Unconstrained Sovereignty: Delegation of Authority and Reversibility

Popular sovereignty is the condition in which the people's unified will is the supreme authority in a state. This definition varies widely, depending on one's conceptions of the people and of sovereignty, but for most thinkers, popular sovereignty requires that the people be a collective actor who is the ultimate decider and the last instance of appeal in a political community. This allows us to understand a people as a bearer of the right of self‐determination, and as an independent actor in the international realm. Popular sovereignty is closely associated with the social contract tradition, a theory basing political legitimacy on individual freedom and autonomy. In this theory, popular sovereignty allows individuals both to have government and to remain autonomous because, when individuals consent to be ruled by the group of which they are members, they are simultaneously rulers and ruled. Popular sovereignty thus harmonizes individual freedom and social coordination, and for this reason it is highly valued in democratic thought. But it presents at least two important problems for democratic theory: The first is to explain how a group can rule; the second, to specify who or what constitutes the people.

This paper investigates the relationship between the idea of popular sovereignty and the conditions for legal validity and argue that the latter imposes definitive limits to the former. Popular sovereignty has been defined as the condition when the will of the people is the “supreme authority in the state”. Following this conception, there is no authority above the people and this is traditionally understood to mean that the authority of the people is above the constitution. Legal validity, though admittedly still debated, is here understood along Hart's “rule of recognition” According to which the validity of norms ultimately depends on the social practices of public officials. Though presumably uncontroversial that democratic peoples are entitled to remake the constitution, the powers of the people with respect to the substance of the law are nevertheless limited with respect to decisions of legal validity. The most basic rules in a legal system are not found in the constitution as they are the rules deciding what is to count as a legal norm within that system. They are more fundamental than the constitution because they also define what norms is the constitution legally speaking.

Ross, Trevor. <i>Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain</i>

This article aims at using the multi-faceted dimensions of the concept of sovereignty as a theoretical framework to better understand the Irish political discourse on European integration and to clarify the changing positions of various actors on the issue, notably in relation to the 2008 financial crisis. First, the article reminds the reader of the various definitions of sovereignty and how the old Westphalian definition has been recently challenged by international law and international relations scholars who consider the impact of globalisation and interdependence on state relations and who therefore question the mere existence of absolute sovereignty in today’s world. In a second part, the study analyses and categorises the arguments used during the referendum campaigns between 1972 and the financial crisis, in order to show how the concept of sovereignty contributed to fostering both pro- and anti-EU treaty positions. The third part will address the consequences of the financial crisis on the positioning of political actors. The debate on Ireland’s sovereignty was reinvigorated by the developments relating to the country’s economic situation and the EU/IMF bail-out package which considerably limited the ability of the government to determine its own economic policies. We will show that the ‘loss of sovereignty’ arguments gained ground among the traditionally pro-integration parties and groups. It reassessed the role of the citizen in legitimizing the decision-making process.

Despite the growing literature on Brexit, specifically, and conflicts of sovereignty, more generally, there has been insufficient research on how the concept of sovereignty has been used in citizen campaigns and street protests across the United Kingdom – a form of ‘counter-democracy’ through which people attempted to oversee the post-referendum political process. Combining qualitative content analysis of campaign websites with a discourse-network analysis of media articles on Brexit protests, this article shows that claims to sovereignty were mobilised not only in conflicts between the United Kingdom and the European Union, but also in conflicts between different institutions within Britain itself. Both ‘Leavers’ and ‘Remainers’ appealed to popular and parliamentary sovereignty at different points in time, pragmatically adapting their framing according to changing circumstances but also as a result of a dynamic series of interactions with each other, including denying, keying and embracing their opponents’ frames. Crucially, conflicts around different institutionalisations of popular sovereignty did not demand system change, a rhetoric familiar from other protests of the 2010s such as Occupy Wall Street with its emphasis on ‘We are the 99%’. To the contrary, pro- and anti-Brexit mobilisations remained firmly focused on Brexit policy itself. They problematised the split between ‘Remainers’ and ‘Leavers’ within the United Kingdom, between 48% and 52%, and thus, on a deeper level, the tension between the political principle of popular sovereignty and the sociological reality of a split country. Finally, the more Leavers opposed Remainers, the more movements and parties on each of these two sides aligned. Politicians featured prominently in campaigns and as speakers at protest events, contributing to close cooperation between protesters and parties, and precluding anti-systemic discourses around popular sovereignty that would target parties and institutions altogether.

ABSTRACTIn the aftermath of the Euro-crisis, refugee crisis and Brexit, Europe’s finalité politique once again became a topic of heated debate. Both Eurosceptic nationalists and defenders of the EU appeal to the democratic principle of popular sovereignty, but they offer conflicting interpretations. This study seeks to offer a fine-grained framework to analyze this normative conflict of sovereignty. I distinguish four conceptions of popular sovereignty in Europe’s transnational polity; each is linked to a parliamentary arrangement. First, national popular sovereignty proposes a safeguarding of sovereign nation-states. Second, European popular sovereignty suggests that decision-making power should shift from the member-states to a European superstate. Third, simultaneous popular sovereignty suggests that national peoples and EU citizens should be represented in the EU. Fourth, shared popular sovereignty points toward national parliamentarians being the central locus of democratic authority in the EU. These conceptions thus result in conflicting institutional prescriptions.

Popular sovereignty in western political thought, which manifests in a democratic system, begins by identifying the individual as an end. In this school of thought, on one hand, a person has a separate individuality from society and government and is able to provide his or her own definition about the relation between man and universe. Accordingly, the concept of popular sovereignty is intertwined with government representative and in a social contract, people establish the principles of constitution and legitimacy of laws and government are considered as the result of their will and consent. Thus, the most important function of government is to be bound to the representation and guarantee the people’s rights and liberties. A direct relationship can be observed between popular sovereignty and divine sovereignty in religious principles of Iran’s constitution. On one hand, divine sovereignty, is considered as vesting the self- determination right to people by God, as a divine right. On the other hand, people have defined their own destiny within Islamic religious principles, by freely acceptance of sacred principles. So, there is no confliction between religious principles and popular sovereignty, but disputes on sovereignty principles will arises from two different perspectives.

The Failure of Popular Sovereignty: Slavery, Manifest Destiny, and the Radicalization of Politics. By Christopher Childers. (Lawrence: University of Kansas Press, 2012. Pp. 334. Cloth, $39. 95.)Reviewed by Amy S. GreenbergChristopher Childers has written the first monograph tracing the evolution of the concept of popular sovereignty from the establishment of the Southwest Territory in 1790 through the start of the Civil War. Most analyses of territorial expansion date the origins of popular sovereignty to the 1840s. But this latest offering from the University of Kansas Press series American Political Thought makes a compelling case that the idea as employed in the 1840s was the product of decades of debate and constitutional interpretation. The author argues that territorial expansion was a southern ideal as early as the 1780s, and that because territorial self-government, prior to the Kansas-Nebraska Act, always resulted in the expansion of slave territory, both northerners and southerners understood the idea as explicitly proslavery.With the northern appropriation of the concept in the 1840s, however, a crucial schism emerged over the point at which a territory became imbued with sovereignty. Northerners like Lewis Cass and Stephen A. Douglas declared that settlers, acting through their territorial legislature, could decide on the status of slavery when they wished, while southerners maintained that the status of slavery could only be determined upon the drafting of a state constitution. Doughfaces embraced popular sovereignty in the hopes of appeasing the South, but the resulting crisis, Childers argues, destroyed the bisectional Democratic Party, removed the South from the political mainstream of the Jeffersonian and Jacksonian era, and fostered the growth of a virulently radical form of southern politics designed to uphold states' rights (4). The author asserts that this crisis over popular sovereignty, rather than any of the other divisions of the era, became the key wedge dividing North and South. Sectionalism and the issue of Southern rights exploded over popular sovereignty before a drop of blood was shed in Kansas.Both the methodology and sources employed here-by and large public utterances of nationally prominent politicians and newspaper editors-are extremely traditional. This is not to say that the analysis is outdated. Although heavily influenced by David M. Potter's The Impending Crisis, 1848-1861 (New York, 1961), Childers is fully conversant in the relevant recent secondary literature, particularly works by Michael Morrison, Matthew Mason, and John Craig Hammond. Indeed The Failure of Popular Sovereignty ofi ers a novel interpretation of the role of slavery in territorial expansion. Popular sovereignty, the author argues, became the South's true manifest destiny.The great strength of this work is its narrative. The author links discrete moments together in a manner that highlights the continuity of a particular strain of political thought. The first chapter of the work, which traces the idea and practice of popular sovereignty in the early American territories, is perhaps the most illuminating. Childers convincingly shows that southerners never respected the Northwest Ordinance's ban on slavery, but instead assumed that the states created in the territory would ultimately determine the status of slavery within their boundaries. Clearly many of the settlers in Illinois and Indiana did not consider the Northwest Ordinance's ban on slavery as final, and the author does a wonderful job placing the continued presence of slaves in Illinois and Indiana in the larger context of popular sovereignty. Nor were questions of self-government resolved at later points: They arose every time the United States added territory to the nation. …

The political theory of Benjamin Constant (1767–1830) is nowadays read and understood in light of one central claim: that it represents the commonsensical position that governmental authority can (and should) be at once popularly grounded and limited by more fundamental rules and norms. As a result, Constant’s conception of limited popular sovereignty, the idea that popular sovereignty has a limited rather than an absolute extension, and that certain fundamental rights are by definition outside its scope, has taken centre stage. The positive flipside of that conception, i.e. what Constant took popular sovereignty to mean within those limits, has remained underdeveloped. On the basis of Constant’s 1815 Principles of Politics, this chapter develops a reconstruction of and a reflection on Constant’s positive conception of popular sovereignty. The main claim is that Constant distinguishes between ‘governmental power’ and ‘sovereign power’. The latter concerns the particular political power to establish or withdraw the legitimacy of governmental power through assent. It is not a collective power; it is exercised by the individual and consists of critical judgment.

The Dutch Republic came into being in the sixteenth century, thanks largely to the resistance of self-styled ‘true patriots’ who supported William of Orange and justified their actions by appealing, among other things, to popular sovereignty and natural law. At the end of the eighteenth century, the Republic succumbed to a revolution in which once again popular sovereignty and natural law were of central importance, this time for the anti-Orangist Patriots of the period. By the eighteenth century, however, these terms had come to signify concepts very different from those of the sixteenth century, and were being used in a civil war with aims quite different from those of the Revolt. The intellectual and constitutional developments of two centuries had imbued the old terminology with a meaning so new that the Patriots of the eighteenth century needed a revolution before their conception of popular sovereignty and natural law could be realized within the framework of the powerful state which they wished to substitute for the exceedingly weak state developed by the patriots of the sixteenth century in defence of their conception of popular sovereignty and natural law. In the following pages an attempt will be made to present as concisely as possible a theoretical analysis of this contrast.

Introduction: the formation of the doctrine of sovereignty is traditionally of interest for the study of models of statehood. In light of the development of new concepts of international relations in recent years, it is important for Russia, as well as for other countries, to preserve traditional values. Reflected in history, philosophy, culture, they are represented in the legal model of statehood as the foundations of sovereignty. The article analyzes the evolution of the politico- legal concepts of derzhavnost and sobornost through the prism of state and popular sovereignty. We study the manifestations of various forms of sovereignty in Ancient Rus, autocratic Russia, approaches to its realization in the Soviet and modern period. On the basis of historiographical analysis of derzhavnost and sobornost as basic elements of the foundation of Russian statehood, the context of sovereignty, previously not reflected in its concept, is proposed. The purpose of the study is to shape new approaches to the concept of sovereignty based on its Russian politico-legal manifestations in the form of derzhavnost and sobornost, which will significantly change the ideas about the domestic (Russian) influence on the creation of the model of modern statehood. The use of formal-legal, historiographical, comparative-legal, historical-legal, and other scientific methods allowed us to come to conclusions substantiating the following results. In the system of existing politico-legal ideas about state and popular sovereignty, formed under the influence of Western European legal traditions, to date there is no indisputable manifestation of the domestic concepts. The analysis of the essential characteristics of derzhavnost and sobornost as politico-legal phenomena exclusively inherent in the Russian statehood reveals the features that make it possible to integrate them into the concepts of sovereign statehood. Recognition of derzhavnost and sobornost as elements of sovereignty necessitates their inclusion in the emerging new domestic historiographical model of politico-legal views. Conclusions: historiographical analysis of derzhavnost and sobornost revealed contextual conditionality of the concept of state and popular sovereignty in the format of the strengthening of Russian statehood. This contributes to the creation of the domestic historiographical model of politico-legal knowledge, the application of which can be considered a very important element of the system of formation of preventive mechanisms aimed at counteracting distortions of Russia's role in civilizational development.

Liberal democracy combines two fundamental political commitments: one to popular sovereignty, the other to individual liberty. And since popular sovereignty, in practice, rarely achieves unanimity, a tension between these two is built in from the outset. Citizens in a liberal democracy often find their liberty limited by a majoritarian policy designed (in part) to protect it. Theories of liberal democracy thus face an integral question: when should individual liberty triumph over the will of the majority? This question pertains to the issue of alternative education's legitimacy in a democracy at its most basic essence. Public, common education has been enshrined and protected as a necessary prerequisite to the continuation of democracy over generations while alternatives have been, at best, tolerated within the American system as a stop-gap measure for special interest groups. This article, therefore, will examine the complexity of the concept of popular sovereignty with reference to alternative education in order to determine its application and limitations regarding the maintenance of both the letter and spirit of democracy. The Deep Roots of Popular Sovereignty Since the Enlightenment, the premise of popular sovereignty has been accepted as a major basis for democracy. Propounded most clearly by the seventeenth-century philosopher John Locke, popular sovereignty set out the template that a community can be likened to the parts of a physical body: the only way it can survive is if the parts (individuals) are united in every action (community decision). Since it is unreasonable to believe that all individuals within any community should think the same way, the only means by which a democracy can function is if each member agrees to follow the decisions of the majority. (1) Jean-Jacques Rousseau formalized this axiom in his treatise, The Social Contract in 1762. Based on his belief that everyone is born in a natural state of 'goodness,' he defended each individual's right to have full participation within a democracy. However, Rousseau tempered this statement by the caveat that, 'goodness' merely requires the absence of an intention to harm others ... In contrast, virtue is not natural; virtue requires the mastery of natural impulsions and the intention to act well towards others, and hence presupposes that men have learned to think within society. (2) Because men do things on the basis of self-interest and emotions, in a democracy there must be some superior guiding force to order their actions, and to enjoin them to go beyond the narrow field of their vision; to accept things non-proximate or unfamiliar that as isolated individuals they would reject. The state must therefore be of paramount interest to each of its citizens. If we are heirs to the same father, if we are brothers in dependency, if we cannot move in any direction one without the other, we are bound to perceive the benefits of cooperation. (3) Rousseau saw that only when every individual is bound to the state, would they relate to each other as equal citizens. As such, individual self-interest must be overcome by the common will embodied in a higher love and loyalty to the state. This would cause citizens to decide every issue on the basis of honesty and integrity instead of selfishness. In Rousseau's eyes, therefore, the common will could never be wrong, and it alone has the authority to direct the state towards some objective: Rousseau called this the common good. (4) It was Rousseau's supposition, therefore, that for a democracy to truly work, its citizens cannot simply be coerced into conforming to the common will, but must be taught to suppress their individual self-interest, to understand the common good, and to become virtuous. (5) For this reason, Rousseau advocated that the only proper education for a child is one that has been devised and controlled by the state to inform succeeding generations of its common will. …

Why are new constitutions increasingly submitted to referendum? This chapter describes how, in moments of ‘constitutional interregnum’ where the previous constitutional system has been abrogated and there are no longer any institutional mechanisms in place for the expression of popular will, a referendum is viewed as the only way that a new constitution can claim a sovereign people’s approval. Further, a constitution’s approval at referendum is often taken to be sufficient for this claim to the authority of popular sovereignty. This chapter challenges this orthodoxy, arguing that a referendum is neither necessary nor sufficient for a constitution’s claim to the authority of popular sovereignty. By drawing a distinction between constituent power and popular sovereignty in the first place, and between popular sovereignty and sociological legitimacy in the second place, the chapter argues that the claim to popular sovereignty brings with it a substantive commitment to moral autonomy and political equality. No referendum can purport to express the sovereignty of a people without first recognising that every individual who constitutes that people must be free to contribute to formulating the people’s sovereign will. The referendum is unnecessary: all that is necessary is the commitment to the substantive conditions that make the referendum itself possible. Referendal approval delivers sociological legitimacy to a constitution but does not by itself imbue that constitution with the authority of popular sovereignty. Indeed, a veneer of legitimacy may obscure constitutional arrangements that are antithetical to the very concept of popular sovereignty.

According to a dominant narrative, the concept of popular sovereignty was joined to the notion of public opinion during the French Revolution to form the blueprint of a liberal constitutional state. This article shows how, after the Revolution, Benjamin Constant, who is now recognized as a founding figure of “liberalism,” used public opinion as a substitute for popular sovereignty to theorize political legitimacy and constitution making. I show why and when Constant discussed popular sovereignty, namely to dismiss it as an unhelpful and dangerous fiction in answer to factions invoking the concept to revolutionize the political order, or rulers such as Napoleon using it to claim absolute power. In parallel, I explain how Constant designed his alternative, opinion-based theory of legitimacy in the 1790s, before pragmatically adapting it over the course of his career as political regimes changed in France. Constant's substitution of public opinion for popular sovereignty, I contend, reveals distinct views on what makes a political regime legitimate and the meaning of constitutional changes. I conclude with a discussion of how Constant's views, thus interpreted, throw light on debates about sovereignty and public opinion in modern political thought.

This chapter reinterprets the relationship between the concept of popular sovereignty, the origins of the American Revolution and the onset of the revolutionary era in the Atlantic world. It draws upon and modifies R.R. Palmer’s classic thesis that there was a shared struggle for political equality and popular sovereignty across the Atlantic world in the later eighteenth century, constituting an ‘Age of the Democratic Revolution’. The chapter transforms Palmer’s thesis by examining popular sovereignty in the context of the British imperial crisis following the Seven Years’ War. Conceptions of popular sovereignty advanced in the unfolding imperial crisis were meant to defend and extend civil society in the face of the centralising and militarising British imperial state. In this context, the ‘democratic revolution’ that began in British North America during the 1760s and 1770s should be seen as a defence not only of increased political participation but also of collective social freedom. The chapter concludes by contending that a more expansive understanding of arguments for popular sovereignty as arguments for social freedom – for the supremacy of civil society over the state – can serve as the basis for reinterpreting the Atlantic revolutionary epoch as a whole.