territory. In times of invasion and civil war there may be rival contenders for statehood within the territory: the former state may find itself shrinking, as its capacity to control land and people is lost. In some instances, indeed, there may be areas within the supposed territory of the state where no state exercises control: areas of anarchy, perhaps, or places in which other systems of social ordering operate.

(p.48) Perhaps more interestingly still, this model of sovereignty provides an explanation of how a form of ‘constitutional pluralism’ can emerge. The question of when a set of institutions is sufficiently effective to amount to a state is a matter of degree, and there might be situations in which two sets of institutions claim to exercise sovereignty over the same territory and each are sufficiently effective to satisfy its demands. Two states could, then, overlap: it might be impossible to say which is the ‘true’ sovereign within the region. At some points in history this may have been a common phenomenon, with overlapping claims made by rival institutions.95 It is possible that some form of constitutional pluralism may be emerging once more within the European Union. As I have discussed elsewhere, European institutions advance jurisdictional claims that amount to claims of sovereignty within the terms of this chapter,96 and for some supporters of the Union the move towards statehood is an attractive, perhaps even a necessary one.97 On the other hand, the Member States have remained noticeably reluctant to cede their statehood. It is possible that, at some future date, both of these sets of institutions may make the type of claims characteristic of sovereignty, and both may be sufficiently effective to count as states. Such an overlap might prove an attractive middle way between the rival claims of the Member States and the Union, leading to what Joseph Weiler has termed a form of ‘constitutional tolerance’, in which the success of each entity depends on it respecting and accommodating the other.98

Conclusion

The last section argued that the state is not a universally desirable form of social institution. Some groups, at some points in time, should not seek to create a state: they do not need an institution of this type, and it might be counterproductive to seek to create one. Other groups may (rightly) create an institutional structure that possesses the attributes of sovereignty, but one that has yet to acquire all the attributes of a state. But for communities like ours, in societies such as we live in, people do have reason to create states and, as (p.49) a corollary of that, to create a set of institutions characterized by sovereignty. The authority claims—and the more limited requirement of effectiveness—that are embodied within sovereignty are needed in order to divide public power within the polity, to enable interactions between different peoples and finally—and perhaps most importantly—to support, regulate, and render morally defensible, those non-state institutions that exist within the boundaries of the state.

Sovereignty is a principle that must be present, to some extent, for the state to exist. Whilst institutions need not understand themselves through the concept of sovereignty to be sovereign—that is, sovereignty may be a characteristic of an institution without its community having an understanding of sovereignty—to be sovereign the institutions need to make the claims characteristic of sovereignty and, to an extent, these claims need to be effective. Whilst a state that has lost sovereignty ceases to be a state—its presence or absence is a binary matter—the requirement of effectiveness within sovereignty is a matter of degree: states can be more or less able to make good on their sovereignty claims. All other things being equal, the more that sovereignty is manifested within the constitutional structures of the state—the greater the capacity of the state to make good on its claims—the better. But, of course, it is rarely the case that all other things are equal, and sometimes the failings of the state in other areas will make its diminished effectiveness attractive.99 In extreme cases, it might be fortunate if a state prone to abusing human rights found its capacity to act constrained, or a state riddled with corruption found it hard to apply the law; in these instances a weak bad state might be preferable to a strong bad state. In more common cases, ambiguity may be built into the constitution to allow beneficial tension between constitutional institutions, as a means of enabling one part of the constitution to defend itself against another.100

Where the state is functioning reasonably well, though, its institutional structure should be crafted so as to advance the principle of sovereignty. The capacity of its institutions to act effectively, and decisively, should generally be fostered and preserved. It is at this point that the account of sovereignty connects with other principles of constitutionalism: in particular, with the separation of powers and the rule of law. For the older writers on sovereignty, those who took it as a feature of a body within the state rather than the state itself, sovereignty appeared in tension with these principles. Jean Bodin, in particular, strove to show that there was no division of power within the (p.50) state—that the sovereign was both the highest legislative and judicial actor—and that the law could not bind this constitutional institution.101 Sovereignty, on his account, amounted to a rejection of the separation of powers and the rule of law. Treating sovereignty as an attribute of the state, and not as an attribute of an institution within the state, both explains Bodin’s reluctance to allow for division and limits on sovereignty and, also, permits the separation of powers and the rule of law to be manifest within the constitutional order. At the level of the state, Bodin was correct: there is a unity of constitutional power. The state embodies the totality of executive, legislative, and judicial power. And as these powers are embodied in the state, it is that institution—the state itself—that decides both on the content and practical force of the law. In this sense, the state is free to decide what its domestic law requires of it, and the extent to which it is compelled to obey that law. However, within the state, power is divided between institutions, and the law binds these bodies in a similar way to binding of non-state actors. State institutions are partly created by legal rules. Like private institutional actors, state institutions may sometimes be able to act outside of, of even contrary to, the law—but, like private institutional actors, sometimes the law will successfully limit their conduct or impose effective deterrents against unlawful behaviour.102 Indeed, rather than being opposed to the rule of law and the separation of powers, for sovereignty to be manifest in the state both of these principles must be present within the constitution to a significant extent. For the state to make the claims characteristic of sovereignty, and for it to be able to act effectively, it requires the existence of a functioning legal order—and so requires the presence of both the separation of powers and the rule of law: these principles are complementary to, not in tension with, sovereignty. And, with this in mind, it is to the principle of the separation of powers that we now turn.

Notes:

(1) See, eg, C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (G. Schwab tr, University of Chicago Press 1985) chapter 1, and, from a very different starting point, H. Kelsen, General Theory of Law and State (A. Wedberg tr, Russell and Russell 1945) 383–86.

(2) S. Krasner, Sovereignty: Organized Hypocrisy (Princeton University Press 1999), esp 68–72.

(3) I have explored this at length elsewhere: see N. W. Barber, The Constitutional State (OUP 2011) chapter 1. Samantha Besson also examines the relationship in the context of sovereignty: S. Besson, ‘Sovereignty in Conflict’ in C. Warbrick and S. Tierney (eds), Towards an International Legal Community? The Sovereignty of States and the Sovereignty of International Law (British Institute of International and Comparative Law 2006) 137–39.

(4) When, in this chapter, I refer to ‘sovereignty’ without a further qualifier, I refer to state sovereignty, and not one of the other senses discussed in these paragraphs. For the various senses of sovereignty, see Krasner (n 2) chapter 1.

(5) On which see J. Goldsworthy, The Sovereignty of Parliament (OUP 1999). See also N. W. Barber, ‘Sovereignty Re-examined: The Courts, Parliament and Statutes’ (2000) 21 Oxford Journal of Legal Studies 130 and N. W. Barber, ‘The Afterlife of Parliamentary Sovereignty’ (2011) 9 International Journal of Constitutional Law 144. On the interaction of legal and state sovereignty, see N. MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1.

(6) R. Jackson, Sovereignty: Evolution of an Idea (Polity Press 2007) chapter 4; E. S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (Norton 1989).

(7) M. Loughlin, Foundations of Public Law (OUP 2010) 184–86.

(8) Jackson (n 6) 19–22.

(9) M. Loughlin, The Idea of Public Law (OUP 2003) 87–93.

(10) J. Bodin, On Sovereignty (J. Franklin ed, CUP 1992), esp book 1 chapter 8; T. Hobbes, Leviathan (R. Tuck ed, CUP 1991), esp chapter 19.

(11) Barber (n 3) chapter 2.

(12) Though see T. Endicott, ‘Interpretation, Jurisdiction and the Authority of Law’ (2007) 6(2) American Philosophical Association Newsletter on Law and Philosophy 14.

(13) M. Weber, ‘Politics as a Vocation’ in H. H. Gerth and C. Wright Mills (eds), From Max Weber: Essays in Sociology (Routledge 1991) 78.

(14) As Weber recognized: M. Weber, Economy and Society (G. Roth and C. Wittich eds, California University Press 1978) 903–04.

(15) J. Hoffman, Beyond the State (Polity Press 1995) 35–37.

(16) L. Green, The Authority of the State (Clarendon Press 1990) 78–83.

(17) See further Endicott (n 12).

(18) N. Walker, ‘Late Sovereignty in the European Union’ in N. Walker (ed), Sovereignty in Transition: Essays in European Law (Hart Publishing 2003) 6–7.

(19) P. Piirimäe, ‘The Westphalian Myth’ in H. Kalmo and Q. Skinner (eds), Sovereignty in Fragments (CUP 2010) 65–70.

(20) The constitutional implications of the agreement between England and Scotland have long been debated: T. B. Smith, ‘The Union of 1707 as Fundamental Law’ [1957] Public Law 99 and N. MacCormick, ‘The United Kingdom: What State? What Constitution?’ in N. MacCormick, Questioning Sovereignty (OUP 1999).

(21) F. H. Hinsley, Sovereignty (2nd edn, CUP 1986) 22–26.

(22) Schmitt (n 1) 5. See the discussion in D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Herman Heller in Weimer (Clarendon Press 1997) 40–58.

(23) Schmitt (n 1) 10.

(24) C. Schmitt, The Concept of the Political (G. Schwab tr, Chicago University Press 1996) 39–45.

(25) Schmitt (n 1) 36.

(26) G. Schwab, The Challenge of the Exception (2nd edn, Greenwood Press 1989) chapter 2.

(27) R. Cristi, ‘Carl Schmitt on Sovereignty and Constituent Power’ in D. Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998).

(28) On this point, see also P. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law (Duke University Press 1997) 107–16.

(29) See the discussion in E. Posner and A. Vermeule, ‘Demystifying Schmitt’ in J. Meierhenrich and O. Simons, The Oxford Handbook of Carl Schmitt (OUP 2016).

(30) As Schmitt might have acknowledged: Dyzenhaus (n 22) 43–44.

(31) See further, Barber (n 3) chapter 10.

(32) A recurring point in discussion of sovereignty: H. Kalmo and Q. Skinner, ‘Introduction: A Concept in Fragments’ in H. Kalmo and Q. Skinner (eds), Sovereignty in Fragments (CUP 2010) 5–7.

(33) S. Huntington, Political Order in Changing Societies (Yale 1968) 20–22.

(34) Jackson (n 6) 14; M. Oakeshott, ‘The Vocabulary of the Modern European State’ (1975) 23 Political Studies 319, 321–23.

(35) M. Loughlin, The Idea of Public Law (OUP 2003) 81–82.

(36) Weber (n 13) 18–19.

(37) T. R. Tyler, Why People Obey the Law (Princeton University Press 2006), esp chapters 12 and 13, discussed further in Chapter 4.

(38) J. Raz, The Morality of Freedom (Clarendon Press 1986) 26–28, 46; Green (n 16) 25–28, 65–66.

(39) Green (n 16) 73–75, 86–88; Raz (n 38) 65.

(40) This may explain why some see sovereignty as a ‘threshold’ concept: Besson (n 3) 153.

(41) See the discussion in R. Steinberg, ‘Who is Sovereign?’ (2004) 40 Stanford Journal of International Law 329, 332–33.

(42) Save where two democratic states are considering merging.

(43) F. G. Whelan, ‘Prologue: Democratic Theory and the Boundary Problem’ in J. R. Pennock and J. W. Chapman (eds), Liberal Democracy (New York University Press 1983).

(44) On which see D. Bell, The Idea of Greater Britain: Empire and the Future of World Order 1860–1900 (Princeton University Press 2007).

(45) Jackson (n 6) 144–50.

(46) R. Falk and A. Strauss, ‘On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty’ (2000) 36 Stanford Journal of International Law 191.

(47) ibid 204–07.

(48) D. Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Review 226, 295 and J. Weiler, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2009) 9 International Journal of Constitutional Law 678, 679–82.

(49) See also T. Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48, 61–63.

(50) D. Grimm, Sovereignty (University of Columbia Press 2015) 101–28.

(51) On the differing conceptions of the corporation, see J. Micklethwait and A. Wooldridge, The Company (Weidenfeld & Nicolson 2003) chapter 5.

(52) Plato, The Republic (F. M. Cornford ed, OUP 1970) chapter xvi.

(53) J. Blustein, Parents and Children: The Ethics of the Family (OUP 1982) 37; J. M. Parrish, Paradoxes of Political Ethics (CUP 2007) 73.

(54) For a classic argument to this effect, see F. A. Hayek, Law, Legislation and Liberty (Routledge 1982), volume I, 14–16, 41–42, and F. A. Hayek, ‘The Uses of Knowledge in Society’ (1945) 35 The American Economic Review 519.

(55) Hayek, Law, Legislation and Liberty (n 54) volume I, 38–40.

(56) F. A. Hayek, ‘Was Socialism a Mistake?’ in F. A. Hayek, The Fatal Conceit (W. W. Bartley III ed, University of Chicago Press 1988) 7. Though elsewhere Hayek is more willing to accept that these systems may be improvable through design: Hayek, Law, Legislation and Liberty (n 54) volume I, chapters 6 and 7.

(57) See the discussion in M. Cahill, ‘The Origin of Anti-Subsidiarity Trends in the Regulation of the Family’ (2013) 4 International Journal of the Jurisprudence of the Family 85, 95–100. This is discussed further in the chapter on subsidiarity.

(58) J. Waldron, ‘Participation: The Right of Rights’ in J. Waldron, Law and Disagreement (OUP 1999). The phrase originates with William Cobbett.

(59) Jackson (n 6) 128–34.

(60) P. Pettit, ‘Legitimate International Institutions: A Neo-Republican Perspective’ in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP 2010).

(61) T. Endicott, ‘The Logic of Freedom and Power’ in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP 2010).

(62) ibid 255.

(63) See also Besson (n 3) 143–44.

(64) M. Troper, ‘The Survival of Sovereignty’ in H. Kalmo and Q. Skinner (eds), Sovereignty in Fragments (CUP 2010) 143–45.

(65) This sense of constitutional autonomy may explain the claim that states are ‘equal’ in international law: Krasner (n 2) 14–16.

(66) As I have explained elsewhere, the line between federations and confederation is sharp in principle, but soft in practice: Barber (n 3) chapter 10.

(67) The infamous Article 50, Treaty on European Union. See the discussion in C. Hillion, ‘Accession and Withdrawal in the Law of the European Union’ in A. Arnull and D. Chalmers (eds), The Oxford Handbook of European Union Law (OUP 2015).

(68) T. Hobbes, Leviathan (R. Tuck ed, CUP 1991) 89.

(69) K. Hoekstra, ‘Hobbes on the Natural Condition of Mankind’ in P. Springborg (ed), The Cambridge Companion to Hobbes’s Leviathan (CUP 2007).

(70) T. Sorell, ‘Constitutions in Hobbes’s Science of Politics’ in D. J. Galligan (ed), Constitutions and the Classics (OUP 2014) 109–11.

(71) See also T. Hobbes, On the Citizen (R. Tuck and M. Silverthorne eds, CUP 1998) 29–31, in which Hobbes presents the Americas as an actual example of the state of nature.

(72) Hoekstra (n 69) 117–20.

(73) R. Dunbar, The Human Story (Faber & Faber 2004) 70–72; R. Dunbar, ‘The Social Brain Hypothesis’ (1998) 6 Evolutionary Anthropology 178, 186–89. See further D. Oliver, ‘Psychological Constitutionalism’ (2010) 69 Cambridge Law Journal 639, 657–58.

(74) T. C. Lewellen, Political Anthropology: An Introduction (3rd edn, Praeger Publishers 2003) 22–26. See further, F. Fukuyama, The Origins of Political Order (Profile Books 2011) chapter 2, and Hinsley (n 21) 2–15.

(75) Hobbes (n 71) 22–25; Aristotle, The Politics (S. Everson ed, CUP 1996) 1.2, 1253a3. Surveying the contemporary literature, see: M. Lieberman, Social: Why Our Brains Are Wired to Connect (OUP 2013).

(76) Even small groups need authority structures. In the early days of the Soviet Union, buoyed by talk of the withering of the state, conductor-less orchestras were formed. They did not last long, with one collapsing after ideological fights broke out between the string and the wind sections. See R. Stites, Revolutionary Dreams: Utopian Vision and Experimental Life in the Russian Revolution (OUP 1989) 138.

(77) J. Bentham, Theory of Legislation (R. Hildreth tr, Trübner & Co 1864) 111–13. Felix Cohen made a similar claim: F. S. Cohen, ‘Dialogue on Private Property’ (1954) 9 Rutgers Law Review 357, 374. See also S. Shapiro, Legality (Harvard University Press 2011) 36.

(78) See, eg, C. Renfrew, Prehistory (Weidenfeld & Nicolson 2007) chapter 8; P. Wells, ‘Trade and Exchange in Later Prehistory’ in A. Jones (ed), Prehistoric Europe: Theory and Practice (Blackwell 2008); M. Ridley, The Origins of Virtue (Penguin 1997) chapter 11.

(79) S. Bowles, Microeconomics: Behaviour, Institution and Evolution (Princeton University Press 2004) chapter 2. F. A. Hayek, ‘The Evolution of the Market: Trade and Civilisation’ in F. A. Hayek, The Fatal Conceit (University of Chicago Press 1988) 39.

(80) Aristotle (n 75) I.II 1252b12–14.

(81) ibid I.II 1252b16–18.

(82) ibid I.II 1252b28–32.

(83) Lewellen (n 74) chapter 3. Though James Scott has recently argued for a tight link between the emergence of states and the emergence of agriculture: J. C. Scott, Against the Grain: A Deep History of the Earliest States (Yale University Press 2017), esp chapter 4.

(84) Lewellen (n 74) 26–36.

(85) Unlike Loughlin, I do not equate the possession of sovereignty with the existence of a state: see M. Loughlin, The Idea of Public Law (OUP 2003) 73–76 and M. Loughlin, Foundations of Public Law (OUP 2010) 183–84.

(86) N. MacCormick, ‘On Sovereignty and Post-Sovereignty’ in N. MacCormick, Questioning Sovereignty (OUP 1999) 131–33; N. MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1, 16–18.

(87) W. Wallace, ‘The Sharing of Sovereignty: The European Paradox’ (1999) 47 Political Studies 503.

(88) R. Keohane, ‘Ironies of Sovereignty: The European Union and the United States’ (2002) 40 Journal of Common Market Studies 743, 746–49.

(89) Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12.

(90) A. Vincent, Theories of the State (Blackwell 1987) chapter 6; E. Barker, ‘The Discredited State’ in E. Barker, Church, State and Study (Methuen & Co 1930) 166–70; H. Laski, Authority in the Modern State (Yale University Press 1919); H. Laski, Foundations of Sovereignty (George Allen & Unwin 1921); P. Lamb, Harold Laski: Problems of Democracy, the Sovereign State, and International Society (Palgrave 2004) chapter 5.

(92) R. Vernon, Sovereignty at Bay (Penguin Books 1973).

(93) See the discussion in N. Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317, 337–40.

(94) H. Kelsen, The Pure Theory of Law (M. Knight tr, University of California Press 1967) 328–44.

(95) Hinsley (n 21) chapter 3; P. Glenn, The Cosmopolitan State (OUP 2013) chapter 4.

(96) Barber (n 3) chapters 9 and 10. See also N. W. Barber, ‘Legal Realism, Pluralism, and Their Challengers’ in U. Neergaard and R. Nielsen, European Legal Method: Towards a New European Legal Realism? (DJOEF Publishing 2013)

(97) F. Mancini, ‘Europe: The Case for Statehood’ (1998) 4 European Law Journal 29.

(98) J. Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’ in J. Weiler and M. Wind (eds), European Constitutionalism Beyond the State (CUP 2003) 15–23; J. Weiler, ‘The Reformation of European Constitutionalism’ (1997) 35 Journal of Common Market Studies 97.

(99) A. Vermeule, The System of the Constitution (OUP 2011) 87–94.

(100) See Chapter 3 of this volume.

(101) Bodin (n 10) 66–78. See the discussion in Loughlin (n 7) 69–73.

(102) Barber (n 3) chapter 7.