Law as affiliation: "Foreign" law, democratic federalism, and the sovereigntism of the nation-state

Abstract

This essay explores the role that law plays in marking the identity of a nation-state and the concerns—which I gather under the term sovereigntism—that animate interest in dictating what position “foreign” law ought to play as a domestic resource in adjudication. In some countries such as the United States, opposition to “foreign” law has a long pedigree, exemplifying an exclusivist form of sovereigntism. In contrast, South Africa's Constitution is also sovereigntist but inclusively so, directing its jurists—as an expression of that nation's identity—to consider international law. After showing why exclusivist sovereigntism cannot succeed as a practice in barring law's migration and how it is wrong as a theory of democracy, I commend engaging in important questions raised by sovereigntism: whether the import and export of law ought to be regulated by national law, what legal actors ought to be active in the trade in law, and how sovereigntism illuminates human aspirations to use law to make distinctive identities for nation-states.