Academic journal article Stanford Law Review

The End of Sovereignty and the New Humanism

Academic journal article Stanford Law Review

The End of Sovereignty and the New Humanism

Article excerpt

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.

I. 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. …

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