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.