Of Babies and Bathwater: A Comment on Herzog

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Sovereignty has been the target of so many indictments over the years that it is a hard task to renew the case against it in a way that is fresh and interesting. It is a tribute to Don Herzog that he manages to pull this off in such fine style. ‘Sovereignty RIP’ is incisively argued, impressively documented, widely illustrated and engagingly written. Its message is also highly topical.

As a political theorist, Herzog’s primary objection to the sovereignty concept concerns both the descriptive adequacy and   the attractiveness of the model of political formation it suggests. On his reading, the ‘classic’ theory of sovereignty emerged in response to the post-Reformation wars of religion that blighted the European continent in the early modern age. The idea of the state as a locus of political authority that was at once unlimited, undivided, and unaccountable gained traction as an answer to the chaos and brutality attending the breakdown of the universalistic claims of the Respublica Christiana, even if the cure was sometimes as bad as – and uncannily similar to – the complaint. Whatever its original prompt and justification, however, the classic conception quickly became ill-suited to the needs and aspirations of modern political society. Constitutionalism, federalism and the Rule of Law developed in response to the sovereign state’s claims of absoluteness, indivisibility and unaccountability. Yet, as Herzog ably demonstrates with reference to many of the key political events of Anglo-American history, from the hubristic fate of both Charles I and his puritan usurpers, through Britain’s imperial arrogance and myopia before colonial claims to self-government, to the implacable divisions of the American Civil War, these counterprojects have met with only partial success. While they offer answers that combine order with some of the more civilizing virtues of political modernity – democratic accountability, equality under the law, recognition of jurisdictional pluralism, etc., – their progress typically encounters, indeed often provokes – the obstinate reassertion of the classic model.

In a nutshell, the fact that sovereignty redux has offered an increasingly anachronistic picture of how the world does operate and an increasingly unacceptable view of how it should operate has not prevented its repeated invocation in ways that can frustrate or compromise other and better ways of making the world operate. In Herzog’s more vivid terms, sovereignty today has become ‘a zombie concept, undead, stalking the world, terrifying people’ (291). Many of the most egregiously authoritarian of contemporary regimes are propped up by the rhetoric of sovereignty. And some of the most powerful pushbacks against the post-War international legal order, such as Britain’s exit from the European Union and the Trump-led campaign against the global multilateral institutional framework, whatever their (doubtful) merits, have been turbocharged by the engine of sovereign nostalgia.

While I agree with much of Herzog’s critique, I am concerned that he is danger of throwing the baby out with the bathwater – or if you prefer, burying the living alongside the undead. I think the concept of sovereignty still has important work to do, and briefly offer three reasons why. Each turns on our ability, which I develop more extensively elsewhere (see ‘The Sovereignty Surplus’ International Journal of Constitutional Law 18(2) (2020)) to conceive of sovereignty as an original rather than a final authority –   as speaking to the capacity to found and constitute a framework of government rather than identifying a supreme power of command. In turn, our willingness to make that conceptual move depends upon our taking a different view of the standing of the classic concept – or rather the classic conception of the concept – than Herzog does. Although he pays some attention to alternative takes on sovereignty in his final chapter, Herzog does rather place the classic concept on a pedestal (all the easier to knock it down!). Consistent with his view that the concept emerged and gained traction in a very particular early modern context, he tends both to disregard its continuity with earlier understandings – think of the power of command invested in the Roman title of emperor or the authority of mediaeval dynastic sovereignty – and to dismiss later understandings either as mere echoes of the classic or as so divorced from it as to lose any meaningful connection. I think there is more continuity, and more elasticity, in the concept of sovereignty than Herzog allows, and this can accommodate shifts in emphasis between command and capacity.

Let us begin with the primary exponent of the classic theory, Jean Bodin. In fleshing out his model he famously talks of the ‘signs’ or incidents of sovereignty. This offers a broader functional understanding of sovereignty qua capacity to supplement his bare (and overstated) emphasis on final and absolute authority. In considering Bodin’s approach, Herzog offers a somewhat updated list of sovereign incidents, including the waging of war, the control of money, the making of treaties, the promulgation of laws and the maintenance of internal and external security. Undoubtedly, this emphasis on functional capacity provides added value, offering us something more concrete about the ways in which sovereign authority comes to be realised. According to Herzog, however, the notion of sovereignty is not doing any additional conceptual work here, as the criteria it offers are actually those of statehood itself. In the same breath, however, Herzog notes that many entities that count as states do not in fact possess all the sovereign incidents or functional capacities in question, or at least not to any significant degree. But if that is the case, then rather than dismiss sovereignty as offering a superfluity of criteria, as Herzog does (282), it make more sense to view it as providing the vital materials from which we can understand statehood as a cluster concept; i.e. a concept defined by a list of qualifying criteria, none of which is necessary or sufficient for membership, but each of which adds weight to the argument for membership. So understood, it is sovereignty that provides the wider list from which qualifying clusters are formed, so remaining conceptually prior to and distinct from statehood.

Second, and less technically, just as he expects the concept of statehood to do a lot of heavy lifting, Herzog sets much store by the capacity of the idea of jurisdiction to sort out the questions of divided authority that arise in many and varied contexts of imperial power, infra-state federalism, and supra-state governance. With justification he bemoans the tendency of certain sovereignty claims to turn divided authority questions into zero-sum conflicts. If sovereignty sounds as an all-or-nothing assertion of authority, then the initial sovereignty claim may beget an incompatible counter claim. To take this a stage further, if every level of government claims it is sovereign, then none truly is, and frustrated ambitions may seep into a system lacking the language of distribution and coordination of powers. The idea of jurisdiction, by contrast, assumes that all authority is delineated and limited, and so should be suitable for a more sober treatment of the relationship between adjacent and overlapping domains.

Yet there is surely something question-begging about this. Strip away the language of sovereignty and the assertion of jurisdiction is still a claim to legal competence and political capacity that may be at odds with other such claims, and if it has no foundation beyond itself then there is no independent basis for the resolution of these competing claims. Where these competing claims are resolved, it is typically because an agreement has been reached under a pre-existing sovereignty claim and settlement, whether this be the federal distribution of authority within a state constitution or the decision of a group of states to exercise their external sovereign authority to transfer powers to a regional body like the EU or a global body such as the UN. Of course, this could never happen if states typically acted like classic sovereigns whose authority is final and immutable. However, if, as I suggest, we understand their sovereignty claim as constitutive, as an assertion of an originating source of power, thereafter to be subject to various forms of qualification and limitation through higher order legal texts, then we have the basis for a more stable allocation of authority. Of course, not all sovereigns will behave with self-discipline or with sufficient regard for local, regional or global public goods, and the danger of the provocation of excessive counter claims persists. And not all textual divisions of authority remain stable, or are interpreted in ways satisfactory to all parties. But these problems will always arise, and cannot be resolved by linguistic fiat. We still need something like sovereignty as a system-framing point of departure, even as we abhor the classic conception of sovereignty as a power-consuming point of arrival.

Third and finally, the idea of sovereignty as original authority can and should be more than a formal step in grounding the overall legal and political constellation, regardless of the content of the claim. Instead, this is surely where we should find a place for the idea of popular sovereignty. Herzog, in fact, seems quite favourably disposed towards the idea of popular sovereignty, remarking that it can be an answer to the question of what makes government ‘legitimate’ (270). Of course, this is far from straightforward. We should retain a healthy scepticism about many of the claims made on behalf of ‘We the People’. Sometimes, the people as proclaimed authors have not been widely consulted, and however inclusive the process, logically there can be no method of giving voice to the people that does not make prior and ‘unvoiced’ assumptions about who the people are. What is more, if the main virtue of popular sovereignty is the idea of a democratic constitutional foundation, then it remains at best a second-order good. It is not an invitation to direct democracy, but simply a way of formulating the rules for the first-order business of daily government, which may itself be more or less democratic. Nevertheless, popular sovereignty as constituent power has its own rich tradition in the United States, Europe and beyond. And as well as suggesting a method by which a constitutional distribution of powers acquires a democratic pedigree, the notion of popular sovereignty also supplies a way – arguably the only acceptable way – of challenging an existing sovereignty-presupposing constitutional settlement. Scots who challenge UK sovereignty, or Catalans who challenge Spanish sovereignty, do so in the name of a new popular sovereignty with representative credentials assertedly superior to the default claim of the larger state. Equally, those who would claim sovereignty for the European Union within it functional domain advocate procedures for testing the strength of the collective identity and will of a European people-as-a whole, which, if eventually successful following the failed first constitutional initiative of 2004, would allow the fuller legitimation of a supranational jurisdiction alongside the existing separate jurisdictions of the various peoples of the sovereign nation state

Herzog, however, does not want to take this additional step. He reminds us that sovereignty, in accordance with his classic definition, ‘is supposed to be held by some government actor or actors or institution’ (269), and goes on to claims that ‘it would be weirdly contentious… to say in fact that the people govern’. (271) But if you don’t accept his stipulative premise that sovereignty is a feature of government, then you don’t need to contemplate his weirdly contentious conclusion. And it seems to me that the idea of sovereignty as an original and constitutive authority – as a generative source of government power rather than – and prior to -its institutional realization, once again allows us to tap into a richer seam of political thought and a more affirmative way of thinking about the central legal and political concept of modernity

None of this, I insist, requires us to depart one iota from Herzog’s coruscating critique of the classic concept. Rest in Peace, indeed! But in so doing allow us to acknowledge and investigate a pathway for modern sovereignty beyond the zombie march.

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