Law and virtue in a post-sovereign “Commonwealth:” Neil MacCormick and the political theory of constitutional pluralism
| Date | 01 October 2021 |
| DOI | 10.1177/1755088220975812 |
| Published date | 01 October 2021 |
| Author | Hugo Canihac |
| Subject Matter | Articles |
https://doi.org/10.1177/1755088220975812
Journal of International Political Theory
2021, Vol. 17(3) 531 –552
© The Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1755088220975812
journals.sagepub.com/home/ipt
Law and virtue in a post-
sovereign “Commonwealth:”
Neil MacCormick and
the political theory of
constitutional pluralism
Hugo Canihac
Saint-Louis University, Belgium
Abstract
This paper reconstructs the political thought of the Scottish legal philosopher, and
eventually MEP, Sir Neil MacCormick (1941–2009), the founder of “constitutional
pluralism,” one of the most influential legal theories of the European union today. It
argues that his legal theory is underpinned by a coherent and original political theory of
post-sovereignty. But, contrary to many current interpretations, this article argues that
normatively, constitutional pluralism is not a purely liberal theory. Neither is it inherently
illiberal, as has been contended. Instead, this article spells out the hybrid institutional
design imagined by N. MacCormick and inspired by the thought of D. Hume, as well as
the lineaments of an ethical theory of post-sovereignty he developed. So doing, while I
will argue that it ultimately leads to a kind of republican cosmopolitanism, the political
theory of constitutional pluralism is shown to open up an important, if not fully developed,
avenue to escape some shortcoming commonly associated with post-sovereignty.
Keywords
European union, constitutional pluralism, political theory, (post-)nationalism,
sovereignty
Introduction
The concept of state sovereignty has been constitutive of Western political modernity
(Skinner, 2010). It has traditionally received a twofold definition: Externally, state
Corresponding author:
Hugo Canihac, Saint-Louis University, Boulevard du Jardin Botanique, 43, Brussels, 1000, Belgium.
Email: hugocanihac@gmail.com
975812IPT0010.1177/1755088220975812Journal of International Political TheoryCanihac
research-article2020
Article
532 Journal of International Political Theory 17(3)
sovereignty is the independence from other organizations; internally, it is the single,
supreme and all-encompassing authority to make laws over a given territory and its
people—which, in democracies, also is the source of this authority. However, today, the
density of the relations in which states are enmeshed has led to question this very idea
of sovereignty. States are said to be globally interdependent, which in turn undermines
their internal authority and democratic character (Held, 1995). As a reaction, two main
types of intellectual and political projects have long struggled. Some have pleaded for a
new global order following cosmopolitan lines, aiming at displacing sovereignty at a
higher level; others, to the contrary, have defended a restoration of national state sover-
eignty, as the only way to secure democracy (on these positions Bellamy, 2019; Zürn
and de Wilde, 2016). More recently, though, others still have opened up a different way
of thinking about these issues. They have claimed that the hierarchical concept of state
sovereignty is itself increasingly inaccurate as a description of the present order. Instead
of trying to reassert sovereignty in or beyond the states, they argue, we should acknowl-
edge that it belongs to the past. We have now entered a “post-sovereign” age, character-
ized by heterarchy and cooperation rather than hierarchy and subordination, and should
address the normative challenges it poses, especially with regard to democracy. This
article investigates how one major proponent of post-sovereignty, Neil MacCormick,
proposed to carry out this normative project. Its aim is, first, to elucidate the political
theoretical underpinnings of the post-sovereign thesis; so doing, it also casts light on a
tradition of international political thought going back to the Scottish, rather than the
German or French, Enlightenment.
Such a study matters not only because the post-sovereign thesis is a thought-provoking
challenge to one of the most basic concepts of modern political thought—sovereignty—
and the old dichotomies built around it. It is also its reception that makes its study impor-
tant today. The post-sovereign thesis has been embedded in an influential legal theory
dubbed “constitutional pluralism” (Avbelj and Komárek, 2012; Jaklic, 2013; Mac
Amhlaigh, 2019; Menéndez and Fossum, 2011; Walker, 2002). Developed with a view to
the European union (EU) after the Maastricht treaty (1992), constitutional pluralism is of
much broader relevance. It is an effort to describe a situation in which several claims to
supreme (judicial) authority compete with each other. At first, this applied to the rival
claims of the European Court of Justice and of national constitutional courts. But more
generally, it contends that in the EU, there is no supreme, all-encompassing authority—
only equals engaged in cooperative relations. In other words, there is no sovereign. Even
the model of federations, which always possess a central federal body, a supreme court
and ultimately a single constituent power, is not adequate to describe this situation (Weiler,
2001). Such ideas have been, in different varieties, advocated by some of the most promi-
nent figures of EU law (Jaklic, 2013). The Court of Justice of the EU has to some extent
welcomed them, as illustrated by the former Advocate general Maduro (2003), or the
judge and now President of the Court, Lenaerts (2015). It has also been echoed well
beyond the EU, among international lawyers and political theorists (Cohen, 2012).
Constitutional pluralism—and with it, the idea of post sovereignty—has become one of
the legitimate legal theories of the EU, and beyond, of the contemporary international
order. It thus matters to explore what it exactly implies normatively (see also in a different
perspective Lawrence, 2019).
To continue reading
Request your trial