Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

Synopsis

This is a book about the transformation of sovereignty in the United Kingdom and the European Union, about the transition from 'sovereign states' to 'post-sovereign states', about devolution and nationalism and the future of the British union. It applies the institutional theory of law to a general inquiry into the relations of law and state, and to the question of the character of a Rechtsstaat or state under the rule of law. This clears the ground for a historical/analytical review of the United Kingdom as union state, and of the Benthamite or Diceyan view of its constitution, grounded in the idea of sovereignty. Can that sovereignty survive diffusion of power within the British state? Or can it survive the development of the European Union and the supremacy in it of European Community law? Was there a revolution in 1972, when Parliament enacted the European Communities Act, or later, when the House of Lords held that subsequent Acts of Parliament should be 'disapplied' when they conflict with Community law? The potential for conflict between member state constitutions and European legal order is no less in other member states - Germany, France, Ireland and the others. Indeed the issue is perhaps whether in the long run constitutional conflicts are inevitable. This leads on into a consideration of pluralistic as against monistic accounts of legal order viewed as a whole, and finally to a review of the concept of sovereignty, and of the possibility that there really could be a new order of post-sovereign states within a non-sovereign confederal union in Europe. If so, what becomes of democracy, and how can the democratic deficit in Europe be redeemed? The existing constitution of the 'European Commonwealth' is reviewed critically as an example of a mixed constitution and an argument is proposed about the value or values attaching to democracy and to subsidiarity in this vast commonwealth. Connected to subsidiarity is the issue of contemporary politics of identity all over Europe and beyond. MacCormick puts forward a carefully argued case for a moderate and liberal form of nationalism that sets universal but non-absolute principles of self-determination. The case is finally pressed home in relation to the relations of Scotland to the other countries of the British Isles, and an argument put for the idea of mutual independence within a Council of the Isles and the European Union.

Excerpt

Law, state, and nation are concepts that seem distinct and yet overlapping. States have laws, and are sometimes said to be no more than personifications of legal order. Nations are sometimes said to have states, sometimes to be a part of the same thing, as in the common phrase 'nation state'. In Europe today, former understandings of state and nation seem out of date in the face of the development of the European Union. One of the pillars of the Union, the European Community, has its own body of law complete with the European Court of Justice as its most authoritative interpreter. The Court has held that Community law has direct effect in the member states and has supremacy over their domestic law. How far this claim extends, and subject to how much ultimate resistance from supreme courts in member states is a point on which there is no settled agreement. Yet this itself raises doubts about the 'sovereignty' of the states within this new legal order, and for some conjures up the spectre of a European 'super-state', a sovereign federal union exercising ultimate dominion over all its parts. In this context what becomes of nationalism, and how are we to account for the contemporary politics of identity? Is it a paradox, or a natural tendency, that in a world of globalized communications and commerce old identities like those of Catalonia or Flanders or Corsica or Scotland or Wales rise and seek to reclaim recognition among the nations of Europe and the World?

This book ranges over all these questions. The starting point is in the philosophy of law, within what Ota Weinberger and I have called an 'institutional theory of law'. I am grateful indeed for Weinberger's collaboration and encouragement over the years, and I give in the opening chapter of the book an introductory statement of my version of the institutional theory, before turning to the general theory of state and law. The institutional theory detaches 'law' conceptually from 'state'. It thereby opens the questions what is special about the law that is state law, and what is the possibility of ensuring that states as political entities can be effectively confined within law, attaining the status of a 'law-state', to use an unfamiliar English translation of the familiar German concept Rechtsstaat. Reflection on that idea in the British context reminds us how little the United Kingdom has had (or, perhaps, needed) in the way of a self-conscious theory of the state within domestic constitutional law. Hence when a problematic idea like that of the 'interest of the state' crops up in the context of the OfFicial Secrets Act 1911, it shows a need for deep reflection on the character of the state.

There is a growing tendency among political commentators to reject the idea of the United Kingdom as a unitary state, archetype of a nation-state. Instead, it is portrayed as a 'union state', emerging from prior unions of distinct kingdoms. Chapter 4 pursues the question of how the 'Benthamite' or 'Diceyan' conception of the constitution developed in the circumstances of a union achieved by treaty in . . .

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