Unpopular Sovereignty?
| Published date | 01 September 2020 |
| Author | Alexander Somek,Michael A. Wilkinson |
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12534 |
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Modern Law Review
DOI: 10.1111/1468-2230.12534
Unpopular Sovereignty?
Alexander Somek ∗and Michael A. Wilkinson†
Popular sovereignty was presented in modern constitutional discourse as a mode of collective
action. It was supposedly manifest in the power to constitute, control and dismantle govern-
ments. Important strands of contemporary constitutional theory, notably legal constitutionalism
and deliberative democracy, havetaken leave of this tradition. They have severed the connection
between sovereignty and action. What remains of popular sovereigntyis fundamental r ights and
values, or dispersed networks of deliberation. This is based on the the idea that the place of
power is ‘empty’ and legitimised on the principle of including ‘All-Affected-Interests’. The
very concept of sovereigntythus becomes unpopular. This contr ibutionaims to re-establish the
link between popular sovereignty and action by examining sovereignty’s emancipatory telos, its
majoritarian mode of operation and its dependence on political citizenship.
INTRODUCTION
As political authority is increasingly transnationally shared, dispersed and rela-
tivised, sovereignty appears increasingly redundant.1In the process, the reality
of contemporary governance overwrites long-cherished beliefs concerning the
idea of the state and the concept of popular sovereignty. This occurs in three
ways.
First, the notion of supreme rule over a territory is contradicted by the de
facto power of private actors, which has a pronounced effect in the areas of
regulation and dispute settlement.2Transnational corporations hold sway over
∗Professor of Legal Philosophy in the Faculty of Lawof the University of Vienna and Global Affiliated
Professor of Law in the College of Law of the University of Iowa.
†Associate Professor of Law, LSE. The authors would like to thank the anonymous reviewers for
their comments on an earlier version of the article. Alexander Somek would also like to thank Jakob
Gaigg for countless discussions of topics relevant to this article.
1 The literature on sovereigntyis immense. For specific discussion of the recent transformation of
sovereigntysee for example N. MacCormick, Questioning Sovereignty: Law, State and Nation in the
European Commonwealth (Oxford: Clarendon, 1999); K. Jayasuriya, ‘Globalization, Sovereignty,
and the Rule of Law: From Political to Economic Constitutionalism?’ (2001) Constellations
442; N. Walker, ‘Late Sovereignty in the European Union’ in N. Walker (ed), Sovereignty in
Tra n s i t i o n (Oxford: Hart Publishing, 2003) 3; M. Loughlin, ‘The Erosion of Sovereignty’ (2017)
Netherlands Journal of Legal Philosophy 57. See also N. Roughan, Authorities: Conflicts, Cooperation
and Transnational Legal Theory (Oxford: Oxford University Press, 2013).
2 For introductions, see G-P. Calliess and P. Zumbansen, Rough Consensus and Running Code: A
Theory of Transnational PrivateLaw (Oxford: Hart Publishing, 2010); R. Michaels, ‘Globalisation
and Law: Law Beyond the State’ in R. Banakar and M. Travers (eds), Law and Social Theory
(Oxford: Hart Publishing, 2nd ed, 2013) 287; P. Zumbansen, ‘Transnational Private Regulatory
Governance: Ambiguities of Public Authority and Private Power’ (2013) 76 Law and Con-
temporary Problems 117; G.-P. Calliess and M. Renner, ‘Between Law and Social Norms: The
C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited. (2020) 83(5) MLR 955–978
Unpopular Sovereignty?
national polities by threatening governments and constituencies with exit or
divestment. The locus of real power shifts from the state to those calling the
shots in the international economy, such as investors, companies and rating
agencies.3
Second, there is an increasing preponderance of international cooperation
and of organisations which create de jure power to regulate.4International
agreements give birth to new entities which then claim autonomous status,
and, as in the case of the EU, substantial law-making and governing power
beyond the original remit.5In the face of these developments, the belief that
sovereign legal status represents the foundation of real political power seems to
amount to an outdated abstraction.6
Third, even if sovereignty were not affected by private power or sublated in
the sphere of international cooperation, it is normatively suspect. States acting
by themselves cannot accomplish much, for they lack the capacity to address
challenges of a transnational or global kind, from international terrorism to the
impact of climate change. Attempts to go it alone merely indicate myopia or
nostalgia.
Liberal constitutional theory, unsurprisingly and often unapologetically,
tends to endorse the de facto,de jure and normative demise of sovereignty.7
Its basic instincts, as it were, incline it to do so. Sovereign powers are designed
to interfere with natural liberty. Less of it is at least prima facie better for hu-
man freedom. Although associated with modern libertarianism, advocacy of a
minimal state or ‘night watchman state’ has its roots in the classical liberalism
of the 18th and 19th centuries.8Contemporary liberal constitutional theory has
not entirely shed this original skin.
The gradual democratisation of the political authority of the state over two
centuries of struggle for universal suffrage does not deter the liberal from adopt-
ing an anti-sovereigntist position. If anything, the popularisation of sovereignty
Evolution of Global Governance’ (2009) 22 Ratio Iuris 260, 272-276; E. Benvenisti, The Law of
Global Governance (The Hague: Academy of International Law, 2014).
3 See Q. Slobodian, Globalists: The End of Empire and Birth of Neoliberalism (Cambridge, MA:
Harvard University Press, 2018).
4 For an overview of softer and harder instruments, see M. Goldmann, ‘Inside Relative Nor-
mativity: From Sources to Standard Instruments for the Exercise of Public Authority’ in A
von Bogdandy et al (eds), The Exercise of Public Authority by International Institutions (Heidelberg:
Springer, 2010) 661.
5SeeF.W.Scharpf,Governing Europe:Effective and Democratic? (Oxford: OUP, 1999) 24-25.
6 See R.O. Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton, NJ:
Princeton University Press, 2nd ed, 2005).
7 See J. Locke, Two Treatises of Government (P. Laslett (ed)) (Cambridge: Cambridge University
Press, 1960), Second Treaties § 22, 284. Most prominently, in recent times, see M. Kumm,
‘The Best of Times and the Worst of Times’ in M. Loughlin and P. Dobner (eds), Twilight of
Constitutionalism? (Oxford: OUP, 2009) 201.
8 Although the ter m was used pejoratively by socialist Ferdinand Lassalle to caricature classical
liberalism, Neumann observes that it is misleading to the extent that it neglects the tremendous
executive power wielded by the classical liberal state, not least in its military-imperalist ambi-
tions. See F. Neumann, The Democratic and the Authoritarian State (New York, NY: Free Press,
1957) 22-23. On the ‘nightwatchman idea’, see F. Lassalle, Arbeiterprogramm: ¨
Uber den besonderen
Zusammenhang der gegenw¨
artigen Geschichtsperiode mit der Idee des Arbeiterstandes (Berlin: C. Ihring
Nachfolger, 1874) 30.
956 C2020 The Authors. The Modern Law Review C2020 The Moder n LawReview Limited.
(2020) 83(5) MLR 955–978
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