Vol. 10 No. 4 (May 2000) pp. 309-311.
QUESTIONING SOVEREIGNTY by Neil MacCormick. Oxford: Oxford University Press, 1999.
224 pp. $72.00.
Reviewed by Richard Robyn, Department of Political Science, Kent State University.
In this book Professor Neil MacCormick of the University of Edinburgh
presents an admirable attempt to come to grips with the puzzle to international
law posed by contemporary developments such as the European Union (EU)
and devolution in the United Kingdom. These two events, especially the
former with its half-century history of generally successful integration of
traditionally independent states, have had an important impact on theory
in political science. As power leaks both upwards to the EU and downwards
in devolutionary movements across Europe, our conception of state
sovereignty as the fundamental organizing principle of the modern system of
states is necessarily challenged. Yet, as Professor MacCormick argues,
analysts in international law have generally had a "blinkered attitude" to
questions of sovereignty, statehood and the character of the law posed by
institutions such as the EU. His account attempts to prod analyses away from
the mystification of sovereignty that has plagued the field. Although the
book could have profited from recent research in international relations
theory that also addresses the essentially contested nature of the concept of
sovereignty, he is largely successful in his attempt.
MacCormick's argument develops in several steps. First, he applies his
"institutional theory of law" (developed with Ota Weinberger) to try and
explain how a people can maintain control of law in a polity such as Britain
in which power seems clearly to be leaking away from Parliament, the
traditional source of sovereignty in the country. Institutional theory,
which detaches law from the state, seeks to locate sources of law at
institutional levels that may be more appropriate to solving particular
contemporary social problems. At the same time, the approach is concerned
with how to achieve a "law-state," or a state whose leaders are held truly
accountable for their actions.
As we all know from their ambivalence towards involvement in the EU,
this whole discussion of loss of sovereignty makes the British uncomfortable,
to say the least. From the Magna Carta, many in Britain have fought to
enshrine a conception of sovereignty as distinct from the divine right of
monarchical rule and to place it instead with Parliament. The gradual
establishment of a new supranational governing structure in Brussels clearly
challenges this parliamentary supremacy. In the next step of his argument,
MacCormick seeks to qualm British fears of this process by addressing a
central fact of government in the United Kingdom, that there is no formal
written constitution. Parliamentary sovereignty is a result of a gradual
process of political struggle, not of a one-time, formal transference of
power. He further examines historical instances of transference of power,
from Scotland to England in the
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Act of Union with Scotland of 1707 for example, that actually illustrate a
kind of British constitution in the making, revealing power shifts but
nonetheless resulting in no formal written constitution. He uses this
analysis to question the notion that the devolutionary movements and EU
involvements necessarily mean the end of British sovereignty, equated to an
end to a United Kingdom constitution. In a similar fashion, his analysis
reveals that the British decision in 1972 to enter the EEC, while undoubtedly
a radical change of direction for Britain (as he states, "judges now
interpret Parliament's powers in terms different from those that were
previously in use among the judiciary" [p. 80], a signal change in
sovereignty status), was in fact not revolutionary in character.
These new movements raise the specter of state-union constitutional
conflict. MacCormick proposes the concept of legal pluralism as an answer to
how to avoid this conflict. For him, legal pluralism is the acceptance of
"distinct but genuinely normative orders." His discussion of legal
pluralism, while certainly pertinent to his argument and interesting in the
wealth of examples he introduces, is nonetheless less than convincing.
Putting the emphasis on "distinct" when overwhelming anthropological evidence
questions the essential distinctiveness of modern cultural groupings is
characteristic of British analyses of European integration, and a weakness of
his approach.
Notwithstanding this, his basing his discussion of law firmly on the
notion of normative orders serves to remove the discussion from fruitless
debates over particular institutions and personalities in the EU example. He
opens up the possibility to examine the issue of sovereignty in its
essentials. Sovereignty is, after all, a human construct that in its modern
form derives from a particular time (the seventeenth century) and place
(Europe).
To his credit, MacCormick sees the entire European integration
enterprise as a "profoundly exciting possibility" that presents analysts with
the task of explaining how Europeans can transcend sovereignty. He sees the
issue as one of dealing with transferring power from the nation-state but
without transferring all power to a supranational state. The forms of
normative pluralism opened up by the institutional theory of law can help in
understanding this process, he argues. His interesting and important
discussion (pp. 151-154) of particular ways to apply the concept of
subsidiarity is an example. Subsidiarity, introduced in the Maastricht
treaty, is the notion that political decision-making within the EU should
reside at the appropriate political level. However, it is a notoriously
difficult idea to pin down to its particular application. This discussion,
however brief, suggests that analysts interested in European politics will be
dealing with this issue for years to come, and the institutional theory of
law can be a useful tool in analyzing it.
Also to his credit, although his discussion of this is less nuanced
than it could be, MacCormick recognizes that the member states of the EU are
now "post-sovereign." This is partly because he settles on a possible
description of the European polity as a "commonwealth," a term that has
particular connotations, both good and bad, for people from Britain and its
former colonies to Russia and its former satellites. Contemporary analysts
of the EU have not settled on a precise institutional definition of the EU,
and for good reason, because it is essentially still a work in progress.
Neither would most analysts be content with
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MacCormick's designation of it as a commonwealth based mostly on his notion
of some sort of undefined "common good" that makes European member states
distinct from non-member states.
This ties in to my main criticism of Professor MacCormick's approach to
the topic. He could have profited from exploring the outpouring of research
on sovereignty that has taken place in recent years in the field of social
theory and international relations. By not drawing from these critiques of
sovereignty that come both from modernists (such as Hinsley, Hoffman, Onuf
and Krasner) and postmodernists (such as Weber and Ashley) and taking
advantage of the insights of critical theory and social constructivism,
MacCormick leaves largely unexamined the political side of the equation in
favor of the legal. This recent research could have been used to bolster his
overall argument that sovereignty is being questioned now, and that far from
being a concept of fixed proportions and quantified measures formally
enshrined in a written constitution, has been and continues to be in fact a
contested idea. It is the arena of politics that determines the parameters
of sovereignty and its legal and institutional outcomes. The powerful forces
of economic globalization, geopolitics and localized identities, among
others, have battered old ideas of national sovereignty, as Mitrany and Haas
so long ago predicted in their theories of functionalism, and the fight is
ongoing.
The final chapters of the book turn from theory to more practical
application as MacCormick considers new framework possibilities for an old
United Kingdom union that has, as he says, "run its course." This section
seemed incomplete on first reading, primarily because it focuses on the
British problems of devolution and uses particular solutions -- for example,
the "Council of Isles" consultative body that forms part of the 1998 Belfast
Good Friday Agreement -- as possible models to think about European
integration. However, I am more disposed to it on later consideration, not
because of the particular models proposed that may not work for a larger
European setting, but because it seeks to convert legal theory into concrete
institutional frameworks to solve contemporary problems. For example,
MacCormick attempts to use knowledge gained from his work on devolution as an
advisor for the Scottish National Party, confronting abstract notions such as
Scottish independence from Great Britain to suggest practical institutional
and constitutional alternatives.
Closely argued in certain places, this rather slim volume is
nonetheless generally accessible to non-specialists in international law. It
would make an important addition to the library of anyone interested in
theory in international law or international relations. As a teaching tool,
it would be a useful addition to graduate courses and perhaps even stretched
to advanced undergraduate courses as well. Although dense at the times when
it engages in the intricacies of international law and how it impacts
domestic law in Britain, it is generally written in a straightforward manner.
Also, it presents especially interesting discussions of the theory of the
law-state, problems of democratic deficit (not only in the EU but in Britain
as well, raising the interesting possibility that Scotland may have the
better historical grounding in institutions of participatory democracy), as
well as subsidiarity as alluded to earlier. It is an important contribution
to the field.
Copyright 2000 by the author.