Sovereignty in Theory and PracticeExpressO (2011)
AbstractThis article deals with the theory and practice of sovereignty from the perspective of a trend in theoretical perspectives as well as the relevant trend in practice. The article provides a survey of the leading thinkers and philosophers views on the nature and importance of sovereignty. The concept of sovereignty is exceeding the complex. Unpacking its meanings and uses over time is challenging. An aspect of this challenge is that the discourse about sovereignty is vibrant in diverse policy, academic and political constituencies. At times its narratives are relatively discrete and at other times the narratives overlap with the discourses from other professional orientations. In this article we seek to provide enhance clarification about the sovereignty discourses and narratives used in theory and practice. For example the article begins with the work of Bodin and Hobbes. Both of these theorists make a case for the exercise of political power in hierarchical terms. It is unclear whether they are describing political power as it is or recognizing the hierarchical aspect of sovereignty as it ought to be. Both Bodin and Hobbes were scholars, although Bodin was also a prominent politician. They were both attracted to the idea of hierarchical sovereign power because they saw it as important to the maintenance of public order which they saw as threaten by religious sectarian violence. In this sense they would appear to be a normative preference for the concentration and centralization of power to retain minimum order. This would implicate the creeping into their analysis of a minimum normativity. Additionally, they were both aware that the concentration of power could lead to its abuse. They denied sovereign absolutism in somewhat modest terms. In short they were concerned about social chaos and in a limited way sovereign abuse. Our study moves into the sovereignty idea in the context of international law with reference to the work of Grotius, the Dutch international lawyer of the early 17th century. Grotius took the sovereignty discourse to another level by considering the problem of sovereignty in an environment of multiple sovereigns. This was an environment which required law and legal skills and therefore provided a framework within which reasoned legal elaboration would provide a mechanism to coordinate sovereign relations and thereby provide international restraints on sovereign absolutism. The article then considers a significant 17th century juridical event in the practice of international law. We refer to the Treaty of Westphalia (1648) and its relevance to the development of sovereignty in practice. The importance of the Treaty is that it juridicalized the idea of an international society based on sovereign nation States. It is a framework that has had incredible traction over time and was reflected in the most powerful theories of international law founded on the nation State participants. The article then reviews the work of other international scholars and philosophers from Pufendorf to Austin. These early international lawyers grapple with the idea of sovereignty and the subordination of sovereignty to the idea of international obligation. Their work begins to show the influence of positivism and the development of international law based on empirical sources such as treaty and custom. These developments are then confronted with a new and rigorous jurisprudential theory of sovereignty developed by the English legal philosopher, John Austin. Austin developed the theory of sovereignty of considerable power and durability and modified versions of his idea of sovereignty continue to be important in international law and international relations today. It is important to note that Austin’s view of sovereignty was an explicit indication of the use of a positivistic, scientific view of law. Technically, the logic of Austin’s system was to deny the legal character of international law. Since there was no global super-sovereign, there could be no global super-law that subordinated sovereign competence. In his view, international law was a form of positive morality. Austin did not demolished international law completely, but his thick version of sovereignty had a dramatic influence on the development of international law into the 20th century. Additionally, Austin’s approach to law suggested that all law was rooted in the orders of the sovereign. This reshaped legal thinking globally. It implicated as well two different versions of science: the first, logical and analytical; the second, empirical. Each version had a distinctive approach to the identification of the sovereign, who was the source of all law. The analytical approach was considerably refined in the 20th century by such leading theorists as H.L.A. Hart and his influence has been significant in the scholarship of British international law and the discourse it has generated on the concept of sovereignty. Several important British jurists are considered in this article. The article also shifts its focus in the 20th century. It examines the changing character of sovereignty in the aftermath of the First and the Second World Wars and the implications of the UN Charter for rethinking the boundaries of sovereignty. The article then focuses on the practice of international law and its influence on the boundaries of sovereignty in terms of international agreements regulating global spaces, resources, including the oceans and Polar Regions. Part IV examines the significant contributions made by scholars from the United Kingdom to the theory and understanding of sovereignty. This includes the work of H.L.A. Hart, Brownlie, and other more contemporary UK scholars. Part V shifts the focus to the scholars who had significantly influenced the ideas of sovereignty in US practice and theory. Here the influence of Austin has been less analytical and conceptual and more empirical. In part, this is a reflection of the complexities of the form of constitutional governance in the United States as well as the influence of the revolt against formalism in United States and its influence on legal theory. The article traces the influence of positivism in its empirical sense on such theorists as Holmes, Gray and Thayer. In the social sciences, the influence of the empirical approach was also beginning to find traction. A leader in the behavioral movement in the United States was the political theorist Harold Dwight Lasswell. In the 1930s he published two books which had a significant effect on providing an empirical orientation to the ideas of sovereignty and the nation State. In his book Psychopathology and Politics he reconceptualized the State as a manifold of events and insisted that the State was not a super individual phenomenon, but empirically a many individual phenomenon. He then explored the importance of understanding the global environment in terms of the individual’s perspectives of identity, demand, expectation, insecurity and anxiety in a precautious book called World Politics and Personal Insecurity. In fact, Lasswell was virtually recasting international relations in international law with a focus on sovereign personalities, to the idea of world politics in which the give and take of actual human beings shapes the conditions of world order from the local to the global and vice versa. These ideas were later to emerge in an approach to sovereignty that involves more refined theories and methods of a contextually understanding and the rooting the sovereignty idea in global social, power and constitutive processes. This is discussed in the last part of the article. In the meanwhile there were more intermediate developments in legal and political theory in the US. We explore the works of Hart and Sacks, Carl Schmitt and Hannah Arendt and in contemporary terms the contributions of Judge Samuel Alito and the scholars Professor Ackerman (Yale), Yoo (Berkley) and Tribe (Harvard). The article concludes by reference to the implications for sovereignty of international practice indicated in the Nuremberg Proceedings and then refers to the developments of Lasswell and the New haven School and the ideas and methods of contextual mapping for the empirical specification of the sovereignty idea.
- contemporary theory and practice
Publication DateSeptember 12, 2011
Citation InformationWinston P Nagan and Aitza M Haddad. "Sovereignty in Theory and Practice" ExpressO (2011)
Available at: http://works.bepress.com/winston_nagan/7/