Sovereignty: A Painful State

Hent Kalmo considers the roots of sovereignty and the changing basis determining the authority of a state to govern itself or another state at the expense of local or individual liberties.

The Peace of Westphalia, signed in 1648, ended the Thirty Years War and broke the power of the Holy Roman Empire. Painting by Gerard Terborch.There is a reason why some writers impatient with the idea of sovereignty have taken to calling it the mal de Bodin. The 16th-century French lawyer, who witnessed the flaring up of confessional conflicts and the start of the rapacious expansion of the European powers into other continents, was indeed the first to put into wide circulation the notion of an ‘absolute and perpetual power’. But Jean Bodin was not as great an innovator as he is sometimes made out to be. There already existed a thick web of medieval jurisprudence at the time when he wrote.

Starting from the late 11th century, lawyers had found ways to make themselves helpful to rulers by taking an occasional page out of Roman and canon law – and an occasional passage conveniently out of context – to buttress the authority of potentates no longer willing to subject themselves to the double sword of imperial and papal power. Their ingenious counter-move (which goes a long way towards explaining the paradoxes that bedevil the modern concept of sovereignty) was to make every king into an emperor, imperator in regno suo, with powers resembling divine omnipotence. The result was that ever since lawyers have found themselves struggling with secular versions of old theological quandaries. The question as to whether the British Parliament can make some of its acts trigger a mandatory referendum – a hot topic at the moment – is not very different from asking whether God can create a stone so heavy that even he cannot lift it.

Despite such paradoxes, the advent of an apparently well-defined notion of sovereignty equipped constitutional and political theory with a weapon that it would learn to twist and turn in almost every imaginable direction in the centuries that followed. There were few subjects over which more polemical ink was spilt in the turbulent 17th century as states zig-zagged between various political models, ranging from those that sat uneasily within the Bodinian scheme, like the Swiss Confederation or the United Provinces of the Netherlands, to those, such as France, where the king’s sovereignty appeared as indivisible as a point in geometry.

England also acquired its peculiar brand of absolutism in the form of parliamentary sovereignty, although before the Civil Wars the arch-constitutionalist Sir Edward Coke had rejected sovereignty as ‘no parliamentary word’. Cromwell may have cut off the king´s head with the crown on it, but he certainly did not dispense with that ‘universal over-swaying power’ that Charles I had sought to keep for himself.

The 18th century proved that it was not always easy to extend Westminster’s new-found sovereignty into the length and breadth of England’s growing empire and to make it everywhere equally ‘supreme, irresistible, absolute, uncontrolled’, as Sir William Blackstone characterised it in 1765, the year of the notorious Stamp Act. By the time English and colonial pamphleteers started to reach for high theory in arguing over the question as to whether sovereignty can be divided, the outer world of international relations had already experienced a sea change. In 1758 Emerich de Vattel had published his Law of Nations, which offered a detailed legal description of that ‘separate and equal station’ that the United States was later eager to assume in order to start negotiating a treaty of alliance with France. Sovereignty was now a precondition of full membership of the international community. Although historians have lately been at pains to downplay the importance of the Westphalian settlement of 1648 as a birth certificate of state sovereignty, there is no doubt that, between that year and 1776, rules of international practice emerged that fragmented Europe into a system of sovereign states.

For a long time, sovereignty remained primarily a European preserve. When the English lawyer John Austin (1790-1859) offered his influential description of sovereignty as a state of factual obedience that could be found in most societies, the historian Sir Henry Sumner Maine (1822-88) was quick to point out that this way of representing power was peculiar to the western world. Maine’s view now seems to have been an enlightened view in an age of complacent Eurocentrism dominated by a cavalier attitude toward non-Western political cultures. In reality this view fitted disturbingly well with the imperialist notion that, since only ‘civilised’ western powers were sovereign, the rest of the globe was like the Americas at the time of the Spanish Conquest – a wilderness waiting to be occupied by those able to stake out a proper legal title.

The late 19th century appears to have been of many minds about sovereignty. Treaties began to be signed at an increasingly rapid rate. Some internationally minded lawyers even felt able to start talking about the ‘obsolescence’ of sovereignty. But the late 1800s were also a time of fierce power struggles among European states, gearing up to force their sovereignty upon those not able to resist. It is a sobering thought that the age that saw the first steps being made towards the creation of the Permanent Court of International Justice was also filled with the puffed-up nationalism of the likes of the 19th-century German historian and politician Heinrich von Treitschke.

The 20th century had its share of both of these currents: noble dreams of world goverment and nightmares of mass killings shielded by a religious regard for the rule of non-intervention. There were two seminal moments, 1919 in Versailles and 1945 in San Francisco, that promised to inaugurate a new, more peaceful way of imagining politics, until, at the end of the Cold War, a state of utter confusion arrived for which writers struggled to find historical parallels. Again, sovereignty was in question – more than ever before. There appeared a fashionable imagery of shared, split, divided, or partial sovereignty, aimed at capturing the sui generis character of the new ‘postmodern’ – and ‘post-sovereign’ – Europe. Unfortunately, this scholarly newspeak did not always contribute to our understanding of the new constellation of forces. It was less a serious effort to re-conceptualise sovereignty than a last-ditch attempt to salvage a concept that no one is quite willing to give up.

Many international relations scholars are, in any case, unsatisfied with the fashionable erosion-of-sovereignty thesis and think that it is rather the continuing resilience of states that is the interesting fact to be accounted for. In his historical study The Sovereign State and Its Competitors (1995) Henrik Spruyt suggested that one of the main reasons why states are still in charge is that the parcelling out of sovereignty would divide loyalties in unpredictable ways. Stephen Krasner argues along similar lines that the institution of state sovereignty – which he has famously called a form of ‘organised hypocrisy’ – can be expected to continue operating in the future. Key actors in the international system have found that, despite its faults, it still works better than any other structure that decision-makers have been able to envisage.

In the light of the continuing financial turbulence and the state-centred political posturing that accompanies it, it appears that all the talk of post-sovereignty in Europe was indeed somewhat premature. The economic historian Alan Milward argued in his book The European Rescue of the Nation State (1992) that the EU had always been less a ‘preparatory school for a world federation’ (as some early commentators greeted it) than a clever project to rescue the nation state. With the benefit of hindsight we can even discern an ominous similarity between the League of Nations and the European Union. Both were inspired by a wish ‘to beat swords into ploughshares’. Both tried to relieve Europe of the historical ballast of aggressive state sovereignty. Yet, when a crisis arrived, both were quickly reminded of their consensual foundations by nation states that lost no time in reasserting themselves as the fundamental unit of political organisation. Unavoidably the question is left lingering: why is it that, despite Stakhanovite efforts to ‘finally ring the knell of sovereignty’, the concept is still haunting us, to the point of obsession in all branches of political theory? Perhaps the best answer was offered by the philosopher and historian R.G. Collingwood when he wrote that: ’Sovereignty is merely a name for political activity and those who would banish sovereignty as an outworn fiction are really only trying to shirk the whole problem of politics.’

Hent Kalmo is a PhD student at the University Paris X-Nanterre.