On Modern Political Sovereignty

      Within political theory, there are a number of concepts that are key to the enterprise of thinking politically in the modern world. One of these is ‘sovereignty’. For centuries now, what it is to be ‘sovereign’ has been at the forefront of our political concerns, and this continues today with our own ever-changing context of globalisation, post-humanism and the digital age – and whether or not sovereignty is threatened by our contemporary condition.[1] Nonetheless, the term can be often used to signify all manner of phenomena, and the problem with this is that our linguistically articulated concepts are a shorthand for specific phenomena, and as such when our operative use of these short-hands becomes lax – used for anything and everything – our grasp of the initial phenomenon is blunted. Perhaps this is why we find it so difficult to articulate what ‘sovereignty’ is in our contemporaneity, where those in other contexts found it so straight forward?[2] In the context of Britain’s exit from the European Union (Brexit), it is often heard that this decision has been taken ‘to regain sovereignty’, for example. But what does this mean? What is political sovereignty?

As always, whenever I wish to re-articulate a particular political concept, I follow in the footsteps of the likes of Thomas Hobbes and Hannah Arendt, and engage with the linguistic history of the concept; I engage with its etymology. Etymologically speaking, there are two derivatives of ‘sovereignty’, the first I will discuss immanently and the second towards the close of this piece. The first, retracing its steps backwards, sits with the Anglo-French adjective ‘sovereynete’ which holds its roots in the Old French ‘souverainete’, describing the rights of the ‘Souverain’, a noun connected to the earlier Vulgar Latin phrase 'superānus’ - literally meaning ‘the highest chief’.
[3] Equally, even prior to Antiquarian and Medieval language, some contend that a notion of sovereignty is connected to kingship in the ancient Greek world, where a King [βασιλεύς] could only be considered in command if they held the royal sceptre of chiefs [σκῆπτρον], and as such perhaps this is the origin of the concept in its nascency.[4] However, this only gives us a frame to grasp the concept, as concerning the highest chiefdom – but this does not help us pin down how we should understand political sovereignty today, in our own context.

In order to discuss, explain and find meaning in ‘sovereignty’ for our own time, we must take a look at the concept in early-modern political theory – with the coming into being of the modern state. The first thinker I wish to focus on is Jean Bodin. In many ways, Bodin is the father of modern sovereignty, providing its first exposition in his 1576 ‘Six Books of The Commonwealth’. Here, Bodin claims:

“Sovereignty is the absolute and perpetual power [potestas] of a commonwealth which the Latins call maiestas, and the Greeks ᾰ̓́κρᾱ ἐξουσία[5], κύριον ἀρχή[6], and κύριον πολίτευμα[7], and the Italians segnioria, a word they use for private persons as well as those who have full control of the state, while the Hebrews call it tomech shévet – that is, the highest power of command”.[8]

Bodin is implying that sovereignty is authority that is not only supreme, but ‘perpetual’, meaning that it is without the limit of time. In this manner, sovereignty rests only with an agent that sits beyond time, as a restriction, and so political actors limited by term cannot be sovereign but a dynastic unit or constructed ‘people’ can be; sovereignty in this sense can be bestowed by a civic body onto an individual or be transferred from individual to individual, but in either case it is valid so long as it is free from the limitations of abstract, physical or imposed conditions; in fact the only limit to sovereign power is, thus, divine law.[9] Here lies the modern origin of that concept we call ‘sovereignty’ – the highest power of command that is absolute and perpetual.

The next two individuals I would like to briefly shine a light on are the 17th Century thinkers Hugo Grotius and Thomas Hobbes. Although one of the greatest thinkers of ‘Just War Theory’, in his discussion of war and peace Grotius explicates a conceptualisation of sovereignty with Bodin clearly in mind. Grotius claims that sovereignty reveals itself as a power “whose acts are not subject to the legal control of anyone else, and cannot be rescinded at the pleasure of another human will”, going on to state that, “I exempt the sovereign himself from this restriction, for he may change his own decision, as may also his successor, who enjoys the same right, having then the same power and no other”.[10] Grotius remains connected to Bodin’s conceptualisation of sovereignty as the supremely unlimitable and perpetual power of command, but he hones a new dimension to the concept – ‘the decision’. With Bodin, sovereign is them who holds absolute power, but how does this manifest itself? Grotius builds on Bodin in a juristic and legal manner to add that sovereign power permits the sovereign, and the sovereign alone, to annul, condone and permit any activity they wish without legal limit. This is then added to, considerably by Thomas Hobbes in his famous 1651 work ‘Leviathan’.

Hobbes’s 1651 work is a masterpiece of political thinking. Simply put, Hobbes contends that in order to escape our condition of natural equality and total liberty – which he refers to as ‘the state of nature’ – a condition of anarchy where there is neither law nor order, and as such, is defined by conflict caused by competition, diffidence and glory – individuals must come together to create a compact or covenant (a ‘social contract’) in which they surrender the excesses of their natural liberty to a single authority that is both comprised of the individual ‘signatories’ and yet sits above them, in its capability to determine law and keep individuals in check – a ‘commonwealth’.[11] This single persona ficta is the sovereign state. It is comprised of individual citizens in corporation - a ‘body politic’ – headed by a single entity, be it a parliament or assembly (if one is reading a certain Republicanism within Hobbes) or, as it seems Hobbes is directly advocating, a single absolutist monarch; this head is ‘the Soveraigne’ - the bearer of sovereignty. This ‘Commonwealth’ Hobbes defines in the following passage:

“One Person, of whose Acts a great multitude, by mutual Covenants one with another, have made themselves every one the Author, to the end he may use the strength and means of them all, as he shall think expedient for their Peace and Common Defence. And he that carryeth this Person is called is called Soveraigne, and said to have Soveraigne Power; and everyone besides his subject”.[12]

Hobbes differentiates here the elements that comprise the dual constituents of the commonwealth (the state) – (a) subjects, who, by their social-contractual obligations, author the expedient ends of peace, order and common defence of the personal ficta that they constitute through their concertedness, and, (b) the sovereign, who ‘carries’ the persona ficta and holds absolute authority to direct and determine the means and ends of peace, order and common defence by which the corporation of the body politic are obligated to follow. In this manner, Sovereignty for Hobbes is not ‘popular’ – it does not sit with the body politic, i.e. with the citizens of the commonwealth who have surrendered their liberty to form a civic association. Rather, sovereignty rests with the role and capabilities of ‘the sovereign’, i.e., the agent that directs and embodies the persona ficta of the state, and these capabilities are absolute. Subsequently, ‘sovereignty’ concerns the powers that come with the quasi-theological existence of a figure that not only commands authority for the good of the state, but determines what is and is not law for the entire commonwealth – commanding obligation in return for order, peace and protection.[13]

There is one last early-modern thinker that I would like to touch upon, who shifts the notion of sovereignty away from the absolutist sovereign (pace Bodin and Hobbes). A discussion concerning modern sovereignty, no matter how short, would be incomplete if it were not to mention Jean-Jacques Rousseau. Arguing primarily against Hobbes’s grasp of the social contract and his conception of ‘the state of nature’, Rousseau normatively contends that sovereignty is bound up with what he refers to as ‘general will’ (volonté générale). In his ‘The Social Contract’, Rousseau explains that:

“So long as several men assembled together consider themselves a single body, they have only one will, which is directed towards their common preservation and general well-being. Then all the animating forces of the state are vigorous and simple; its principles clear and luminous; it has no incompatible or conflicting interests; the common good makes itself so manifestly evident that only common sense is needed to discern it.”[14]

We can see that the ‘general will’ is the will of the body politic as a whole, and is central to Rousseau’s grasp of political legitimacy in line with the ‘rule of law’, i.e., the will of any individual citizen is no greater than the will of the civic association as a whole, and as such, legislation should be in line with the will of the citizen body in order to be legitimate. This debate puts Rousseau at odds with those absolutists, like Hobbes and Bodin, who contended that sovereignty should lie with a monarch who sits atop the body politic as the head of the persona ficta of the state. In this, Rousseau forms what we refer to today as ‘popular sovereignty’ – where ultimate power rests with the will of ‘the people’. As Rousseau himself claims:

“My argument, then, is that sovereignty, being nothing other than the exercise of the general will, can never be alienated; and that the sovereign which is simply a collective being, cannot be represented by anyone but itself – power may be delegated but the will cannot be.”[15]

Rousseau decapitates the Hobbesian commonwealth of its absolutist monarchism, and replaces the head of the state (literally if we consider the effect Rousseau had on French Revolutionary thought) with the ‘general will’. The citizen body, the civitas, becomes the sovereign of itself, and with this the notion of the sovereign self-determination of a ‘people’ or ‘nation’ was born.

This being said, Rousseau may shift the location of sovereignty, but not necessarily its function (beyond that of delivering upon the general will). Sovereignty is still the ultimate decision-making power. Bodin, as discussed, claimed that sovereignty can move temporally and spatially. I would like to unpack this further. Although an individual possessing the rights of sovereignty may die, a different individual will take their place, and such ‘the sovereign’ lives on. This does not change with Rousseau. The citizens of a community may perish, but the space they construct between them, and their legacy, lives on with their ancestors, language, religion and culture.[16] Take France, those who took part in the French Revolution have long perished, but the sovereignty of the French people is still very much alive and well. However, a single agent, by default, must hold the ultimate decision-making power – the sceptre may have changed slightly, but sovereignty, as ultimate authority over a territory, is still passed on like the baton of a relay race. Although popular sovereignty, instituting the demands of the general will, is part of our sovereign experience, who holds the baton today? Somebody must still remain the ultimate decision-making authority?

Cue Carl Schmitt. Although fiercely unpopular due to his formal and juridical connections to the Nazi party, Carl Schmitt’s short yet excellent work ‘Political Theology’ tells us where we can locate sovereignty. “Sovereign is he who decides upon the exception”[17]. ‘The exception’ is a key term in Schmittian nomenclature. This indicates the embeddedness of an ability to suspend any and all law from and within the legal edifice of a state.[18] Schmitt locates the exception within Bodin’s conceptualisation of sovereignty itself. If sovereignty is the absolute and perpetual power of a commonwealth, the highest power of command, the very authority to suspend valid law is the mark of sovereignty itself. In the British system, there has already been a good illustration of the exception-lite – when Parliament passed the Emergency Powers Acts of 1939 and 1940 to prosecute the war effectively, and with it came the suspension of certain legal freedoms that had been integral to the British rights-based legal edifice for some time. In this manner, sovereignty is more than just the highest power of command over a given territory, but the highest power of command that can decide to void parts of the legal framework that give it this power. For example, if in a constitution it claims that a single entity (whatever it may be) holds sovereign power, the bearer of this power may at any moment institute the exception that suspends valid law as a result of this valid constitutionalism – the mark of sovereignty.

So, if we wish to ask ourselves today, ‘who is sovereign?’, we must resist the urge to answer in a purely Rousseauian frame – by stating that ‘the people’ are sovereign abstractly – and even in an absolutist frame – by stating that ‘the monarch’ is sovereign concretely. Rather, we should utilise Schmitt’s lens and search for the entity that really does hold the supreme capability to determine not only what is law and what is not, by way of sovereign decisionism, but who holds the power to declare ‘the exception’ – to legally suspend any and all law. How does any of this help us in our understanding of or discourse concerning daily political issues and current affairs?  

In order to answer this question, I will use as an example here something which I try to remain distant from because of its contemporary divisiveness, but it is too fascinating to omit. Many of those who campaigned for the UK to leave the European Union contended that Britain had ceded its sovereignty to the European Union and that this was evident in the sheer number of laws that were in force but not legislated and legitimated by parliament, but were so by the European Institutions in ‘Brussels’ and ‘Strasbourg’.[19] There is a paradox here however. If Britain had ceded sovereignty, this would have meant that it had handed away its ultimate decision-making power to the European Union, its capability to decide upon the exception over British territory. This did not occur, as in the British constitutional system Parliament is still, as has been for centuries, the ultimate legal decision-making power bearer, and the only body that can legally adapt, create or void qualities of the British legal nexus.[20] Indeed, there is no doubt that with membership to the European Union the UK was legally obliged to enforce law that it may not have authored – but, as we have seen, this is not a loss of sovereignty. If Parliament decided to cede from the Union, if it voted to invalidate European Law within its territory, which it has done, it would reaffirm the basis of its sovereignty that is extant, simply put, because the locality of this power never shifted, even when European Law was absorbed into the legal edifice of the UK. If the UK had lost its sovereignty, as many claimed it had done, the European Union would have held the capability to legally suspend any and all law within British territory – this was not the case – only parliament can (and always could) do this.

Of course, I hesitate to declare that Brexit is an example of Schmitt’s ‘exception’. This concept should be reserved, in actuality, for when the sovereign agent transcends the rule of law in the name of some ‘public good’ – like The Emergency Powers Acts, States of Emergency, States of Siege, Marshall Law, and so on. Brexit, clearly, is not this phenomenon. However, what I am articulating is that the execution of the decision to the exception is not the mark of sovereignty, but, rather the legal right to execute that decision is. This is what rests with Parliament, and always did; implying that throughout the UK’s membership to the European Union, it firmly held its own sovereignty. What was ceded to the European Union, however, is a question for another time, but we do know it was not sovereignty.

Sovereignty, all in all, is an interesting concept because it sits on the border between the abstract notions of obedience, will, decision, and right that we see in Bodin, Grotius, Hobbes and Rousseau, and yet the concrete body of law that our lives are enforced by on a day-to-day basis. I will leave the reader with one final thought. The second etymological derivative of ‘sovereign’ relates to the possession of curative remedies or capabilities. Is this how Hobbes understood sovereignty, as a cure to our natural condition of enmity and egoism? What about today, can sovereignty act as a potent cure to political or philosophical ‘ills’? In a world of posthuman communication, the internet, social media, the deteritorialised world of cyberspace, space exploration, and so on, who is sovereign in these intangible spaces? The basis of sovereignty still, tacitly implied throughout, is territory. Who holds the power to decide upon the exception of these spaces that are territory-less, and will we need a new notion of sovereignty to fully grasp its phenomenal qualities?

[1] For example: Jens Bartelson (1995) A Genealogy of Sovereignty, Cambridge: Cambridge University Press.

[2] Jens Bartelson (1995) A Genealogy of Sovereignty, Cambridge: Cambridge University Press, p. 1.

[3] Stéphane Beaulac (2004) The Power of Language in The Making of International Law: The Word Sovereignty in Bodin and Vattel and The Myth of Westphalia, Leiden: Martinus Nijhoff Publishers, p. 99.  Interestingly, also, this is where the musical term ‘Soprano’ stems from – as the highest pitch.

[4] T. A. Sinclair (1951) A History of Greek Political Thought, London: Routledge and Kegan Paul, p. 12.

[5] Akra exouisa – ‘Highest Authority’.

[6] Kurion arche – ‘Master of Dominion’. Interestingly, ἀρχή has three meanings in the Greek: (1) the beginning or originating point (corresponding to telos); (2) Literally a mode of dominion (more than likely through a theological lens); and (3) the end of a rope, stick or corner of a sheet of paper – returning sovereignty to the highest, final, point of authority.

[7] Kurion politeuma – ‘Master of Civic Administration’.

[8] Jean Bodin (1992) On Sovereignty: Four Chapters from The Six Books of The Commonwealth, Julian H. Franklin (Ed. And Trans.), Cambridge: Cambridge University Press, p. 1.

[9] William A. Dunning (1896) ‘Jean Bodin on Sovereignty’, Political Science Quarterly, 11 (1), pp. 82-104.

[10] Hugo Grotius (1949) On the Law of War and Peace, Louise R. Loomis (Trans.), Roslyn, NY: Walter J. Black, p. 43.

[11] Famously, see: Thomas Hobbes (1968) “Chapter XII: Of the Natural Condition of Mankind, as Concerning their Felicity, and Misery”, in C.B Macpherson (Ed.), Leviathan, London: Penguin Classics, pp. 183-189.

[12] Thomas Hobbes (1968) Leviathan, C.B Macpherson (Ed.), London: Penguin Classics, p. 228.

[13] For the Theological aspects of early modern and medieval political sovereignty, see: Ernst H. Kantorowicz (2016) The King’s Two Bodies: A Study in Medieval Political Theology, Princeton, NJ: Princeton University Press. For Hobbes’s discussion of the obligation/protection principle, see: Thomas Hobbes (1968) Leviathan, C.B. Macphereson (Ed.), London: Penguin Classics, p. 272.

[14] Jean-Jacques Rousseau (1968) The Social Contract, London: Penguin Classics, p. 149.

[15] Ibid, p. 69.

[16] The only caveat to this, considering we are thinking in modern terms, is the potential for the extermination of a people through eugenics, ‘ethnic cleansing’ or genocide. This would destroy, by definition, the abstract sovereignty of a people.

[17] Carl Schmitt (2005) Political Theology: Four Chapters on The Concept of Sovereignty, Chicago, IL: Chicago University Press, p.5.

[18] If one is interested in this notion of ‘the exception’ I would highly suggest: Giorgio Agamben (2005) State of Exception, Chicago, IL: Chicago University Press.

[19] I have placed these in parenthesis, because within British discourse the mere mention of these place names seems to have somehow become synonymous with ‘a loss of sovereignty’.

[20] I am of course excluding common-law here, as parliamentary statute may override if parliament sees fit.