Beyond the Sovereign State
| Date | 01 January 1993 |
| Published date | 01 January 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02851.x |
| Author | Neil MacCormick |
THE
MODERN LAW REVIEW
Volume
56
January
1993
No.
1
Beyond the Sovereign State
Neil
MacCormick"
There is a widespread, but perhaps misguided, belief that there are a lot of sovereign
states in the world, that this is a good thing, that the United Kingdom is one, and
that it will be
a
bad thing if the UK ceases to be
so.
It is also a majority view that
if the United Kingdom has a constitution at all, its central pillar is the principle
of the sovereignty of Parliament.
No
sovereignty, no constitution; no constitution,
no UK. There are perhaps a few wobbles as to where exactly sovereignty resides.
Has not the Prime Minister recently assured the House of Commons that the
'Sovereignty of this House' is in no way infringed by the Maastricht Treaty?' But
anyway, sovereignty is thought mightily important, and always somewhere to be
found on the legal-political stage. The only issue is where.
A
different view would be that sovereignty and sovereign states, and the inexorable
linkage of law with sovereignty and the state, have been but the passing phenomena
of a few centuries, that their passing is by no means regrettable, and that current
developments in Europe exhibit the possibility of going beyond all that. On this
view, our passing beyond the sovereign state is to be considered a good thing, an
entirely welcome development in the history of legal and political ideas. This will
be the view stated in the present lecture. The order of presentation will be through
consideration of five connected points.
The first one is to locate sovereignty and the theory of sovereign statehood in
the setting of legal theory, showing how developments in European Community
law raise difficulties for some standard positions in legal theory. The second point
is to proceed into some fresh conceptual analysis of sovereignty and statehood,
moving forward from the juristic inheritance. The third is to discuss some conse-
quences of a belief in Sovereign Statehood. The fourth is to say something on the
point whether or not there are any Sovereign States here, now, any more. (I am
going to answer that negatively.) The fifth and final point is to ask what becomes
of our concepts of law and legal system in the light of all that.
*Regius Professor of Public Law and the Law of Nature and Nations in the University of Edinburgh.
This
is
a substantially revised version of the text of the twenty-first Chorley Lecture, delivered at the London
School of Economics on 3 June 1992; the format of a lecture rather than that of a fully elaborated learned
article has been retained in this revision.
I
am most grateful to Professor Simon Roberts, who chaired the
lecture, and many others present at it, for helpful comments which
I
have drawn on in this revision; also
to
Professor Colin Munro for criticisms of a late draft.
HC
Deb vol 207, col 493 (12 May 1992): 'The sovereignty of this House is not a matter that
is
up
for grabs
-
that is perfectly clear.'
1
@
The Modern Law Review Limited 1993 (MLR
56:
1, January). Published by Blackwell
Publishers,
108
Cowley Road, Oxford
OX4
1JF and
238
Main Street, Cambridge,
MA 02142, USA.
1
i71e
Modern
Law
Review
[Vol.
56
I
From a jurisprudential point of view, unease about sovereignty is perhaps
antediluvian. There are not many unreconstructed Austinians to be found anywhere
now, and more recent jurisprudence has downplayed the idea of sovereignty as
foundational for law.
So
it may seem a bit perverse to use a Chorley lecture to raise
the issue ‘beyond the sovereign state’ at all. But I hope not. For even if jurisprudence
has lately by-passed sovereignty, the press and the politicians have not, nor have
the electorate of Denmark, who are said to have voted down the Maastricht
Referendum over concern about national sovereignty. The citizens of France were
not too happy either, and the Major Government in the UK has been consistently
embarrassed about subsidiarity and sovereignty. If nobody out there has been listening
to the tale of the demise of sovereignty, maybe we have to say it again; maybe
we have to
go
over our arguments yet again to see if we are right on this point.
Maybe also we need to check on the beam in our own eye before worrying about
the mote in our brother’s. For perhaps sovereign statehood still lies just below the
surface of even the newer jurisprudence. Roger Cotterrell and others have pointedly
criticised mainstream jurisprudence for unreflectively privileging state-law over all
other forms of law, as though really the only law that counts is that of the (presumably
sovereign and independent) state. Everything else tends to be deemed law only
so
far as it relates by close or remote analogy to that paradigm. But this, to be acceptable
at all, should be the conclusion of an argument; not its unstated presupposition.*
This powerful criticism must be taken seriously. Much of the approach of most
contemporary legal theorists to the concept of a legal system and to issues of the
validity of rules or norms within a legal system makes the tacit assumption of the
paradigmatic quality of the state and its law. This is inevitably distorting. After
all, one of the greatest legal systems of all time, English law, is not, and has not
for three hundred years been, the law of a sovereign state; despite many appearances
and most loose talk, it has belonged only to a part of a state.
Let me begin by showing one way in which the assumption that we always start
by looking from a one-state point of view can be distorting. What
I
am thinking
of was made vivid for me last autumn term when working through some of the
theoretical groundwork of the basic course in jurisprudence. With reference to a
splendid new book of materials,3 we were working through positivist theories of
legal system in a rather standard way, looking, for example, at some Austin, some
Hart and some Kelsen and then thinking a bit about successor ideas like those of
Raz, or Alchourr6n and Bulygin and
so
on. If this can be made vivid at all, its
applicability to the real world has to be tested out, preferably in an up-to-date and
relevant way. What then could be more urgent or more pressing than to ask this
question. How does the European Community affect our own sovereignty? How
does it affect the analysis of law in terms of sovereign commands or in terms of
some rival analytical apparatus? The decision of the European Court of Justice in
the
Factortame
case was reported in the All England Reports4 at the perfect
moment for highlighting the problem to members of the class. The question posed
was whether this decision finally torpedoes the idea that legal systems comprise
2 See Cotterrell,
The
Sociology
of
Law:
An
Introduction
(London, 1984) pp 29-31; also
7?ie
Polirics
of
Jurisprudence
(London, 1989). Compare MacCormack, “‘Law” and “Legal System”’ (1979)
42 MLR
285;
Krygier,
‘The
Concept
of
Law
and Social Theory’ (1982)
2
OJLS 155.
Davies and Holdcroft,
Juriqrudence
(London, 1991).
R
v
Secrerary
of
Stare
for Transporr, exp Factortame
[1991]
3
All
ER 769 (Case C221/89) CJEC;
see also [1989] 3 CMLR
1,
HL.
3
4
2
0
The
Modern
Law
Review Limited
1993
To continue reading
Request your trial