Active, Passive, or Dead?

In the run-up​ to the EU referendum, the Leave campaign has struggled to win the argument about jobs, prosperity, the value of the pound in your pocket and world peace, but has felt on safer ground invoking the threat to sovereignty. Yet the Leavers’ confident use of the term masks its ambiguity. We understand that Parliament and not the reigning monarch is sovereign, in the sense that Parliament is the highest law-making institution in the land. We also accept that the British system of government is based on a principle called ‘parliamentary sovereignty’. But the impact of EU membership on some more general thing we call ‘sovereignty’ has always been contentious.

Leavers claim that, though we didn’t realise it at the time, the UK’s decision in 1972 to join what is now the EU limited Parliament’s sovereignty, and that continuing membership threatens our national sovereignty. Voting to leave will, they argue, restore the integrity of a unique constitution, which has been shaped by a thousand years of political evolution. Remainers believe that British constitutional practice can continue to evolve and is perfectly capable of accommodating some sharing of governmental tasks with EU institutions. They even argue that in order to realise common political objectives in today’s world, such sharing of sovereignty is unavoidable. For Leavers, this is nonsensical: sovereignty is absolute, perpetual and indivisible; to divide or share it is to destroy it.

Richard Tuck’s new book, based on the Seeley Lectures he delivered at Cambridge in 2012, was conceived long before the EU referendum was tabled. But although he doesn’t engage with the present debate, he does identify the correct method of trying to resolve it, which is to trace the concept of sovereignty back to its origins. Tuck sets out to demonstrate how early modern scholars created a conceptual language that helps us make sense of contemporary democracy.

Representative democracy is a modern arrangement, the term itself coined in 1777. It evolved from earlier, aristocratic forms of government established in opposition to democracy. ‘Rule by the people’ had almost everywhere been considered suspect: the history of government is a history of rule over the people rather than by the people. Representative democracy may not be government by the people either, but at least it aspires to be government for the people. It has become the ubiquitous expression of the modern democratic impetus.

Sovereignty is pivotal in the attempt to reconcile democracy and representation. It too is a modern invention. Medieval jurists had a sophisticated appreciation of the hierarchical relationship between sovereign and subject, based on the rights of rulers and the duties of subjects. But the concept of sovereignty, which expresses the absolute authority of a collective association called ‘the state’, was beyond them. The appearance of this abstract concept, which relegates the ‘sovereign’ to the status of a mere servant of the state, signals the emergence of modern political understanding.

The critical shift in thought may be traced to the publication in 1576 of Jean Bodin’s massive, sprawling work, Les Six Livres de la République. Bodin argued that every state must possess a single, supreme authority that incorporates all the powers of government. He called this authority ‘sovereignty’, meaning ‘the most high, absolute and perpetual power over the citizens and subjects in a commonwealth’. Some believe that Bodin remained part of the medieval world and that he was advocating absolutism, but Tuck argues persuasively that Les Six Livres announces the breakthrough to modernity.

Bodin introduces a crucial distinction between sovereignty and government. By ‘government’ is meant the institutional form through which the essential tasks of governing – making laws, declaring war and peace, determining judgments, controlling coinage – are exercised. These tasks may be allocated to separate institutions, depending on whether the constitutional form of the state is monarchy, aristocracy or democracy. But these are merely ‘marks’ of sovereignty. Sovereignty itself is the term we use to express the absolute authority of a regime to regulate its affairs through law. A state is sovereign when its government is in no way legally subservient to any higher authority. Bodin wasn’t seeking to defend the absolute right of a monarch to rule; his absolutism related to the sovereignty of the state and not to its particular institutional form of government.

Tuck’s basic thesis is that Bodin’s distinction between sovereignty and government is the key to understanding the intellectual foundation of modern political regimes. He develops his argument through studies of Grotius, who was confused on the matter; Hobbes, who finessed it; Pufendorf, who dismissed Bodin’s distinction as merely scholastic; Montesquieu, who conflated the two terms; and Rousseau, who accepted the distinction, but then claimed it as his own.

Representative democracy is a system in which sovereignty is assumed to vest in ‘the people’ – meaning the people as a collective unity, and therefore, the logic goes, ‘the state’ – but the actual powers of governing are allocated to legislative, executive and judicial institutions. Modern governments are authorised in the name of the people but the people as such do not govern; their role, as Tuck puts it, is confined to ‘authorising a set of fundamental laws’.

Tuck’s second thesis is that the people constitute a ‘sleeping sovereign’ because, once governing powers are allocated through a constitution, the sovereign is ‘largely forgotten during the actual political activity of a community’. The sovereign is woken only at rare moments when, for example, some type of constituent assembly is needed to carry out basic reforms of the constitution. The sovereign, he says, ‘has an institutional shape but is usually dormant’.

Too many questions are thrown up by Tuck’s metaphor. If the sovereign is dormant, how is the will of the sovereign maintained? Is the constitution such a well-calibrated machine that it can run by itself? Or must we simply accept that representative democracy is in fact disguised aristocracy? How can this idea be reconciled with Nadia Urbinati’s claim in Representative Democracy: Principles and Genealogy (2006) that, since representative democracy establishes a system of government that must be responsive to popular will, it ‘has the power of keeping the sovereign in perpetual motion’? If Tuck’s sovereign takes an institutional form it must already have been established – but by whom? Or is Tuck claiming that the age of revolution is over and we now live in an era of ‘post sovereign constitution making’?* Is the sovereign today active, passive, or dead?

The problems with Tuck’s second thesis stem from his formulation of the first. He suggests that in the medieval era the king was sovereign and in the modern era the people are. But the transition to modernity didn’t amount simply to a transfer of sovereign power from king to people; it opened up new ways of conceiving the world. The hierarchically ordered, religiously constituted medieval world order was overthrown and replaced by a plurality of worldviews – scientific, technological, moral, economic, political – each of which establishes its own principles of coherence and modes of operation. When we say that sovereignty is a modern concept, we mean that it is no longer merely an attribute of the sovereign. It expresses the distinctively ‘political’ way of thinking about the world. We picture ourselves as a group that forms a political unity, a state, which acquires absolute authority to govern itself through the medium of law. The group, ‘the people’, may be designated figuratively as ‘sovereign’, but sovereignty itself has no specific locus: it is the name we give to the absolute authority of the political relations established between a people and its governing institutions.

Tuck identifies the importance of the distinction between sovereignty and government, but by conflating the terms sovereign and sovereignty he underestimates the significance of Bodin’s innovation. Tuck’s error is to have followed Hobbes rather than Rousseau. Hobbes avoided the abstract concept of sovereignty by claiming that all lawful power is absorbed into the office of the sovereign. Rousseau explained that if we follow Hobbes in defining law as the will of the sovereign, then legal analysis can never reveal the basis of legitimate political order. To do that, we need an altogether different conception of law.

Rousseau supplies this by showing that the sovereign created as a result of the foundational pact is neither an individual (the monarch) nor a representative office (the parliament): it is ‘the people’ themselves. But there’s a problem here. If law is the will of the sovereign, how can ‘the people’ be said to have a single will? Rousseau’s answer is that the foundational pact creates a new world. In this political world humans, unequal in nature, become equal by virtue of the pact. This is not an equality of intellect, strength or material possessions. It is an equality of rights: citizens acquire the same rights over others as others have over them. The limits on my freedom are not imposed by some Hobbesian sovereign; they arise from the same freedoms I attribute to others. Rousseau’s concept of ‘the general will’ expresses the principle of maximum equal liberty, and becomes the fundamental law of the modern state. Where Hobbes’s concept of law – the command of the sovereign – restricts freedom, Rousseau’s is the very expression of freedom. For Rousseau, many of the ‘laws’ made by modern legislatures are merely executive acts designed to explicate the basic law of equal liberty.

The contrast between Hobbes and Rousseau highlights the significance of the distinction between sovereign and sovereignty. Tuck’s second thesis about modern democracy resting on the idea of a ‘sleeping sovereign’ follows Hobbes in conflating the two terms. But Rousseau recognises that although we might say the sovereign is ‘the people’, the abstract concept of sovereignty is something else. Sovereignty permeates the entire political order: it is an expression of the general will. The sovereign might be ‘sleeping’, but sovereignty is in ‘perpetual motion’.

Serious political issues turn on these contrasting views. Modern representative democracy may rest on the distinction between sovereignty and government but by following Hobbes in conflating the concepts of sovereign and sovereignty, Tuck narrows the range of political discourse. This is a typically English manoeuvre: the sovereign people is believed to have delegated its absolute law-making power to Parliament and we maintain that the British state is founded on parliamentary sovereignty. This is the beginning of the muddle we get ourselves into over the relation between sovereignty and government.

Nowhere​ is this muddle more acutely felt than in the UK’s relationship with the EU. If we think of Parliament as ‘the sovereign’, then the delegation of law-making powers to EU institutions must impose limits on parliamentary sovereignty. If any limitation on sovereignty destroys it, the Leavers are right to claim that EU membership poses a serious threat to the UK’s sovereignty. Parliament does have the nuclear option of withdrawing from the EU by repealing the European Communities Act of 1972. But unless it does, we are obliged to give priority to EU law over any conflicting domestic law. Leavers therefore are hoping that the referendum will lead to the restoration of Parliament’s unlimited law-making authority.

Once the distinction between sovereignty and government is grasped, however, it is evident that the law-making competence of Westminster is a facet of government, not of sovereignty. So the sharing of governmental tasks, including law-making, with EU institutions doesn’t impair sovereignty at all. It might restrict the unlimited legislative competence of Parliament, but that’s a different matter. After all, we don’t say that states with federal systems of government have lost their sovereignty, yet in that case a constitution allocates powers to governing institutions but does not provide any single legislative body with unlimited competence.

Leavers’ concerns reflect a deeper problem in the English political psyche, to do with the governing elite’s historical anxiety about the stability of the British state at home and abroad. Victorian jurists, for instance, claimed that federalism weakened the state and ran contrary to every aspect of British constitutional practice. A formal sharing of legislative competence would lead to that most dreaded development, a written constitution, the establishment of a supreme court, and the generation of an abstract (Rousseau-like) spirit of legality. Without a ‘single determining energy’, Bagehot said, we would establish only a ‘motley patchwork’ that could not survive. Yet current British arrangements, ranging from elaborate schemes of devolution to the formation of a supreme court as a guardian of human rights, fit that description pretty well. However much Leavers claim otherwise, responsibility for these developments cannot be laid at the door of the EU. Withdrawal will not restore a constitutional tradition that once placed Parliament in the pivotal role of ‘mirror of the nation’.

Some of the Leavers’ claims amount to little more than nostalgic yearning for the restoration of centralised parliamentary authority. But their argument about democracy has far greater traction. Here the focus shifts from sovereign to sovereignty, away from the status of Parliament and towards a political worldview based on a belief in equality of rights. By its very nature, the EU symbolises the subjection of an autonomous politico-legal discourse to an overarching administrative rationality. As a supranational network insulated from direct democratic accountability and driven by technocratic objectives, the EU does indeed threaten to undermine the authority of the modern discourse of sovereignty. Its teleological orientation means that it continues to grow as the range of things in need of regulation grows. Its pastoral mission means that it works more through fostering, educating, advising, benchmarking and promoting rather than by commanding and controlling. And its policies for improving wellbeing, prosperity and competitiveness, which range from food safety and environmental protection through to the harmonisation of technical standards, suggest there can be no clear boundaries to its sphere of action in pursuit of its mission.

Although that mission follows the general trajectory of contemporary governance, it is the EU that has become the lightning rod for a gathering sense of disaffection. This is more serious than what critics call the EU’s ‘democratic deficit’. The question is not whether the EU elite can adequately be held to account, but whether we can any longer make sense of this transnational governmental network through the inherited language of collective self-government. The question is not whether the sovereign people sleeps but whether contemporary governmental practice can still be explained through the conceptual language of sovereignty. The question is not whether sovereignty is lost when Parliament hands over some of its law-making power to EU institutions; it is whether we are obliged to jettison the entire language of sovereignty once this transnational governmental network becomes so fixed that the ‘sovereign’ British people no longer feel they possess the authority to remove themselves from it.

It may be obvious that we have not yet reached this point: we have a referendum on the matter on 23 June. But this can hardly be a moment when the sovereign people is shaken from its slumber. It is not a moment of sovereign decision because it hasn’t come about through some broad-based popular movement demanding to express its collective voice. The referendum is a device deployed by the Conservative government at a moment of its choosing as a way of trying to manage the divisions within its own party that threaten to destabilise its continuing authority. The outcome – whatever it might be – is unlikely in these circumstances to count as a decisive expression of the ‘will of the people’. Paradoxical though it may seem, the best way of holding on to what remains of the idea of the sovereign people would be for the electorate to refuse to involve themselves in such a blatant exercise in political manipulation.