Year XLIII, 2001, Number 3, Page 161
Notes on Sovereignty*
FRANCESCO ROSSOLILLO
1. The Pure Concept of Sovereignty
Power and Sovereignty.
The concept of sovereignty is embraced by the broader concept of power. For our purposes power can be defined as the possibility of individuals or groups to impose their will on others. In the life of men, and in political life in particular, power manifests itself in a whole range of guises, relationships and situations: power is possessed by states, alliances of states, international organisations, political parties, pressure groups, churches, public opinion and individuals. Power relationships between these entities evolve in many different ways and, like the infinite number of factors that give rise to power — the degree of consensus, bureaucratic efficiency, military force, economic and financial resources, etc.[1] — change continuously.
Within this infinitely complex and ever-changing web there is one form of organisation of power that remains relatively stable and that is usually perceived as being superior to the others. I am referring to the state — the state that brings about, albeit imperfectly, social peace through the enforcement of law. This is possible only thanks to the existence of a subject (initially identifiable with the state itself) which has the power to decide in the last instance, i.e., an irresistible power, and which nobody can prevent from taking and enforcing its own decisions. This power is sovereignty.[2]
Sovereignty and the Common Good.
It must be stressed that the existence of an irresistible power, and therefore of power in its most radical form, appears paradoxically to run counter to the very logic of power, as the state, through its irresistible power, neutralises the power differences between citizens and groups existing within it, or rather, given the inevitably imperfect correspondence between historical reality and the models by which it is guided and which serve for its interpretation, strongly reduces them. It therefore creates conditions in which law prevails over power in a wide range of social relationships. This establishes the condition of equal necessity which, in the dialogue between the Athenians and the Melians, is considered to be the premise of justice. Furthermore, by imposing the observance of a series of legal norms, the state disciplines the struggle for power within itself, thus rendering this struggle radically different from power confrontations between states. Between the two antithetical aspects of power highlighted by Meinecke in the introduction to the Theory of the Raison d’Etat, two aspects that constitute its ambiguity, the irresistibility of power makes the ethos prevail over the kratos. The state, thanks to the attribute of sovereignty that makes it the foundation of social life through the enforcement of law, is the premise of politics regarded more as an activity which pursues the common good than merely as a struggle for power, because the internal security, i.e., the achievement of the value of social peace, that it guarantees is the indispensable condition for the promotion of all those values on which relationships between people are based.[3]
The Decline of Sovereignty?
There is a widespread tendency today, especially in Europe, to regard sovereignty as an attribute of a kind of state that has now ceased to exist and to maintain that sovereignty is now incompatible with the kind of social relationships that characterise the era of globalisation. According to this view, the supremacy of one legal system, enforced by an irresistible power, is substituted by a network of unconnected contractual relationships. These give rise to a series of rules of equal value, all equally non-binding, and render the state nothing more than one of the numerous agencies that mediate in relationships and settle disputes between people and between groups. Many of those who believe sovereignty to be surpassed predict, and with deplorable intellectual irresponsibility even seem to wish for, the advent of a “new Middle Ages”. They conveniently forget that the Middle Ages was an era in which permanent and unresolved conflict between different and uncoordinated powers resulted in endemic violence. This prevented the consolidation of social peace in Europe and therefore the formation of the premises for the flourishing of civilisation that subsequently proved to be the consequence of the birth of the modern state. Behind this attitude there is usually an unconscious acceptance of Fukuyama’s panglossian thesis of the “end of history”, which is perfectly serviceable to the hegemony of the American superpower in the world, as indeed is the tacit conviction that an era is dawning in which, at least in the industrialised world, power will tend to dissolve and people will peacefully regulate their reciprocal relationships on the basis of reasonable compromises between their respective interests.[4] But the truth is that where there is no sovereignty there is no law, and where there is no law there is anarchy and anarchy is the negation of all values of civilised life. Precisely because they are not regulated by law, relationships between sovereign states are relationships of power, and disputes between them can only be decided, in the end, by war. This is as true today as it has been throughout the history of humanity.
The People as Holder of Sovereignty.
The idea of an irresistible power evokes that of an absolute power, and it is not by chance that some associate the idea of sovereignty exclusively with the absolute monarchies of seventeenth- and eighteenth-century Europe. To make this association was justifiable while the prerogatives of sovereignty were exercised by the monarch alone (the “sovereign”). All the decision-making power of the state was concentrated in the monarch, even though, in reality, even the power of absolute monarchies was limited by a whole system of checks and balances. But in the wake of the great European and American revolutions this error of perspective can no longer be justified. It has become evident, except to those who think that sovereignty is a reality now superseded by history, that the prerogatives of sovereignty are exercised by the entire institutional structure of the state and, in every single case, by the institutions to which, on each occasion, the Constitution assigns the appropriate competence. One might therefore conclude that sovereignty belongs to the Constitution (understood materially, i.e., in terms of the way the powers of the state are actually organised and co-ordinated and as a set of fundamental values which steer the behaviour of men within it).
But this conclusion holds only in normal situations, however, and not in those exceptional circumstances in which the profound nature of the subject of the historical and social dialectic emerges and the true nature of the people shows itself. The latter are the circumstances which give rise to institutional crises. Thus, the question that must be answered is, who ultimately holds the power to decide in a situation of institutional crisis, or when there is a crisis in the political community itself (i.e., the spatial framework in which social life is organised), in other words, when the constitution itself is in question? One must therefore look beyond the fact that the Constitution is the source of the legality of the acts carried out by the state institutions. We must ask who establishes the legitimacy of the Constitution itself, and therefore holds the power to replace it.[5] The answer to this can only be the people, and the people exercises this power in two distinct ways: explicit and implicit. The former is through the exercise of constituent power during revolutionary phases, when the people is active and expresses a will (the general will of Rousseau).[6] The latter is through tacit consensus for the Constitution during normal phases when the prerogatives of sovereignty are exercised by institutions which popular support guarantees permanence and legitimacy. Without this guarantee a crisis develops that creates the conditions for the direct re-appropriation of sovereignty by the people, or for chaos or dictatorship.[7], [8]
It is worth reaffirming that the object of general will and consensus, which together constitute the basis for sovereignty, is not the legal system in its entirety. It is the whole set of fundamental rules and values through which the people defines its identity and the main patterns of social life within the state, i.e., the Constitution in its material sense, whereas the basis of the validity of non-constitutional rules and decisions, depending on the changing circumstances in the formation of parliamentary majorities, lies in their conformity to the Constitution.[9]
Sovereignty and Legitimacy.
Attributing sovereignty to the people is the only way to escape the antinomy which otherwise affects any theory of sovereignty: that of obtaining, caught between the need to found the legitimacy of the legal system on the irresistible power of the holder of sovereignty (non veritas sed auctoritas facit legem) and the contrasting need to found the power of the holder of sovereignty on some form of legitimacy, the observance of certain principles having intrinsic validity (non auctoritas sed veritas facit legem), without which the way would be open for the legitimisation of all kinds of abuse. This is the worrying factor that prompts Bodin and other sixteenth- and seventeenth-century theorists to maintain that the absolute monarch, though the holder of sovereignty, should in any case be obliged to observe the lois du royaume.[10] In fact the people has irresistible power because, hypothetically, it is, at once, the embodiment of those who impose the rules and of those who have to observe them. At the same time the people constitutes the measure of justice, in so far as it is the only arbiter of the common good, which coincides with its own good. This does not necessarily amount to a denial of the essential importance of certain values as the basis of social life, and therefore of the legitimacy of the state. On the contrary, as will be seen later, a people is a people inasmuch as it constitutes a community of values. This means, however, that those values must not be considered, in this context, from the normative perspective of their universal validity, but rather from that of their actual effectiveness, or of the degree to which they are shared by real people. Recourse to the people therefore resolves the question of supremacy between sovereignty and legitimacy. Sovereignty denotes the power of the people to make the rules defining its own identity; while legitimacy is the acceptance by the people of the rules it gives itself. And since those who set the rules and those who obey them are one and the same, sovereignty and legitimacy are the same thing. It also follows that the definition of sovereignty as the monopoly of legitimate force is circular. If, in fact, legitimacy and sovereignty are the same thing, legitimacy cannot constitute part of the definition of sovereignty. On the contrary, legitimacy and sovereignty are both defined by the monopoly, held by the people, of strength alone, thus neither is it possible, unless we resort to the idea of legitimacy founded on absolute values, i.e., on divine right, to conceive of an illegal monopoly of force.
It must be remembered that to identify the people as the true sovereign is not to deny the fact that sovereignty was born in European political history with the absolute monarchies of the beginning of the Modern Age. Absolute monarchy, after feudal anarchy with its disorder and violence, had actually created a new link between power and subjects, and therefore between the subjects themselves. It created a peaceful space, hitherto nonexistent, that allowed the creation, albeit imperfect, of relationships between men based on law, and thus created the conditions for the building of modern civilisation. From chaotic medieval multitudes, consisting of subjects belonging to different and intersecting spheres, bound by contrasting loyalties and dominated by changeable centres of power, it made a people from which it received conscious support.
The Identification of the People with the State.
It is important to note that to attribute sovereignty to the people is not to contradict the attribution of sovereignty to the state. The people and the state are two poles of the same phenomenon, even though the people is more visible in constituent moments and the state more visible in ordinary times. In any case, a people can only exist where there is a state, and when the institutions of a state, or even of a political community as such, experience a crisis, the crisis inevitably involves the people too. Bearing this in mind solves an apparent contradiction which, as long as people and state are considered as two completely separate entities, makes it difficult to understand the dynamics of the transfer of sovereignty. This is a particularly important problem for those involved in the struggle for the federal unification of Europe today. This process implies the transfer of sovereignty from the national states to a federal European state. Many affirm that the project of a European Federation is unfeasible because it would require the existence of a European people, which does not exist.[11] According to this view, therefore, the people would have to precede the state and would constitute the condition of its birth. This opinion has a semblance of plausibility, but so too does the opposite view, whereby a people cannot be born except in the framework of a state (and according to which the people would come after the state).[12] The truth is that the idea of the state implies the idea of the people and vice versa, and the problem of the precedence of one over the other is like that of the chicken and the egg. A state is born when the people wants is to be born, just as the people is born when it wants a state. This comes down to the state and the people being the same thing.[13]
From all this we can conclude that it is true that today a European people does not exist (even though the conditions for its formation are there, thanks to the effects of a long process of integration). But this conclusion does not constitute an argument against the realisation of federal institutions, even in the near future. A European people will be born, if at all, when circumstances allow the formation of a common will (the will to establish federal institutions). A European people and a European state will therefore come about at the same time, in a very intensive but short-lived process. It will be characterised by one or more symbolic events. These will imprint themselves forever on the collective memory and those who witness them will gain a sense of belonging to a newly born community. This aspect of the transfer of sovereignty must be borne firmly in mind, so as not to make the error of considering the latter as a purely institutional matter (it is an institutional matter, of course, but it is not only that). Unless its life and direction stem from an act of will, whose subject is the people and whose content is based on a different way of living together, then any institutional construct is bound to be eminently ambiguous. The language it uses can easily be exploited to opposite ends. One need only consider how the meaning of the term “constitution” has been twisted in recent European political debate.
The Indivisibility of Sovereignty.
If sovereignty is the power to take final decisions, it is thus indivisible. Were it divisible, there could indeed exist two or more subjects with equal power on the same territory and within the same legal order. The decision as to which of these might, on each single occasion, exercise this power could thus be decided only by strength. And this would bring about a state of civil war, the very negation of the social peace that sovereignty is meant to guarantee and express. Civil war does occur in history from time to time, but as the expression of the absence of sovereignty, not of its divisibility.
To state that sovereignty is indivisible is to recognise that this indivisibility extends both to the policies and to the territorial orbit to which it applies. It is thus wrong to attribute, as we see in Europe today, monetary sovereignty to the European Central Bank and political sovereignty to the nation-states, just as it is wrong to consider the federal state as a model in which sovereignty is divided between federal government and member-states. Sovereignty remains undivided in federal states too. But it is not the prerogative of any specific level of government, and no specific level of government is thus allowed to hold sway over the others. This role instead goes to the federation as a complex institutional system comprising a level of central government and one or more levels of regional governments (“regional” meaning each level of government below the federal one).
The Indivisibility of the People.
The indivisibility of sovereignty must correspond to that of the ultimate subject to which it belongs, i.e., the people. Recognising the uniqueness of the people, even the people of federal states, certainly does not mean negating its pluralistic nature when it is, in reality, characterised by marked cultural differences. The indivisibility of the people merely indicates the existence of an entity that a) is able to express a single will in constituent or revolutionary times and b) guarantees, in ordinary times, by its consent, the supremacy of a fundamental law (the Constitution) and of an institution equipped with the power to interpret the fundamental law (the Supreme Court). The latter would establish, case by case, the competence of one or the other subordinate legal system, central or regional. In each single case it would allow the unequivocal application of one and only one rule. The expression “Europe of the peoples”, sometimes used even in pro-European circles with reference to the European Federation, is therefore wrong.
Federal states are founded on one people alone. From this uniqueness stems the fact that any attempt at secession by a member-state of a federation constitutes an extremely serious constitutional violation. Such violations must be prevented at all costs, even through recourse to war.[14] From the indivisible nature of sovereignty also stems the significance of territory as a constitutive part of the state. If the state in ordinary times has the power to impose, in each single case, the observance of a legal system, and only one, because of its attribute of sovereignty, this power cannot be manifested within anything other than a territory delimited by frontiers. To speak of “de-territorialisation” of the state, or of a virtual state, is complete nonsense. This does not mean, however, that there cannot be situations of uncertainty as to which subject has ultimate decision-making power. These, however, are situations characterised by the absence of the state, and therefore of potential or actual civil war.
Federation and Confederation.
From the perspective of the indivisibility of sovereignty it can be seen that, in the eventuality of a union of states, the confederation-federation dichotomy retains its validity in spite of efforts of a certain doctrine to advance the thesis that this juxtaposition has been overcome and that the European Union — being neither a confederation nor a federation — is a demonstration of the fact. In truth, there can be no denying the evidence that, unless we fall into anarchy, sovereignty must reside either in the states that make up the union, or in the union itself (understood as the aggregate of federal government and regional governments). Tertium non datur.[15] This does not mean of course that in certain historical situations, such as that prevailing in Western Europe for half a century after the end of the Second World War, a relatively stable contract between member states of a confederation cannot come into existence. Nor that this situation cannot provide the premise for an effective transfer of sovereignty. But it remains important to distinguish between the conditions for the emergence of a situation and the situation itself. The reality of today’s European Union is that the holders of sovereignty, albeit a weak one, are the member-states.
In situations like this, institutions can be created (like the Court of Justice and the Central Bank in the case of the European Union) that have the formal competence to make final decisions in certain sectors. On the other hand, real power, particularly the power to make changes with respect to the competences of the various bodies of the Union, to disregard their decisions, to predetermine their content through blackmail, even to abandon the Union or to decide together with the other partners to dissolve it, always remains in the hands of the member-states. Thus a sort of fictitious distinction is created between formal sovereignty and substantial sovereignty. But yet again, there remains, in the end, only one sovereignty, namely substantial sovereignty.
People and Citizens.
Many refuse to accept the attribution of sovereignty to the people, as the people is said to be an entity of an indeterminate and ideological nature. They maintain that sovereignty is a prerogative of citizens, i.e., concrete individuals. This affirmation rests on a misunderstanding. Citizenship, as the basis for the ownership of a number of rights and responsibilities, is a prerogative rooted in the Constitution. In contrast the people, as the holder of constituent power, is outside the Constitution[16] because it forms the basis of its legitimacy. Citizenship is constituted, whereas the people is constituent. Furthermore, citizens hold rights and responsibilities uti singuli while the people expresses a single collective will and is not a holder of rights, but of power. To affirm that sovereignty is a prerogative of citizens therefore reveals a radical misunderstanding of the nature of sovereignty, which is not an attribute of citizenship, but the basis of it.
The Difference between Democracy and the Will of the People.
Consequently, manifestation of popular will must not be confused with choices expressed by the electoral body (which is made up of a section of the citizenship) in electing its representatives according to the Constitutional rules. The use parties make of the expression “popular will”, applying it to electoral results, is ideological. The electoral body is an organ of the state which acts within the limits, deadlines and according to the rules defined by the Constitution and the law. It does not express a single collective will, but distinct individual preferences. On the contrary, the will of the people only expresses itself actively during periods of crisis and without following any fixed procedure, because it constitutes the basis of the legitimacy of all procedures. It goes without saying that, in certain circumstances, to manifest itself, it can also make use of electoral or referendum procedures, which therefore acquire a constituent content. But when this happens, it is purely coincidental. A distinction must therefore be drawn between the will of the people and democracy. The former is the fundament of the Constitution. The latter is the most advanced technique of the struggle for power within the state and it is applied within the Constitution.[17]
The Will of the People and Rights of Freedom.
The above considerations do not imply any devaluation of the democratic rights and rights of freedom that Western constitutional tradition guarantees citizens. These are values rooted in the acknowledgement of the inviolable dignity of the individual. What they do imply is that neither governments nor parties can justify, before the Tribunal of history and of world public opinion, positions that are authoritarian, intolerant, demagogic or factitious, claiming that they are sanctioned by popular will. They also imply that it is entirely legitimate, in the name of the principles of democracy, to grant access to electoral competition only to parties that identify fully with the principles of democracy (even though in practice complying with this requirement can be quite difficult). The idea of the irresistible power of the sovereign people manifesting itself in constituent moments therefore has nothing to do with the representatives of a majority of citizens exercising government functions. If this latter aspect is not finely regulated, it can give rise to populist regimes, which are corrupt and totalitarian. So much so that in modern liberal democracies the constituent will of the sovereign people expresses itself by adopting constitutions that purport, among other things, to curb excessive power of the majority through a system of checks and balances. It also sets out to guarantee citizens, through the recognition of a number of rights, a sphere of freedom that political power cannot violate.
The Exceptional Nature of the Manifestation of Popular Will.
The fact that popular will as an active expression of sovereignty manifests itself only in revolutionary or constituent times is explained by the fact that people make the general interest their main concern, and therefore are actively involved in the pursuit of the fundamental rules which discipline their coexistence only when the foundations of the latter are in danger. Only then do the interests of all actually coincide with private interests of each.[18] During periods of normality, when social existence seems secure, this does not occur and people mostly get on with their own private affairs and are not concerned with the common good (which they believe to be guaranteed by the institutions, upheld by their tacit consent). Or else they interpret the common good through the distorting lens of their private interests, which are by definition divergent.
It is worth noting that this situation is perfectly functional to a social existence that encourages to the full the individual vocations of its members. In a utopian community, in which everyone is always concerned with seeking the common good, the distinction between general will and democracy would be lost, as would the distinction between public and private: there would be no Constitution as a stable sediment of an act of will accomplished in the past, still surviving in the passive form of consensus. Social existence would be a kind of continuous, frantic re-founding of the state. Liberal values, expressing the need to guarantee citizens a sphere of freedom from the government, would no longer have any reason to be defended, because government and citizens would amount to the same thing.
It is easy to see that the realisation of a utopia of this kind would mean the total politicisation of life, and would therefore go against the very premises on which it was built. The public sphere, if extended to all areas of social existence, would not only cancel out the very reality of private interests, but it would also lose its function as promoter of the main aspects of civilisation: the arts, sciences, literature and philosophy that are cultivated through absorption and reflection. This in turn can only be achieved by guaranteeing the individual a space that is free from politics, a space in which even the most democratic of powers cannot interfere. For this to happen politics must, during normal periods, remain the prerogative of a class of professionals. The direct assumption of power by the people must only happen under exceptional circumstances, even though it must be stressed that this is in no way incompatible with the need to render the citizens’ control of power as strong as possible nor to improve the quality, and increase the extent and the intensity of their participation in normal political life in the manner provided for by the Constitution and by the law.
The Link between the Will of the People and Democracy.
Democracy and sovereignty, although quite distinct, are in fact closely linked. A well-run democracy presupposes the existence of a power capable of taking ultimate decisions, and therefore of a state. The idea of a democracy without a state, which its supporters seek to promote by citing the role of the European Parliament within the European Union, is completely senseless. The premonition of a European democracy that manifests itself in the feeble powers of the European Parliament exists only to the same extent as the European Union itself is a premonition of a state. Similarly, in a state whose sovereignty is seriously compromised, and in which all the important decisions are taken by subjects outside itself, democracy is reduced to mere ritual. We have to conclude from this that popular sovereignty is a necessary condition for the exercising of democracy, even though it does not identify with the latter. It must also be remembered that democracy cannot be considered without reference to the question of public interest, and there are two reasons for this. First, the existence of a mechanism allowing peaceful discussion of private interests is obviously in the general interest and second, as already mentioned, in some cases elections or referenda can coincide with a constituent moment.
2. Sovereignty within a Historical Context
The People and International Relations. People and nation.
Historically, the concept of the people has never materialised fully. Concrete manifestations of popular sovereignty have always been subject to two kinds of limitation. The first is rooted in the plurality of historical peoples, as a result of which every creation of a new state, like every transformation of the Constitution of an existing state, happens in an international context that often reduces quite drastically the freedom to decide of the holder of constituent power. Caution must therefore be taken when stating that a historical people ultimately has the power to decide its own destiny. More accurately, its decisions are taken into consideration not only with a view to its own abstract interest, but also taking into account the power relations existing between states; and sometimes they are even taken by other states (such as when a state has been defeated in war and the winners impose a new constitution, albeit almost always with the support of a part of its citizens and its political class).[19] The internationalist doctrine has tried to remove this difficulty through the formulation of the principle of non-interference, according to which each state is thought of as an entity completely isolated from the international context. But the principle of non-interference has never really been applied in history, which instead offers, and has always offered, nothing more than the spectacle of the continual interference of states in the internal affairs of other states. The principle thus remains confined to the sphere of international law, which politics always uses to its own ends.
Furthermore, the plurality of historical peoples calls into question the fact that the people is by nature the arbiter of the common good, which in theory is the same thing as its own good. In fact, in the international context, the good of every actual people does not correspond to the common good (which is the good of humanity), but rather to the particular good of a section of humanity. This ambiguity is reflected in the idea of people as it has appeared in history, where it has tended to be confused with the idea of nation, with its connotation of the difference of each single people from all others and, when the events determining the international balance so require, of its opposition to them. The idea of nation brings in the idea of the other, of the enemy, in such a way that each nation is no longer an abstract entity pursuing the common good, but a concrete individual pursuing its own particular interests. It should be underlined here that the idea of nation in the strict sense of the word indicates a specific ideology that was born with the French Revolution.[20] It must be noted that today states of continental dimensions, like the United States, Russia, China and India, have linguistic, ethnic and religious differences that are so deep that they cannot really be called nation-states in the strict sense of the expression (even though in each a process of assimilation of the state to the model created by the French Revolution is under way). The fact remains, however, that, whenever a sovereign community, albeit an imperfect one, perceives its own identity also in opposition to other communities, the idea of people will be tainted by that of nation, albeit in the loose sense of the term. This will continue to be inevitable for as long as many independent communities continue to live side by side in the world. It is only from the perspective of a world people that the idea of people can be disentangled from that of nation — a world people, the first true people in history, which would take shape through the foundation of a world federal state. It is only through the prospect of a world state that the idea of the common good as the foundation for the legitimacy of the social contract can be purified from contamination by international power relations.
But to date the legitimacy of the historical states has been based on a combination of the rational idea of the common good and the solidarity generated by the need to present a united front against the enemy (a feeling that is present, albeit in a weaker form, even when relations between the states are peaceful, and the enemy is merely perceived as the other). The idea of the birth of a world people within the world federal state therefore presupposes an act of faith in the ability of men to go beyond the practice of politics as an activity founded on the Schmittian friend-foe polarity[21] and in the capability of each individual to base his relations with his fellow men on the Kantian respect one owes to one’s neighbours as fellow members of the human race and his consensus towards power solely on the idea of common good. Only in this way might the ideal of “constitutional patriotism” be realised.
The People and the Elites.
The second limitation to which the historical manifestations of sovereignty have been subjected lies in the fact that the holder of sovereignty — the people — never expresses itself unanimously. Even the great historical revolutions have always been the work of minorities that have proven able to overcome the resistance of other minorities thanks to the passive consent of the majority to the innovation the revolutionaries introduced. They therefore seem to deny the very ideas of sovereignty and legitimacy that are based on the identification of state with people, i.e., of the subject that dictates the fundamental rules of social existence with the one that receives and accepts them. This identification is lost if whoever dictates the rules constitutes only a section of the people, while those who have to follow them are the people in its entirety. Many conclude from all this that the idea of the people is a pure ideology, which conceals the reality of the power relations between classes, groups and interests that determine changes of regime and unifications of states and that subsequently guarantee the stability of the new regimes and political communities created by previous revolutionary insurgencies.
However, the fact remains that political language cannot do without the terms “people” and “popular sovereignty”. In fact, in the revolutions that have marked the great moments of emancipation in the history of mankind, even though the process was, on each occasion, driven by only a section of the people, the manifestation of the will of this active section led to the introduction of rules, values and patterns of behaviour into the historical process that have become the common heritage of (nearly) all the citizens of the existing states (and, beyond the citizens of the existing states, of the whole of humanity). In these circumstances the affirmation that the active minorities did represent the whole of the people is justified.
However it must not be forgotten that history also offers numerous examples of occasions where radical institutional transformations have been brought about by explosions of barbarism that, in some cases, have even been led by substantial minorities of the population of a state and been tolerated by the majority of the remainder, and have resulted in fiercely authoritarian regimes. We need only recall, as one of many examples, Hitler’s ascent to power in Germany, which was the result of a great movement of public opinion. Events of this nature, if we are unwilling simply to abandon the idea that the people is the basis of the sovereignty and legitimacy of the state, force us to try to identify an objective criterion that might allow us to establish when, in the presence of insurgencies that profoundly change the constitutional structure of a state or that give rise to unions or dissolutions of states, we are confronted with a people exercising its constituent power and when, instead, we are faced with the crisis of a people, that is to say the dissolution of the bond that guarantees its unity, and thereby to escape the conclusion that, due to the identification of people with state, all the states that exist today and have existed in the past, from the most advanced democracies to the most savage dictatorships are equally legitimate.
History as the Realisation of the Concept of People.
Many try to escape this dilemma by denying that the people constitutes the basis of legitimacy, and by claiming that the latter should not be sought in the sphere of empirical reality but in that of values. Legitimacy would therefore be the prerogative of the State insofar as it realises, at least in part, certain universal values.[22] But the truth is that values are not disincarnate ideas. They have a meaning inasmuch as they are someone’s values, and they can be said to be universal only when they are everybody’s values. Today, no universal system of values, beyond purely nominal agreements, exists, because in cultural contexts different from those in which we live, people hold values that are different from ours to be universal. On the other hand, the conviction that one’s own values are potentially universal is the basis of both political commitment and of social-historical research, and in the final analysis of the possibility of communication itself. To abandon it is to fall into relativism, i.e., into the negation of knowledge and morals. It is therefore essential to reconcile the rational need for the potential universality of values with the empirical fact of their diversity, and often of their opposition, in historical reality. This can only be done if we hold firmly onto the idea of the people as the basis of legitimacy. However, this is possible only if we adopt a philosophical vision according to which historical peoples are only temporary and transient pre-figurations of a future world people of equals, of which the historical process is the progressive realisation. This realisation is achieved through a long and laborious journey, slowed down by the persistence and the recurrence of violence, oppression and injustice. Nevertheless, on this journey the overcoming of economic and social inequalities between men and the bringing down of the barriers to communication progressively create the political and institutional conditions needed for an ever more rational formation of political will and an increasingly widespread and intense practice of solidarity, which tends to blend all values in the imperative requirement always to treat all men as ends and never as means.
Only on the basis of these premises can we identify an objective criterion that might allow us to orientate historical judgment and make it possible to distinguish between manifestations of collective will that are genuine expressions of popular sovereignty and those that are not. Only on this basis can we identify a criterion that is not external (which is what any system of values regarded as absolutely valid would be), but internal to the idea of the people. This criterion can indeed only be that of an approach of historical peoples to the idea of people: i.e., of the extension of the orbit of the state and of the consolidation of its institutions, founded on free consensus. It is the application of this criterion that allows us, for example, to interpret events like the overcoming of feudal anarchy by the modern state (albeit in the form of absolute monarchy) as a genuine, if embryonic, manifestation of the sovereignty of peoples in the making, or the recent dismembering of Yugoslavia (with the concurrent birth of the so-called “peoples” of the secessionist republics) as a savage display of nationalist ferocity, which has led to the creation of states whose sovereignty is drastically limited compared to that of the previous Federation and that is a backward step in the process of the emancipation of mankind; or the past installation of regimes like the Nazi regime in Germany and the fascist one in Italy — as the expressions not of the exercising of the constituent power of a people, but of the dying throes of peoples in dissolution and of the extreme attempt of the elites in power to overcome an impending danger of anarchy through the imposition of dictatorship.
It is worth noting that this perspective allows us to free the relationship between the idea of people and that of nation from part of the ambiguity that characterises it. In the life of national peoples, the connotations of the idea of people will tend to prevail when the objectives pursued by active minorities are the overcoming of internal and external barriers hindering solidarity. On the other hand, the connotations of the idea of nation will tend to prevail when those objectives are the reinforcement of the external barriers or the creation of internal barriers that previously did not exist.
Sovereignty as in itinere Reality.
From all this it ensues that even sovereignty, and likewise the people as its holder, is a reality in the making, a reality that is drawing nearer to the purity of its concept as political civilisation itself progresses. That said, it may, depending on their size and power, be expressed with different levels of intensity in states in which civilisation has developed to an equal degree. It was present in the ancient world only as a premonition, particularly in Athens and in republican Rome, while it was absent in all the forms of imperial dominion, in which the small ruling class of a hegemonic population dominated the passive bulk of the subjugated populations.[23] Likewise it was substantially absent, apart from in an embryonic form, in the feudal anarchy of the Middle Ages. It was born with the birth of the modern state in the sixteenth century and for a long time remained limited to the countries of Western Europe. In the last two centuries it has progressively spread outside Europe, although the more the state whose people is its holder is independent in international relations and the more its constitutional arrangement is sustained by consensus on the part of the citizens, the much more advanced its form is.
This is not to say that the simultaneous presence in the world of many sovereignties of different intensities that condition and limit each other to different extents makes up a so-called zero sum game, in which the weakening of the sovereignty of one people necessarily corresponds to the strengthening of that of another. It is essential not to confuse sovereignty with the pure fact of power. The exercise of hegemony (as an expression of a superior power) by one state over another reduces the degree of sovereignty of the state subjected to that hegemony. But it does not increase that of the state that exercises it: because sovereignty is autonomy, the exercise of a people’s monopoly of power over itself, and it therefore has nothing to do with the dominion of one people over another. In the same way, the weakening of the sovereignty of a group of states due to the need for collaboration between them as a result of their interdependence (as we see in the case of the states of the European Union) does not automatically translate into a transfer of sovereignty to the institutions created to manage cooperation, nor to a hegemonic state outside the group. This is why, in the current European Union, sovereignty, however weakened, remains the exclusive prerogative of the nation-states.
The Degrees of Sovereignty.
Even in the wake of its assertion with the birth of the modern state, therefore, sovereignty can be seen to manifest itself only to a degree in the reality of the historical states and peoples. This means that the very idea of state, which is inextricably linked with that of sovereignty, can be realised in individual historical contexts to a greater or lesser extent, in the sense that the historical “states” must in fact be regarded as more or less states according to the degree of sovereignty that they have (even though they must all have the minimum amount necessary to justify the very perception of them as states). This is despite the fact that the international community, with the help of theories developed by international law, and particularly through the affirmation of the principle of non-interference and the practice of recognition, keeps up the pretence that all the states equally exercise the reciprocally recognised fullness of their sovereignty. In actual fact, this is an equality that is continually disregarded by the practice of war and by the reality of the permanent interference by the strongest states in the internal affairs of the weakest. Here the expression ‘organised hypocrisy’ with which Krasner brands sovereignty and particularly its external appearance, is partially justified. But the fact that sovereignty is not present everywhere, nor everywhere to the same degree, does not prevent it from remaining the essential premise for the historically possible pursuit of the common good and the measure of the progress of civil coexistence. These objectives are in fact realised the more completely the greater the degree of sovereignty of the peoples that pursue them. This is why the violation of sovereignty, however limited and imperfect, of one state by another is a traumatic event that always takes the form of war or the threat of war and deeply disturbs international public opinion.[24]
Likewise it is inevitable that, in its march towards the full accomplishment of sovereignty, history experiences phases of backlash. The prospect of a second Middle Ages is not inconceivable. But what is morally unacceptable is that this prospect be accepted with a sort of serene resignation, forgetting that a long and general crisis of sovereignty at world level would mean a long and general crisis of the very idea of the common good. It would also therefore mean a crisis of peaceful coexistence within the state, and thus of civilisation as such. The primary aim of every responsible politician today should be to gain an understanding of the conditions in which sovereignty can be restored wherever it is compromised, and then to employ all his forces in pursuing the realisation of these conditions.
3. People and Values
Values as the Foundation of the State.
If the above is true, then sovereignty can, in order to guarantee peace as a social condition for the pursuit of the common good, be identified with popular will and with popular support for the institutions. But this connotation is still only formal. The very plurality of historical peoples, each occupying a different portion of the world’s territory, is a demonstration of the fact that each one formed and maintained its unity in order to defend its own specific way of living together, that is to say, a set of shared values. Furthermore, if it is true that the state coincides with the people, then social peace cannot simply be imposed by the state: social peace is made possible by the almost unanimous sharing of certain basic values by the ideal partners in the social contract. And the role of the institutions of the state is only to ensure that certain behaviour is observed in those marginal cases in which individuals violate the rules drafted in conformity with the contract.[25] It should be noted that these values have nothing to do with the fundamental rights that are often listed in liberal-democratic constitutions, whose purpose is moreover to guarantee the citizen a sphere of autonomy in relation to power. Rather they are values that constitute the primary justifications on whose strength the social contract has been ideally stipulated and is observed. They are therefore the foundation of power and when they are formulated they do not take the form of rights, but of duties i.e., of the surrender of freedom that everyone must agree to, and of the rules that absolutely must be observed, in order to make social existence possible. It is interesting to note here that in the first constitutional documents of the American colonies, the only documented historical examples of political communities born through something akin to a true pact, lists of duties, in the form of criminal laws, are often present.[26] Moreover, even in modern states, certain tendencies in criminal law provide the best key for interpreting the type of civil coexistence that the state expresses and protects.
These rules will fuse into a single system of values in the ideal moment of the birth of a world people and of a world state. Moreover the imperfect sovereignties of the historical states are the expression of the search for the universal content of the idea of the common good, which exists as a presentiment in every people. This common search is reflected in the fact that many fundamental rules of social life are essentially the same in all civilisations. It also allows the development of an elementary moral lingua franca that can be used as a vehicle for dialogue — often antagonistic but always present — between cultures.[27] This common search, however, develops in different political-social realities and, despite helping to make these realities converge in a single model in the very long term, in accordance with the philosophical-historical argument set out earlier, in the medium term it often produces extremely different historical results. Today therefore, as always in the past, there is a problem of compatibility between the values that inspire social existence in the states present in the great areas of civilisation over which humankind is distributed.
The State as a Neutral Arbiter.
The fact remains that historical states can only subsist inasmuch as they act as guarantors of the affirmation of certain fundamental values characterising the social existence of people within them. In other words, only inasmuch as they are institutionalisations of systems of values. The necessary nature of the link between state and values is negated by an entire cultural tradition going back to Max Weber. According to Weber the characteristic of the modern state is the fact that it is rationally legitimised (in that the consent of citizens to decisions made by power is justified solely by the fact that they were made by a political class and by a bureaucracy organised according to rules).[28]
This theory was refined by Niklas Luhmann who sees the legitimisation of the political, administrative and legal decisions of the modern state as founded in procedure.[29] According to Luhmann, this is the result of a process driven by the positivisation of law (a result of the increasing complexity of social relations and the consequent impossibility of justifying every single rule and decision with reference to the values shared by the community). The sole function of procedure is to reduce complexity by offering a purely formal criterion for the verification of the legitimacy of a law, thereby allowing both power and citizens to get their bearings in a world that would otherwise become ungovernable, due to the infinite variety of interests, desires and relationships that emerge and take shape within it. In the same vein, although more vaguely, Habermas,[30] analysing what is referred to as the “post-national constellation” and particularly the European unification process, tends to attribute the identification of the state with a system of values to a particular historical form of state, the nation-state. Habermas also considers the forms of political aggregation that are being born today and that go beyond the nation-state (to which he seems to attribute, although with some ambiguity, a state character as well) as neutral seats of arbitration between conceptions of social life inspired by different systems of values, which instead remain anchored to the nation-states.
Values and the Constitution.
These theories evidently leave major questions unanswered. The main problem that remains unresolved is that of establishing on the strength of what criteria the rules of Max Weber and the procedures of Luhmann are justified in the eyes of men who have to legitimise them with their approval, and by which principles Habermas’ arbiter-state is to be guided when it drafts the rules for settling clashes between demands that arise from conflicting values. The truth is that values thrown out of the window find their way in again through the back door. What the theoreticians that separate the state from values fail to see is the difference that exists on the one hand between constitutional rules, imposed by the people in constituent moments and supported by its silent approval in times of normality (and which are imposed and supported because they express a conception of civil life inspired by certain values) and, on the other, the rules passed and the decisions taken by state institutions in normal phases (that are not necessarily accepted because they are just or correct in themselves, or because they fulfil specific values, but because they derive from a legitimate authority, which founds its legitimacy on the Constitution).
Primary and Secondary Values.
We thus return to the observation that the state is never neutral, but expresses certain fundamental values that people share. The European unification project, for example, is possible because Europeans share certain values and because this sharing constitutes, for them, the basis of their possibly becoming one people. Beyond these values shared by (almost) all, the life of civil society is enriched by the contrasts between different values and models of behaviour, rooted in traditional nations or other forms of aggregation. These contrasts — that can become sources of conflict — are only saved from becoming disruptive factors within the state if the said values and models of behaviour are secondary and recognised as such by (almost) all, and if (almost) all accept that the clashes that their diversity provokes must be resolved on the basis of rules inspired by primary values that (almost) everyone shares and that are guaranteed by the state in the exercising of its sovereignty.
Multiculturalism.
The problem of the post-national state (or constellation) that Habermas highlights resurfaces much more acutely with the phenomenon of multiculturalism, which is not the consequence of the unification of nation-states with a pluralistic but substantially common cultural heritage, but a consequence of the migration of large human groups to cultural contexts radically different from their original ones. In accordance with what we have said thus far, looking at this phenomenon too, a progressive attitude cannot and should not be based on a neutral conception of the state. This would imply that it is possible to downplay or to ignore the fact that certain practices and traditions — that have meaning in other political-cultural contexts — are incompatible with the fundamental principles on which civil life in the host countries is based. The truth is that the state’s pretence of “neutrality” only masks its hypocrisy. In the name of a form of tolerance that Kant termed “haughty”, culturally diverse groups become segregated and, providing they form only small isolated societies within the larger societies that accommodate them, are left in peace. As this phenomenon spreads, this conception of the multicultural society is destined to undermine the very foundations of the state, because it cuts the ties that link institutions and a community that are held together by a common conception of their coexistence. The only way to confront this problem is to integrate the value of tolerance with other values — dialogue and solidarity — with a view to overcoming conflicts between the fundamental models of social life to which the different communities within the state aspire (which in no way is to assume that the cultures of immigrant groups cannot make important contributions to the evolution of those of the host societies). That said, tolerance remains essential as a provisional value, needed in order to prevent contact between cultures from generating phenomena of racist violence: but it should not be used to mask the indifference of the privileged towards the dispossessed, nor as a means of allowing the state to justify permissive attitudes that are incompatible with the requirements of its own survival.[31]
Identity.
The march of humankind towards unity within a world federation certainly does not presuppose the juxtaposition of opposing cultures that ignore each other reciprocally under an aseptic and neutral power, but rather the progressive formation, through sometimes traumatic conflict between them, of a single system of values that places the foundations of the social life of the whole of humanity in a single state framework and allows each person to see in every other member of the human race, wherever he or she may reside, a fellow countryman with whom one can and must work for the construction of a society that is better for all. From this perspective, the ambiguity of the concept of identity emerges. This concept emphasises the multiplicity of and the conflict between cultures, playing down the universal vocation of culture understood in a more elevated sense. We do not wish to deny here that the existence of a plurality of languages, dialects, architectural and artistic styles, dietary and folkloristic traditions, etc. is important and gives meaning to the concept of identity. But whilst acknowledging this, we should not allow ourselves to forget that the progress of civilisation, that is to say of human emancipation, coincides with the progressive birth of a community of universal communication, thanks to which humans resort to dialogue and to a common idea of justice, rather than to violence, in order to resolve their differences.
The identities to which today we attach such importance, believing them to be the instruments through which to defend ourselves against the homogenisation that is accompanying the process of globalisation, should therefore always be subordinate to the values on which the existence of the sovereign people are founded and, looking ahead, to those on which the feeling of belonging to the whole human race will one day be founded. They should therefore be considered factors that enrich social life only to the extent to which: a) they do not become so important to our sense of identification with a group that they obstruct the spread of the systems of common values and of the linguistic vehicles that favour their use (a spread that will continue until we reach one system of fundamental values and one language of universal communication); b) they do not prevent or render difficult a change of fatherland in a world characterised by a continual growth of interdependence and in which people’s lives must be able to develop in any number of different places without anyone ever feeling foreign; and c) they do not suffocate the free development and the full expression of the individual personality, the ultimate seat of moral autonomy and creativity. It is also worth remembering that so-called “cultural identities” are certainly not the sole vehicles of pluralism in civil life, which is such an important condition of democracy. Pluralism is fully compatible with the sharing of one system of fundamental values and of one instrument of communication. It stems from the variety of problems and tasks that the diversity of resources and of territorial structures places before the different human, national, regional and local communities and that must be faced at each of these levels with different tools and strategies, but always in pursuit of the same values and without harming communication and reciprocal collaboration through the application of spurious and provincial barriers and exclusions.[32]
Methodological Appendix
The concept corresponding to the term “sovereignty”, like many others in political and juridical language, is not a simple and faithful reproduction of “objective” facts, nor the result of a process of generalisation that takes as its starting point a series of phenomena present in historical and social reality. Rather, it is, first of all, and as Max Weber would have it, an Idealtypus, i.e., a theoretical construction that Weber himself defines as “utopian” and that, in his words, results from “a unilateral emphasis put on one or more points of view and from a coherent representation of a series of phenomena, scattered and differentiated in reality, sometimes more and sometimes less frequently present and sometimes altogether absent and adapted to those unilaterally expressed points of view”.[33] The function of the Idealtypus is therefore to act as a criterion of selection for those aspects of reality considered relevant to an understanding of an event, an ideology or an institution. Every individual historical event or entity is in fact infinitely complex, and would be impossible to understand if we did not have at our disposal a conceptual tool capable of identifying within it a finite number of connotations useful to those wanting to understand it. To a greater or lesser extent, these theoretical constructions are able to approach the concrete reality of the subject under investigation, and sometimes they can entirely depart from it. But this does not undermine their usefulness as models with which to compare concrete historical phenomena with a view to placing them in a coherent conceptual scheme that will allow them to be understood. The attempt to understand the nature of sovereignty can therefore lead us, as it has done, to the conclusion that sovereignty has never existed in history except in imperfect forms and that until relatively recent times it only existed in an embryonic form, a conclusion that in no way diminishes the usefulness of the investigation.
However the concept of Idealtypus is useful only initially. Actually, as applied by Max Weber, it is only a criterion of interpretation of reality (as such present only in the mind of the historian or of the social scientist) and therefore it is founded on the premise that historical reality does not have a meaning in itself but can only receive one from whosoever studies it. Max Weber is perfectly aware of the fact that many Idealtypen correspond to ideals that motivate the behaviour of humans in historical reality. Likewise he is perfectly aware of the fact that the values of people that claim to understand historical reality are an integral part of the understanding process as they determine the choice of the subject under investigation and the manner in which the Idealtypus is developed. Nevertheless, his ideal of the objectivity of science induces him to maintain a radical separation between the subject and object under investigation and to remove the former from the historical process. The values of the investigator are therefore the result of a choice of his own, ultimately an arbitrary one, while those of the actors of the process are only open to an inquiry which is not logical but psychological, and that therefore does not acknowledge their validity but only their existence in fact.
But in reality Max Weber’s irreducible conflict between subject and object does not hold. The arbitrariness of the subject’s choice of the values that guide his research is necessarily translated into an arbitrariness of knowledge itself, that is to say into a dissolution of the concept of truth. In historical reality, subject and object inhabit the same world and are linked by a continuity of meaning, so that whoever comes next continues the advance towards new horizons, while sticking to the same general direction, or route, followed by his predecessors, even if this is at the cost of failures and diversions. Action, as far as it has a sense, is always understanding, and understanding is always action, as far as it is an event. And the acknowledgement of this continuity of the meaning of history implies recognition of the cumulative nature of the development of culture (in the elevated sense of the word). However, this recognition must certainly not be allowed to result in a return to the naïve nineteenth century conception of history as a linear progress, in which radical evil itself is gradually overcome through the refinement of civilisation. Whoever reflects on history in the wake of the terrible events that marked the twentieth century cannot fail to recognise the dialectic nature of the historical process and the hefty presence in it of violence and of oppression of humans by other humans. But this recognition is not incompatible with a conception of history as a journey, certainly a laborious journey and one full of obstacles, of the human race towards some form of unity. The diversity of values that motivate the behaviour and reflections of humans is the result of the different conditioning to which they are subjected by historical circumstances. However those values, in their diversity, are in any case the expression of a single inclination present in nuce in humans since their very appearance on the planet. It is an inclination that is destined to emerge explicitly and consciously as a system of universal values once the evolution of circumstances has led to the overcoming of the technological, economic, social and institutional barriers that have obstructed and continue to obstruct reciprocal understanding and the free circulation of ideas. This conception of history implies a refusal of Weberian polytheism, inasmuch as it postulates that the historian, if he wants to obtain a correctly selective and deep understanding of past events, should listen to those events, pick up the message addressed to him by those who have gone before, in spite of the vagueness and ambiguity of that message. On this basis he should also select the values that will guide his investigation. This certainly does not mean affirming that today we can show the objective superiority of some values over others, nor, a fortiori, that we can legitimately force others to adopt them. But it does mean that we must reject the temptation to consider our own choice of guiding values as totally arbitrary and as such exempt from discussion. Only in this way can we free ourselves from ethical and cognitive relativism and regain the idea of the existence of one morality and one truth, albeit in the full knowledge that nobody has a monopoly on either.
This philosophical inclination inevitably has repercussions on the nature of certain important concepts of the historical and social sciences. They are the ones (like democracy, federalism, sovereignty) that denote at once an aggregate of facts and values, and that lose any explanatory effectiveness when their value aspect is removed. This happens because what they denote is a reality in motion, a reality that progressively fulfils the value that is part of it and that is the driving force behind its development. It therefore cannot be understood if that value is removed from its very concept.
Thus, when it comes to ideas such as sovereignty, recourse to the Weberian Idealtypus, a useful tool initially, should be replaced by a recourse to a more adequate instrument, that is to say to the Kantian idea of reason.[34] The Kantian idea, like the Idealtypus of Max Weber, is a model that finds no true correspondent in reality. However, whilst in the Weberian Idealtypus the model is in its entirety created by the individual who studies the historical-social reality, in the Kantian idea it is present as an ideal within reality itself. This means that subject and object of the historical-social investigation are linked by an intrinsic continuity of meaning and are part of the same process. The content of the Kantian idea does not depend on a subjective and therefore arbitrary choice of values by the historian or the social scientist. It corresponds to objective tendencies in society, of which the historian or social scientist is in turn a manifestation, and that he must, in any case, try to understand. The Kantian idea therefore tends, although asymptotically, towards its own accomplishment in the course of the historical process because of the tension between the imperfection of reality and the awareness, implicit or explicit even in the mind of the actors, of the distance separating reality from values. These values are, at once, the ideas of the actors themselves and the ideas of those who aim to understand what the actors are or were doing. The Kantian idea is not an arbitrary instrument with which to compare the phenomena of historical-social reality, but rather constitutes the intrinsic ideal towards which the phenomena of historical-social reality spontaneously evolve and that will be accomplished in the ideal moment that is the end of history. In this way is it possible to overcome both the arbitrary nature of the value choices made by the historian or the social scientist — which must be in tune with those of the actors of the process — and the purely “factual” or “objective” nature of the latter, which, in order to be understood, can and should also be examined according to their validity, that is to say their greater or lesser closeness to the ideal.
* This essay is an integration of a previous paper, published in No. 3/1995 of this review under the title “Sovereignty and the World Federal People as its Subject”, the bibliography of which is referred to.
[1] For a detailed analysis of the constituent elements of power see the classic work of Hans J. Morgenthau, Politics among Nations. The Struggle for Power and Peace (Brief Edition, revised by Kenneth W. Thompson), 7th ed., New York 1993, p. 124 onwards.
[2] In an essay on sovereignty we might expect the definition of the subject of the analysis to be given at the end and not at the beginning. But in reality the objective of this essay is not to define sovereignty. The definition of sovereignty as the power to make ultimate decisions or, alternatively, as the control of an inexorable power is taken for granted, albeit in the full knowledge that it would not be accepted by one part of the doctrine. Moreover it is not an arbitrary definition, as it is in any case shared by the major part of the same doctrine and can replace the definiendum in many of the contexts in which it is used in political and juridical language. The aim of the investigation is, rather, to verify the consequences of the strictest possible use of the term, in accordance with the definition that is given at the beginning of the essay, of the correct formulation of the expressions in which it is commonly employed and of the meaning of the terms related to it.
[3] See Bertrand de Jouvenel’s important book De La Souveraineté. A la recherche du bien politique, Paris, 1955.
[4] Francis Fukuyama, The End of History and the Last Man, New York, 1992. The literature on this argument is now very vast. We only cite, as an example, Jean-Marie Guehenno’s short but very clear essay, La fin de la démocratie, Paris, 1993. On the subject of the alleged disappearance of sovereignty and power in international relations, see, amongst other works, Robert Cooper’s The Post-Modern State and the World Order, London, 1996, which divides the states present in the world today into three categories, roughly according to their degree of technological, economic and civil evolution. These are the pre-modern states, which have still not reached full political subjectivity and which are characterised by tribal divisions and by deep internal splits; the modern states, which have reached the stage of sovereignty and which act on the basis of the dictates of the traditional raison d’état; and the post-modern states, which have gone beyond being conditioned by the traditional raison d’état and by power and which have established among themselves a type of relationship based on collaboration and on a reasonable reconciliation of their interests. Cooper is obliged to take note of the fact that the United States, as the hegemonic world power, is an exception, as it has to be placed in the category of the modern states, despite having reached a high level of development. In the field of internationalist literature see Bertrand Badie’s volume, Un monde sans souveraineté, Paris, 1999, which supports the thesis that the state is no longer the exclusive protagonist in international relations, since its role is taken on more and more often by the increasing number of international organisations and by non-governmental organisations. This thesis is now repeated ad nauseant by innumerable contemporary observers. Badie also claims that in the post-bipolar world power is progressively being replaced by responsibility, thus setting in opposition two justifications for the behaviour of humans and states that in reality are inextricably linked, inasmuch as the exercise of power is also the exercise of responsibility, both in domestic and in international relations.
For an analysis of these problems from a federalist perspective see, in this review, Luisa Trumellini “Global Interdependence and the Crisis of Statehood”, Year XLII (2000) p. 123 onwards, Nicoletta Mosconi, “The Crisis of the States as a Criterion in Historical and Political Analysis”, Year XLII (2000), p. 185, as well as, in a broader context, Sergio Pistone’s essay “The Raison d’Etat, Peace and the Federalist Strategy”, Year XLIII (2001), p. 10 onwards. For a world federalist viewpoint, again in this review, see Lucio Levi’s essay “The Unification of the World as a Project and as a Process. The Role of Europe” published on p. 150 in the year XLI (1999).
[5] This problem is one of the main subjects of Carl Schmitt’s reflection. It was reviewed recently with exemplary clarity by Ernst-Wolfgang Bockenforde, even though the solution proposed remains ambiguous. See, for example, the essay “Begriff und Probleme des Verfassungsstaates” in Staat, Nation, Europa, Frankfurt. A. M., 1999.
[6] The origins of the theory of popular sovereignty go back a very long way. Its classic formulations are those of Rousseau and of the Abbé de Sieyès. But in the two previous centuries, reference to the people had emerged in the essays of the so-called Monarcomachs, both Calvinists like the author of the Vindiciae contra tyrannos, and Jesuits, even though their writings were instrumental to the religious disputes of that time and aimed to throw into question the legitimacy of those monarchies that were imposing creeds and practices that the Calvinists or the Jesuits saw as heretic, resorting to the idea of the violation of a pact between the people and the monarch (who also continued to obtain power from God, albeit conditionally). Likewise the idea re-emerged in seventeenth-century England. See some of the essays contained in the two volumes edited by Joyce Lee Malcolm, entitled The Struggle for Sovereignty. Seventeenth Century English Political Tracts, Indianapolis, 1999.
[7] It is worth underlining that possessing an irresistible power is identified by many with control of the army (or of the power to recruit one when necessary). This identification can be a useful approximation of reality in normal situations. However, the army is an institution whose loyalty and discipline depend on the existence of a sufficient degree of general consensus, often lacking in situations of crisis. Which brings us back, once more, to the people.
[8] The link between legal system and sovereignty is refuted by H.L.A. Hart in his classic work The Concept of Law, Oxford, 1st ed. 1961, 2nd ed. completed with a postscript, 1994. Hart hinges his theory of law on the observation that every legal order includes two categories of rules: primary rules, which refer directly to citizens and imposing on them specific actions and omissions, and secondary rules, which regulate the structure and the functioning of institutions that produce and apply primary rules (rules of procedure and, ultimately, constitutional rules). According to Hart, the identification of a legal rule with a rule enforced through the threat of sanctions, which could be applicable, albeit imperfectly, in the case of primary rules, is not applicable in the case of secondary rules, which do not involve sanctions. This distinction, according to Hart, reveals the fictitious nature of the problem of sovereignty, whose ultimate source should be an authority that has the power to ultimately impose the observance of law through the application of sanctions, whereas the structure and behaviour of that authority, in turn, is regulated by norms (the secondary rules) which do not carry sanctions. Hart is however compelled, in order to avoid running into pure legal formalism, to admit that rules, especially secondary rules, should be “generally accepted”, i.e., based on the approval of institutions and citizens. But this admission does not lead Hart to conclude that the foundation of the legal system is popular sovereignty, though he does ask himself the question, albeit in passing. Examining the fact that no institution can consider itself sovereign because no institution, including the electorate, is exempt from rules that limit its sphere of action, Hart concludes (p.78): “Are we to say here that the society as a whole is sovereign and these legal limitations have been tacitly ordered by it, since it has failed to revolt against them? That this would make the distinction between revolution and legislation untenable is perhaps a sufficient reason for rejecting it.” For Hart therefore, who also denies the existence of any necessary link between law and morality, the foundation of every legal system is purely formal. It coincides with the set of secondary rules of which it is comprised, which in turn do not derive their legitimacy from the nature of the subject who dictates and enforces them or from the values by which they are inspired. Furthermore, every revolutionary historical break between two successive legal systems is totally outside the sphere of law.
This position reflects an implicitly conservative view of history that rejects any evolutionary conception of law and is limited to the question of the formal criteria according to which, in each individual case, we can decide whether or not what we are faced with is a legal system. Hart’s theory can only be refuted by contrasting this conservative view with a “progressive” philosophical-historical view according to which law tends to actualise its own idea, and therefore to perfect itself, in the course of its historical development. We shall return to this point in the course of this essay. Adopting this perspective, revolution, which Hart refuses even to take into consideration, is linked to the exercise of the constituent power of the people, i.e., to the affirmation of the fundamental principles of a legal order that an institutional system now superseded by the evolution of social life is no longer capable of realising, thus depriving it of its original content. On the other hand, the consensus that supports the system in phases of equilibrium is only the sediment of a constituent will that has reached its objective. Revolution is therefore the mother of law.
[9] The dualist democracy concept, which highlights the essential nature of the difference between the constitutional decisions taken by the people and those taken by the government (in the Anglo-Saxon sense of the state’s institutions as a whole) is the main focus of Bruce Ackermann’s reflection in his beautiful volume We the People. Foundations, Cambridge, Mass. / London, 1991.
[10] Numerous historical references to this theme are found in Bertrand de Jouvenel’s previously cited work, p. 252 onwards.
[11] This thesis has been used repeatedly by politicians such as Tony Blair and Giuliano Amato. In the literature, Ernst-Wolfgang Bockenforde, amongst others, has expressed himself along these lines in “Welchen Weg geht Europa?”, in Op. cit., p. 68 onwards.
[12] See for example the recent volume by Jean-Marc Ferry, La question de l’Etat Européen, Paris, 2000, p. 43 onwards.
[13] This assertion means that the state’s historical evolution is driven not by its incomplete coincidence with the people, and therefore by the emergence of contradictions between the historical states and the respective peoples. On the contrary, it is driven by the fact that the historical manifestations of both state and people do not coincide with the concepts that are, as we shall see, those of a universal state and a universal people. The factor responsible for the historical evolution of the state, the factor that has been the cause of the successive transformations that have led us from the Greek city-state to American continental democracy, is therefore the fact that, in certain circumstances, the contradiction between a specific form of state (and of people) and the pure concept of state (and of people) becomes acute and conspicuous. It gives rise to the events that determine the birth of a new form of state (and people), which continues not to coincide with the their pure concepts, but which has moved one step nearer. This does not change the fact that, prior to the birth of a new state (and of a new people), the evolution of the relations of production, of the situation of power, and of the capacity of institutions to respond to the primary needs of citizens, create the conditions for this kind of institutional change. And yet it remains true that a new people is born at the moment in which it becomes aware of the need for the birth of a new state and that a new state is born out of this awareness, and as such should be clearly distinct from the material conditions that make it possible.
[14] For a deeper discussion of the “right” to secede see, in this review, Nicoletta Mosconi, “The right to secede”, year XXXVII (1995), p. 40 onwards.
[15] For a look at the way the conflict between federation and confederation has shaped up in the American constitutional debate that accompanied and has followed the Philadelphia Convention, see in this review the essay by Franco Spoltore, “The debate between American federalists and anti-federalists from 1787 to 1800 and its current situation”, Year XLII (2000), p. 156 onwards.
[16] On the idea of the people before and above the Constitution, see Carl Schmitt, Verfassungslehre, cit., p. 238 onwards.
[17] The theory of popular sovereignty, referring to constituent moments and to consensus for the Constitution, is therefore perfectly compatible with Schumpeter’s classic critique of democracy (in Capitalism, Socialism and Democracy, London, 5th ed., 1974), and with its identification with the idea of polyarchy, developed by Dahl throughout his work.
[18] For a general outline of the approach to this problem, see Mario Albertini’s essay, “La Politica”, in Il Federalista, II (1960), today republished in Una rivoluzione pacifica. Dalle nazioni all’Europa, Bologna 1999. Bruce Ackermann’s analysis, from this perspective, of the constitutional history of the United States, in the work previously referenced, is also extremely interesting.
[19] See Stephen D. Krasner’s volume, Sovereignty. Organized Hypocrisy, Princeton, 1999.
[20] It is not necessary to recall here the sheer wealth of literature on the idea of nation. We need only recall that in federalist culture the fundamental reference is still Mario Albertini’s classic work, Lo Stato nazionale, Milan, 1960. See also Michael Walzer’s What it Means to Be an American. Essays on the American Experience, New York. 1996, in which the author draws a distinction between political and cultural appurtenance, which applies to American citizens, particularly to those of non British origin, claiming that the feeling of a common political loyalty is sufficient to define a specific American identity. This is a problem that will be examined more deeply in the third part of this essay. We must underline, however, that a political sense of belonging cannot be a loyalty based on nothing, but is the result of the common acceptance of a certain type of common life, i.e., of certain values that prevail over those that define a “culture”, inasmuch as they guarantee the unity of the political community. In fact, in the event of conflict between the latter, anyone identifying with any of these must be ready to renounce them in the name of the superior requirement of the safeguarding of social existence, and hence of the values that underpin it. Lack of this hierarchy would mean the creation of a state of virtual civil war.
[21] See Carl Schmitt, Der Begriff des Politischen, Berlin, 1932.
[22] See, for example, Hermann Heller’s classic statement, in Staatslehre, Leiden 1934, 6th edition (Tübingen, 1983) p. 245 onwards.
[23] The problem of the incompatibility of sovereignty with the idea of empire is mentioned by Bertrand Badie, Op. cit., p. 28 onwards.
[24] It is to be noted, moreover, that all this means negating the distinction that is commonly drawn between internal and external sovereignty (the latter being founded on recognition by the international community) as if they were two clearly distinct prerogatives. The recognition of a state by the international community coincides as a rule with the recognition of the existence of a relatively autonomous entity, equipped as such with a degree of sovereignty tout court. And yet this is not a prerequisite of sovereignty, unless from the purely formal perspective of international law. No one could claim that the People’s Republic of China was not a sovereign state before its recognition by a large part of the international community. We can therefore reasonably claim that sovereignty is always only internal, and that international relations only impose different degrees of limitation of sovereignty on the different states. It is for this reason that sovereignty will only manifest itself to its fullest extent when the international aspect of politics is transcended and a fully autonomous world people is born. See p. 209 onwards of C.E. Merriam, Jr.’s classic volume, History of the Theory of Sovereignty since Rousseau, New York, 1900, reprinted in 1968. See also Krasner’s cited work.
[25] See John S. Searle, The Construction of Social Reality, New York, 1995, particularly p. 90 onwards and p. 115 onwards.
[26] See Colonial Origins of the American Constitution. A Documentary History, edited and with an introductory essay by Donald S. Lutz, Indianapolis, 1998. See also, in this review, Lorenzo Petrosillo and Elio Smedile, “The Origins of Modern Federalism: the “Covenant” in American History”, XXXVIII (1996), p. 175 onwards.
[27] From the very similar perspective of criminal law, this theme is dealt with by Otfried Hoffe, Gibt es ein interkulturelles Strafrecht? Ein philosophisches Versuch, Frankfurt a. M., 1999.
[28] See, in particular, Chapter III of the first part of Wirtschaft und Gesellschaft, Tübingen, 5th ed. 1976, and also “Die drei reinen Typen der legitimen Herrschaft” and “Soziologische Grundbegriffe” (§ 7) in Gesammelte Aufsätze zur Wissenschaftslehre, Tübingen, 3rd ed., 1968. In truth, in the short notes that Weber devotes to this problem, he hints at a legitimacy founded on rules that are “goal-rational” (zweckrational). In this way the values are in some way introduced into the picture. But the rules that are “goal-rational” are, in Max Weber’s view, essentially those belonging to natural law, while “the most frequent form of legitimacy today” is that founded on the will to comply with “rules created in a formally correct manner and in the usual forms”.
[29] In Legitimation durch Verfahren, Frankfurt a. M., 1982.
[30] Die Postnationale Konstellation. Politische Essays, Frankfurt a. M., 1998, particularly the essay “Die postnationale Konstellation und die Zukunft der Demokratie”.
[31] See Nicoletta Mosconi, “Tolerance and the Multicultural Society”, The Federalist, XXXVIII (1996), p. 192 onwards.
[32] See, in this magazine, Nicoletta Mosconi, “The identity of the individual between ideology and reason”, XXXVI (1994), p. 196 onwards.
[33] In “Die ‘Objektivität’ sozialwissenschaflicher und sozialpolitischer Erkenntnis”, Op. cit., p. 191.
[34] For a stringent critique of the foundations of Weberian methodology, see Eric Voegelin, The New Science of Politics, Chicago, 1952. An interesting, if only briefly mentioned conflict between the Weberian and the Kantian approach to historical knowledge can be found in one of the last letters Jaspers wrote to Hannah Arendt, in 1968. See Karl Jaspers/Hannah Arendt, Briefwechsel 1926-1969, Munich, 1985 (a letter dated November 16th 1968).
