The end of sovereignty and the new humanism.

• Author: Ward, Ian
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION

Lewis Carroll's Alice spied the Cheshire Cat and asked, "Would you tell me, please, which way I ought to go from here?" The Cat replied, "That depends a good deal on where you want to get to." Alice merely wanted to go "somewhere." Their engagement continued a while, and then Alice noticed that the Cat was, rather annoyingly, disappearing and then appearing again. It was all rather disconcerting, even for someone who was "getting so well used to queer things happening." When she asked it to stop, the Cat acceded to her request, "and this time it vanished quite slowly, beginning with the end of the tail, and ending with the grin, which remained some time after the rest of it had gone." The idea of a "grin without cat," Alice mused, was "the most curious thing I ever saw in all my life!" (1)

So there it was: a grinning presence that slowly disappeared, leaving a disorientated Alice wanting to go somewhere, but unsure as to quite where. Curious indeed. And oddly appropriate, as an analogy, for the apparent demise of the classical conception of sovereignty. It seems to be part of the jurisprudential furniture, a maddening indefinable presence, always slipping in and out of reach, but always there, grinning away, comfortable in its elusiveness. And, then, suddenly, it just disappears. Only a strange, eerie, specter remains, of something that once seemed so reassuring, as "cheerful," indeed, as the Cheshire Cat. And we are left to live in a jurisprudential world in which people rarely bother to talk about sovereignty, as least very seriously, except and insofar as it provides an excuse for a certain nostalgic musing on the past.

And yet, not everybody appears to have noticed it go. Even in the new Europe, and perhaps especially in the United Kingdom, that final bastion of the jurisprudentially arcane, people still talk about sovereignty as it if were somehow still here. And in the United States, entire foreign policies can be fashioned around something termed "state sovereignty." Indeed, faltering political careers, and presidencies of dubious constitutional legitimacy, can be seen to flourish under the same enigmatic smile. Nothing more readily enchants the bewildered patriot than the beatific grin of the ephemeral specter of sovereignty. For some, it seems, particularly for millions of Americans, sovereignty still matters. Curiouser and curiouser, as Alice would surely have said.

1. THE END OF SOVEREIGNTY

   Of course, there is a reason why sovereignty enjoys such a privileged place in modern jurisprudence. For the last two centuries it has been a centerpiece of western constitutional theory, and most particularly the Anglo-American variant of it. For some, it has, indeed, described the "end," the ultimate expression, of a modern constitution. This was certainly the case for John Austin, whose Province of Jurisprudence Determined was dominated by the thought. Indeed, according to Austin the very idea of "positive law" was founded on the effective presence of a "sovereign person" who issues legitimate "commands." (2) It was for this reason that he dismissed the idea of international law as a species of the kind of "muddy speculation" presented by natural lawyers and other juristic dreamers. At best these are roles of "positive morality" rather than "positive law," of the kind that can be aligned with the "customary" laws of fashion and chivalry. And the idea of "composite," or federal, law received similar treatment. A constitution that seeks to prescribe "joint sovereignty" can only lead to jurisprudential "confusion." (3)

   The idea of "unlimited," specifically parliamentary, sovereignty acquired an iconic status in Albert Venn Dicey's Introduction to the Study of the Law of the Constitution, where it was identified as being the "keystone" (4) of the English constitution, the "dominant characteristic of our political institutions." (5) Whilst he was slightly troubled by the imprecision that he detected in Austin's more theoretical expression, Dicey clearly aligned himself with the Austinian tradition. (6) The very first chapter of Dicey's Law of the Constitution was devoted to countering the heretical notion that there might be "alleged limitations" to sovereignty. Parliament had, Dicey famously declared, the "right to make or unmake any law whatever." (7) For historical authority, Dicey unsurprisingly sought recourse to the Act of Settlement and to the pervasive constitutional mythologies that hung about the "great and glorious" revolution of 1688. (8) Sovereignty had to be "unlimited," and it was for this reason that Dicey, again following Austin, looked so askance at the very idea of international law, or indeed those legal orders that sought to somehow share sovereignty. (9) Although there was much about the United States that he admired, particularly the reverence for the rule of law that seemed to be commonly displayed, Dicey could only conclude that "federal government means weak government." The "supremacy of the constitution," Dicey opined, is quite different from the "sovereignty" of the nation state, whilst the idea of shared "sovereignty" is merely a "political contrivance." (10) There is a certain irony in the thought that Dicey feared that Americans did not take the idea of nation-state sovereignty seriously enough. Today, only Americans appear to take it so seriously.

   To a certain extent, of course, Dicey had misread the script, imbibing, and not greatly liking, a fair amount of Tocqueville, but seeming to ignore the many debates that surrounded the establishment of the United States Constitution. For example, he clearly failed to appreciate the underlying emphasis on both state and nation-state sovereignty which could be found in The Federalist papers. He thus failed to account for John Jay's repeated emphasis on the importance of preserving the integrity of the nascent American state against the ever-present threat of foreign hostility. In his affirmation that the "law of nations" must be respected, and that the new American state should have "national" government, Jay clearly thought in Westphalian terms. (11) The need for strong central government, and to avoid the anarchy that besets collections of "petty republics," provides the underlying thesis behind all the letters published by Hamilton, Jay, and Madison. For Hamilton, indeed, the principle of "national sovereignty" was vital to the good health of any modern state. (12) And all three, moreover, were convinced that matters of foreign policy had to be reserved to the unlimited sovereign authority of federal government. (13)

   The idea of "unlimited" sovereignty was not then quite so parochial as Dicey surmised. But, for the true disciple, Britain remained the only sure and certain champion of unlimited sovereignty. And because Dicey thought this, then so have generations of British lawyers. (14) The sudden demise of Diceyan sovereignty during the last quarter of a century has thus been bewildering and not a little painful for the British lawyer. The key event, of course, was the accession of the United Kingdom to the European Community in 1972. At the time, Prime Minister Edward Heath sought to reassure his colleagues that "[j]oining the Community does not entail a loss of national identity or an erosion of essential national sovereignty." (15) It was, of course, plain nonsense, as Heath surely knew. For the subsequent thirty years, Britain has wrestled with the word "essential." Domestic politics have been dominated by the European question, governments have fallen, and political parties have destroyed themselves. (16) The present Blair administration is terrified by the question, barely daring to breathe its name. 17 And running alongside has been a jurisprudential melodrama of equal fascination. The starting point here is section 2.1 of the 1972 European Communities Act, which states:

   All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies. (18) In simple terms, the 1972 Act is an "enabling" act. It is intended to prescribe the future manner of legislative enactment. The burning question, of course, is whether section 2.1 represents an infringement of "essential" sovereignty.

   The initial response, most famously articulated by Lord Denning in Macarthy's v. Smith, was that it did not, but that it did not in a rather particular and unusual way. Faced with subsequent legislation that appeared to be inconsistent with the 1972 Act, Denning was insistent that there could be no implied repeal of the former. Short of an express reservation, he opined, British courts must interpret subsequent domestic legislation to be in accord with Community law, no matter how creative they may have to be. The Diceyan idea of "unlimited" and "continuing" sovereignty was crushed. Dicey had explicitly rejected the notion that a Parliament might bind a successor Parliament. (19) At the time, however, scrabbling around for some kind of credible means of resuscitating the corpse, jurists alighted on an alternative "self-embracing" form of sovereignty, one which suggested that sovereignty was retained through the presence, and possible repeal, of the 1972 Act. (20) As Denning said, the "priority" of European law "is given by our own law." "It is not," he continued, "supplanting English law." Rather, "[i]t is part of our law which overrides any other part which is inconsistent with it." (21)

   And yet, the European Court of Justice had...