Conflicting Notions of National and Constitutional Sovereignty in the
Discourses of Political Theory and International Relations: a Genealogical
Perspective

Hideaki SHINODA

submitted for the degree of Doctor of Philosophy at the London School of
Economics and Political Science, University of London, November 1997

UMI Number: U615430

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Abstract

This thesis presents unexplored aspects of the problematic notion of sovereignty, amajor issue in ongoing theoretical debates in international relations. Deploying a'genealogical' perspective, it clarifies the transformation of ideas of sovereignty whichreflect political changes in domestic and international society. Focussing primarily on
Anglo-American discourses, it explores the hidden conceptual struggles involved intheories of sovereignty by illuminating its encounter with nationalism andconstitutionalism. The national and constitutional forms of sovereignty are used to trace
the trajectories of concepts of sovereignty in the fields of political, legal andinternational studies.
This thesis opens with an explication of the genealogical tools derived fromNietzsche and Foucault and a survey of existing accounts of sovereignty within theinternational relations literature. The historical research begins by identifying the natureof notions of sovereignty within 'constitutional' traditions in seventeenth and eighteenth
century Britain and America. After looking into major Continental theories of nationalsovereignty in the nineteenth century, the thesis examines the rise of nationalistic
theories of state-sovereignty in nineteenth century Britain and America. This thesis
argues that a strong strand of'international constitutionalism' appeared as a result of theAnglo-American victory over Germany in the First World War. In consequence, during
the initial inter-war period sovereignty was understood as a principle compatible with'the international rule of law'. The thesis then explores the dramatic decline of thistendency in the thirties which eventually led to the intrusion of national sovereignty intandem with the rise of political realism. In the midst of the Cold War and the processesof decolonisation, vigorous advocates of national sovereignty in socialist and Third
World countries pushed Anglo-American intellectuals to abandon projects ofinternational constitutionalism in the final quarter of this century. It argues that while
old-fashioned international constitutionalism based on an anthropomorphic domestic
analogy is no longer valid, it is possible to identify in academic debates and politicalpractices values o f constitutionalism such as the protection of human rights which arecompatible with international society and the concept of sovereignty.

2

Acknowledgement

I could not have completed this PhD thesis without the environment I enjoyed for
four years. First of all, my supervisor, Mr Mark Hoffman, was a great reader of mydrafts and always helped me to develop ideas for this thesis. Although every error,
imprecise expression and premature argument are mine only, this thesis is a joint work
to which Mark contributed his enormous academic capacity. I do not know how to fully
express my greatest gratitude to him.
I also wish to acknowledge helpful discussion with academic staffs at the LSE andother British institutions including Mr Michael Banks, Professor Christopher Hill, Mr
John Hoffman, Dr Hidemi Suganami, Dr William Wallace, Professor Shozo Iizima andProfessor Hideki Ohata who kindly made comments on my thesis or other works
relating to it. I also thank 'Post International Group' at Aberystwyth and 'Critical
International Theories Group' of BISA for giving me opportunities to present my ideasof several topics in this thesis.
The writing of this thesis was made possible largely by grants from Ito International
Education Exchange Foundation in Japan which supported me for the first two years in
London. I am also indebted to Overseas Research Student Awards which helped me tocontinue my study in the ideal environment in London.
This thesis owes much to institutions in London including the British Library of
Political and Economic Science and the British Library. In particular, I shall neverforget the stuff of the British Library whose contribution to this thesis is invisible but
incredible. Some of them looked with curiosity or even suspicion at an Asian boy whodelved into old books. Others were very kind and friendly to the PhD student who kept
coming to the Library for years to stay from morning till night. But I know that there
are still many whom I have not seen but certainly delivered to me the materials whichconstitute this thesis.
Finally, I wish to thank my family and friends who have warmly supported me. I
believe that without such people anyone would not finish this type of work. This thesis
should first be devoted to them.

3

Table of Contents

Introduction
Genealogy as Methodology
State Sovereignty and Modernity
The Foucauldian Diachronic Perspective
The Nietzschean Synchronic Perspective
1. Classical Constitutional Notions of Sovereignty
Discourses on Sovereignty in Revolutionary England
The Development of Constitutional Sovereignty in Britain
International Sovereignty in the Classical Age
Discourses of Constitutional Sovereignty in America
2. National Theories of Sovereignty on the Continent
The Emergence of National Sovereignty
Sovereignty of the Nation-State
3. The Spread of National Sovereignty in Britain
Sovereignty in the Laissez Faire Age
Domestic Sovereignty in the Imperial Age
Discourses on Sovereignty in International Law in Britain
4. The Spread of National Sovereignty in America
Debates about Sovereignty around the Time of the Civil War
The Emergence of American Conception of National Sovereignty
Discourses on Sovereignty in International Law in America
5. The Rise of International Constitutionalism
Sovereignty in the Anglo-American Debate on the League of Nations
Sovereignty in the League Debate in Britain
Sovereignty in the League Debate in America
Wilson and Lansing
6. The Collapse of International Constitutionalism
Continental Theories of Sovereignty in the Interwar Period
Discourses on Sovereignty in Interwar Britain

4

Discourses on Sovereignty in Interwar America
7. The Containment and the Formalisation of Sovereignty
The Revival of Constitutional Sovereignty
The Counterattack of Political Realism
From Limited to Formal Sovereignty
8. Sovereign Equality and National Sovereignty in Communist and Third WorldCountries
The Principle of Sovereign Equality
Discourses on Sovereignty in Socialist States
Discourses on Sovereignty of the Third World
9. Towards New Constitutional Sovereignty
Sovereignty in International Society
Sovereignty in Structures and Regimes
The Demarcation of the Sovereign Sphere
Conclusions

5

Introduction
In the contemporary international system it is difficult to find a political notion more
controversial than sovereignty.

Since the end of the Cold War, the concept ofsovereignty has been identified as a central issue by scholars as well as practitioners.
This is because sovereignty is the very principle upon which international relations havelong been based.

Once international relations begin to change, the concept ofsovereignty soon reflects new courses in international relations. At the turn of themillennium, the sense of a historic change has demanded a renewed interest in
sovereignty.
It is widely argued that the concept of sovereignty is seriously challenged in presentinternational society.

The traditional international system, which is usuallycharacterised as a 'Westphalian' state-centric system, has been in transition. The
globalisation of the market economy, the expansion of the activities of international
institutions, the development of high technologies, the conflicts of minorities withcentral governments and the growing concern about human rights are often mentioned
as examples which indicate the demise of state sovereignty. Since the end of the ColdWar, while the same set of values based upon liberal democracy has spread all over theworld,

national boundaries of nation-states seem to have become more and more

artificial. It was almost impossible during the Cold War to imagine international
operations like the Gulf War and the following intervention for the protection of theKurds and the Shiites in Northern Iraq. Multinational interventions under the authorityof the United Nations took place in Somalia and Haiti as well. It is difficult to apply atextbook theory of sovereignty to Cambodia in the period when the United Nations
Transitional Authority in Cambodia supervised and controlled Cambodian
administrations. The setting up of the international tribunals for the former Yugoslavia
and Rwanda might be considered as violations of state sovereignty. It is claimed thatthe concept of sovereignty is, if not disappearing, losing its traditional foundation.1

1A brief look at the titles of recent studies on sovereignty shows this interest. For instance, Walker andMendlovitz (edJ), Contending Sovereignties (1990); Camilleri and Falk, The End o f Sovereignty? (1992);
Nordenstreng and Schiller (edr), Beyond National Sovereignty (1992); Heiberg (ed.), Subduing Sovereignty
6

In spite of such arguments, the notion of sovereignty still remains solid. Numerous
innovative phenomena in international society have not prompted any practitioners toseriously propose abandoning the idea of sovereignty. Many scholars believe that
despite the claims against the traditional understanding of sovereignty, it is still an
indispensable notion of present international society and shows no significant sign ofdisappearing. For instance, the notion of sovereignty was the very foundation of the
Gulf War, which was justified as an attempt to restore the sovereignty of Kuwait. The
UN Security Council confirmed the sovereignty of Iraq when the war was over.2 In the
Cambodian peace process, international agreements declared the Supreme National
Council composed of Cambodia's major factions to be the 'source of authority of
Cambodian sovereignty', even though the content of the expression was highly
ambiguous.3 It is not the case that there are people who are simply for and against thenotion of state sovereignty. The same incidents which show the demise of statesovereignty are often based upon the validity of the concept of state sovereignty.
Recent studies of sovereignty have faced this conceptual predicament. Many
contemporary students of international relations have, therefore, recognised thatsovereignty has many facets.

John Hoffman calls for 'a relational theory ofsovereignty'.4 Cynthia Weber provides certain modes of 'simulating sovereignty'.5
Despite the polemic about whether sovereignty is becoming obsolete or not, the fact isthat viewed from one angle, sovereignty may be eroding; from another, it is constantly
developing.

Therefore, the questions to be asked are: What are the notions ofsovereignty which can be historically identified? In what respect have some of thesevalues of sovereignty declined? In what sense are some of these concepts of sovereignty
gaining credibility? What kind of notions of sovereignty accommodate recent changes
in international relations?
This thesis aims to contribute to the study of sovereignty by tackling these questions,(1994)* Thom Kuehls, Beyond Sovereign Territory (1996).
2 See Resolutions 682, 664 and 674 (1990), and 686 (1991) o f the United Nations Security Council.
3 See Agreement on a Comprehensive Political Settlement o f the Cambodia Conflict and Annex 1. UNTAC
Mandate.
4 Hoffman, 'Wanted: A Relational Theory of Sovereignty' (unpublished paper).
5 Weber, Simulating Sovereignty ( 1995), see also Bierstaker and Weber, State Sovereignty as Social Construct(1996).

7

while introducing new methods and documentary evidence.

Contributing to 'areinterpretation of state sovereignty*,6it points to the possible direction of future changes
in the notion of sovereignty without ignoring its historical traditions and present role ininternational society. All of these need careful consideration. Some scholars hold totheir own definitions of sovereignty, but do not analyse the trajectories of concepts ofsovereignty which reflect important political realities. They ignore the fact that notionsof sovereignty need to be studied, all the more because they express hidden power
relationships in domestic and international society. Others claim that sovereignty is too
obsolete or confusing or even dangerous. Consciously or unconsciously, they attack themost crude definitions of sovereignty or impose their own specific images on the word.
They simply do not know that what they believe to be the true meaning of sovereignty
is an assertion of their own understanding of this complex concept.
This thesis does not attempt to offer a definition of sovereignty which it designates
to be the most authentic. Instead, this thesis sets out to offer a comprehensive
documentary history of notions of sovereignty. It is based upon historical evidence
rather than historical speculation. It gives due weight to great thinkers as well as minor
writers and speakers. While I seek to identify and analyse the dynamism which notionsof sovereignty have experienced, I do not intend to write a narrative of the rise and fallof 'the sovereign state'.

The dynamism of concepts o f sovereignty should be

distinguished from the dynamism which 'the sovereign state' is claimed to haveproduced. A history of the sovereign state is written only when authors of narratives
impose their images of'the sovereign state' on history. Whether or not 'the sovereignstate' existed in a certain age is a matter of clarity of the definition of 'the sovereignstate'. 'The sovereign state' is an intangible creature, which can be created by humanimaginations. Yet any author's definition does not create notions of sovereignty thatexisted in the age in which the author identifies the existence of 'the sovereign state'according to his or her own definition. Rather, the author of a historical narrative may
conceal the dynamism which people in history actually experienced. The study ofsovereignty is the study of an idea. The dynamism of sovereignty does not lie in thehistory of 'the sovereign state' which the author of a historical narrative creates, but in

6 Mankinda, 'Sovereignty and International Security' (1996), p. 165.

historical intercourse between the idea that constituted people's behaviour and the realitythat determined interpretations of the idea.
Does this mean that this study is a collection of abstract notions which lack theelement of'power'? The answer is, certainly, no. Rather, this thesis shows that invisible'power' in history resides in written documents. It does not hesitate to carefully identify
power elements in historical documents. The attitude of holding to superficial levels inorder to grasp hidden power relations is well explained by Michel Foucault. In
discussing 'discontinuity' in history, he argues:

it is not a change of content (refutation of old errors, recovery of old truths), nor is ita change of theoretical form (renewal of a paradigm, modification of systematic
ensembles). It is a question of what governs statements, and the way in which they
govern each other so as to constitute a set of propositions which are scientifically
acceptable, and hence capable of being verified or falsified by scientific procedures.
In short, there is a problem of the regime, the politics of the scientific statement. At
this level it's not so much a matter of knowing what external power imposes itself onscience, as of what effects of power circulate among scientific statements, what
constitutes, as it were, their internal regime of power, and how and why at certain
moments that regime undergoes a global modifications.7
This approach is called 'genealogy', which Foucault defines as 'a form of history
which can account for the constitution of knowledges, discourses, domains of objects
etc., without having to make reference to a subject which is either transcendental in
relation to the field of events or runs in its empty sameness throughout the course ofhistory.'8
A mistaken view as regards Foucault's approach is to interpret a genealogical method
as a direct challenge to 'the sovereign state'. This thesis is not concerned with the storyof the 'discovery' of'non-sovereign' forces behind 'the sovereign state'. Instead, it seeks
to identify those 'regimes' in which notions of sovereignty were embedded. Neither thedenial nor the affirmation of'the sovereign state' can question the historical formationsof the politics of notions of sovereignty.
I shall mention political, economic and social contexts in each time frame in order

7 Foucault, Power/Knowledge (1980), pp. 112-113.
%Ibid., p. 117.

9

to clarify the historical logic of'regimes', while refraining from writing a history of myunderstanding of 'the sovereign state'. The state andsovereignty are invisible

entities. They do not exist in the physical world. This means that the history of 'thesovereign state' is a product of the imagination of writers of such a history. Whether
defending or attacking 'the sovereign state', it is impossible to write a history of 'thesovereign state' without imposing our own definitions of sovereignty upon history. In
order to avoid reproducing our own images of sovereignty, it is imperative to focus only
on notions of sovereignty that were actually pronounced by people in history. This is
the only method to identify the element of power in history without inventing what wewould like to discover. This standpoint is necessary, if we really wish to trace therelationship between reality and ideas, between power and knowledge in actual history.
Previous studies of sovereignty have not paid enough attention to this methodologicalpoint. The two most prominent contemporary theorists of sovereignty, F. H. Hinsley
and Alan James, agree that sovereignty is an idea. But adopting very different
approaches, they do not explore concepts of sovereignty which reflect historical realities.
Hinsley represents a conventional historical approach.

He defines the idea ofsovereignty as 'a final and absolute political authority in the political community. . . andno final and absolute authority exists elsewhere.'9 According to Hinsley, the idea ofsovereignty emerges when the needs of the state are identified with those of society.
The concept depends on whether the state overcomes 'the resistance of the customarysociety'. The determining point is the completion of the process in which statelesssociety becomes the society ruled by the state. Hinsley argues that the difference
between the former and the latter is as qualitatively decisive as the difference between
a man and a cockroach!10
Hinsley's approach involves a kind of eurocentric historical determinism. If statelesssociety and the society ruled by the state are completely different, we may say that it
would be as difficult to prove that the former is a primitive form of the latter as to provea cockroach evolves into a man. Hinsley's argument easily leads to the assumption that
'African stateless societies' are premature forms of modem European states. In the

9 Hinsley, Sovereignty (1966), p. 26.
10 See ibid., pp. 15-26.

10

T

hypothetical process of the historical evolution of stateless society into the sovereignstate, modem European states claim to be the most advanced type of society. Is it auniversal truth that the idea of sovereignty must always and everywhere emerge when
the interests of the state and society are identified, but they always and anywhere cannot
exist without that identification? What is missing is the question of whether the spreadof the modem states system was due to natural evolution or more political, economic
and social circumstances. The spread of political principles from Europe to nonEuropean regions does not prove that there has been a unitary development of thepolitical community and international society.
This 'eurocentric' result is predetermined when Hinsley formulates his abstract
definition of sovereignty. He emphasises that sovereignty is a Western concept. But heconfuses the lack of the idea of sovereignty with the lack of 'sovereignty' in reality.
Hinsley's definition must assume that while 'non-sovereign' Chinese states during theEuropean Middle Ages had no coincidence of interests with Chinese society, 'sovereign'
Chinese states in the twentieth century have had the complete coincidence of interests
with Chinese society. If this assumption is not nonsense, it is certainly ^historical. The
history of the emergence of the sovereign state is tied to the history of Europe. In otherareas there was only the adoption or the imposition of the idea of state sovereignty. The
universalisic nature of his definition leads Hinsley to consciously or unconsciously
believe that the development of sovereignty is a historical law rather than a product ofWestern politics and power.
Alan James adopts a formalist approach to the problem of sovereignty. By defining
sovereignty as 'constitutional independence', he clarifies how to use this concept todetermine 'sovereign statehood'. Unlike Hinsley, James is mainly concerned with thecontent of the idea of sovereignty corresponding with the reality of twentieth century
international society. But he says that his 'inquiry is about the basis of international
relations, and not its dynamics'11 His inquiry to clarify the basis of international society
does not focus on historical trajectories of notions of sovereignty.
What is missing in James's approach is the intercourse between ideas and reality. He
uses 'real' examples to reinforce his definition of sovereignty. Regardless of conceptions

11 James, Sovereign Statehood (1986), p. 8.

11

of sovereignty which people had in mind in reality, his analysis is acute only when it
explains how relevant his definition is to his examples. It is true that his definition is
excellent in the sense that it survives the challenges of many examples of international
relations; his study is beautiful from the purely academic point of view. But it does notshow anything about notions of sovereignty which determine and are determined byreality. His study is a good primer for people who want a clearer concept of sovereignty.
But it does not analyse the chaotic reality of notions of sovereignty.
We find a different tendency among more recent approaches to the issue ofsovereignty. Given the ambiguity of the content of sovereignty, some students havetended to leave the notion of sovereignty undefined. Jens Bartelson's Genealogy o f
Sovereignty is one such example. However, it is doubtful whether he has succeeded in
tracing the historical dynamism of notions of sovereignty.

While asserting that'sovereignty has no essence', Bartelson commits himself to a specific function ofsovereignty by saying that the discourse on sovereignty functions according to the same
logic as the par ergon}1 In consequence, Bartelson writes a genealogy of sovereignty
composed of theorists whom he picks up in accordance with his definition o f thefunction of sovereignty. The definition is not a perspective to simply sort out numerous
discourses on sovereignty, but a criterion to identify the existence of the theory ofsovereignty. Bartelson focusses on writers including Machiavelli and More who did nottheorise or even mention 'sovereignty'.
Bartelson also formulates the categories of 'mytho-sovereignty' and 'proto­
sovereignty', referring to secondary sources in which scholars in the twentieth century
search for the elements of sovereignty according to their own notions of sovereignty.
But how can we understand 'mytho-' or 'proto-' sovereignty without defining a conceptof sovereignty? Why should we analyse discourses of contemporary scholars rather thanhistorical documents in a genealogy of sovereignty? What kind of'deconstruction' is itthat blindly accepts conventional interpretations of the notion of sovereignty without acriterion?
In rejecting a definition of sovereignty, Bartelson's genealogy discovers the functionof sovereignty which he sets out at the beginning of the book. This predetermined grand

12 Bartelson, A Genealogy o f Sovereignty (1995), pp. 48-52.

12^historical narrative relies eventually on the most conventional views of the history ofsovereignty. For instance, his narrative ends with Hegel and reinforces one of the mosta historical doctrines, that of the 'end of history'.13
A Foucauldian approach to the problem of sovereignty is adopted by Cynthia Weber.
Her Simulating Sovereignty is an innovative study of sovereignty, which exposes thehistorical contingencies involved in conceptions of sovereignty. Weber succeeds inshowing that discourses on sovereignty have been the product of the deliberations ofpolitical leaders linked to their political needs. What is notable about her investigationis the manner in which she successfully connects diplomatic documents to her
theoretical framework derived from Foucault and Baudrillard. But her usage ofFoucauldian approaches is problematic. She transgresses the Foucauldian notion of
power in the name of the Baudrillardian concepts of seduction and simulation.14 In sodoing, she misses the importance of power in the Foucauldian analysis. She justifies
this on the basis of Baudrillard's contention that for Foucault power is still 'a reality
principle and a very strong truth principle'. As a result, Weber ambiguously uses both
Foucauldian and Baudrillardian approaches in her analysis of the Reagan-Bush
Administrations, while she resorts to only a Foucauldian approach in her analyses of theConcert of Europe and the Wilson Administration. Does this mean that the postmodern
age of simulation only began in the United States in the 1980s? What is so different
about the invasions in Grenada and Panama in the context of the discourses onsovereignty?
On the one hand, Weber's argument is insightful when she attacks an erroneouspresupposition of 'statism', namely, the idea of sovereignty conceived as an
unchangeable fact. Sovereignty is embedded in the web of practices of states and non­state actors in international relations. With the expansion of the activities of numerous
international actors, it may be correct to assert that 'sovereignty is simulated'. On theother hand, Weber's account seems to be exaggerated. She contends that 'In the Panama
invasion discourse, "sovereignty" and "intervention" cease to function as dichotomous
terms.' She observes that in the case of Panama everyone seems to have a legitimate

13 See ibid., pp. 88-136, 215-220.
14 Weber, op. cit., pp. 34-39.

13

claim to sovereignty and everywhere there seem to be acts of intervention. She thenconcludes that 'if sovereignty and intervention are everywhere, they are nowhere.45 But
is it really true that if sovereignty and intervention are not always dichotomous, they are
everywhere and nowhere? Sovereignty and intervention may be found in many places
in contradictory terms, but they are certainly not 'everywhere' or 'nowhere'. Multiple
interpretations of sovereignty may coexist at a critical time, but this is hardly a striking
discussion in international relations.
Weber claims that in the Panama invasion 'sovereignty is transformed from ameaningful referent represented by various signified (monarchical authority or the willof the people, for example) into mass where meaning is absorbed.'16 But did we reallynot know that sovereignty was an ambiguous notion in international society? Ininternational relations multiple (sovereign or non-sovereign) actors compete without aworld government. They may fight each other, but they may still comply with a set ofrules.

And the struggle for desirable interpretations of a set of rules is highly

competitive. Sovereignty is an indispensable rule, but subject to this struggle. Of
course, it is true that there have been quite arbitrary interpretations of international rules.
It is also the case that there is no universal legislative body which unequivocallydetermines the nature of sovereignty. There are forces that do and do not adhere toestablished rules. However, all these constitute the very aspect of international society
in which people struggle for various values. This is the dimension of power. Even'simulation' is part of the complex dimension of power.
To end an analysis by simply saying sovereignty is simulated is not satisfactory.
Baudrillard and Weber believe that the insight into simulation goes beyond theFoucauldian concept of power, which they claim remains within the sphere of
representation. However, simulation is not immune from power. Foucault's concept ofanonymous power penetrates simulation as well. Power is there, because what makes
simulation is power. When simulation takes place, power is always there to constitutesimulation. How can the process of simulation go on without any kind of power? Whatword other than power can we use to signify something which makes simulation? As"Ibid., p. 121.
16Ibid.

14

long as simulation takes place, a certain type of power is there. This notion of power
has nothing to do with a simplistic understanding of power in discourses like conspiracy
theories. Power is there, even if we are not committed to assertions like 'the UnitedStates governs the world' or 'great powers decide the meaning of sovereignty'. Power
is there, even when we cannot see any subject of power.
Weber's analysis is not as radical as she implies. She ends up with a rather
uncontentious conclusion. She writes:

In such a system of symbolic exchange, sovereignty is no longer something to be
represented but something to be accessed through simulation. Sovereignty becomesa code. It is a bundle of practices which, when performed, grant specific rights andresponsibilities to a nation-state. . . . What become important are the signs ofsovereignty - the ability to access the code of sovereignty (obtain diplomatic
recognition as a "sovereign" state or membership in the United Nations) and the ability
to simulate the foundation of sovereign authority (the people).17
She points out that sovereignty is 'a code' embedded in 'a bundle of practices'. This
contention is almost tantamount to saying that sovereignty is one of the numerous
principles of international society. It should be noted that Weber's main target is the'conventional' theories of international relations, namely, 'scientific behavioural andtraditional analyses of sovereignty and intervention'.18 But the repudiation of 'theconventional theories' may not be so shocking outside the discipline of International
Relations as it is for scholars inside of it. Most practitioners in international society
would not deny that sovereignty is a 'code' which is constituted in 'a bundle of practices'.
Weber describes in refined terms what many people have already known.
As we shall observe in the following chapters, there is a point of which Weber's
analysis has a certain historical resonance. There was a time in which sovereignty was
understood as something real and existing by itself. We shall identify this phenomenon
in the age of nationalism in a broader sense by calling it the reification of sovereignty.
But we shall furthermore trace and highlight the existence of different notions ofsovereignty.

To a certain extent, what Weber identifies as the phenomenon of

17 Ibid., p. 127.
18 Weber, 'Reconsidering Statehood: examining the Sovereignty / Intervention Boundary' (1992), p. 216.

15

simulation of sovereignty in current international relations overlaps with the aspects ofwhat will be characterised as constitutional sovereignty in the international field in thisthesis.
The approach I shall take in this thesis is different from any of the other approaches
outlined above. I call it a genealogical approach in the sense that it is based upon themethod originally explained by Friedrich Nietzsche and Michel Foucault.

Genealogy as Methodology
Genealogy seems to be understood in a rather broad way in the discipline ofInternational Relations. Sometimes it is meant to be a 'post-positivist' approach in thecontext of a challenge to mainstream international relations theories. It may be
associated with 'deconstruction' or even the 'structuration' theory as a critique of'statism'.19 For the purpose of this thesis, suffice it to say that the study of the history of'sovereignty' differs from that of the emergence of'the sovereign state'. Genealogy is notintended to explain the emergence of what we understand as the modem international
system.

Genealogy is a method through which we historicise and identify theideological nature of our 'scientific' approaches. Instead of describing reality according
to some contemporary jargon, it investigates those ideas that actually existed in reality.
In other words, it seeks to trace the trajectories of interaction between ideas and reality,
which have been actually imprinted in documents but seldom examined. Thus thegenealogist should rather be sceptical of endless projections of infinite images of the'sovereign state'.
The starting point for genealogical analyses is Nietzsche's dictum: 'only that which
has no history is definable'.20 This does not mean that we should ignore definitions.
What is required is, instead, to recognise that behind definitions there is an enormous
sphere of human evaluations. Genealogy demands that descriptions of ideas be thoseof human evaluations. The Nietzschean genealogist differs from 'English moralists',
19 See Bartelson, op. cit., pp. 12-52. See also James Der Derrian, On Diplomacy (1987); Steve Smith, 'The
Self-Images of a Discipline: A Genealogy of International Relations Theory' (1995); Richard Devetak,'Postmodernism'(1996).
20 Nietzsche, On the Genealogy o f Morals (1887), 11-13.

16

whom Nietzsche criticised for their wrongful search for the origin of values.
Nietzschean genealogy has nothing to do with origins. It is a history of the humanevaluation of ideas: a methodological reduction of ideas to value-relations.
More specifically, genealogy is defined in two ways. First, it is a philology of thehistory of human evaluations. Second, it is a practical strategy for searching for humanpossibilities. On the one hand, because Nietzsche believed in no transcendental oruniversal criteria, genealogy is a philology which treats everything equally. It is 'a
respectful art' aiming to describe origins, incidents, emergence, thoughts, etc. On theother hand, as genealogy is based on the necessity of evaluations in the world of
becoming, it is inevitably a practice of evaluations. It is not a science of discovering theabsolute truth; it is an art of practising a genealogical evaluation by means not of
asserting a certain value, but of scrutinising details of history. It is, therefore, said that'genealogy occupies a space between the interpretative demands of both philologicalattention and perspectival creativity.'21
Foucault explains that in Nietzsche's works there is an opposition between the origin(Ursprung) and the emergence or the descent (Entstehung or Herkunft). Foucault makes
it clear that Nietzsche fought against a standpoint that glorifies the origin, i.e. 'themetaphysical aftershoot that breaks out when we mediate on history and makes us
believe that what stands at the beginning of all things is also what is most valuable andessential.'22 The origin is an invention of human beings. Thus the word, the descent or
the emergence, is more adequate than the origin as the object of genealogy.
Citing Nietzsche's words, Foucault says that truths are man's 'irrefutable errors',23
because they were 'hardened into an unalterable form in the long baking process ofhistory.'24 History is full offorces, or in Nietzsche's term, 'the will to power' at a deeper
level. There are qualities, degrees, depth, etc, of forces. It is the genealogist's task todiscern the struggle of forces. Genealogy records the history of interpretation whichshows the surreptitious interaction of forces. In Nietzsche's view even the distinction
between cause and effect is human, all too human. Acceptance of a given story of cause
21 Alan D. Schrift, Nietzsche and the Question o f Interpretation (1990), p. 180.
22 Nietzsche, 'The Wanderer and His Shadow', 3, in Human All Too Human (1880).
23 Nietzsche, The Gay Science (1882), 265.
24 Foucault, 'Nietzsche, Genealogy, History1in Language, Counter-Memory, Practice (1977), p. 144.

17

and effect is tantamount to accommodating a given dominating force. For Nietzsche,there are only effects in this world.25
This genealogical perspective presupposes the interrelationship between ideas andreality in two ways. First, it assumes that the world is full of forces. Ideas, constitutedby human evaluative practices, are understood to exist as part of the world. The
genealogist approaches ideas not as something distinct from reality, but as non-physicalobjects that are constitutive of reality.

Second, refraining from assertive value

judgements, however, genealogists also practise their own evaluations through their
genealogical acts. In a world of forces, we cannot avoid value practices; we need not
speculate how to practise evaluations. Our inquires into ideas cannot be anything but
a practice in the real world. In other words, while it is not expected to be a philosophyof history, it has as its goal 'a curative science'i26 an art of diagnosing the problems ofideas.
Given these general features of the genealogical perspective, I shall now specify moreparticular methods in this thesis.

There are eight points that methodologicallycharacterise this thesis. First of all, this thesis refrains from imposing any definition of
the concept of sovereignty as well as that of the function of sovereignty. This includes
any practice of the evaluation of concepts of sovereignty. The methodological principle
in this thesis is to focus on documents that contain the word 'sovereignty' (souveranitat,souverainete).
Second, instead of pursuing a definition of sovereignty, this thesis aims to identify
the struggles of evaluation that took place over notions of sovereignty.27 It seeks to
reproduce past practices of the evaluation of sovereignty by presenting the arguments,
ideas and debates of major theorists together with those of minor or even unknown
publicists. The aim is 'gray, meticulous, and patiently documentary'.28 The scope of thisthesis is thus quite broad in one way. But it is narrow in another; for it excludes thinkers
like Machiavelli who did not discuss sovereignty but is conventionally seen as an object
25 See Nietzsche, Beyond Good and Evil (1886), 21; On the Genealogy o f Morals, 1-13.
26 Foucault, op. cit., p. 156.
27 In this thesis, 'notions', 'concepts', and 'ideas' are used interchangeably to cover a broad range o f the
discourses on sovereignty. 'Theories' of sovereignty represent theoretically systematic understandings ofsovereignty.
28 Ibid., p. 139.

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of the study of sovereignty. It also excludes any practices of'the sovereign state'. The
state defined as the sovereign entity is conceivable only when we define what we mean
by sovereignty. 'The sovereign state' is a product of ideas. It becomes an object of thisgenealogical study only when it appears to relate to evaluative practices of the conceptof sovereignty.
Third, while this thesis is open in principle to any discourses on sovereignty, it deals
only with state sovereignty. The word 'sovereignty' has been used metaphorically todenote different things. The discourses on the sovereignty of God and of reason will betouched upon in this thesis only in connection with state sovereignty. As we shall see
later, a theoretically rigid application of this methodological principle demands that the
study of notions of sovereignty concentrate on the modem age.

The notion ofsovereignty appeared in Europe in order to represent the privileged status of rulers. It
was much later that the problem of sovereignty was discussed automatically inconnection with state personality. The concept of the state in international law is ajuristic person which includes not only a government, but also 'a permanent population','a defined territory' and 'the capacity to enter into relations with other states'.29 Scholars
in the disciplines of International Relations, Political Science and Sociology often use
the term 'the state' as equivalent to a government. But the modem usage of the phrase,
the state, must include the other meaning, namely, a juristic person. State sovereignty
in this sense could not exist prior to the emergence of the abstract concept of the state.
Fourth, this thesis deals mainly with discourses on sovereignty in the modem age,which I define, following Foucault's argument, as the period since the latter half of theeighteenth century. This time frame corresponds to the articulation of a distinctive logic
of sovereignty o f the state. But it is also derived from the concern with the conventional
history of sovereignty. The problem of sovereignty is conventionally understood as thatof Bodin, Hobbes and the Peace of Westphalia of 1648. At best, the history ofsovereignty ends with Hegel, as in Bartelson's genealogy. Such approaches raise thequestion of whether the history of the idea of sovereignty since the eighteenth century
or Hegel has been merely a continuation, or corruption, of old theories. Especially whenviewed from the genealogical perspective on conflicting notions of sovereignty, the29 Article 1 of the Montevideo Convention on Rights and Duties o f States 1933.

19

modem age, full of political turmoil, seems to deserve more attention in relation to theconcept of sovereignty.
Fifth, it is necessary to limit the scope of this thesis geographically. It is simply
impossible to deal with discourses on sovereignty in every part of the world. So it
concentrates on the development of concepts of sovereignty in Great Britain and theUnited States.30 The selection is made for political reasons. These have been the mostimportant countries in modem international relations.

Practical incentives fordeveloping theories of sovereignty have presumably been very high in these countries.
I recognise that they have had two distinct political systems, but they have still sharedcore values such as constitutionalism and liberal democracy. In order to better illustrate
the characteristics of discourses in the two countries, I shall also look at the developmentof concepts of sovereignty in other countries for the purposes of comparison. The basis
for selection of discourses in Germany and France before the Second World War andthose in communist and Third World countries during the Cold War is that they
constitute counter-discourses to Anglo-American notions of sovereignty.
Sixth, my demarcation of historical stages is based on Foucault's conceptions ofepisteme, the historical mode of knowledge. I call this a diachronic perspective. The
definition of the modem age originates from Foucault's argument in The Order o f
Things. I shall discuss this point later.
Seventh, my genealogical investigation has another pillar. I call it a synchronic
perspective, which is inspired by Nietzsche's argument in On the Genealogy o f Morals.
It constitutes two conflicting modes of evaluation to sort out numerous discourses onsovereignty and grasp dimensions of the conceptual struggle. I shall return to this point
later as well.
Finally, it is noted here that this thesis is a piece of an interdisciplinary research. The
issue of sovereignty currently attracts greater attention in the discipline of International
Relations.

But current disciplinary divisions hold true only when we look into

discourses on sovereignty since 1945. It is desirable, or rather inevitable, in a historicalinvestigation like this thesis to have an interdisciplinary perspective.

30 Scholars in other English-speaking countries in the twentieth century will be included for theirinseparability with Anglo-American academics.

20

I shall explicate three points among others in detail: the historical connection of the
problem of state sovereignty with the modem age, the Foucauldian diachronic and the
Nietzschean synchronic perspectives.

State Sovereignty and Modernity
The notion of state sovereignty cannot be properly examined without recognising its
importance in the historical context of modernity. I mean by 'modernity' the mode ofknowledge and practices that emerged in modem Europe, or post-Christendom Europe
in a broader sense. In particular it is characterised by the 'death of God' in intellectual
activities. Under the premises of modernity human ideas and practices become
autonomous and independent of'God'. It can be noted in this context that the emergenceof theories of sovereignty corresponds with the decline of the validity of Christendom
as a value system. I do not deny the fact that the emergence of the idea of sovereignty
had much to do with the knowledge of Christendom. What I find in modem Europe is,therefore, post-Christendom knowledge. Following Foucault, I define 'the modem age'narrowly as the period since the latter half of the eighteenth century. But I do not
exclude a broader conventional usage of the word, 'modernity', as its manifestations
reflecting the 'death of God' emerged earlier than the modem age.
Although we can find old words from which the term, 'sovereign', was derived, someauthoritative commentators think that sovereignty in the strict sense was bom in modem
Europe. Bertrand de Jouvenel explains that as in the Middle Ages men lacked the ideaof abstract thinking, the word, 'sovereign', was used not in the modem sense. The word
meant 'superior', and any superior was sovereign.31 What happened in later periods tothe English word, souerein, or soverayne, which had derived from super, was that it
acquired the letter g which had to do with reigning?2
In order for 'state sovereignty' to appear, the modem usage of the word, state, had tobe acknowledged. Before the sixteenth century, the word, stare, or status, in Latin
indicated a standing or condition, and estat in old French suggests its relevance to
31 See Jouvenel, Sovereignty (1957), p. 171.
32 See Walter W. Skeat, An Etymological Dictionary o f the English Language (1924), p. 584.

21

estate.33 Quentin Skinner stresses that the concept of the state as 'a form of public power
separate from both the ruler and the ruled, and constituting the supreme politicalauthority within a certain defined territory' is distinctively modem. According to him,
the state used 'in a more abstract and recognisably modem sense' was first used by 'theheirs of the Italian humanists, especially in sixteenth-century France and England'.34
There is another type of scholar who find elements of sovereignty before thesixteenth century. There is an interpretation which identifies the supreme power
theorised by Aristotle as modem sovereignty.35 Although Charles H. Mcllwain objects
to such a view, he remarks that Cicero's conception of the state as a collection of men
has 'all the elements of the modem legalistic conception of sovereignty'.36 According
to Hinsley too, there was a rise of the concept of sovereignty in the Roman Empire thatdisappeared in the period of Christendom.37
Yet Ewart Lewis recognises 'strong tendencies' in the direction of the complete theoryof legislative sovereignty in the Middle Ages. He says that Marsiglio of Padua who
asserted the primacy of law-making over all other expressions of state power 'had theessential elements of a theory of sovereignty; only the theory itself was lacking.'38
Michael Wilks insists the Pope was the sovereign, if not of the state, at least of Christin the later Middle Ages. The Pope 'becomes the human expression of the sovereign
entity, and thus acts as the Ecclesia or Christ himself.' So Wilks contends that the idealof Papal writers like Augustinus Triumphus represents 'in an unfamiliar form what amodem writer would immediately recognise as a theory of State-sovereignty.'39
It seems true that the modem notion of sovereignty has historical connections with
the Roman idea of state personality and with the ideal of the Christian community in the
Middle Ages. Although the scholars I have cited have different conceptions ofsovereignty, it would be almost impossible to say that there was no element of state

33 See Andrew Vincent, Theories o f the State (1987), pp. 16-19.
34 Skinner, The Foundations o f Modern Political Thought, vol. 2 (1978), pp. 353-354.
35 See Franz Susemihl and R. D. Hicks, The Politics o f Aristotle (1894), p. 381.
36 Mcllwain, The Growth o f Political Thought in the West (1932), pp. 80-81,118.
37 See Hinsley, op. cit., pp. 27-60.
38 Lewis, Medieval Political Ideas (1974), pp. 28-30.
39 Wilks, The Problem o f Sovereignty in the Later Middle Ages (1963), pp. 41-42.

22

sovereignty in pre-sixteenth century Europe. However, another important fact is that
before the sixteenth century the idea of sovereignty was not established as a principleof the political community, and of international society. Only in the process ofmodernity did people consciously understand it as such. It was in this process that theidea of state sovereignty took shape in people's mind and constituted their thoughts andbehaviours. What characterises the process of modernity is this conceptualisation of
abstract notions. This may explain the historical connection of the notion of sovereignty
with the decline of God. The lack of God in the modem age was substituted by theexistence of abstract notions like sovereignty which were expected to sustain
autonomous human activities.
Two things must be distinguished. On the one hand, some elements of statesovereignty may be found in pre-modem Europe or possibly non-European regions. On
the other, it was not until the sixteenth century that the principle of sovereignty emerged.
It was only in Europe that the principle of state sovereignty evidently constituted the ruleof political communities and international society. What expanded from Europe to otherareas was not 'the sovereign state' in the sense that we may find elements of 'thesovereign state' in pre-modem non-European regions. Instead, modem Europe spreadall over the world the principle of state sovereignty. We should distinguish between thereality that we can understand in terms of our definition of a notion and the reality thathas been constituting and constituted by a certain principle.
What is really important in the study of notions of sovereignty is its long history of
constituting and being constituted by reality. For instance, conceptions like 'agency','structure', and 'structuration', which people in the seventeenth century did not know, arethe creation of academics in the twentieth century. But the principle of sovereignty has
long influenced an enormous number and range of people, just as other Western politicalconcepts like 'liberty', 'democracy', and 'rights' have. It has made one of the mostdynamic interrelationships between ideas and reality throughout modem times.
It is safe to say that the notion of sovereignty was a product of the reality that existed
in the sixteenth and seventeenth centuries. But the concept of sovereignty has since thencontinued to constitute reality, for people conceived it to be indispensable regardless of
its practical applicability. It is the principle of sovereignty understood in this way that23

is the object of this thesis.

The Foucauldian Diachronic Perspective
Having examined the problem of sovereignty in the context of modernity, I shall now
explain what I mean by the Foucauldian diachronic perspective. In The Order o f Things
Foucault formulates 'the history of the order imposed on things'.40 In order to understandFoucault's 'archaeological' models, it is necessary to look into his three periods ofepisteme: the Renaissance, the Classical, and the modem ages.
The Renaissance of the sixteenth century is a time of resemblance. Language
represents things and has been set down in the world. This inseparability of language
and things is possible as language is the locus of revelations and to be included in thearea (symbolised by the Scriptures) where truth is both manifested and expressed.
'[S]uch an interweaving of language and things, in a space common to both, presupposes
an absolute privilege on the part of writing.'41
The second period is the Baroque or Classical. It is the time during which language
has entered a period of transparency and neutrality. The Classical episteme conceives
relations between beings in the form of order and measurement, but with thisfundamental imbalance, that it is always possible to reduce problems of measurement
to problems of order. A certain number of empirical fields formed and defined for the
first time rely for their foundation upon a possible science of order. They are dependent
upon analysis in general and the system of signs in particular.42
A clue to understanding the complex and difficult discourses of Foucault can befound in 'the place of the king'43 The king (the agent of God) formerly governed spacefrom outside as the transcendental subject. God or the king governed everything.
According to Foucault, in Classical thought the king became absent from his position.
The existence of the king was no longer vital to Classical knowledge. The space of

40 Foucault, The Order o f Things (1966), p. xxiv.
41 Ibid., pp. 36-38.
“ Ibid., p. 57.
“ Ibid., pp. 307.

24

representation contains the king within itself; the autonomous space in Classicalknowledge governs itself. This observation has a significant implication in the historyof concepts of sovereignty. It is now helpful to see how 'the place of the king' changed
by looking at some representative theorists in each episteme.
Jean Bodin's work on sovereignty, published in 1576 during the Renaissance, wasalmost the first attempt of theorisation of sovereignty in history. Bodin's famousdefinition of sovereignty is 'the absolute and perpetual power of a commonwealth(republique).144 It is widely known that despite his absolutist definition, Bodin neversubordinated divine and natural laws to secular power.

He says 'as for divine andnatural laws, every prince on earth is subject to them'.45 For Bodin there is nocontradiction between absolute secular power and divine and natural laws. Rather, there
is no absolute power which contradicts divine and natural laws. The prince is above
positive law because he is expected to act in accordance with the higher law. The prince
is the sovereign, because 'it is the law of God and of nature that we must obey the edicts
and ordinances of him to whom God has given power over us', and princes are 'Hislieutenants for commanding other men.'46
What is striking in Bodin's theory of sovereignty is the existence of'the majesty ofGod, who is the absolute lord of all earthly princes'47 God's divine authority lies notoutside the scope of the theory of sovereignty, but at the very centre of it. It is easily
observed that there is an intrinsic relationship between the places of God and thesovereign prince, for the knowledge of the Renaissance is governed by resemblance.
For instance, 'Contempt for one's sovereign prince is contempt toward God, of whom
he is the earthly image.148 The absolute power of the 'earthly image' of God is founded
upon the logic of resemblance. Bodin says: 'Just as God, the great sovereign, cannot
make a God equal to Himself because He is infinite and by logical necessity two
infinites cannot exist, so we can say that the prince, whom we have taken as the image

44 Bodin, On Sovereignty (1576), p. 1.
45 Ibid., p. 13.
46 Ibid., pp. 34,46.
47 Ibid., p. 35.
48 Ibid., p. 46.

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of God, cannot make a subject equal to himself without annihilation of his power.’49
Thomas Hobbes, who represents the theory of sovereignty in the Classical age, hasa different logic. Hobbes's theory in Leviathan published in 1651 is characterised by his
social contract theory. In order to establish a common power to end the state of nature,
Hobbes stresses the necessity of a covenant of every man with every man,in such manner, as if every man should say to every man, I Authorise and give up my
Right o f Governing myself to this Man, or to this Assembly o f men, on this condition
that thou give up thy Right to him, and Authorise all his Actions in like manner. Thisdone, the Multitude so united in one Person, is called a C o m m o n - w e a l t h , in Latine
Civ i t a s . This is the Generation of that great L e v i a t h a n , or rather (to speak more
reverently) of the Mortal'I God, to which wee owe under the Immortall God, our peaceand defence.50
The word 'authorise' is important, because autonomous authorisation is a conditionof self-sufficient commonwealth. Hobbes mentions God, but he no longer needs divine
authority to sustain the Classical episteme of order. There is no intrinsic relationshipbetween the 'Mortall God' and the 'Immortall God'. What is symbolic is that the 'Mortall
God' is at the same time 'an Artificiall Man', 'in which, the Soveraignty is an Artificiall
Soul, as giving life and motion to the whole body'.51 Hobbes's method of constructing
political order is not the logic of resemblance. The 'Artificiall Man' represents amechanistic order that brilliant natural scientists in Hobbes's age identified even when
they analysed a human body. God has disappeared from behind 'the place of the king',
although the order he constructed remains the foundation of the state. The state as an'Artificiall Man' has obtained the place of God behind the king.
It is usually asserted in the discipline of International Relations that Hobbes is a'realist' or even 'statist'. But he surely belongs to the tradition of Classical rationalism.
Mechanistic order is a product of the rational choices of individuals. What is mostimportant in Hobbes's theory is the retreat of God and the theory of authorisation thatmakes possible the emergence of an autonomous state. Almost the same point applies
to the so-called Westphalian system. The Peace of Westphalia in 1648 is usually

49 Ibid,, p. 50.
50 Hobbes, Leviathan (1651), p. 227.
51 Ibid., p. 81.

26

defined as a landmark in the emergence of the modem sovereign state system. But theanalogy between Hobbes's conception of the state of nature and the Westphalian system
is obviously mistaken. What looks like the state of nature is pre-Westphalia Europe inthe midst of religious wars. The Peace of Westphalia rather corresponds with a'covenant of every man with every man'. Mutual recognition or 'authorisation' of therulers, which guaranteed their autonomy and necessitated the retreat of God or Christianauthorities, was the very foundation of the Westphalian system. It was that foundation
upon which the principle of sovereignty was solidified.
What is the episteme of the modem age that arose after the Classical age? In thelatter half of the eighteenth century 'man' appeared in the absent place of God as the
subject who constitutes the world. 'Man' in the modem age is no longer artificial. He
belongs to the world with his body, and he is defined and confined by the world.
Foucault explains: 'Before the end of the eighteenth century, man did not exist. . . He
is a quite recent creature'.52 In order to grasp what Foucault means by modernity, it is
helpful to look at one of his examples, the birth of economics in the modem period
through the analysis of wealth in the Classical period.
Mercantilism represents the Classical age, in which the exchange function becamea foundation for metal and price. The Leviathan-artificial man has a system ofcirculation of money within its 'body'. But at the end of the eighteenth century a historicchange began. Adam Smith maintained that labour revealed an irreducible, absoluteunit of measurement. Wealth represented not the object of desire, but labour. Foucault
regards Ricardo as the initiator of the second phase of modernity. For Ricardo, thequantity of labour makes it possible to determine the value of a thing, not only because
the thing was representable in units of work, but first and foremost because labour as a
producing activity is 'the source of all value'. Henceforth the theory of production must
always precede that of circulation.
The birth of economics signifies the appearance of 'man' who labours as a living
entity. Man in the Classical age had a privileged position of analysing and representing
order. But he himself was absent from the system of representation. In the case ofLeviathan, individuals authorise the system of an artificial man. But man who actually

52 Foucault, op. cit., p. 308.

27

has a body, labours and speaks did not exist in Hobbes's mechanistic system. Hobbes's
individuals were part of the mechanistic order of the physical world, which God still
guaranteed despite his absence. Modem science founds itself upon the existence of man
who actually and autonomously has a body, labours and speaks. There will always be
a gap between scientific knowledge and man who actually lives. But modem science
dares to face that gap. Man is now not only a scientific researcher; he is at the sametime the object of science. The place of God is given to man who actually lives. But
he lives in the system that the occupier of the place of God must sustain. In the modem
age, man must sustain the world by himself, while trying to know the world that hehimself must sustain.
Foucault's modem age begins at the time of the French Revolution. For the purposesof our study, it is most helpful to look at the theory of sovereignty expounded by JeanJacques Rousseau, whose masterpiece, The Social Contract, was published in 1762.
Rousseau at once stands at the end of the Classical age and at the beginning of themodem age. On the one hand, Rousseau is still under the influence of the Classicalmode of thought. Social contract theory deduced from the conception of state of nature
is a typical method of political theory in the Classical age. On the other hand, Rousseauchallenges achievements in the past century. In contrast with Montesquieu who admired
English constitutionalism, Rousseau famously told that, 'The people of England . . . isfree only during the election of members of parliament. As soon as the they are elected,
slavery overtakes it'.53 He holds in contempt contemporary political theorists who
attempt to divide sovereignty into force and will, into legislative and executivefunctions, etc. They make the sovereign 'a fantastic being'.54 What is important for
Rousseau is not the balance or order of political society; it is the realisation of thefreedom with which man was bom.
According to Rousseau's social pact, 'Each of us puts his person and all his power incommon under the supreme direction of the general will, and, in our corporate capacity,
we receive each member as an indivisible part of the whole.' Then Rousseau formulatesa revolutionary synthesis. He proclaims that 'this act of association creates a corporate

53 Rousseau, The Social Contract (1762), p. 240.
54 Ibid., p. 21.

28

and collective body (un corps moral et collectif) . . . This public person, so formed by
the union of all other persons, formerly took the name of city, and now takes that ofRepublic or body politic; it is called by its members State when passive, Sovereign when
active, and Power when compared with others like itself. Those who are associated in
it take collectively the name of people, and severally are called citizens, as sharing in thesovereign authority, and subjects, as being under the laws of the State.65 All these terms
denote the same thing, although used differently in different situations. The people are
the state; subjects are the sovereign.
This miracle is possible only under the theory of the general will. Rousseau asserts:'Sovereignty, being nothing less than the exercise of the general will, can never bealienated, and that the Sovereign, who is no less than a collective being, cannot be
represented except by himself.''Sovereignty, for the same reason as makes it

inalienable, is indivisible; for will either is, or is not, general.'56 The will of all is not thegeneral will. While 'neither is nor can be any kind of fundamental law binding on the
body of the people as a body - not even the social contract itself, he notably remarks that
'whoever refuses to obey the general will shall be compelled to do so by the whole body.
This means nothing less than that he will be forced to be free'.57
If Hobbes was proud of the refined order of his artificial man, Rousseau attacks its
artificiality. Mechanistic order was the very object in magnificent natural sciences in
the Classical age.

But Rousseau searches for something real behind politicalmechanisms. While the mechanistic order that led to the artificial Leviathan previously
sat in the place of God behind the king, now the general will is there. The state lives andwills. The object of political theory is not refined mechanistic order, but man who lives
and wills as an inalienable and indivisible part of the state.
At almost the same time as Rousseau, Vattel candidly expressed the international
implications of modem knowledge. In The Law o f Nations published in 1758, Vattel
notably equates 'nations' with 'states or bodies politic, societies of men united together'.
Such a society 'becomes a moral person, having an understanding and a will peculiar to55 Ibid., p. 175.
56 Ibid., pp. 20,21.
57 Ibid., pp. 14,15

29

itself.58 He proclaims that the law of nations is 'the science o f the law subsisting
between nations or states, and o f the obligations that flow from it' No theorist before
Vattel more clearly enunciated the principles of'nations'. 'Nations being composed ofmen naturally free and independent, and who, before the establishment of civil societies,
lived together in the state of nature, nations, or sovereign states, are to be considered as
so many free persons, living together in the state of nature.' Vattel remarkably proclaims
the effect of social contract theory on the law of nations. Even after 'all men being
naturally free and independent' surrender their privileges to the sovereign, 'the body ofthe nation, the state, remains absolutely free and independent with respect to all men,or to sovereign nations'.59
If nations are 'naturally' free and independent as 'moral persons', it is no longer
difficult to conceive a 'natural' society of such persons. Vattel declares: 'Every nationthat governs itself. . . is a sovereign state. Such are moral persons who live together ina natural society, under the law of nations. To give a nation a right to make an
immediate figure in this grand society, it is sufficient if it be really sovereign andindependent'.60 Sovereignty, 'that public authority, which commands in civil society, andorders and directs what each is to perform, to obtain the end of its institution', isfrequently trusted to a senate or a single person.61 But such matters of the 'constitution
o f the state' by no means change the fact that nations composed of naturally free andindependent men always remain free, independent and sovereign in a 'natural society'of nations.
The Classical age with its rational order provided the foundation for the emergenceof the theory of state personality. But only in the latter half of the eighteenth century did
the state, now identified with people and nation, obtain its own real will. Sovereignty
is no longer an artificial soul; it is an expression of the real will of a nation. Under thepremises of the modem age, the study of sovereignty ceases to be a science of the form
and function of political society; it becomes a quest for the nature and will of the nation­state.
58 Vattel, The Law o f Nations (1758), p. 1.
59 Ibid.
60 Ibid., p. 10.
61 Ibid., p. 19.

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The Nietzschean Synchronic Perspective
I shall now turn to the synchronic perspective, which is a conceptual tool todemarcate the multiple dimensions of concepts of sovereignty in the same time frame.
Every concept of sovereignty has its own dimension; or that multiple dimensions resideeven within a person's idea of sovereignty. Nevertheless, it is also fair to say that there
are certain traditions that can be identified within history. No theorist approaches
sovereignty without knowing what others have said about it.

Consciously or

unconsciously, no one is free from the tradition of ideas. Given that binding oftraditions, the synchronic perspective seeks to identify patterns of the relationshipbetween certain types of viewpoints of sovereignty.
Again, we can say that an almost infinite number of traditions are traceable.
However, in this thesis I shall adopt a perspective that highlights two traditions ofthought. It is the method adopted by Nietzsche when he traced the struggle of two typesof human evaluation of morals in On the Genealogy o f Morals. I stress that this thesis
is not intended to search for pure theories of two ideal types. In a way, no single conceptof sovereignty completely satisfies one ideal type against the other. In another way,
however, the theoretical characteristics of many conceptions can be measured according
to their distance from the two traditions of thought.
I shall use the words 'national' and 'constitutional', to demarcate two traditions of theconcept of sovereignty. These concepts are deployed for two reasons. First, nationalism
and constitutionalism are the two major political ideologies that have determined themodes of the principle of sovereignty in the modem age. Second, nationalism andconstitutionalism, although not always contradictory, have conflicting influences upon
the principle of sovereignty.62

62 This relationship is similar to that of the two concepts o f liberty formulated by Isaiah Berlin in 'Two
Concepts o f Liberty' (1957). Positive liberty is being one's own master, liberty to. Negative liberty is being
without interference, liberty from. The desire to be governed by myself is the positive conception o f liberty. It is
the quest for my 'higher' or 'real' or 'ideal' or 'autonomous' self that should dominate my 'lower' self. It is common
that the 'higher* self is found in the state among other forms o f the 'social whole'. The premise of negative liberty
draws a frontier beyond which no interference trespasses on the area o f the individual. For the sake o f the libertyof the individual, the theorist of negative liberty prohibits public authority from interfering with the individual.
Nationalism is one of the most powerful positive liberty doctrine in the modem era. In order to achieve a 'higher1
and 'realer* self, man must incorporate himself into his nation. Constitutionalism is an attempt to set up rules forthe protection o f negative liberty. In order to protect individual rights, there must be fundamental rules that any

31

The two dimensions of the notions of sovereignty are implicitly discussed in termsof the transition from the Classical to the modem ages. The modem conception ofsovereignty is characterised by the rise of man and an organic entity to express hiscollective will, the nation. National sovereignty is the concept of sovereignty that aims
to realise the true will of a nation. It may do so under the presupposition that the willof a nation has priority over formal mles.
The Classical age foreshadowed constitutional sovereignty, even though Hobbes's
absolutist theory does not entirely fit in with it. We shall discuss the representatives ofthis tradition of the concept of sovereignty in Chapter 1. Suffice it to say here that thegist of the type lies in the rationalism of the Classical age. Grotius, Locke andMontesquieu represent 'constitutional' elements in the rationalist age. This school ofthought is called 'the Grotian tradition' in international studies, which is above all
characterised by 'the subjection of the totality of international relations to the rule oflaw'.63

The rule of law, a broad interpretation of which is a synonym of'constitutionalism', does not simply mean the existence of the law-producing sovereign.
In domestic and international society, the idea of the rule of law is the belief in thehigher or fundamental laws that mle even sovereigns. The rationalists in the Classicalage do not admit 'reason of state', for state is not a mystical organic person, but acollection of individuals who are all under the rule of law. This school of thought does
not take the notion of sovereignty to extremes, whether it is the power of the king or thepeople. They put the notion of sovereignty within legal frameworks or constitutionalrules. This tradition persisted throughout the modem age despite the movement of
national sovereignty. In particular, it is said that 'the English-speaking peoples havedeveloped their political traditions more steadily in a constitutional direction and havepolitical power cannot override. What I mean by national sovereignty is a logical conclusion o f positive liberty.
When man pursues his 'higher' and 'realer' self, the nation appears to be the highest 'social whole'. It is a moral
claim that the nation be the supreme holder o f state sovereignty. When individual liberty is strongly protected,
constitutional rules function to restrain any kind of public power. It is then a legal claim that constitutional rules
have priority over the principle of sovereignty. Just as the two concepts o f liberty coexist, the two types o fsovereignty coexist in certain ways in fact. It is possible that one helps the other against common enemies likeabsolutist princes. However, we can always trace tensions between the two belief systems, even if the purest
forms of each are not always present.
63 Lauterpacht, 'The Grotian Tradition in International Law' (1946), pp. 19-20. See also Bull, The Importanceo f Grotius in the Study of International Relations (1990).

32thereby become the leaders of modem constitutionalism.'64
It may be reasonable to assume that 'sovereignty as a conception is at variance withthe logic of constitutionalism.'65 Constitutionalists usually do not cherish an ideal ofabsolute sovereignty. But as we shall see later, they seldom go so far as to abolish theprinciple of sovereignty. Constitutionalism is a political expression of the orientation
towards 'the golden mean', which stands between absolutism and anarchy, absolute statesovereignty and world government66 It desires political powers to be restrained. But
it never favours a total ban on conventional political authorities. Especially in themodem age, without the sovereign authority whose function is to authorise
constitutional rules, constitutionalism never achieves its aims.
It can be noted that this holds true in domestic as well as international contexts. The
gist of domestic constitutionalism is the sovereign authorisation of constitutional lawthat restrains public power in domestic society. The possibility of 'international
constitutionalism' lies in the same sovereign authorisation of international rules that
restrain public power in international society.67
This is a political meaning of constitutionalism, i.e. the respect for a set of certain
political values. The gist of constitutionalism is the belief in the rule of fundamental
laws. By 'fundamental laws' I do not mean only written constitutional laws. For
instance, the protection of individual rights from abuses of public powers is a core valueof constitutionalism, whether or not it is a provision of a certain constitutional law. This
basic orientation applies to the international field as well. Legalisation of international
relations is an attempt to establish a system of fundamental mles of international society.
In this sense it is not difficult to find constitutional elements in international studies.
Constitutionalism does not mean the existence of a written constitution. The UK has
a long history of constitutionalism, but does not have a written constitution. The factthat there is neither international constitutional law nor an international legislature has
64 Carl J. Friedrich, Constitutional Government and Democracy (1968), p. 26.
65 Ibid., pp. 19-20.
66 See Martin Wight's description of'Westewvalues' as 'the constitutional tradition' and the principle of'the
golden mean' represented by many Anglo-American thinkers, in 'Western Values in International Relations'(1966), pp. 89-91.
67 The phrase, 'international constitutionalism', was employed by Carl J. Friedrich. He refers to the Covenantof the League o f Nations, the Charter of the United Nations and the Universal Declaration o f Human Rights o f
1948, although he points out the limits of the implementation of them. See ibid., p. 31.

33

nothing to do with the mode of thought, i.e. constitutionals as an ideology. So theword 'constitutional' denotes a theoretical orientation towards the establishment of a setof fundamental rules that have priority over the principle of sovereignty. Constitutionalsovereignty is the notion of sovereignty that exists within constitutional rules.
The conceptual premise of constitutionalism resides in the distinction between two
concepts of the state. One is a political community as a whole. The other is thegovernment that organises but exists within the community. What constitutional rules
can restrain is the latter sense of the state. Under the premise of constitutionalism, what
the government can do is to exercise state sovereignty. The fundamental authority
remains in the whole community; any power derives from the source of statesovereignty that can authorise the exerciser of sovereignty.
Although we do not deal with Grotius as a theorist of sovereignty in the following
chapters,68his distinction of the two subjects of the highest power (summa potestas) isuseful to systematise the logic of constitutionalism. Grotius calls them the common andthe proper subjects. While the proper subject is one or more persons, according to thelaws and customs of each country, the common subject is the state (<civitas), that is, 'a
perfect society'.69 Grotius's conception of civitas does not possess its own 'will' like themodem nation-state. It is merely a juristic person. Indeed, Grotius adds that civitas is
not a nation. This formal notion of the common subject interpreted as 'a perfect society'as a whole corresponds with the source of sovereignty. The particular subject, namely,
government, with the exerciser of sovereignty.
This distinction marks a point at which the theories of national and constitutionalsovereignty profoundly separate from each other. In the quest for a true expression of
the will of a nation, it is vital to synthesise the two subjects in the name of the nation.
As national sovereignty is inalienable and indivisible, it is a derogation from sovereignty
to conceptualise its two subjects. A nation as a whole is a community in itself. It has
a national government that is the natural organ of its sovereign power. Both are thesame from the point of view of the theory of national sovereignty. Yet, is it reallypossible to identify a government with a community as a whole? Genuine nationalists

68 As shown above, this thesis mainly deals with Anglo-American theorists who used the word, sovereignty.
69 Grotius, The Illustrious Hugo Grotius (1654), pp. 84-86.

34

would answer that even if it may seem difficult to attain, it must or at least ought to be
pursued.
By contrast, however, candid scepticism would be expressed by constitutionalists.
The identification of the two subjects is not an attainable goal. Or at least it does notdeserve painful efforts. Constitutionalism attributes the authority of sovereignty mainly
to the common subject. But under the premise of constitutionalism, its existence ishighly formal. It is indispensable to authorise a constitutional system, according towhich any state organs function domestically and internationally. But it is not expectedto act in reality, nor is it pursued as an object of political ideals. The exerciser ofsovereignty and the holder of the title, the sovereign, is greatly limitable underconstitutional rules. What is crucial is a well-designed constitutional system, in which
the source and the exercisers of sovereignty have vital roles but are in no way absolute.
Before moving to Chapter 1,1 wish to point out major elements of the concepts ofnational and constitutional sovereignty. These will help us to identify 'national' or'constitutional' elements of concepts of sovereignty in historical documents, although
they do not constitute any privileged and transhistorical definition of sovereignty. Under
the banner of national sovereignty gather nationalist values: national unity, theidentification of the source and the exerciser of sovereignty, that of state and society,supremacy of the public over the private, that of politics over economy, positive liberty,
national self-determination, inalienable and indivisible sovereignty, sovereignty of willover law, and sovereignty as collectivist ideal.

The premises of constitutionalsovereignty include: constitutional order, the constitutional distinction of the source andthe exerciser(s) of sovereignty, that of state and society, the protection of the private
from the public, that of economy from politics, negative liberty, non-interference
without

constitutional sanctions, flexible (divisible and limitable) sovereignty,

sovereignty within the rule of law, and sovereignty as a formal rule. All these areconceptual tools to map out the historical dimensions of the relationship of the nationaland constitutional notions of sovereignty. I stress again that this thesis does notpigeonhole every notion of sovereignty into the two categories. They are not intended
to construct any transhistorical definition of the notion or function of sovereignty. But
I do seek to show in the following chapters that these conceptual tools are useful inorder to describe a history of conflicting notions of sovereignty.
35

In Chapter 1, I shall explore classical examples of constitutional notions ofsovereignty in Great Britain and the United States. The constitutional theories of John
Locke and other British publicists, and the arguments of the Federalists and otherintellectuals in the founding periods of the United States provide the constitutional
tradition of sovereignty. The chapter also shows that the concept of international
relations based on the principle of national sovereignty did not fully develop in theClassical age. Chapter 2 traces the development of theories of national sovereignty innineteenth century France and Germany. This chapter shows that the theory of nationalsovereignty attained its highest expression in nineteenth century Germany, which madea strong contrast with classical Anglo-American political theories. Chapters 3 and 4
deal with notions of sovereignty in nineteenth century Britain and America respectively.
These chapters argue that in both countries the phenomenon of the reification ofsovereignty became evident towards the end of the nineteenth century. In Britain asnation-wide democratic movements and the process of imperialism advanced, traditional
constitutional notions of sovereignty were replaced with the doctrine of absolute
sovereignty of the Imperial Parliament and more organic notions of national sovereignty.
In America the severe experience of the Civil War led publicists to emphasise thenational unity of the American nation. The characteristics of international law in Britain
and the United States are also examined in these chapters.
Chapter 5 focuses on the debate on the establishment of the League of Nations. As
a result of the Anglo-American victory over Germany, the plans for a futureinternational order revitalised the constitutional traditions in Britain and the UnitedStates. I shall characterise this tendency as 'international constitutionalism'. Chapter 6
covers the interwar period, in which 'international constitutionalism' rose and fell. The
chapter analyses changes in notions of sovereignty in the period in which the optimistic
prospect for international order among Anglo-American intellectuals declined in the faceof serious economic and political crises in the 1930s. Chapter 7 follows the discourses
on sovereignty after 1945 up to the end of the 1960s. In this period, the rise of politicalrealism implanted the vigorous theory of national sovereignty in the Anglo-Americancountries. Reluctant acceptance of the theory of national sovereignty during the Cold
War led Anglo-American publicists to ignore and eventually formalise the notion ofsovereignty. I shall look into post-war theories of sovereignty in communist and Third36

World countries in Chapter 8. This chapter shows that during the Cold War and theprocess of decolonisation, the constitutional understanding of sovereignty was attacked
by ideological opponents in communist and Third World countries. This explain thehistorical reasons for the decline of international constitutionalism in the post-1945
Anglo-American world. I turn to notions of sovereignty in Britain and the United Statesin the 1970s and 1980s in Chapter 9. The new tendency of a revival of traditional
constitutional values in these countries, which I call 'a new international
constitutionalism', is a main theme of this chapter. The conclusions express a summaryof the thesis and prospects for contemporary debates on the notion of sovereignty.

37

Chapter 1 Classical Constitutional Notionso f Sovereignty
This chapter examines classical constitutional notions of sovereignty in Britain andin the United States from the seventeenth to the beginning of the nineteenth century. In
the first section, we shall briefly explore political thoughts in seventeenth century
England in order to identify the archetype of the constitutional tradition of the notion ofsovereignty.

The second section deals with modem modifications of classicalconstitutionalism in the latter half of the eighteenth century. After examining theimplications of these notions in international relations, we shall formulate theories ofsovereignty that appeared in the process of the establishment of the United States ofAmerica.

Discourses on Sovereignty in Revolutionary England
Politics o f the Fundamental Law

The seventeenth century in England is often characterised as a transitional period
from royal to popular sovereignty. This conventional view argues that even if thesubject of sovereignty was transferred from the king to the people, the meaning ofsovereignty did not change.

Yet such a simplistic view overlooks complex

developments of the notion of sovereignty in the revolutionary era.1
Before the outbreak of the Civil War there were, mainly, three ideological principles:the divine right of kings; government by consent; and the ancient constitution.2 It is

1 In examining a broad range of historical documents in sixteenth and seventeenth century Europe, Julian H.
Franklin points out that 'Bodin's account of sovereignty was also the source o f much confusion, since he wasprimarily responsible for introducing the seductive but erroneous notion that sovereignty is indivisible.' As
Franklin suggests, the 'erroneous' doctrine of Bodin's notion o f indivisible sovereignty was influential, but
vigorously criticised in the Classical age. Franklin, 'Sovereignty and the Mixed Constitutions: Bodin and his
Critics’ (1991), p. 298.
2 J. P. Sommerville, Politics and Ideology in England, 1603-1640 (1986), chapters 1, 2, 3.

38

noteworthy that the main issue was not the location of sovereignty, but how toaccommodate 'civil government' (an antonym of 'ecclesiastical government') with theage of reason. For instance, the divine right of kings is derived from the idea thatnatural law ordained men to be governed by govemor(s). Even King James I admitted
the 'designation' of the 'consent of the Kingdom'. Accordingly, the theory of the consent
of the people was not the same as the modem doctrine of national sovereignty. It was
neutral and could justify monarchical sovereignty. What is most important is that Stuart
England experienced an intellectual movement of common law theory. Common
lawyers advocated that 'the ancient constitution' was binding upon any rulers. They
believed that positive laws in violation of the common law of customs and reason could
be void.
These three ideologies in the Classical age had their own complete systems ofpolitical society governed by a certain set of rules, in which God was not irrelevant but
played no active role. The notion of sovereignty constituted a part of the systems, but
was by no means omnipotent. For instance, the hero of the common law tradition, Judge
Sir Edward Coke, spoke in the debate on the Petition of Right, 'I know that prerogative
is part of the law, but "sovereign power" is no Parliamentary word in my opinion. It
weakens Magna Carta and all other statutes, for they are absolute without any saving ofsovereign power'.3 Coke never attempted to abolish the sovereignty of the king. But he
did not conceive it to be above law. His statement represents the main theme of thenotion of sovereignty in the constitutional tradition: sovereignty within law. Common
law theory was not a revolutionary doctrine, while it defended individual rights. Hedley
Thomas, common lawyer, remarked on the inviolability of private property: 'this ancientliberty of the subject in England is that which doth and always hath maintained andupholden the sovereignty of the king and maketh him able to stand of himself whithout
the aid of any neighbor princes or states and so to be an absolute king which dependth
immediately upon God'. He praised the balanced constitution, i.e. 'This so ancient,honourable and happy state, so prudently compact of the sovereignty of the king and theliberty of the subject.14 Sovereign power is needed, but only within the system of

3 Robert C. Johnson and others (ed?), Commons Debates 1628 (1977), p. 495.
4 Elizabeth Read Foster (ed.), Proceedings in Parliament 1610 (1966), pp. 195, 197.

39

common law.
We shall not examine the details of political turmoil after the outbreak of the Civil
War. Suffice it to say that what was conceived to be violated in 1642 was the rule ofthose fundamental laws, i.e. the ancient constitution and the principle of consent of thegoverned. To be sure, there were those who spoke of 'the sovereign power ofparliament' as well as the advocates the sovereignty of the king. For instance, Robert
Filmer developed his patriarchal theory of absolute monarchy, which represented thenotion of absolute and indivisible sovereignty.5 But English history leading to the
Glorious Revolution of 1688 shows that extremism of both the right and left, namely,
absolute sovereignty of the king and the people, did not gain ground. It is what Martin
Wight calls the 'constitutional government' or the principle of'the golden mean' which
represented the theoretical significance of the Revolution and determined the nature of
the British political tradition.
The 'constitutionalist' view in the middle of the seventeenth century is representedby George Lawson. His theory of sovereignty is innovative, while deeply rooted in the
traditions of Classical English political thought. Referring to the predecessors of postBodinian public lawyers, Lawson distinguishes between 'personal sovereignty' and 'real
sovereignty' or majesty.6 While the king possesses personal sovereignty, real
sovereignty to 'form a state, where there is none, and if after a form once introduced, theorder be not good,. . . alter it' is in the community. It is 'the power of constitution' in
the sense that the consent of the community is the foundation of a commonwealth. In
so saying, Lawson rejects the absolute sovereignty of the king, parliament and even a
mixed government. He emphasises that 'we must not judge of states according to themanner of administration'. There is 'a free state, a popular state, a republic, or the
republic, and may be the best state of all others, where majestas is tota in toto, yet there
may be several kinds of this manner of government'. He continues that 'where the whole
power is wholly in the whole, there populus, that is, king, peers and commons, are theproper subject of majesty in the constitution'.7

5 See Filmer, Patriarcha and Other Writings (1680), p. 151.
6 See George Lawson, Pacta Sacra et Civilis (1660), pp. 45-46.
7 Ibid., pp. 45-49, 97-98.

40

It is this English version of the two subjects of sovereignty that explains thefoundation of classical constitutionalism. There may be disputes on the location of'theproper subject' of sovereignty.

But the common subject of sovereignty in thecommunity stands still and provides a constitutional foundation that any political powers
must obey. This logic might look similar to the theories of popular and nationalsovereignty. But 'the whole' community is distinct from such living entities as people
and nation. It is not expected to be identified with the proper subject. It does not exceed
its own constitutional role; it only creates and checks the government. On otheroccasions the community dissolves into a body of'subjects'. The crux of the matter isa constitutional structure that can be justified only by an authority higher than any otherpolitical powers. Political theories that overwhelmed Filmer's textbook theory ofsovereignty were not merely concerned with the location of sovereignty, but its
constitutional nature.

The Lockean ModelIn the age of the Glorious Revolution there appeared the most important theorist in
the English constitutional tradition: John Locke.8 It is sometimes said that Locke did
not elaborate the theory of sovereignty per se. But sovereignty was a central issue in his'First Treatise' of Two Treatises, in which he vigorously denied the patriarchalism ofFilmer. He repudiated the sovereignty of Adam and its theoretical offsprings, which
was a major theoretical task in his time. Locke mentioned 'sovereignty' even in the'Second Treatise', when he confirmed his denial of Filmer's patriarchalism.9 When readas coherent articles, each treatise of Two Treatises appears to represent the negative andthe positive sides of Locke's rejection of the conventional notion of sovereignty: thecriticism of the absolute notion of sovereignty and the creation of the two supreme
powers. These could be called the theoretical foundation of modem constitutionalism.
In the second treatise, Locke develops a theory of an autonomous political society by

8 As regards 'sovereignty in the Lockean tradition' which includes Lawson and the American federalists incontrast with 'sovereignty in Bodin, Hobbes, and Rousseau', Julie Mostov, Power, Process, and Popular
Sovereignty (1992), pp. 52-72.
9 See Locke, Two Treatises o f Government (1690), pp. 326-327.

41

establishing two supreme powers. On the one hand, Locke asserts that even after
consenting to make one community, 'there remains still in the people a Supreme Power'.
According to Locke, 'the Community perpetually retains a Supreme Power of saving
themselves form the attempts and designs of the Body, even of their Legislators'.10
Individuals never give up their right to property, which all political powers are set up to
secure. Furthermore, they have the right to the appeal to 'Heaven', namely, the right toresistance and revolution when government abuses its power. The authority of 'theSupreme Judge', 'God in Heaven', meets the fear of the lack of the final judge expressedby absolutists like Filmer.11
On the other hand, Locke also notes that although the community is 'always theSupreme Power, but not as considered under any Form of Government, because thisPower of the People can never take place till the Government be dissolved.'12 While
Locke divides the governmental power into three - legislative, executive, and federal
powers - he described the legislative power as the supreme power.
It is evident that the avoidance of the word, sovereignty, is by no means accidental.
It is striking that the result is the coexistence of two supreme powers, with which theabsolute notion of sovereignty cannot be easily reconciled. Locke's theory is not a
simple advocation of popular sovereignty against royal sovereignty. Nor is it merely atheory of legislative sovereignty. The theory of two supreme powers is possible,
because he distinguishes between 'the Dissolution o f the Society, and the Dissolution o f
the Government.'13 One supreme power reigns in society, while the other represents thesupreme power of government. There is no power relationship, but a constitutional
relationship between them, for the latter is restricted by its end, 'the good of Mankind'.14
One commentator calls this 'the distinction between constituent and ordinary power'.15
The two supreme powers do not conflict with each other, at least under the premisesof the natural law tradition, because each has its own constitutional role.

10 Ibid., p. 385.
11 Ibid, p. 445.
12 Ibid., p. 385.
13 Ibid., p. 424.
14 Ibid., p. 435.
15 Julian H. Franklin, John Locke and the Theory o f Sovereignty (1978), p. 124.

42

The

community always represents the constitutive power of political society and remains abasis for the protection of individual rights. The government always organises theordinary power of political society, which the people ought to obey except in time ofresistance. The former may be said to almost exclusively exercise supreme power,
while the latter is the foundation of authorisation. This distinction leads to the mostimportant premises of modem constitutionalism: the distinction between constitutive
authority and ordinary power, i.e. between constitutional mles and ordinary laws. And
the major aim of constitutionalism, the protection of individual rights from the abuse of
public power, is unequivocally implemented by Locke along the line between his twosupreme powers. It is said that for Locke 'behind the sovereign authority stands themajesty of Natural law which limits its competence'.16 A principle that embodies thenatural law foundation would be 'Salus Populi Suprema Lex'.17 The safety of the people
is the supreme law, which justifies a constitutional order above the sovereign will. Thisis the gist of classical constitutionalism.
This might also be characterised as the principle of the 'golden mean' between
governmental power and community authority, which symbolises a theoreticalachievement of the Glorious Revolution.

Of course, this does not mean thatparliamentarians after the Revolution literally followed the Lockean theory. But it isclear that Locke completed a theoretical foundation of constitutionalism and continued
to be influential in Anglo-American political thought. It should be added that this may
not be 'glorious' from other ideological viewpoints. It seems historically true that the'golden mean' is a conservative ideology of the middle class. In any event, it is now
theoretically possible to defend individual liberty without violating a governmental
system. From now on constitutionalwm means a belief that there is, and must be, a

16 Raghuveer Singh, 'John Locke and the Idea of Sovereignty' (1959), p. 328. Singh emphasises that Locke'belongs to the second tradition o f Western political thought' distinct from the 'Hobbesian-Austinian' tradition.
17 See Locke, op. cit., p. 391. The maxim, 'Salus Populi Suprema Lex', was widely cited by seventeenth
century pamphleteers. The maxim was the title of a book published in 1648, whose subtitle was 'The Peoples
Safety is the Sole Sovereignty'. The author writes: 'Is not the State at large the absolute King, and the King (socalled) the kingdoms Steward? Is not the King and all Magistrates the Kingdoms ministers and servants? Is it
not their duty and glory to serve the Kingdom? . . . though he is above every one, yet not all; and common
safety is the sole Sovereign.' The author's notion of'the State at large' shows that the maxim, 'the safety o f thepeople is the supreme law', is the principle that expresses a historical connection between constitutionalism andthe doctrine o f two sovereignty. Salus Populi Solus Rex: The Peoples Safety is the Sole Soveraignty, or theRoyalist out-reasoned (1648), p. 2. Samuel Hunton has almost the same idea o f 'Salus soveraignty'. See Hunton,
The King o f Kings: Or The Soveraignty o f Salus Populi, over all Kings, Princes, and Powers whatsoever (1655).

43

'golden mean' to sustain the two political goals.

The Development o f Constitutional Sovereignty in Britain
The tradition of classical constitutionalism was to a great extent based upon thepremises of common law and natural law, which gradually declined in the modem age.
Although the vestiges of classical constitutionalism remained throughout the modem
age, they continuously experience historical changes. In this section we shall view
notions of sovereignty at the end of the Classical age and identify the modification of
the constitutional concept of sovereignty.

The Post 1688 English Constitution

Despite a popular view that the Glorious Revolution transferred sovereignty from theking to parliament, the notion of parliamentary sovereignty did not gain ground
immediately after the Revolution. As we have seen, the Revolution was justified mainly
under the premises of classical constitutionalism. For instance, the most importantachievement of the Revolution, the Bill of Rights of 1689, did not mention
parliamentary sovereignty, even though parliament was given a major role to check royal
power; instead, it listed 'illegal' acts of the king. Paradoxically, the king who pledged
to observe constitutional rules was the highly respected sovereign who enjoyed the gloryof the British Empire.
We can see post-1688 notions of sovereignty in the debate between pro- and antiRevolution publicists. For instance, it is interesting to see the way James Parkinson,
pro-Revolution fellow at Oxford, repudiated one of the advocates of the doctrine of'passive obedience'. In distinguishing between power and authority, Parkinson argues
that those who have sovereign power are not always given sovereign authority by God.
In other words, the sovereign power holders are still under the restraint and governmentof God. That the sovereign power is capable of doing a good deal of evil and mischiefdoes not mean that God allows them to do so with sovereign authority. But is it not the44

case that the king may have sovereign authority as well as sovereign power? Parkinson
answers that 'the Sovereign Authority is always in the People'.18
Parkinson's argument is polemic and may not be philosophical enough comparedwith the theories of Hobbes and Locke. But he surely expresses the crux of the liberalconnotation of Hobbes's theory of authorisation and the constitutional structure of
Locke's two supreme powers. Parkinson does not simply repudiate royal sovereignty
in the name of popular sovereignty. He admits the sovereign power of the king; hedefends king William and queen Mary, 'Lawful and Rightful King'. What he insists isthat the people always retain sovereign authority. This position is founded upon astrong belief in the existence of the higher law which determines the proper relationshipbetween sovereign power and authority.

His first proposition is 'Allegiance, isObedience according to Law.' His conclusion is that 'there is nothing can secure to a
Prince his Sovereign Power, but that which sets bounds to it, the Law.'19
Another post-1688 liberal, the anonymous author of The Judgement o f Whole
Kingdoms and Nations, asserts that 'To extend the Governor's Right to command . . . isTreason against the Constitution'. 'By cancelling the Charter from which he deriveth andholden his governing Power, he not only makes his Title to Sovereignty precarious, but
renders every Claim of that kind . . . to be an Invasion and Usurpation.' The author
resorts to higher laws to justify his argument. Because there is no natural or divine law
regarding any particular form of government or person which should have 'the sovereign
Administration of Affairs', 'Mankind is at Liberty to chuse what Form of Government
they like best.' He cites the maxim, 'the Safety of the People is the supreme law', andobserves that the English government is 'a mixed limited monarchy, where the SupremePower is divided between the King and People'.20

18 James Parkinson, An Examination o f Dr. Sherlock's Book, entituled, the Case o f the Allegiance due to
Sovereign Powers, stated and resolved, etc. (1691), pp. 27-30.
19 Ibid., pp. 7, 32.
20 Judgement o f Whole Kingdoms and Nations (1710), pp. 3 ,4 , 8, 10. Andrew Michael Ramsay emphasises
the necessity of sovereign authority, with which the monarch ought to be invested. But he also argues thatabsolute power is not arbitrary power, because 'Sovereigns have no Judges upon Earth above them, so as topunish them, but they have always a Law above them, in order to regulate them.' The end the sovereign has is'the Rule and Supreme Law . . . and this Law is no other than the publick good.' For instance, therefore, thesovereign is prohibited from violating the liberty o f the subject. 'There are the Rights o f Sovereignty necessary tohinder the Abuses of Society. Thus are the Boundaries of Sovereignty necessary to hinder the Abuses o f
Authority.' An Essay upon Civil Government (1722), pp. 38, 101-107.

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It is striking to see that almost the same features in understanding sovereignty wereprevalent among the advocates of'passive obedience'. Although it was said to have been
written sometime after the Civil War, Rules o f Government: Or a True Balance between
Sovereignty and Liberty published in 1710 represented the atmosphere in the first halfof the eighteenth century. While the author mentions 'Salus Populi Suprema Lex', hebelieves that 'Monarchical Government is best suiting with God's Ordinance and the
Benefit of Society.' He strongly opposes 'co-ordination' of supreme powers. 'However,
Limitation of Sovereignty is', he baldly asserts, 'agreed on by all politicians, andcivilians, to be consistent with sovereignty itself.' Sovereignty is not taken from thegoverning person or persons, although 'the Absoluteness of the Execution, for sometime, or in some part of the Sovereign Power' may be suspended. In those cases, 'he orthey remain absolute, though limited.'21
In the same manner, another writer of passive obedience develops almost the sameidea of sovereignty in The English Realm (1717). The author argues that the notion ofsovereignty cannot be abstracted from the sovereign king. And if there is any power towhich princes or states are accountable, 'let their Names found never so bid, they are not
Sovereign, but subject Sovereignty'. However, interestingly, sovereign power may belimited as to the exercise of power. What makes princes 'complete Sovereigns' is theauthority to give life and soul to the dead letter. The essentials of sovereignty are
established not by 'political laws', but by 'Im p e r i a l Laws, or the common Laws ofSovereignty'. At the level of the latter, subjects must not resist the sovereign, while thesovereign himself is subject to limitations. The author argues that there are two sorts
of'Imperial Sovereign'. Although both'Imperial Sovereigns' are 'full, perfect, absoluteand entire', one is limited only by the Laws of God and nature and the other by 'civil
Laws and pactions' as well as divine and natural laws. The sovereign under politicallimitations of'Humane Constitutions' as to the exercise of his power still has absolute,
full and entire power. Rather, arbitrary and despotic exercise of power has no relevance
to 'the Being and Essence of Imperial, or Sovereign Power'. Therefore, although theKing of England is limited in the use and exercise of his power, 'the English Realm isa perfect Sovereignty or Empire, and that the King of England, by the Imperial Laws of

21 Rules o f Government: Or a True Balance between Sovereignty and Liberty (1710), pp. 7-8, 13-14.

46

it, is a compleat, imperial, and independent Sovereign, to whom the foresaid Rights ofSovereignty do inseparably belong.'22
The popularity of the doctrine of passive obedience and the advancement ofliberalism in post-1688 England were the two sides of the same coin. In order to avoid
another civil war, it was imperative to unite all the people under the banner of royalsovereignty.

In order to preserve constitutional rights, it was vital to maintain

constitutional rules. The theory of absolute and limited sovereignty was one solution.
Under the premises of classical constitutionalism, both sovereignty and liberty wereembedded in the British Constitution. The British Constitution was conceived to be theglorious expression of power and freedom that no other nation than the British could
enjoy.23
While absolute and limited sovereignty was a necessary product of the time, there
was another possibility of explaining the British Constitution; sovereignty is not limited,
but limiting forces are part of sovereignty. In Commentaries on the Laws o f England
published between 1765 and 1769, William Blackstone, authority on English
constitutional law in the eighteenth century, set out constitutional principles along thelatter line. He declares that 'there is and must be in all of them [several forms ofgovernment] a supreme, irresistible, absolute, uncontrolled authority, in which the jura
summi imperii, or the rights of sovereignty, resides.*24 Then he goes on to explain 'three
regular forms of government'. According to the location of the sovereign power, formsof government are classified into either democracy or aristocracy or monarchy. All threeforms have different advantages and disadvantages.
But Blackstone does not stop at that point, leaving constitutional issues untouched.
Blackstone remarks that 'happily for us of this island, the British constitution has longremained, and I trust will long continue, a standing exception to the truth of this22 The English Realm: A Perfect Sovereignty and Empire, and the King, a Compleat and Imperial Sovereign(1717), pp. 16-22.
23 For instance, a liberal 'gentleman of the middle temple' admires the Constitution by writing that 'thank
GOD, undeniable, that Our Government was founded on the Principles of liberty, by a WISE, a FREE, and a
BRAVE PEOPLE.. . who are the confessed Origin, or Spring o f the SOVEREIGN POWER, which . . . THEY
have committed into the joint Hands o/three Estates, so framed and attempered, as to be Checks, the one upon
the oth er. . . This will appear the most wise, the most equal, the most just, the most perfect Form ofGovernment, that now subsists upon this Globe. A glorious Constitution!' A Critical Review o f the Liberties o f
British Subjects (1750), pp. 11-12.
24 Blackstone, The Sovereignty o f Law (1765-1769), p. 36.

47

observation.' In Britain while the executive power is lodged in a single person with all
the advantages of absolute monarchy, the legislature is entrusted to three distinct
powers, entirely independent of each other. Each branch of the three powers, the king,an aristocratic assembly of the lords, and the democratic house of commons, is armed
with a negative power, sufficient to repel any innovation which it thinks inexpedient or
dangerous. Blackstone then proclaims that in the British parliament

is lodged the sovereignty of the British constitution; and lodged as beneficially as ispossible for society. For in no other shape could we be so certain of finding the threegreat qualities of government so well and so happily united. . . . [A change in thelegislature from that, which is] presumed to have been originally set up by the generalconsent and fundamental act of the society . . . is according to Mr Locke . . . at once
an entire dissolution of the bands of government; and the people are thereby reduced
to a state of anarchy, with liberty to constitute to themselves a new legislative power.25
While praising the anomaly of British sovereignty, Blackstone also asserts that 'the
law ascribes to the king the attribute of sovereignty'?6 Does this 'sovereignty' really have'a supreme, irresistible, absolute and uncontrolled authority'? Each branch of parliament
certainly wields 'sovereignty', when understood to be united with other branches. But
at the same time it lacks 'sovereignty', when viewed as a body which retains negative
powers against the others. The sovereign unity of the British parliament exists only
within the British constitution. Outside the constitutional sphere, there are merely threelimited powers. Or it may be interpreted that while the sovereign 'powers' are divided,
there must be one 'authority' that claims 'the rights of sovereignty'. The very expression,'the rights of sovereignty', indicates the constitutional character of Blackstone's theoryof sovereignty.
Another significant feature of Blackstone's Commentaries is his strong belief inindividual rights. He writes that 'the principle aim of society is to protect individuals in
the enjoyment of those absolute rights, which were vested in them by immutable lawsof nature'. To be sure, when entering into society, the individual gives up 'a part of his
natural liberty'. But it does not prejudice the fact that 'the first and primary end of

25 Ibid., pp. 36-38.
26 Ibid., p. 94.

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human law is to maintain and regulate these absolute rights of individuals'. Laws andliberty are so inseparable that constitution is alone calculated to maintain civil liberty.
This leads Blackstone to declare that the idea and practice of this political or civil liberty
flourish in their highest vigour in England.27
Is it contradictory to have the absolute authority of parliament together with theabsolute rights of individuals? For Blackstone, one is possible only with the other. The
absolute authority of parliament is founded upon the natural rights of individuals; ifparliament violates the rights, the people restore the power to constitute anothergovernment. However, the implementation of individual rights depends on the supreme
authority of parliament. Without the latter, liberty loses its protector. Or we may saythat the authority of parliament and individual rights are absolute only within aconstitutional framework. The political system that was established in Locke's time had
continued for almost eight decades and seemed set to continue in the foreseeable future.
It was not so ridiculous for Blackstone, therefore, to describe it in absolute terms. What
was really absolute was the British constitution that sustained the authorities ofparliament and individual rights. There was neither supreme authority nor absoluterights outside the framework of constitution.

Sovereignty in the Industrial Revolution

Adam Smith wrote in 1776 that the sovereign, 'servants of the public and maintainedby the industry of the people', was restricted by the system of natural liberty of every
man and in duty bound to protect the society and every member of it and to erect certain
public work.28 It is flawed to ask whether this restricted and obliged body should becalled 'the sovereign' or not. There must be a strong public authority to protect publicorder; but it must not interfere with individual liberty and economic activities. This isa typical understanding of sovereignty within the Constitution at the end of theeighteenth century which was strongly associated with the rise of the Industrial
Revolution in British society.

21 Ibid., pp. 57-61.
28 Smith, The Wealth o f Nations (1776), pp. 124, 251.

49

In 1776 Jeremy Bentham, who represented utilitarianism in the period of theIndustrial Revolution, said: 'In Great Britain, for example, the sovereignty is in the king,Lords, and Commons in Parliament assembled'.29 The sovereign was defined as 'any
person or assemblage of persons to whose will a whole political community are (nomatter on what account) supposed to be in a disposition to pay obedience; and that inpreference to the will of any other person'.30 Bentham rejects contract theory as a fictionand expands a theory of will. A law is the sovereign's will. It is the will of subjects to
pay obedience, as long as it is beneficial to them. According to Bentham, thesovereign's will 'cannot be illegal', although 'it may be unconstitutional'.31 In otherwords, unconstitutional acts are not necessarily illegal.

Bentham is not a

constitutionalist who mentions 'Salus Populi Suprema Lex'; his supreme law is theutilitarian calculation of 'the greatest happiness of the greatest number'. He perceives
that sovereignty is a force to reform old systems. It is not only expected to protect
rights, but also to promote social developments.
In a later work for a planned constitutional code, Bentham pronounces: 'The
sovereignty is in the people. It is reserved by and to them.62 The people are now
explicitly given 'the Constitutive authority', which is 'in the whole body of Electors
belonging to the state'. All other authorities are subordinate to 'the Constitutive
authority', which can locate and dislocate the members of'the Legislative authority'.33
He states that 'The Legislative authority' in relation to the Administrative and the
Judicial has no limits but only some checks.34 Yet he also writes 'the people - the only
legitimate source of power: the people, by whose authority, for whose sake, and at
whose expense, all power, conferred by this our Constitution, has been created.'35
Bentham's theory of the sovereign will points in the direction of modem knowledge
characterised by Foucault. 'Of the Constitutive authority, the constant will is that the

29 Bentham, O f Laws in General (1782), p. 5.
30 Ibid., p. 18.
31 Ibid., p. 16.
32 Bentham, Constitutional Code (1830), p. 25.
33 Ibid., pp. 29-41.
34 Ibid., P. 42.
35 Ibid., p. 145.

50

national felicity - the happiness of the greatest number - be maximized.'36 Bentham's
concept of man goes beyond the classical assumption of individuals who merely retain
natural rights. Bentham's man is a living creature who constantly 'wills' to maximise
their happiness.

It can be noted that in the historical context of the Industrial

Revolution, he 'wills' to maximise economic gains. The Legislative authority, if
necessary, exercises the power to abolish any principles of common law that do not
conduce to utilitarian principles.
The constitutional structure of Bentham's state followed the premises of the Lockean
model of constitutive and ordinary powers. Nevertheless, the emergence of modem man
who pursued the maximisation of happiness marked the beginning of a new age. The
constitutional principle of sovereignty within law was lost in Bentham's theory. Man
was no longer satisfied with the protection of natural rights only. He pursued maximum
happiness under constitutional premises. With the advent of the Industrial Revolution
classical constitutionalism was being modified.

International Sovereignty in the Classical Age
We shall now examine the notions of sovereignty in the discourses on international
relations. It should be emphasised, however, that the sense of the 'international' wasvery weak in the pre-modem age, because the notion of sovereignty was still
intrinsically associated with sovereign kings.
Interesting evidence is shown by the discourses on 'the sovereignty of the British
seas'. Fishery was one of the main concerns for the British and there appeared several
books that defended the British sovereignty over seas. But they did not discuss thesovereignty of 'Great Britain'. Their presupposition was that 'Princes may have an
exclusive property in the Soveraigntie of the severall parts of the Sea'.37 This premise
did not change after the Glorious Revolution. Sovereignty is 'the publick property of theKing', which is exercised over the British seas by the Kings of England. 'In a Successionof Ages' they confirmed their sovereignty over British seas in their treaties with other36 Ibid., p. 45.
37 John Boroughs, The Soveraignty o f the British Seas, written in 1633, p. 1.

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sovereigns.38 In 1699 another writer repudiates the view that it is not a proper time toinsist upon the sovereignty of the British seas, for the British king was bom in Hollandand succeeded to the crown by the intervention of Holland in 1688. But he strongly
argues that this does not alter the fact that 'the Sovereignty of the Seas being the mostPrecious Jewel of his Imperial Crown' was given by God.39
Sovereignty was still the possession of the king in post-1688 England. It should beemphasised that the notion of the sovereignty of the nation-state had not fully come into
existence. The 'law of nations' was synonymous with law of nature. When it was
discussed, the sovereign king as a human being had to face his subjects and God prior
to other sovereigns. Therefore, the law of nations could be referred to in order to judge
whether an expelled sovereign retained a right to sovereignty or the people had a rightto defend their liberties.40 Far from ignoring domestic revolution, the law of nations
functioned to justify the post-1688 political order. A familiar 'domestic analogy' before
the modem age was not a comparison between a nation and a man, but that of acommonwealth and a family, i.e. the sovereign and the father. The law of nations
determines what kind of right a man as a sovereign-father or as a subject-child has.
Sovereignty was a concept to mark the relationship between the ruler and the ruled.
When William Penn wrote a plan of an European parliament in 1693-94 under thepremises of the Classical age, adding numerous contemporary plans for peace, he solved
the problem of sovereignty in an odd way from the modem viewpoint. He meets animagined objection to his plan that sovereign princes and states will not be sovereign if
a European parliament is established. Penn replies that:they remain as Soveraign at Home as ever they were. Neither their power over theirpeople, nor the usual Revenue they pay them, is diminished: . . . So that theSoveraignties are as they were, for none of them have now any Soveraignty over one
another.41

38 See Sir Philip Medows, Observations concerning the Dominion and Sovereignty o f the Seas (1689), pp. 5,
34.
39 Joseph Gander, A Vindication o f a National-Fishery, (1699), pp. 49-55, 95. See also Gander, The Glory o f
Her Sacred Majesty Queen Anne, in the Royal Navy, and Her Absolute Sovereignty as Empress o f the Sea,
asserted and vindicated (1703).
40 See Mathew Tindal, An Essay concerning the Laws o f Nations and the Rights o f Sovereigns (1694).
41 Penn, An Essay towards the Present and Future Peace o f Europe (1693-94), p. 12.

52

A modem writer would justify international institutions in the name of the will of thesovereign states to participate. But the issue for Penn and his assumed adversaries is not
the existence of sovereign will. It is whether or not a European parliament will change
the status of sovereigns as the superior mlers.
Furthermore, Penn writes that:by the same Rules, o f Justice and Prudence, by which Parents and Masters Govern
their Families, and Magistrates their Cities, and Estates their Republics, and Princes
and Kings their Principalities and Kingdoms, Europe may obtain and Preserve Peaceamong Her Soverainties42
What does it mean that parents and'Europe' are as sovereign as kings? Each has asimilar superior status in its own sphere. Orders of families, kingdoms, and possibly'Europe' are almost the same, for they all have the relationship between superior andinferior. But what are the relationships between a family and a kingdom, and between
kingdoms? At least in theory, this may not be a problem, for fathers, magistrates,
princes, kings and any other human superiors obey the laws of God and nature. Even
if God was becoming absent in the Classical age, the sense of his province had notdisappeared and remained in the form of higher laws. The superiors do not obey anyothers in their own spheres, but are always subject to the laws of God and nature,possibly together with the laws of reason and constitutions.
Penn stresses the importance of the constitution of the Netherlands, 'the Wisest andPowerfullest States'. Referring to Sir William Temple's popular book, Observations
upon the United Provinces o f the Netherlands published in 1673, Penn shows that:

there we shall find Three Degrees o f Soveraingties to make up every Soverainty in the
General States. I will reckon them backwards: First, The States General themselves;then the Immediate Soveraingties that Constitute them, which are those of theProvinces, answerable to the Soveraingties o f Europe, that by their Deputies are tocompose the European Dyet, Parliament or Estates in our Proposal: And then there
are the several Cities of each Province, that are so many Independent or Distinct
Soveraingties, which compose those of the Provinces, as those of the Provinces do

42 Ibid., p. 18.

53

compose the States General at the Hague,43

Temple and Penn's notion of sovereignty exists within constitutional orders ofpolitical societies. The principle of state sovereignty in the Classical age simply meansthat a state is a political community that has a political relationship between thesovereign and subjects. Paradoxically this could lead to the setting up of several
constitutional orders that would not violate the relationship of the sovereign and subjects
in existing political communities, but only broaden the range of autonomous politicalcommunities. A European parliament was not necessarily 'transnational' as modem men
imagine, for all nations in the Classical age were supposed to belong to one communitythat should be regulated by the laws of God, nature and nations. The association of theidea of sovereignty with human relationships was not a serious obstacle to universalism,
as it was open to higher laws, if not to any human superiors.
It is surprising that so common a word as 'international' was only coined by a thinker
as late as the end of the eighteenth century. In 1780 Bentham explained that 'the wordinternational. . . is a new one.' It is calculated to express 'the branch of law which goescommonly under the name of the law o f nations: an appellation so uncharacteristic, that,were it not for the force of custom, it would seem rather to refer to internal
jurisprudence.'44 In connection with the laws of God and nature, 'the law of nations' wassurely meant to refer to some kind of 'internal jurisprudence'. It was not exclusively, as
Bentham meant by 'international' law, concerned with 'the mutual transactions between
sovereigns'.45 His coinage spread throughout the world and in the end completely
expelled the 'uncharacteristic' appellation by internationalising the law of nations in themodem age. The idea of state sovereignty in international relations was bom only after
the modem age began.

43 Ibid, p. 19. See also Temple's original description o f the 'three degrees of soverainties' in Observations
upon the United Provinces o f the Netherlands (1673), pp. 52-74.
44 Bentham, An Introduction to the Principles o f Morals and Legislation (1780), p. 296.
45 Ibid. It can be added that Bentham still only deals with sovereigns and subjects under the title ofinternational law, and did not mention 'the sovereign state1. See Bentham, 'Principles o f International Law'
(1843), pp. 537-560.

54

Discourses of Constitutional Sovereignty in America
We shall now turn to notions of sovereignty in the United States in its founding
periods. In a period characterised as the interim between the Classical and the Modem
ages, we can find constitutional notions of sovereignty under premature modem
conditions. Although little attention has been paid to traditional American theories ofsovereignty, probably due to their anomalous character for modem knowledge, theycertainly constitute the most important examples of the constitutional theory ofsovereignty.46 The mainstream of American political thought was without doubt under
the influence of traditional English constitutionalism. The issue of sovereignty before
1776 was whether the sovereignty of the British crown should be 'limited' under the'constitutional' premises or not.47 But American constitutionalism produced a new
notion of constitutional sovereignty. While the British counterpart had no inter-state
constitutionalism but only an inter-national constitution within the Empire, American
constitutionalism brought inter-state relationships into the sphere of constitutionalism.

The American Revolution'A Declaration of Independence by the Representatives of the United States ofAmerica in Congress assembled' of 1776 is quite often described as an expression of theprinciples of popular sovereignty and national self-determination. But political thoughts
in the text are not so simple as such labels. The wording of the Declaration clearly
indicates that it was drafted under the influence of the Lockean ideas of classicalconstitutionalism. The Declaration was founded upon the premises of individual rights
endowed by God and ordained by natural law, the consent of the governed and the rightto resistance of the people. All these are the main principles in the tradition of English
constitutionalism. Furthermore, there was little element of modem national sovereignty.
46 Daniel H. Deudney illuminates the originality of'the Philadelphian System1in contrast to 'the Westphaliansystem' as well as a simple federal state. See Deudney, 'The Philadelphian System' (1995).
47 For instance, a Pennsylvanian wrote: 'That states without freedom should by principle grow out o f a freestate, is as impossible, as that sparrows should be produced from the eggs of an eagle. The sovereignty over thecolonies must be limited.' The Pennsylvanian Farmer, A New Essay on the Constitutional Power o f GreatBritain over the Colonies in America (1774), p. 96.

55

In the first place, instead of the American nation, there were only the representatives of'F r e e and I n d e p e n d e n t S t a t e s ' assembled in Congress.

They did not protest the stateof Great Britain, but George III, and complained of the ignorance of 'our British
brethren'.48 In addition, the Declaration lacks man in the modem age. 'Men' in the
Declaration were created equal, but are still called 'the governed'. The Declaration
stipulates what 'men' are entitled to do, but never mentions what they do.
This does not deny the fact that the American Revolution was a revolution for
emancipatory expressionism. It is true that the War of Independence was waged for theideals that can be described as popular sovereignty and national self-determination.
Some of the constitutions of the thirteen states of North America expressed the ideal of
popular government. For instance, the 'Constitution or Frame of Government' of
Massachusetts of 1780 clearly stipulates in Article IV that 'The people of thiscommonwealth have the sole and exclusive right of governing themselves as a free,sovereign, and independent state'49 From our genealogical perspective, therefore, it ispossible to identify the coexistence of classical constitutionalism and more populist
ideologies in the American Revolution. We shall thus trace the conflict between two
forces, mainstream constitutionalism and particularistic populism, in revolutionary
America.50
The Articles of Confederation, agreed on by the thirteen States in 1777, declares that
‘Each state retains its sovereignty, freedom, and independence, and every power,
jurisdiction and right which is not by this confederation expresly [sic] delegated to theunited states in congress assembled.’51 This principle of State-sovereignty shows that
the Confederacy was not a federal state, but merely 'a firm league of friendship'. People

48 The Constitution o f the Several Independent States o f America; The Declaration o f Independence; The
Articles o f Confederation between the said States; The Treaties between his most Christian Majesty and theUnited States o f America (1781), p. 187, 190-191.
49 Ibid., p. 9.
50 Although I have pointed out 'Classical' premises in the Declaration o f Independence, it is still true that
Thomas Jefferson, the drafter o f the Declaration, was more populistic than 'federalists' like James Madison. For
instance, Jefferson had the view that the federal constitution belonged only to the living generation, to which
Madison was opposed. See Merrill D. Peterson, 'Mr. Jefferson's "Sovereignty o f the Living Generation'" (1976).
See also Christian G. Fritz, 'Popular Sovereignty, Vigilantism, and the Constitutional Right o f Revolution'(1994), in which Fritz focuses on the issue of'vigilantism' in nineteenth century America and illustrates theconflict between the views of 'the rule of law' and 'the rule of men'.
51 Ibid., p. 193. Separate sovereignty of each State was never questioned before the establishment o f the US
Constitution. See C. Perry Patterson, 'State Sovereignty v. National Sovereignty prior to 1789' (1949).

56

are sovereign in each state. The Articles symbolises American history between 1777
and 1787, which was dominated by revolutionary populism.
The Confederacy had only one central congress which had neither executive nor
judiciary branches. The Continental Congress was virtually impotent. In each Statedominant legislatures expressed egalitarianism that prevailed with the ideal of therealisation of true Christian communities. As many people were in debt after the War
of Independence, the members of State legislatures many a time passed legal measures
to relieve the poor, which threatened economic interest.52 It was these events that madeJames Madison and other 'Federalists' feel that 'the objects of the Union could not be
secured by any system founded on the principle of a confederation of sovereign states.'53
The Constitutional Convention of 1787 was a counterattack upon such populism. The
drafted Constitution was a challenge to State sovereignty. Sovereign power was divided
between the Union and the States, between several branches, and the source and theexercisers.

The American Constitution was a historical achievement of theconstitutional theory of sovereignty.

American Constitutional Sovereignty

It is worth looking into 'the great national discussion' between the 'Federalists' andthe 'Anti-Federalists' in order to grasp the logic of their ideological confrontations.
James Madison and Alexander Hamilton in The Federalist Paper published under thepseudonym of'Publius' contrived a revolutionary notion of sovereignty for the purposeof the ratification of the proposed Constitution regardless of the real authors's personalviews.54
Madison writes that each State 'is considered as a sovereign body independent of allothers, and only to be bound by its own voluntary act.' However, this does not mean that

52 See Issac Kramnick 'Editor's Introduction' in James Madison, Alexander Hamilton and John Jay, The
Federalist Papers (1987), pp. 16-28.
53 Quoted in Schwartz, A Commentary on the Constitution o f the United States (1963), p. 33.
54 While Madison has a vision of the Lockean limited liberal state to protect individual rights, Hamilton's
personal view envisages a heroic state which can exert its power in international fields. He reveals it when hedeplores the weakness o f the Confederacy and says that 'Our ambassadors abroad are the mere pageants o f mimic
sovereignty'. Madison, Hamilton and Jay, op. cit., p. 146.

57

the Constitution entails 'impossibilities' which the Articles of Confederation endeavoredto accomplish, namely, 'to reconcile a partial sovereignty in the Union, with complete
sovereignty in the States'. The Constitution is neither national nor federal, but acomposition of both, so it produces 'a compound republic'. While it pursues a strong
central government, it leaves to the several States 'the enjoyment of their sovereign andindependent jurisdiction', or more accurately, 'a residuary and inviolable sovereignty'.
For instance, the equality of representation of each State in the Senate 'is a constitutionalrecognition of the portion of sovereignty remaining in the individual States and an
instrument for preserving that residuary sovereignty'.55 Hamilton also writes that 'as theplan of the convention aims only at a partial union or consolidation, the State
governments would clearly retain all the rights of sovereignty which they previously
had, and which were not, by that act, exclusively delegated to the United States.' The
limited delegation of sovereignty means 'the division of the sovereign power'.56
Madison explicates that 'as far as the sovereignty of the States cannot be reconciled
to the happiness of the people, the voice of every good citizen must be, Let the former
be sacrificed to the latter.'57 When 'the happiness of the people' demands 'the generalsovereign' as well as 'the local sovereigns', the division of the sovereign power is thebest solution. This is a result of the middle ground or golden mean principle ofconstitutionalism.

Madison explains in 1787: 'Conceiving that an individual

independence of the States is utterly irreconcileable [s/c] with their aggregate
sovereignty, and that a consolidation of the whole into a single republic would be as
inexpedient as it is unattainable, I have sought for middlegroud, which may at once
support a due supremacy of the national authority, and not exclude the local authorities
wherever they can be subordinately useful.' He also writes in a letter: 'It is . . . difficult
to argue intelligibly concerning the compound system of government in the UnitedStates . . . without admitting the divisibility of sovereignty.'58
He does not mean that multiple sovereignty is theoretically inconsistent. As 'theultimate authority, wherever the derivative may be found, resides in the people alone,'
55 Ibid., pp. 257-9,262, 277, 365.
56 Ibid., pp. 220, 222.
57 Ibid., pp. 293-4.
58 Quoted in Martin B Hickman, 'Double Majesty: Madison's Middle Ground' (1983), pp. 361, 375.

58

it is by no means strange that there are 'different agents and trustees of the people.69 The
people are sovereign; the people in each State and their agents are sovereign; the people
in the United States and their agents are also sovereign. In addition to the source andthe exerciser of sovereignty in the Lockean model, the Federalists put intermediary
sovereignty between them. Sovereignty in the fundamental sense lies in the hands of thepeople. The United States government obtains the highest (but not always strongest)
representation of sovereignty, while each State keeps intermediary sovereignty.
This logic of multiple sovereignty is justified along the line of classicalconstitutionalism. In the Constitutional Convention of 1787 James Wilson from
Pennsylvania argued:

We have been told that each State being sovereign, all are equal. So each man isnaturally a sovereign over himself, and all men are therefore naturally equal. Can heretain this equality when he becomes a member of Civil Government? He can not.
As little can Sovereign State, when it becomes a member of a federal Govem[ment].
If N. J. will not part with her Sovereignty it is vain to talk of Govem[ment].60
George Washington as the president of the Constitutional Convention also writes:

It is obviously impracticable in the foederal [szc] government of these States; to secure
all rights of independent sovereignty to each, and yet provide for the interest and safetyof all - Individuals entering into society, must give up a share of liberty to preserve therest.61
But do all these mean that when becoming a member of civil government, each man
forfeits his liberty? The Declaration of Independence denies this. What each man does
is to accept constitutional rules of civil government. Similarly, they imply that eachstate must give up 'a share' of sovereignty by accepting constitutional rules to 'preserve
the rest'.
Of course, such an attitude is certainly ambiguous. It always remains open to

59 Madison, Hamilton and Jay, op. cit., p. 297.
60 James Madison, Notes o f Debates in the Federal Convention o f 1787 (1987), pp. 97-98. See Elliot (ed.),The Debates in the Several State Conventions on the Adoption o f the Federal Constitution, vol. 1, (1901) pp.
402-4.
61 'Letter from the Constitutional Convention to the President o f Congress' in Bernard Bailyn (ed.), The
Debate on the Constitution, Part One (1993), p. 965.

59

opposite interpretations.62 No matter how ambiguous it might be, however, the point isthat the order of sovereignty is determined by the US Constitution. It reigns oversovereignty.

The Anti-Federalists

The anti-federalists could not accept the Federalists' innovative notion of sovereignty.
In the debate on the Constitution, an anti-federalist says that 'the idea of two
sovereignties existing within the same community is a perfect solecism

if the wordmeans any thing at all it must mean that supreme power, which must reside somewhere
instate; or in other terms, it is the united powers of each individual member of the statecollected and consolidated into one body. The collection, this union, this supremacy of
power can, therefore, exist only in one body.' He concludes: 'If this constitution should
be adopted, here the sovereignty of America is ascertained and fixed in the federal bodyat the same time that it abolishes the present independent sovereignty of each state.'63'An Officer' in Philadelphia complains that the'sovereignty of the states is not expressly
reserved; the form only, and not the s u b s t a n c e of their government, is guaranteed tothem by express words.'64

62 For instance, Luther Martin from Maryland argued in the Constitutional Convention that 'the States may
give up this right of sovereignty, yet they had not, and ought not: that the States like individuals were in a Stateo f nature equally sovereign & free.. . . the States being equal cannot treat or confederate so as to give up an
equality of votes without giving up their liberty'. On the contrary, Hugh Williamson insisted that 'if any political
truth could be grounded on mathematical demonstration, it was that if the States were equally sovereign now, andparted with equal proportions of sovereignty, that they would remain equally sovereign. Madison, op. cit., pp.
202, 204. Rufus King from Massachusetts pointed out that the States were not sovereign lacking its peculiarfeature, by saying that 'the import of the terms "States" "Sovereignty" "national" "federal," had been often used &applied in the discussions inaccurately & delusively.' He also spoke of'the phantom o f State sovereignty' incontrast to 'substantial good' of individual rights. King conceived that 'None of the states are now sovereign or
independent.. . . The magistracy in Congress possesses the sovereignty.' Ibid., p. 152, 228; Elliot, op. cit., p.
426. Elbridge Gerry from Massachusetts charged that the 'States & the advocates for them were intoxicated with
the idea of their sovereignty* Ibid., p.217: The Supreme Court in the case o f Cohens v. The State o f Virginia in
1821 confirmed that 'the sovereignty of the States is surrendered in many instances where the surrender can only
operate to the benefit of the people'. Quoted in Allen Johnson (ed.), Readings in American Constitutional
History 1776-1876 (1912), p. 288.
63 The Impartial Examiner, 'To the Free People in Virginia' published in Virginia Independent Chronicle, 20
February, 1788', quoted in Harbert J. Strong (ed.) The Complete Anti-Federalist (1981), 5-14-4, p. 178. The
same apprehension, 'a solecism of politics', was expressed by other Anti-Federalists. See 'letters o f Centinel' and'The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents' inibid., 2-7-99, p. 169, 3-11-23, p. 155, and 'Samuel Adams to Richard Henry Lee, Boston, December 3, 1787' inBailyn, op. cit., p. 446. Agrippa warned 'all the horrors o f divided sovereignty, not knowing whether to obey theCongress or the state'. Strong, op. cit., 'Letters of Agrippa', 4-6-21, p. 79.
64 An Officer of the late Continental Army, 'To the Citizens of Philadelphia' in ibid., 3-8-3, p.93.

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The anti-federalists fear that the Constitution lacks the essential attributes ofsovereignty of the States; eventually, the general government will dominate the States
governments under the pretence of two sovereignties. 'A Farmer' in Pennsylvania
insists: 'All the prerogatives, all the essential characteristics of sovereignty, both of theinternal and external kind, are vested in the general government, and consequently theseveral states would not be possessed of any essential power, or effective guard ofsovereignty. . . . the state sovereignties would be eventually annihilated, though theforms may long remain as expensive and burdensome remembrances'. An 'AntiFederalist' thus criticises that the new system constitutes not 'a federal but a consolidated
government.'65
Patrick Henry asks, 'what right had they to say, We, the People? My politicalcuriosity, exclusive of my anxious solicitude for the public welfare, leads me to ask,
who authorised them to speak the language of We, the People, instead of We, theStates?'66 Being suspicious of the disguising complexity of the Constitution, an AntiFederalist asks, 'all these attributes of sovereignty, being vested exclusively in your new
government, is it not a mockery of common sense to tell us, the state sovereignties are
not annihilated?'67
In fact, the understanding of sovereignty in America at this time was not unequivocal.
Ambiguity was enlarged in the process of the ratification. Although it was only South
Carolina which mentioned sovereignty of the State among the first eleven ratifying
States, the demand from some of the other states led to the first Congress adding several
clauses to the Constitution.68 Rhode Island, which did not send delegates to theConstitutional Convention, eventually ratified the Constitution in 1790. Then it
ordained that it would pursue several more amendments, the first of which should
pronounce that 'The United States shall guaranty to each state its sovereignty, freedom,

65 A Farmer, 'The Fallacies of the Freeman' published in (Philadelphia) Freeman's Journal, 16 April and 23
April 1788, in ibid., vol.3. 14. 19. and 20., p. 190.
66 Patrick Henry, 'Speech in the Virginia Ratifying Convention', 4 June 1788, in ibid., vol. 5. 16. 1., p. 211.
See the similar objection in Elliot (ed), op. cit., vol. IV, pp. 15-16, 23-24.
67 'Essays by Cincinnatus' in Strong, op. cit., 6-1-40, p. 26.
68 The tenth amendment stipulates: 'The powers not delegated to the United State by the Constitution, nor
prohibited by it to the states, are reserved to the states, respectively, or to the people.' See Elliot, op. cit., p. 31939.

61

and independence'.69
The notion of divided sovereignty was a product of compromise. The fact is that in
the Convention, Madison asserted that the 'states never possessed the essential rights ofsovereignty. These were always vested in Congress.'70 Hamilton was among thepersons who were most disappointed with the result of the Convention. He argued in
the Convention: 'no amendment of the Confederation can answer the purpose of a good
government, so long as the state sovereignties do, in any shape, exist;. . . To avoid theevils deducible from these observations, we must establish a general and national
government, completely sovereign, and annihilate the state distinctions and state
operations'. He also asserted: 'Two Sovereignties can not co-exist within the same
limits.'71 Nevertheless, having parted with Hamilton, Madison drew the Virginia
Resolution of 1798 to accuse the federal government of consolidating the States 'into
one sovereignty' and transforming 'the present republican system of the United States
into an absolute, or, at best, a mixed monarchy.'72
It is true that the Federalists won the 'great national discussion' and the Constitution
became 'the supreme Law of the Land'. But this does not mean that Madison's
mainstream position completely suppressed challenges from the populist side. Instead,the issue of sovereignty in the United States continued to remain in a state of turmoil
between the offsprings of the two positions.

The Advancement o f Constitutional Sovereignty

As John Quincy Adams declared in an 1831 oration, it is not true America 'that there
must reside in all governments an absolute, uncontrolable, irresistable, and despotic
power; nor is such power in any manner essential to sovereignty.173 The orthodox
understanding of sovereignty in America after the ratification of the US Constitution

69 Ibid., p. 336.
70 'Yates's Minutes' in Elliot, op. cit., vol. 1, p. 461. Madison also says: 'There is a gradation of power in allsocieties, from the lowest corporation to the highest sovereign.' See also Madison, op. cit., p. 213.
71 'Yates's Minutes' in Elliot, op. cit., pp. 417, 419. See also Madison, op. cit., pp. 129, 132, 133.
72 Elliot, op. cit., vol. IV, p. 528.
73 Quoted in Joseph Story, Commentaries on the Constitution o f the United States (1833), p. 152.

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was manifested by the Supreme Court in the case of Chisholm v. Georgia (1792). It
pronounced: 'The United States are sovereign as to all the powers of government
actually surrendered. Each state in the Union is sovereign as to all the powers
reserved.'74 In other words, 'the sovereignty of the nation is in the people of the nation,and the residuary sovereignty of each State in the people of each State.*75 This is aninnovative theory. But what else can explain the US Constitution? This theory of
divided or coexisting sovereignty remained the orthodox position in the United States
until the time of the Civil War.76
Joseph Story, judge of the US Supreme Court, explains how sovereignty in the
United States is different from traditional sovereignty. He defines that by the word,
sovereignty, 'in its largest sense is meant supreme, absolute, uncontrollable power, thejus summi imperii, the absolute right to govern'.77 However, such a power does not exist
in the United States; or it exists in a limited or refined sense. He says:

the state, by which we mean the people composing the state, may divide its sovereign
powers among various functionaries, and each in the limited sense would be sovereign
in respect to the powers confided to each, and dependent in all other cases. Strictly
speaking, in our republican forms of government the absolute sovereignty of the nation
is in the people of the nation; and the residuary sovereignty of each State, not granted
to any of its public functionaries, is in the people of the State.78
This divided popular sovereignty is the model of constitutional sovereignty of theUnited States.

Sovereignty and the sovereign people should be divided, as theConstitution orders it. And the theory of divided sovereignty is an acknowledgement

74 Quoted in J. Mark Jacobson, The Development o f American Political Thought (1932), p. 410.
75 The Supreme Court in the case o f Chisholm, Executor, v. Georgia, 1793., quoted in Johnson, op. cit., p.
140. It also enumerated in the case of Ware v. Hylton (1796) that 'The Several States retained all internalsovereignty and . . . Congress properly possessed the great rights of external sovereignty.' Quoted in C. E.
Merriam, History o f the Theory o f Sovereignty since Rousseau (1900), p. 163. 'To the constitution o f the UnitedStates,' said Justice Wilson in a 1793 case, 'the term sovereign is totally unknown.' Quoted in Schwartz, A
Commentary on the Constitution o f the United States (1963), p. 31. The US Supreme Court once called theStates 'quasi sovereign'. Quoted in ibid., p. 32.
76 In a differently constitutional way, Senator Taylor of Virginia distinguishes between the sovereignty o f thepeople and o f the states. He addresses that 'two principles sustain our Constitution: one a majority o f the people,
the other a majority of the States; the first was necessary to preserve the liberty or sovereignty of the people; thelast, to preserve the liberty or sovereignty of the States.' 'Mr. Taylor of Virginia' in debate in the Senate,
December 2, 1803, quoted in Johnson, op. cit., p. 221.
77 Story, op. cit., p. 149.
™Ibid., pp. 151-152.

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of the supremacy of the Constitution.
The relationship between the supremacy of the Constitution and popular sovereignty
is well clarified by Nathaniel Chipman in his book published in the same year as Story's
masterpiece. He begins by admitting that 'By sovereignty is commonly understoodsupremacy, supreme power, unlimited and uncontrolled.' However, he continues:

When applied to states and nations, in relation to each other, it means nothing morethan independence. A sovereign state, in a political sense, is a state or nation in thefree and uncontrolled possession of self government. . . . In this application of theterm there is no idea of supremacy, but simply that of national independence.79
He clearly distinguishes between external and internal sovereignty and has noproblem in finding external sovereignty in the United States. Sovereignty is present, nomatter how ambiguous it is. The sovereign people of the United States retains 'the free
and uncontrolled possession of self government'. It is this constitutional structure of thebody-politic which is the crucial mark of external sovereignty.80
Then Chipman focuses on the facet of internal sovereignty of the United States. He
reveals that:

Neither have the people, the original source of all power, retained to themselves thesovereignty, absolute and unlimited. It is retained under certain modifications andrestrictions, agreeable to the constitution which they have submitted to observe. In
this constitution there is no where lodged uncontrollable, arbitrary, and despotic,
which it is declared, must, in all governments, reside somewhere, and is alike in all
countries. If such be the necessary definition, our constitution has no provision ofinternal sovereignty'.81
Chipman also explicates the division of sovereignty delegated to the general
government by the Constitution and retained by the several States82 It implies all theexercisers of sovereignty are limited, or there is no internal sovereignty in the strict

79Nathaniel Chipman, Principles o f Government (1833), p. 137.
80 Edward D. Mansfield finds the remark of sovereignty in self government. He says that 'for a state, or
nation, to be sovereign, it must govern itself, without any dependence upon another power.' Then he supports
the doctrine of divided sovereignty. Mansfield, The Political Grammar o f the United States (1834), p. 13.
81 Chipman, op. cit., p. 144.
82 See ibid., p. 273.

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sense. Moreover, Chipman was clear to say that the source of all power, sovereign
people, are also under the restriction of the Constitution.
In 1848 Frederick Grimke stresses that 'there is no power on earth, the people no
more than the prince, which can be conceived to be absolved from the eternal principles
of justice.'83 In so saying, he proves the qualitative peculiarity of American sovereignty;
it is different from any other kind of sovereignty, not because the people are sovereign,
but because the sovereign people are under the restriction of justice. As the people of
the United States rejected the idea that the sovereign can do no wrong, they could
prevent the will of a mere fraction from substituting in the place of the will of thepeople, and gain the strongest national power. He insists 'that where the greatest amountof power resides in the nation, it will necessarily be attended with a self-limiting
tendency; that the incapacity, or rather the want of inclination, to exert itself willcontinue no longer than is proper.'84
Grimke thus proclaims:

The formation of written constitution by the people themselves is an incontestible
proof that they believe there is such a rule; that it is superior to the mere commandsof men; and that it has authority to govern in all public affairs as well as in the private
relations of society. Constitutions which are originally designed to be a restraint upon
the government operate necessarily in a popular commonwealth as a restraint upon thepeople also.85
Grimke summarises his argument by saying that:

the American people have been scrupulously jealous of their own power, that they
have endeavored to guard against the idea that might gives right, and have thus given
to the term 'sovereignty of the people' an interpretation which it has received in noother commonwealth, either of ancient or modem times.86
However, the formal aspect of American sovereignty, which developed into thetheory of divided sovereignty, did not dissipate the populist aspect. An observer from83 Frederick Grimke, The Nature and Tendency o f Free Institutions (1848), p. 241.
84 Ibid., p. 246.
85 Ibid., pp. 247-248.
"Ibid., p. 251.

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'the old world', Alexis de Tocqueville, argued that the American people had never lostits populist orientation. It is true that he admits the division of sovereignty between theUnion and the States. He explains that sovereignty 'defined as the right to make laws'
in the United States is 'divided between the union and the states',87 although thefundamental sovereign is the people. The American system 'brings two sovereignties
face to face.'88 But Tocqueville also says that the great political principles in America
were bom and grew up in the States. The Union, which rests on legal fictions, is an
ideal nation and exists only in men's minds. The sovereignty of the Union is 'an
innovation' and 'a work of art'. By contrast, that of the States 'was bom with the people
themselves' and 'is natural'.89
It is no wonder that Tocqueville, observer of the achievements and dangers of
democracy in America, finds popular sovereignty in the States, but not in the Union. He
adds in the final note in the chapter entitled 'What Tempers the Tyranny of the Majority
in the United States' that 'there is no need to remind the reader that here, and throughout
this chapter, I am speaking not of the federal government but of the governments of eachstate, where a despotic majority is in control.190 Tocqueville goes as far as to say that 'thesovereignty of the people in the township is not ancient only, but primordial.'91
Tocqueville finds the modem national theory of sovereignty only in the States.
Sovereignty of the Union is a product of the Constitution. It is an innovative art, but notnatural.
Here is a clear example of the conflict between the national and constitutional
theories of sovereignty. When Americans mentioned 'the sovereignty of the State', what
they meant by 'the State' was an abstract concept of political community composed of
the whole people within an area. And this national principle was pertinent to the Statesrather than to the Union as a whole even in the first half of the nineteenth century. But
in America a written constitution presided over all the political powers including thesovereign people. It was also intended to defend 'the Law of Nations' and declared

87 Alexis de Tocqueville, Democracy in America (1835), p. 123.
88 Ibid., p. 164.
89 See ibid., pp. 61, 143,164, 166, 167.
90 Ibid., p. 260.
91 Ibid., p. 70.

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treaties to be 'the supreme law of the Land'.92 These two pillars of the United States popular sovereignty and the Constitution - represent the national and constitutional
principles. In the United States the constitutional tradition obtained its new theory ofsovereignty, while the national theory of sovereignty appeared in the modem popularstate.

We have identified the constitutional tradition that constituted the very foundationsof British and American political thoughts in the Classical age. The recognition of thistradition is important for three reasons. First, the existence of the tradition suggests thatthe national theory of sovereignty fully developed in the modem age in conflict withconstitutional notions of sovereignty. In order to examine this, we shall next trace
Continental theories of national sovereignty and the growth of nationalistic
understandings of sovereignty in the Anglo-American world. Second, the identificationof the constitutional tradition as the theoretical backbone of Anglo-American politicalthoughts helps us to grasp the theoretical characteristics of Anglo-American discourses
on not only domestic but also international society. Third, writing a history of theconstitutional tradition shows us the historical trajectories of power relationships ininternational relations. We shall see that the rise and fall of the constitutional traditionreflect the degree of the power of Anglo-American values in international relations.

92 See the US Constitution, Article I Section 8, Article VI.

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Chapter2

National

TheoriesofSovereignty on the Continent
In contrast to the Anglo-American constitutional tradition which was founded upon
individualistic political values, theories of sovereignty which developed on the European
continent after the French Revolution were based upon nationalistic premises. Although
this thesis is primarily concerned with Anglo-American notions of sovereignty, it is
helpful or rather indispensable to look at Continental theories of sovereignty incomparison with the former. It is no exaggeration to say that the impact of the French
Revolution and the development of state theories in Germany overwhelmed AngloAmerican theorists in the period from 1789 to 1914. However, the limited space of thischapter does not allow a comprehensive investigation into Continental theories. Instead
it will focus on some major political theorists, exploring their ideas and their politicalbackgrounds. The first section deals with the impact of the French Revolution upon thetheory of sovereignty. I shall discuss Maistre's reactionary theory of sovereignty in order
to illustrate the nature of theoretical problems in the post-Revolution era. The second
section highlights the epoch-making theory of Hegel around the time of the Vienna
Congress. It also examines Bluntschli as the most prominent German theorist in the
middle of the nineteenth century. It next covers the period after the establishment of theGerman Empire. The theory of Treitschke is focussed on as an exemplar of the age ofimperialism. These theorists are selected because they are among the most influential
and widely known publicists in each time frame.

The Emergence o f National Sovereignty
In order to understand the development of the theory of sovereignty in the modem
age, it is imperative to grasp the significance of the French Revolution. It is noteworthy
that Rousseau's general will theory became the principle which legitimised the will of68

the National Assembly.1 In the process of the French Revolution the 'nation' became
sovereign. It is the purpose of this section to examine the impact of this historic
incident.

National Sovereignty and the French Revolution

The historical importance of the French Revolution to the theory of sovereignty is
located in Article III of the 'Declaration of the Rights of Man and the Citizen' of 1789,
which declares that 'the principle of all sovereignty resides essentially in the nation'.
This is the historic appearance of the sovereign 'nation' that never literally came into
existence in the English and American Revolutions. In addition to a provision of thesame principle, the Constitution of 1791 also stipulated: 'the sovereignty is one,
indivisible, inalienable and imprescriptible' (Tit. III. Art. 1). This is a denial of theunderstanding of sovereignty in classical constitutionalism embodied by Grotius, Locke,
Montesquieu and the American Federalists. The more radical Constitution of 1793
furthermore asserted: 'every individual who usurps the sovereignty may be at once put
to death by freemen' (Act 27, B. of R.). The principle of sovereignty had not been sosanctified before the French Revolution without the help of God. It was the moment
when sovereignty became a sacred symbol of modem man.
We shall not attempt to analyse the diverse and complex political creeds of theFrench revolutionaries.2 It is generally said that the Constitution of 1791 was abourgeois product, while that of 1793 was created by the Jacobins. This leads to the
distinction between national sovereignty in 1791 and popular sovereignty in 1793.
However, for the theory of the Rousseauean general will, the nation is a synonym of thepeople. For the purposes of our study, it can be argued that both the Constitutions of

1 See John McDonald, Rousseau and the French Revolution 1762-1791 (1965), p. 94.
2 A succinct classification of French thoughts around the time of the Revolution is found in Maurice Cranston,'The Sovereignty o f the Nation' (1988). J. K. Wright identifies two opposed camps regarding the French
Revolution: the liberal Lockean outlook of the Anglo-American political tradition and illiberal Gallic sources
including absolute sovereignty, Cartesian subjectivism and Rousseau's cult o f ancient liberty. Wright's own viewis that the Declaration o f Rights marked a pivotal moment in the evolution o f a specifically modem French
republicanism. He concludes that 'the politics o f "national sovereignty," the "general will," and the "separation of
powers" might better be seen in terms o f this transitional republicanism, than as either an abortive French
Lockeanism or a democratic mutant o f absolutism.' Wright, 'National Sovereignty and the General Will' (1994),
pp. 199, 233.

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1791 and of 1793 were different from classical constitutionalism. Constitutional rulesthat had been expected to bind even the sovereign(s) obtained a different meaning in the
French Revolution. Constitutions were now expressions of the will of the sovereign
nation.
The French Revolution made a great contribution to the history of constitutionalism.
It established many constitutional provisions that spread throughout the world. But theconstitutional theory of the French Revolution was different from the Anglo-Americancounterparts. The French Revolution was a revolution against the ancien regime, while
English revolutionaries resorted to 'the ancient constitution'. The French Constitutions
declared a principle of sacred national sovereignty, while the US Constitution lacked aprovision of sovereignty. These differences are decisive in the sense that the French
Revolution was more inclined in the direction of positive liberty, while the AngloAmerican in the direction of negative liberty. Of course, this is a relative difference that
becomes evident only when the two types are compared with each other. Still, it is notdifficult to discern the different characters of the Anglo-American revolutions and theFrench Revolution from our genealogical perspectives. It is the development of thelatter which we shall view in this chapter.

Maistre and the Reaction to the Revolution

In the midst of its chaotic aftermath, the majority of intellectuals were not
sympathetic to the Revolution. It is thus helpful to look at anti-revolutionary theories
in order to illustrate the theoretical problems in the era. Among those who examined theissue of sovereignty immediately after 1789, Joseph de Maistre stands as the championof reactionary thought. His critical discourses on popular sovereignty illustrate thetheoretical problems brought about by the Revolution.
Post-1789 divine theories of sovereignty originated from the Catholic wing of theschool that aimed to restore order by establishing the traditional authorities of king andthe Church.3 According to Maistre, 'sovereignty comes from God', although particularforms of government are decided by human consent. Sovereignty, which is 'always one,

3 See Merriam, op. cit., pp. 52-62; Harold J. Laski, Authority in the Modern State (1919). pp. 123-188.

70

unviolable and absolute', is an indispensable principle without which there would be nosociety. Society and sovereignty are 'bom together', and 'the word people (peuple) is arelative term that has no meaning divorced from the idea of sovereignty.' There is nopeople without a sovereign centre around which they aggregate. The idea of thesovereignty of the people is not only absurd, but also impossible. Maistre thus asserts:'I believe I can define democracy as an association o f men without sovereignty.'4
Maistre argues that the French people cannot be sovereign. The phrase 'large republic',
like 'square circle', is self-contradictory. He observes that a republic is the governmentthat gives the most rights to the very small number of men who are called the sovereign
and that takes away the most from all the others who are called subjects.5
While taking these reactionary views, Maistre's political theory is not simply
anachronistic. For instance, divinity which decides the relationship between the mler
and the ruled is nothing but a device to implement a national unity. He says that 'nations
are bom and die like individuals' and 'Nations have a general soul'. Thus religion andpolitics are merged into one to form 'a general or national mind (une raison universelle
ou nationalej and repress the aberrations of individual reason. Government is a true
religion. Faith and patriotism are the two great miracles of the world.6
In 1820 Maistre identifies spiritual supremacy with temporal sovereignty.
'Infallibility in the spiritual order of things and sovereignty in the temporal order, are twowords perfectly synonymous.' The Sovereign Pontiff and the temporal sovereigns are
infallible. This is not because they are omnipotent, but because men must be governed.
Maistre emphasises that the sovereign Pontiffs divine right is able to release the people
from any oath o f allegiance to temporal sovereigns. He asserts that in order to avoid
tyranny as well as anarchy, dispensation from this oath is the only means of restraining
temporal authority. Spiritual sovereignty is justified as the least dangerous mode ofrestraining temporal sovereignty. The temporal sovereigns are actually limited outside
their sphere; btit they are not limited in the legitimate sphere. This is the divine
constitution of Maistre's body-politic. Pontifical power 'is from its essential constitution,

4 Maistre, 'Study on Sovereignty', pp,94,114, 98-99,112,120; Etude sur la soveraineti (1794-1795), pp.
314, 425, 313, 323-324, 418, 465-466.
5 Maistre, Considerations on France, pp. 72, 147; Considerations sur la France (1797), pp. 68-69, 179-180.
6 'Study', p. 99,107-109; Etude, p. 325, 369-377.

71

the least subject to the caprice of politics.'7
It is striking that while Maistre emphasises the divine aspect of sovereignty, he is lessinterested in the realisation of an ideal Christian community. His political theory isconcerned with very modem problems: national unity and constitutional restraint. It ison the method to achieve these goals that Maistre broke away from revolutionary
popular sovereignty.8 But if so, what is the significance of his theory in the historicalcontext of the post-1789 period?

Sovereignty above the Sovereign

It is easy to write off the rise of divine theories as a short-lived reaction to the
Revolution. In the study of international relations, the Holy Alliance has been similarly
regarded as a minor incident in the post-1789 era.

But were they really justanachronistic reactions to the modem Revolution? Is there no historical implication in
the fact that the two constitutional countries we have examined, Britain in Europe andthe United States in the Western Hemisphere, stood in the way of the Holy Alliance byadhering to the principle of non-interference?
It is quite interesting to see that in early nineteenth century France there was also arise of discourses on the sovereignty of abstract values like reason, justice and right.
Sharing the same theoretical tendency with Benjamin Constant, who is regarded as an
advocate of negative liberty,9Victor Cousin argued in lectures delivered in 1819-1820
that sovereignty came from right {droit). And reason was 'the true and the only principle

7 Maistre, The Pope, pp. 1,4, 122,192, 127; Du pape (1820), pp. 1, 6,167, 260, 172-173.
* Catholic theories do not inevitably end up with reactionary conservatism in the modem age. Anotherprominent Catholic thinker, F61icit6 R. de Lamennais, started with a position to emphasise the role of'the divine
law' in the period before the July Revolution. But in a book published in 1838 he came to proclaim: 'from thesovereignty o f each individual arises, in society, the collective sovereignty o f all, or the S o v e r e i g n t y o f t h e
P e o p le , which is equally inalienable
you, the People, essentially free, are the sovereign'. Lamennais, The
Book o f the People, pp. 32-34; Le livre du peuple (1838), pp. 82, 85. See also John J. Oldfield, The Problem o f
Tolerance and Social Existence in the Writings o f Felicite Lamennais 1809-1831 (1973) pp. 127-130.
9 Constant says that 'it is easy for the authority to oppress the people as subject, in order to force it to express,
as sovereign, the will which the authority prescribes for it.' If sovereign really exists, it is the universality of thecitizens. But even then, 'Sovereignty has only a limited and relative existence.' Constant, 'Principles o f Politics
Applicable to All Representative Governments', p. 179, 177; 'Principes de politique applicables a tous lesgouvemements reprdsentatifs' (1815), pp. 12-13, 9.

72

of right and sovereignty'.10 Francis Guizot, conservative historian and home ministerat the time of the February Revolution of 1848, rejected both popular and divine
sovereignty; he resorted to the sovereignty of reason, of justice and of right.11 Neither
will nor arbitrary human reason, but 'eternal reason, the only true source of legitimate
power', is sovereign.12 Even after the February Revolution, Guizot insisted that
representative government was justifiable because it saw sovereignty in reason.13
Elsewhere he wrote that in 'theocratical system' kings were 'the personification ofsovereign justice, truth, and goodness.'14
How is it that these abstract discourses on sovereignty chronologically coincided withreactionary theories of sovereignty? Considerations of their political backgrounds may
provide an answer. The revolution killed the sovereign king. The prosecution of theking meant that' he was no longer absolute. The sovereign was dead in the

Revolution. But the Revolution also revealed that the new sovereign, the nation or
people, was incapable of reigning as the sovereign. Nevertheless, paradoxically, thevalue of sovereignty was loftily reaffirmed as a very revolutionary doctrine. The
sovereign king was dead and the sovereign people were incapable, but the notion ofsovereignty still remained supreme. Sovereignty stood above the sovereigns.
The theorists of divine sovereignty protested against the Revolution by saying that
there had to be a relationship between the sovereign and subjects, and that some kind oftranscendental authority was needed to justify the structure of political society. Maistre
said, 'Archimedes knew well that, to raise the world, you need a fulcrum outside theworld.'15 The 'fulcrum' could be reason, truth, justice, the right, whatever seemedsupreme and adequate to the notion of absolute sovereignty. What was theoreticallycrucial was to fill the vacant seat of the sovereign. If neither the king nor the people was
supposed to be absolute, God or abstract values had to take the place of sovereignty. It
10 Cousin, Cours d ’histoire de la philosophie morale au dix-huitieme siecle (1839), pp. 297-300. See also
Merriam, op. cit., pp. 75-77.
11 Guizot, Du gouvernement de la France depuis la Restauration et du ministere actuel, quatri6me edition(1821), p. 201.
12 Guizot, O f Democracy in Modern Societies (1838), p. 18.
13 Guizot, History o f the Origin o f Representative Government in Europe, p. 74; Histoire des origines dugouvernement representatif en Europe (1851) I, p. 112.
14 Guizot, 'The History o f Civilization in Europe' (1972), p. 234.
15 Maistre,'Study', p. 128; Etude, p. 525.

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is no wonder, therefore, that the treaty of the Holy Alliance of 1815 declared that 'One
family, namely, Austria, Prussia, and Russia, thus confessing that the Christian world,of which they and their people form a part, has in reality no other Sovereign than Him. . . , that is to say, God.'16 It can also be noted that in Britain and the United States there
was no need for the holy 'fulcrum', because the 'fulcrum' had already been set up in theConstitutions of these countries.
Before the nineteenth century, sovereignty did not acquire such a great level ofabstractness. Sovereignty was never disconnected from the actual sovereign persons.
In the era after the Revolution, however, the supremacy embodied in specific persons
could not be maintained. As a result, sovereignty as supremacy became highly abstract.
By contrast, in the latter half of the twentieth century, sovereignty is an international
principle, rather than a manifestation of substantial supremacy, as shown by the fact thatmost of the sovereign states are tiny and weak. But sovereignty in the nineteenth century
still meant absolute supremacy. But if neither the king nor the people were supposed tobe supreme, where could the 'fulcrum' be found? The possible answer other than God,reason and the demigod Constitutions in Britain and the US would be 'the state itself,
which obtained philosophical and scientific articulations in post-1789 Germany.17

16 'Treaty between Austria, Prussia, and Russia. Signed at Paris, 18th (26th) September, 1815.' in Ren6
Albrecht-Carrid, The Concert o f Europe (1968), p. 34.
17 This does not deny that the problem I shall identify in German theories was somehow shared in the AngloAmerican world too. The crucial issue in the post-Christendom West was the occupation by the state of thevacant seat o f the dead sovereign, i.e. the supreme seat of sovereignty above the sovereign, which was previously
reserved for God alone. In this context it is interesting to see changes in the discourses on the 'sovereignty o fGod' in English-speaking countries. Elisha Coles, Calvinist and the most famous exponent of'the sovereignty ofGod', declares in his masterpiece first published in 1673 and reprinted many time until 1948: 'Sovereign Powerbelongs to God. . . . Supreme power may reside in many (as in mixed monarchies and commonwealths); but as
law-makers and supreme, they are but one.' Coles, A Practical Discourse o f God's Sovereignty (1673), pp. 1, 2.
Until the nineteenth century 'God's sovereignty' was genuinely a topic o f religious controversy. But in themodem age it began to be politicised. For instance, a pastor in Ohio in 1820 explained that the special privilegeo f some nations, especially 'the island of Great Britain, and the United States o f America' was 'an act o f Divine
sovereignty'. Ephraim Woodruff, The sovereignty o f God (1820), p. 4. British sovereignty in India was also
justified or at least examined in the name o f the sovereignty of God. See W. K. Fletcher, The Queen in India:
The Change o f Times and Rules, exemplifying the Sovereignty o f Almighty God (1858); John Wilson, The British
Sovereignty in India, third edition (1837). In 1885 the warning was that democracy might be 'the hugest idolatry. . . the idolatry o f the will of man.' Reuen Thomas, Divine Sovereignty and other Sermons (1885), p. 17. A
Catholic Englishman protested irreligious governments in England and France and insisted that 'the kingdom o f
Christ, which is the Catholic Church,. . . is itself a Nation . . . with inalienable rights as a Sovereign politicalbody, superior to all those political corporations, that have the title o f "states".' A Catholic Englishman, SomeFirst Lines o f Catholic Politics, traced from the Human Sovereignty o f Christ on Earth (1881), p. 2. In 1918 a
minister-writer deplored that although the 'Sovereignty of God' is an expression that once was generally
understood, 'But, today, to make mention o f God's sovereignty is, in many quarters, to speak in an unknown
tongue.. . . The God of the twentieth century is a helpless, effeminate being who commands the respect o f noreally thoughtful man.' Authur W. Pink, The Sovereignty o f God (1918), p. 20.

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Sovereignty of the Nation-StateWe shall now turn to German philosophers and jurists, for it was in Germany that theleading and influential theories of sovereignty developed in the nineteenth century. The
difference of theoretical tendencies between France and Germany may be summarisedin two statements by two kings.

Louis XIV's famous words, 'L'Etat c'est moi',

symbolised the struggle for absolute sovereignty in France. By contrast, Frederick II
proclaimed that 'the king is the first servant of the state'.18 Mainstream German theorists
had no difficulty in accepting the premise of the sovereignty of the state. They wereagreed that the state itself was the absolute sovereign, while they regarded monarchy as
the highest expression of the absolute sovereignty of the state. Then they developed thetheory of the sovereignty of the nation-state.

Hegel and the Philosophy o f National Sovereignty

The 'Prussian' tendency in state theory was already evident in Kant. Kant was a
proponent of the general will theory, but he had no intention of overthrowing theexisting monarchy in Prussia. Kant distinguished between three persons who composed
the general united Will, among whom the legislator was called the sovereign authority.
But Kant admitted no right of the people to resistance. For him it was impossible to
make subjects sovereign over the sovereign. Instead, Kant explained that the sovereign
had two characters: physical person(s) and 'the pure idea' derived from the general will.
The sovereign is an abstract object of thought representing the whole people. These two
characters wa&reinforced by his recognition of the 'forms' and the 'spirit (Geist)' of the\Ajzyt*state and sovereignty.19 In consequence, Kant presented three themes of the modem
state: will, time, and the duality of form and spirit. The state wills and evolves in time,ls In Anti-Machiavel (1740), Frederick II writes: 'A Sovereign, he [Machiavelli] should have said, wasoriginally designed for the Good o f the people;. . . it appears that the Sovereign, far from being the absolute
Master of his people, is nothing more than their chief Servant?' (p. 3). However, o f course, this does not deny thefact that he was despotic.
19 Immanuel Kant, The Metaphysical Elements o f Justice, pp. 78, 86, 109, 112-113; Metaphysische
Anfangsgruende der Rechtslehre (1797), SS. 165, 176-177,208, 211-213.

75

for it has a spiritual essence behind its forms. The knowledge of the Classical age now
appeared to be a superficial metaphysics of formalistic order.20 The 'discovery' of this'spiritual' sovereignty behind 'formal' sovereignty distinguishes the German tradition
from the Anglo-American.
Individualistic rationalism that was still present in the French Revolution
dramatically declined during the Napoleonic War. Occupied and humiliated Germany
put an end to the era of Enlightenment and launched a counter-attack of romanticism.
G. W. F. Hegel, champion of the philosophy of the nation-state in the romantic period,
developed Kant's 'spiritual' sovereignty. Hegel attempts to construct a philosophy of theidentification of the sovereign king and the sovereign general will. Hegel acknowledges
that Rousseau's achievement is to put forward the will as the principle of the state, aprinciple which has thought not only as its form, but also as its content21 Although herejects Rousseau's social contract theory, Hegel adopts Rousseau's achievement of
national sovereignty. Hegel then criticises the formal understanding of the state andemphasises the rational content of the state. This follows from his description of anegative aspect of the principle of atomism in civil society. He is also convinced thatthe individual's actual freedom can be found only in the state. He defines the state as 'theactuality [wirklichkeit] of the ethical Idea' or 'the actuality of the substantial will, an
actuality which it possesses in the particular self-consciousness when this has beenraised to its universality [Allgemeinheit]; it is the rational in and for itself.' He adds that
this substantial unity [Einheit] is 'an absolute and unmoved end itself, in which 'freedom
enters into its highest right'. This ultimate end possesses 'the highest right in relation toindividuals, whose highest duty is to be members of the state.'22
This is a statement of a perfect self-autonomous state. It is actual, rational,
substantial, and absolute. The state, or the nation, as the highest subject possesses theabsolute and the highest right of sovereignty. According to Hegel, 'the particularfunction and powers of the state are not self-sufficient and fixed, either on their own
account or in the particular will of individuals, but are ultimately rooted in the unity of

20 See Foucault, op. cit., p. 242.
21 Hegel, Elements o f the Philosophy o f Right, p. 277; Grundlinien der Philosophie des Rechts (1821), S. 243.
22 Ibid., p. 275; SS. 241-242.

76

the state as their simple self - constitute the sovereignty of the state.’23 This is internalsovereignty as opposed to external. He explains that although feudal monarchy had
external sovereignty, internally neither the monarch himself nor the state was sovereign.
Internal sovereignty is realised only in the state which obtains its subjectivity. Hegelsays that it 'can exist only as subjectivity which is certain of itself, and as the will's
abstract - and to that extent ungrounded - self-determination in which the ultimate
decision is vested. This is the individual aspect of the state as such, and it is in thisrespect alone that the state itself is one [Einer]'24
If subjectivity, self-determination, and oneness of the state are not realised, there canbe no internal sovereignty. This is the reason why Hegel is neither a proponent nor an
opponent of popular sovereignty. What Rousseau aimed for, the oneness of the people,is accomplished in the sovereignty represented by a person, namely a monarch. Hegel
admits that internal sovereignty lies with the people [Volk], but only as the whole[Ganzen] in general.25 Popular sovereignty in this sense is not contradictory tomonarchy. Rather, without a monarch and the articulation of the whole associated withmonarchy, the people is a formless mass.26 On the other hand, a monarch is also not thesovereign without the people. The ultimate subject of sovereignty is always the wholestate.
External sovereignty of the nation-state [das Volk als Staat] derives from the notionthat the state has a primary and absolute entitlement to be a sovereign and independent
power in relation to others. At the same time, however, Hegel emphasises that thisentitlement is purely formal. Whether the state does in fact have being in and for itself
depends on its content - on its constitution and present condition. According to Hegel,recognition, which implies that the form and content are identical, also depends on theperception and will of other states.27
The identification of form and content is an entitlement of a state as an acting
individual subject among other individual states. While the legitimacy of a state is a

23 Ibid., p. 315; S. 284.
u Ibid., pp. 316-317; S. 285.
25 Ibid., p. 318; S. 287.
26 Ibid., p. 319; S. 288.
27 Ibid., p. 367; S. 337.

77

purely internal matter, it is equally essential that the legitimacy should be supplemented
by recognition on the part of other states.

Hegel explicates: 'Without relations[Verhaltniss (s/c)] with other states, the state can no more be an actual individual[Individuum] than an individual [der Einzelne] can be an actual person without arelationship [Relation] with other persons.'28 Now the theory of the sovereign holistic
will has produced a complete picture of the society of personified states.
Hegel's theory of the state seems to be an abstract and 'upside down' justification(ideas justify reality) of the existing monarchy.29 But no matter how abstract it looks,
his philosophical orientation had a tremendous influence on the theory of the modem
sovereign state. Although he justifies monarchy, he does not articulate a traditional
notion of ruler sovereignty. The monarch is the head of the state. And sovereignty liesin the subjectivity of the state. Sovereignty realises itself when the distinction between
the ruler and the mled becomes meaningless. Sovereignty as the expression of thesubjectivity of the state is the kernel of the modem theory of sovereignty.
It helps our study to summarise the main features of Hegel's epoch-making theory ofstate sovereignty.

First, the identification of the mler and the ruled implies theidentification of form and content. The will of the state absorbs the constitutionalframework as the part of its own expression. Classical constitutionalism appeared to bea formalistic doctrine that lacks the content of the state. It is with Hegel that therelationship between civil society and the state was perceived as an opposition and as
a result the identification of them became a central issue in social sciences.
Second, the complete personification of the state necessarily personifies internationalsociety. International politics is not an aristocratic game, nor even diplomacy, between
sovereigns. It is the society of states like human society. The tradition of the law ofnations is now destined to be outmoded, as there is no universal community of
individuals. Hegel established a philosophical foundation of the modem tradition ofdomestic analogy, i.e. the international.
Third, the notion of sovereignty is highly abstract, as the state becomes highly
abstract. But the abstractness is understood as a proof of the identification of the

28 Ibid.
29 See Karl Marx, Critique of Hegel's 'Philosophy ofRight' (1970), pp. 20-40.

78empirical with the transcendental world. Sovereignty is a core concept of the mysticalbut organic entity of the state. The notion of sovereignty as well as the state has
obtained a privileged position.
The general will of the nation appears beyond the limits of the representation of theClassical age. The nation in Hegel's theory is the 'actuality' of the sovereign state. The
highest truth of actuality appears when the distinction between the empirical and thetranscendental spheres is abolished. Universal truth reveals itself in and for itself, andcompletes the theory of national sovereignty.

Bluntschli and the State as the Sovereign Person

Central Europe was the main stage for the eruption of national movements in the
middle of the nineteenth century. The constitutional and national arguments by German
liberals culminated in Frankfurt in 1848, although they failed to establish aconstitution.30 With a rise of nationalism and the sense of divided Germany,
constitutionalism was destined to be a positive ideology for national unity rather thana negative ideology of checks and balances. In Germany, constitutions were often
understood as the expressions of the will of the state.
This tendency was evident even before 1871. In the middle of the nineteenth century,
so-called the jurists of the Rechtsstaat school dominated academia. They correspondedwith the rise of constitutionalism and democratic movements throughout the Germanstates. However, the jurists of the Rechtsstaat school were not identical with classicalAnglo-American constitutionalists. Rechtsstaat, 'legal state' or 'constitutional state', isnot always tantamount to the state under the premises of classical constitutionalism. In
Germany the concept of the state is not merely a framework of juristic personality. The
Hegelian state is conceived to live and will. Under such a premise, even constitutionallaw is an expression of the will of the state. Anglo-American constitutionalism ismainly intended to secure the negative liberty of individuals. However, Rechtsstaat

30 Heinrich von Gagem, first provisional president of the Frankfurt Parliament, addressed it in the following
terms: 'we are to fashion a constitution for Germany, for the whole realm. The justification and the authority forthis task lie in the sovereignty o f the nation.. . . Germany wants to be one, one realm, governed by the will o f thepeople1. Quoted in Rupert Emerson, State and Sovereignty in Modern Germany (1928), pp. 8-9.

79

could indicate that constitutional law is part of the realisation of the organic state's
existence.31
The most prominent jurist in this period is Johann C. Bluntschli, a professor in
Heidelberg, who was said 'to do for the European State what Aristotle accomplished for
the Hellenic'.32 In his work published in 1852 Bluntschli explains 'national sovereignty(.Nationalsouverdnitat) in the true sense'. Sovereignty belongs to the state itself as aperson, namely, the state-ordered nation. 'Nation' does not mean an atomistic mass of
individuals, but the organised and ordered totality.33 According to this theory, Bluntschli
expands upon the organic theory of German states. The sovereignty of the people could
be thought of as the sum of individuals or the citizens in their assemblies, which leads
to the danger of anarchy or direct democracy. What is really sovereign is the nation ina political sense as the organised totality with head and members. He asserts that there
is no contradiction between national sovereignty and prince sovereignty and that thewhole including the head is superior to the head alone. The whole state makes law,under the restraint of which the prince moves. Sovereignty of the State is that of thelaw, while sovereignty of the prince is that of government.34 Bluntschli's conception of
the state possesses not only a number of men, a fixed territory and distinction between
governors and governed, but also unity, an organic nature, and moral and spiritual
personality.35
In the revised editions of his masterpiece, Bluntschli further emphasises the organic
nature of the nation-state. For instance, he argues that:

So far as the state appears as a person, so far it has independence, honour, power,
supreme authority, unity ; in one word, sovereignty. The State as a person issovereign, and therefore we speak of sovereignty of the State.36

31 For instance, Friedrich Julius Stahl, leading scholar o f the Rechtsstaat school, attacked Locke andMontesquieu for the doctrine of the separation of powers. Stahl's theory of real constitutionalism could be
attained only through an organic structure developing within and from the original and continuous unity o fsovereign power. See Emerson, op. cit., p. 27.
32 'Translator's preface' in Bluntschli, The Theory o f the State (1885), p. v.
33 Bluntschli, Allgemeines Staatsrecht (1852), S. 340.
34 Ibid., S. 341.
35 Ibid., SS. 20-24.
36 Bluntschli, The Theory o f the State p. 500; Allgemeine Staatslehre, sechste Auflage, I (1886), S. 572.

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According to Bluntschli, the modem era is the process in which the state becomes'the politically organised national person of a definite country','37the state is not only ameans for the advantage of the individuals who compose it as English and American
writers maintain, but also an end itself.38 And the end of the state is 'the developmentof the national capacities, the perfecting of the national life, and its completion'.39
According to Bluntschli, a constitution is the body of the state, while one national
spirit and one national will are the spirit and the will of the state. What makes a state
really the state is not the constitution, but the nation. He articulates: 'If the State is tofulfil its part as the embodiment of the nation, it is plain that its laws and institutions
must have regard to the capacities and needs of the nation . . . A constitution which
disregards the peculiar character of the nation, and which does not correspond with its
spirit and thought, is an unnatural and incapable body.140 The spirit of the state comes
first and decides its body. The national constitution is 'the natural right of a nation' togive to the state its own character.41
For Bluntschli, the state is no longer an artificial body-politic. Bluntschli even thinksthat the organic state personality is an object of psychological study42 If no humanbeing is conceived to be sovereign in reality, the nation-state, the higher embodiment ofmen, assumes sovereignty. The sovereignty of the nation-state is a product of the ageof 'the sovereignty above the sovereign'. But the sovereignty of the nation-state is nota denial of the dignity of modem man. Rather, it is the highest realisation of the idealof man.

Treitschke and the Sovereignty o f the German Empire

Despite the fact that Germany as a nation-state was established in 1871, it iscommonly understood in the discipline of International Relations that the modem states

37 The Theory, p. 23; Allgemeine Staatslehre, S. 24.
38 See The Theory, p. 287; Allgemeine Staatslehre, S. 347.
39 The Theory, p. 300; Allgemeine Staatslehre, S. 362.
40 The Theory, p. 101 \ Allgemeine Staatslehre, S. 115.
41 The Theory, p. 101 \ Allgemeine Staatslehre, S. 116.
42 See W. A. Dunning, A History o f Political Theories: From Rousseau to Spencer (1920), pp. 334-9.

81system originates from the Peace of the Westphalia in 1648. This simple but strong
proposition defines a basic structure of a centuries-long European order, although it was
Napoleon who thoroughly extinguished the Holy Roman Empire.

The German

Confederation was originally maintained as 'an international union (volkerrechtlicher
Verein) of sovereign princes and free states'.43 But modem nationalism combined with
Realpolitik destroyed the political system of the small German sovereigns that had been
established in 1648. The sovereignty of the 'German nation' was a vivid example of thesovereignty above the sovereigns.44 History shows that the 'German nation' emerged andrealised itself in a rise of nationalism and the advancement of Realpolitik.

In

consequence, the Westphalian system as a Classical device for international balance ofpower collapsed in Germany.
In the post-1871 period, the study of sovereignty was no longer an object ofphilosophy. The new reality of the German Empire seemed to need a new science of thestate. Otto von Gierke initiated the Genossenschaft theory which explained legal
personality of organic associations; it was a science of'fellowship'. Although Gierke's
doctrine was introduced in Britain as a justification of non-sovereign corporate
personality - the legal personality of private organisations was described as anti­
sovereign thought in Britain - Gierke himself believed in the organic sovereignty of theGerman Empire. In Germany multiple organic units were bases of a larger sovereign
entity.
In the same period, there occurred a wave of positivistic political jurisprudence.
Interestingly, nineteenth century German 'positivists' were still 'upside down' in the sensethat concepts had superiority over facts. German positivists relied on highly abstract
presuppositions and insisted that laws were creations of the state. But no positivist
asked whether the foundation of positivism, the state, was really positivistic or not.
According to the positivists, the state is a real being. It wills and creates laws.
Sovereignty is a reality.

It organises and determines facts.

These abstract

presuppositions formed a science of the state.
43 It was ordained by the Act of Confederation o f 1815 and the Final Act o f Vienna o f 1820. See Emerson,
op. cit., pp. 20-21.
44 The constitutions o f German states enacted between 1815 and 1871 were all declared in the name o f thesovereign kings and other 'nobles'. They did not mention state- or national sovereignty. See Zeydel (ed.),Constitutions o f the German Empire and German States (1919).

82

The most important achievement of positivists including Paul Laband and Georg
Jellinek was the famous theory of Kompetentz-Kompetentz or 'auto-limitation'. It was
intended to explain the sovereignty of Rechtsstaat, and that of the German Empire inparticular. Sovereignty, defined as supreme, absolute, unlimited and indivisible power,
resides in the state. It might look limited by the constitution, the laws, and the treatiesof the state. But all these are self-limitation of the state, since by definition there can be
no power above the state. Sovereignty is the capacity of the state that determines its own«

capacity.
But this paramount attribute was not granted to any states. The search for sovereignty
was a common phenomenon in the late nineteenth century. This means that sovereignty
was perceived to be a real entity which can be 'discovered' somewhere. I call thisphenomenon the reification of sovereignty, which characterises the notion of sovereignty
in the age of imperialism. In the process of the reification of sovereignty, the title ofsovereignty was given only to Prussia and the German Empire as a whole. And in
speaking of other small and weak states, jurists invented the conceptions like non­sovereign state or half-, imperfect, semi-sovereign state.45 This shows that only a limited
number of states were conceived to deserve the privileged title of the sovereignty above
the sovereign. German positivists were 'realistic' jurists, although their world of reality
was constructed upon the reality of abstract concepts. The constitution of the Empire
did not determine the nature of sovereignty; the reality of sovereignty determined theconstitution. Sovereignty was not a topic of constitutional rule-making. It was a matterof the science of the state.
At the turn of the century Heinrich von Treitschke, whom many Anglo-American
scholars recognised as the representative or even most extreme example of German
militaristic state theory, articulated a political theory of the post-1871 generation. His
main theme is that the state is power. He maintains that the study of the state is
indispensable in social sciences, because politics always has primacy in history. The
state is defined by Treitschke as 'the people (Volk), legally united as an independent
entity'. The state aims to establish a permanent tradition throughout the ages. Treitschkeclaims that from historical insight he recognises the nature and necessity of war. The

45 See Merriam, op. cit., pp. 185-216.

83state is not merely intended to secure life and property to the individual. It is what theindividual will sacrifice life and property for. The state, 'the great collective person', is'the people's collective will'. According to Treitschke, the state is something even morethan an organism, as its essence is will and power. The State is power, precisely in order
to assert itself as against other equally independent powers. War and the administrationof justice are the chief tasks of the state. That is to say, 'power is the vital principle of
the State'. The 'genuine creators of the German Empire were Bismarck and the Emperor
William; not Fichte or Paul Pfizer, or other pioneers.' In political life will power is thefirst essential of creative work.46
The state is so absolute a moral supremacy that it cannot legitimately tolerate any
power above its own. And it freely exploits a variety of material resources to protect
itself against hostile influence. Sovereignty is, therefore, the very standard and criterionof the state. The state is bom only when a group or an individual in a community has
achieved sovereignty by imposing its will upon the whole body. It is true that every
state, in treaty making, will limit its power in certain directions for its own sake. But as
treaties originate from the free will of the state, they do not abrogate sovereignty. In
addition, all treaties lose their force at the very moment when war is declared between
the contracting parties. Moreover, every sovereign state has the undoubted right todeclare war at its pleasure, and is consequently entitled to repudiate its treaties. The realtest of sovereignty is, in short, power, or more specifically, military capability of thestate. A defenceless state may be termed a Kingdom for conventional or courtly reasons,but 'science', whose first duty is accuracy, must boldly declare that such a country nolonger takes rank as a state.47 Treitschke then asserts:

The right of arms distinguishes the State from all other forms of corporate life. . . The
difference between the Prussian Monarchy and the other German States is here
apparent, namely, that the King of Prussia himself wields the supreme command, andtherefore Prussia, unlike the others, has not lost its sovereignty. The other test ofsovereignty is the right to determine independently the limits of its power, and hereinlies the difference between a federation of States and a Federal State. . . . Since
Prussia alone has enough votes on the Federal Council to be in a position to prevent

46 Treitschke, Politics vol. I, p. 3, 13-25; Politik, erster Band (1897), SS. 13, 23-35.
47 Politics, pp. 26-30; Politik, SS. 35-39.

84

an alteration of the Constitution by its veto, it becomes evident that she cannot be
outvoted on such decisive questions. She is therefore, in this second respect also, theonly truly sovereign State which remains.48
It is this vigorously power-oriented notion of sovereignty that justifies the glorious
establishment of the German Empire. It was a product of Realpolitik, so that the kingof Prussia is the sovereign of the sovereign Empire. For Treitschke, contract andconstitutional theories are merely fictitious. Even 'society', unlike the state, is intangible.
For him, 'there is in fact no actual entity corresponding to the abstract conception of civilsociety which exists in the brain of the student.' Were the social view of the state thatliberalism tends towards the only one, 'the framework of our nationality would simply
collapse, and Germany be disintegrated by the warring of innumerable social groups.'
But a war against outside forces has the desired effect, for 'it is war which turns a people
into a nation' for the ideal of the fatherland. Treitschke adds that the state is not thewhole of a nation's life. But it constructs the framework of all national life by its
sovereign power.49
It is no wonder that Treitschke emphasises that international law must not run counterto the nature of the state. 'No State can reasonably be asked to adopt a course which
would lead it to destroy itself. Likewise every State in the comity of nations must retain
the attributes of sovereignty whose defence is its highest duty even in its international
relations. We find the principles of international law most secure in that department of
it which does not trench upon questions of sovereignty; that is in the domain of etiquetteand of international civil law.'50 This is a logical consequence of the replacement of thelaw of nations with international law.
In the age of imperialism, nationalism was not a moral claim; it was a test of national
power. Even if it was admitted that every nation had a life, it did not follow that every
nation was equal. Darwin had taught that the process of natural selection was inevitable.
Why not among nations? Sovereignty was not automatically granted to any nations. It
had to be won only by selected superior nations. The national theory of sovereignty

4* Politics, pp. 30-31; Politik, SS. 39-40.
49 Politics, pp. 45-54; Politik, SS. 54-63.
50 Politics, vol. II, p. 595; Politik, zweiter Band (1898), S. 549.

85

became critically harsh in this period. The natural existence of nations was a given fact.
When national independence was not realised, therefore, the issue was not whether there
was a nation as a natural person, but whether a nation possessed enough power toachieve its own sovereign status. That was what the society of nations meant in the ageof imperialism.
The system of imperialism was based on domestic analogy in a peculiar way.
International society was conceived to be a society of sovereign nations and non­sovereign nations like domestic society composed of sovereign power holder(s) andothers. The perception of the laws of nature and nations as the universal laws had
almost disappeared. Just as a national constitution was an expression of the will of thesovereign state, international treaties were merely expressions of the will of sovereignstates and subject to changes of the will. This is the presupposition of imperialinternational society from the point of view of the national theory of sovereignty.

The national theory of sovereignty in nineteenth century Germany stemmed from theideal of the organic nation-state. This point relates to our further investigation into
Anglo-American notions of sovereignty. On the one hand, British and American
scholars could not fully accommodate the German organic theory of the nation-state.
This will lead to a popular contrast between the Anglo-American and German traditionsin the interwar period. On the other hand, Anglo-American theorists could not ignore
the historical necessity in the theory of national sovereignty: the nation-state building
and power politics in the age of nationalism and imperialism. They gradually adopted
the premises of national sovereignty enunciated by German philosophers and jurists. We
shall next see this development of the national theory of sovereignty in Britain andAmerica.

86Chapter 3

The Spread of National

Sovereignty in Britain
Classical constitutionalism in Britain where there was no written constitution was
based on the assumption of the 'ancient constitution' or the premises of natural law. God
was absent, but his existence was the very foundation of the constitutional order.
However, such premises of classical constitutionalism appeared to be 'metaphysics' inthe modem episteme and destined to be outmoded. We shall see in this chapter theretreat of the classical type of constitutional notions of sovereignty in the period fromthe middle of the nineteenth century to the eve of the First World War. The first section
deals with the Austinian and other theories of sovereignty in the time of laissez faireliberalism. The next focuses on the development of theories of sovereignty in the ageof imperialism in both the domestic and international contexts.

Sovereignty in the Laissez Faire Age
After the Napoleonic War Great Britain obtained hegemonic power. The superiorityof the British economy was indisputable in the nineteenth century. Combined with theconfidence in the British political system, early Victorian intellectuals pursued domestic
as well as international order based upon laissez faire doctrines.

But classicalconstitutionalism became outmoded, as it needed to be modernised in some ways.
While the theory of national sovereignty was still alien to most of the British people,
they recognised Austinian theory as an orthodox doctrine in this age.

Austin and the Growth o f the Constitution

A collection of John Austin's lectures, The Province o f Jurisprudence Determined,
was published in 1832, the year the first electoral reform was enacted. Austin is atheorist in the period of a transition from classical constitutional to democratic and87

imperial Britain. Although it is common to label Austin as a positivist of absolute
sovereignty, we shall see in his theory lingering yet declining elements of classicalconstitutionalism.
According to Austin, there are two marks of sovereignty and the independent
political society which sovereignty implies. First, 'The bulk of the given society are ina habit of obedience or submission to a determinate and common superior'. Second,'That certain individual, or that certain body of individuals, is not in a habit of obedience
to a determinate human superior.' This definition depends on Austin's positivist dogma.
He says that 'Every positive law, or every law simply and strictly so called, is set by asovereign person, or a sovereign body of persons, to a member or members of the
independent political society wherein that person or body is sovereign or supreme.'1 A
brief look at this concise definition gives the impression that Austin lacks constitutionalrules. However, it is mistaken to conclude that Austin ignores any constitutional
elements.
It is noteworthy that Austin admits that 'one component part of the sovereign orsupreme body is the numerous body of the commons'. They 'share the sovereignty' withthe king and the peers, and elect the members of the commons' house. This is aproblematic proposition, as even before 1832 it is surprising that 'the numerous body ofthe commons' is not in a habit of obedience to a determinate human superior.
Furthermore, Austin unequivocally uses the word, constitution: 'The representative
body, for instance, might be bound to use those powers consistently with specific ends
pointed out by the electoral: or it might be bound, more generally and vaguely, not toannihilate, or alter essentially, the actual constitution of the supreme government.'2
Sovereignty in 'the actual constitution of the supreme government' is explained in 'thedivision of those powers into supreme and subordinate'.3 The former are the politicalpowers which belong to a sovereign or state. The latter are those portions of thesupreme powers which are delegated to political subordinates. Following Bentham,Austin then proclaims that there are unconstitutional acts and constitutional laws. If the1Austin, The Austinian Theory o f Law (1832), pp. 96-97.
2 Ibid., p. 126.
3 Ibid., p. 136.

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sovereign violates the principles and maxims which are habitually observed, it is notillegal, but unconstitutional. He also says that there is constitutional law meaning 'thepositive morality or the compound of positive morality and positive law, which fixes theconstitution or structure of the given supreme government.'4 To begin with, while
denying original social contracts like other modem philosophers, Austin asserts that 'thepermanence and origin of every government are owing to the people's consent, based
on 'the principle of utility'. This means that 'the power of the sovereign flows from thepeople, or the people is the fountain of sovereign power'.5
It is also notable that Austin distinguishes 'a composite state' or 'a supreme federal
government' as in the case of the United States, from 'a system of confederated states'or 'a permanent confederacy of supreme governments' in the cases of the German
Confederation and the Swiss Confederation. Austin's description of the former is not
so simple as his definition. He writes:

In the case of a composite state, or a supreme federal government, the several united
governments of the several united societies, together with a government common to
those several societies, are jointly sovereign in each of those several societies, and also
in the larger society arising from the federal union. . . . As compacted by the common
government which they have concurred in creating, and to which they have severally
delegated portions of their several sovereignties, the several governments of theseveral united societies are jointly sovereign in each and all. . . . I believe that thesovereignty of each of the states, and also of the larger state arising from the federal
union, resides in the states, governments as forming one aggregate body: meaning by
a state's government, not its ordinary legislature, but the body of its citizens which
appoints its ordinary legislature, and which, the union apart, is properly sovereign
therein.6
We are then inclined to ask: how many people are 'sovereign' in the United States?
Are they really 'superior' and do they receive 'a habit of obedience'? What is the purposeof the search for the sovereign individual(s) in every society? The answer lies inAustin's conviction of the condition of 'independent political society'. Austin makes
clear that sovereignty is the correlative expression of subjection.7 The relationship
4 Ibid., pp. 160-169.
5 Ibid., pp. 198-199.
6 Ibid., pp. 144-147.
7 Ibid., p. 96.

89

between sovereign and subjects constitutes an autonomous structure of 'independent
political society', while 'in all or most cases of human superiority, the relation ofsuperior and inferior, and the relation of inferior and superior, are reciprocal.'8 Austin
does not say that there is always a supreme power holder.

He only says that'independent political society' needs a human relationship between sovereign andsubjects, whatever it is. And he is highly conscious of the existence of the constitutionthat determines the structure and the rules of the relationship.
Nevertheless, it is certain that Austin's constitutionalism is clearly different from the
Lockean model in its unitary nature of sovereignty. He no longer commits himself tosocial contract theory, as Benthamite utilitarianism forms his theoretical backbone. In
addition, Austin's scepticism regarding the constitution significantly contrasts withBlackstone's conviction of the stability of the British constitution.

In strongly

renouncing the idea of the original covenant, Austin remarks that even in AngloAmerican states, the parties who determined the constitution 'were merely a slender
portion of the whole of the independent community, and were virtually sovereign therein
before the constitution was determined.' He stresses that 'the constitution of the supreme
government has grown. . . . it has not been determined at once, or agreeably or ascheme or plan; that positive moral rules of successive generations of the community(and, perhaps, positive laws made by its successive sovereigns) have determined theconstitution, with more or less of exactness, slowly and unsystematically.'9
Indeed, we can see a gradual growth of the British Constitution in Austin's theory.
Despite the vigorous definition of sovereignty, he includes 'the commons' who 'share'sovereignty and elect the members of their house. Austin neither avoids the problem ofsovereignty nor arranges the coexistence of absolute sovereignty and absolute individual
rights. Instead of implementing classical constitutional rules to protect individual rights,
Austin inserts utilitarian mechanism into the middle of the sovereign body. In Austin's
theory, the static nature of the classical constitution was being eroded.10

8 Ibid,, p. 21.
9 Ibid., p. 223.
10 Foreseeing the changes in the British constitution, George Cornwell Lewis wrote that the term, constitution,
was 'used to signify something ideal, an imaginary model of excellence which the government has never, in fact,
attained1. According to him, 'the power of the person or persons in whom the sovereignty resides, over the wholecommunity, is absolute and unlimited. The sovereign has the complete disposal o f the life, and duties o f every

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Austin's concise definition of sovereignty was an attempt to re-identify the sovereign
in rapidly changing modem states. To a certain extent Austin succeeded in re-locating
sovereignty somewhere in modem states. He defended the role of the constitution in theface of the coming cries of democratic national movements. But as we shall see later,
the further growth of the constitution was destined to make his definition outmoded.

Sovereignty o f Middle Class Individuals

It is striking that one of Austin's contemporaries, the great nineteenth centuiy liberal,
John Stuart Mill, took the view that as the English people were extremely practical, the'doctrines of sovereignty of the people, and the rights of man, never had any root in thiscounty'.11 Mill was never committed to conservatism or to populism. In 1859 he rather
inquired: 'What, then, is the rightful limit to the sovereignty of the individual overhimself. Where does the authority of society begins?'12 Mill's answer was to describe
the individual in terms of sovereignty that is to be limited by the authority of society.
Nineteenth century liberals were not classical constitutionalists who resorted to theories
of social contract, common law, and natural law. They were devoted to the observationof modem man. Their main interest was political economy in which modem man wasconceived to pursue his economic gains according to his interest.

An artificial

construction of political society, which Hobbes was once proud of, was now nothing but
an empty fiction. In such an intellectual atmosphere, Bentham and Austin's utilitarian
theories of sovereignty coexisted with laissez faire liberalism. The British people still
enjoyed political and economic superiority and were proud of their combination ofliberty and sovereignty.
In 1865 Walter Bagehot commenced an attack upon the formalism of past
constitutional theories. He rejects the theory of the English polity according to which
legislative, executive, and judicial powers are divided. He also strongly criticises themember o f the community.' Lewis represented a decline o f the binding legality o f constitutional rules and thearticulation of'absolute and unlimited' sovereignty. Lewis, Remarks on the Use and Abuse o f Some PoliticalTerms (1832), pp. 20,41.
11 Mill, Collected Works o f John Stuart Mill XXIII, Newspaper Writings, August 1831 - October 1834 (1986),
p. 445.
12 Mill, On Liberty (1859), p. 141.

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view that the monarchical, the aristocratic, and the democratic elements have each 'ashare in the supreme sovereignty, and that the assent of all three is necessary to theaction of that sovereignty.' This mistaken view alleges the three components 'to be not
only the outward form, but the inner moving essence, the vitality of the Constitution.'13
Bagehot believes that the English Constitution has a division of'the outward form' and'the inner moving essence'. Accordingly, he asserts that no one can approach anunderstanding of English institutions or of others, unless he divides them into twoclasses: the dignified parts and the efficient parts.14 Bagehot implies that the theory ofsovereignty constitutes a 'dignified part'.

The 'efficient parts' are constituted byinstitutions like the cabinet.
The monarchy is a product of the weakness of men's imaginations, which set up thequestion, 'Will you be governed by a king, or will you be governed a constitution?' or'Will you be governed in a way you understand, or will you be governed in a way you
do not understand?' Bagehot, not as enthusiastic about events like the marriage of the
Prince of Wales as other English people, thinks that a 'family on the throne is aninteresting idea also. It brings down the pride of sovereignty to the level of petty life.'15
What he means by 'the dignified parts' are nothing but 'the outward form', which haveno 'inner moving essence'.
The year of the third electoral reform, 1884, is recorded by the publication of Herbert
Spencer's The Man versus the State. Spencer radically opposes the growing stateinterference with individuals in the last quarter of the century. He asserts that the divineright of kings was merely replaced by that of parliament or the majorities. He evencriticises 'the most defensible interpretation of Bentham's view' that 'the totality of all
powers and rights, originally existed as an undivided whole in the sovereign people; andthat this undivided whole is given in trust (as Austin would say) to a ruling power,
appointed by the sovereign people, for the purpose of distribution.' This interpretationof Bentham's view demand that each man exist in two capacities. In his private capacity
he is subject to the government. In his public capacity he is one of the sovereign people

13 Bagehot, 'The English Constitution' (1865), p. 204.
14Ibid., p. 206.
15 Ibid., p. 229.

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who appoint the government. According to Spencer, 'Bentham's proposition leaves us
with a unit in the plexus of absurdities', because it is impossible to identify eachindividual with a unit in the sovereign body.16
Spencer bases his theoretical foundation not upon any artificial constitutional
devices, but upon (what he believes to be) real social progress. His theory maintains 'thevital principle of social progress; inasmuch as, under such conditions, the individualsof most worth will prosper and multiply more than those of less worth. So the utility,
not as empirically estimated but as rationally determined, enjoins this maintenance ofindividual rights; and, by implication, negatives any course which traverses them.'17 The
course of social progress determined by Spencer seemeeHo be an expression of his own
interpretation of historical evolution of society.18 But it is certain that his theory
represented the spirit of progressivism in the late nineteenth century.
Nineteenth century intellectuals explored social evolutions in which the theory ofsovereignty was the 'dignified' 'outward form'. Respect for royal sovereignty was
accepted by intellectuals as a formal principle of the British Constitution. But how ler
they deal with the growing cries for popular sovereignty that seemed to constitute partof'inner moving essence', namely, the motor of social evolutions? The accommodationof a rising 'inner moving essence' was a task that intellectuals in the late Victorian time
had to face.

Domestic Sovereignty in the Imperial Age
In face of the challenge posed by other rising industrial powers in Europe, America,and eventually Asia, the management of the gigantic British Empire became a crucial
issue in the last quarter of the nineteenth century. The 1875 conservative governmentof Disraeli announced a new stage of British imperialism. In the age of imperialism, ahighly centralised political system of the Empire as a whole had to be reconciled withdemocratisation or nationalisation in the mother country. In the domestic scene Great

16 Spencer, 'The Man versus the State1(1884), pp. 151-152.
17 Ibid., p. 167.
18 See Tim Gray, 'Herbert Spencer's Liberalism - from Social Statics to Social Dynamics' (1990), p. 124.

93

Britain had undergone the waves of mass political movements influenced by revolutions
in Continental countries. Modem mass protests were different from political turmoil inthe seventeenth century in that they reflected class struggles in the process of theIndustrial Revolution. The British government was forced to implement three electoral
reforms in 1832,1867, and 1884, which brought about gradual political revolutions in
the form of constitutional reforms. Now the problem for British scholars was how to
explain imperial sovereignty in harmony with democratic and national sovereignty.
Under such circumstances, A. V. Dicey, the greatest jurist of British constitutional law,re-established the new fundamental principles of the British constitution.

Dicey and British Imperialism

In his masterpiece first published in 1885 Dicey writes that he performs the part'simply of an expounder.'19 He is not concerned with English constitutionalism, but justexplains the existing British Constitution. After many a country has adopted written
constitutions, the task for lawyers was to prove the existence of an unwritten
constitution in Britain. British constitutional law is identified, when the term is definedso as to 'include all rules which directly or indirectly affect the distribution or the
exercise of the sovereign power in the state'.20
Dicey refuses Blackstone's statement that the King of England is the sole magistrateof the nation as 'formalism of lawyers' 'under the fictitious ascription to the sovereignof political omnipotence'.21 According to Dicey, sovereignty belongs to Parliament,
composed of the King, the House of Lords, and the House of Commons. Parliament has
the right to make or unmake any law whatever; and no person or body is recognised ashaving a right to override or set aside the legislation of Parliament.22
Dicey excludes any possibility of legal limitation of parliamentary sovereignty. He
explains that 'limited sovereignty' is 'a contradiction in terms'.

Its frequent andconvenient use simply signifies the fact that 'some person, e.g. a king, who was at one
19 Dicey, Lectures Introductory to the Study o f the Law o f the Constitution (1885), p. 4.
20 Ibid., pp. 24, 25.
21 Ibid., pp. 9-12.
22 Ibid., p. 36.

94

time a real sovereign or despot, and who is in name treated as an actual sovereign, has
become only a part of the power which is legally supreme or sovereign in a particularstate.'23 According to Dicey, in no circumstances can sovereignty be limited. If it looks
limited, the fact is that real sovereignty has been transferred or extended to somewhere
else.
Dicey's famous distinction between legal and political sovereignty is used to maintainthe absolute notion of parliamentary sovereignty. Dicey emphasises that his descriptionof the British Constitution is different from Austin's theory. While Austin holds thatsovereign power is vested in the king, the House of Lords, and the Commons or theelectors, Dicey excludes the electors from the list. The difference has derived from
Austin's confusion of legal and political sovereignty. That Austin vests sovereign powerin the electors contradicts the fact that he mainly uses the word, sovereignty, as 'a merely
legal conception', that is, 'the power of law-making unrestricted by any legal limit'. By
imposing his own description of sovereignty on Austin, Dicey asserts that if the term bethus used, the sovereign power under the English Constitution no doubt belongs toparliament. The electors may be the political sovereign in a state the will of which isultimately obeyed by the citizens of the state.24
The constitutional unity which was present even in Austin's theory has collapsed.
The structure of Dicey's theory may look similar to the Lockean model marked by thedistinction between the exerciser and the source of sovereignty. Nevertheless, Dicey
believes that legal and political sovereignty should not coexist in the same world. Eachclaims to be omnipotent in its own sphere without any intercourse with each other. As
a result, the concept of limited sovereignty has been thoroughly removed from the theoryof sovereignty. We cannot limit and divide sovereignty. Therefore, let us have twounlimited and indivisible sovereignties.
This theory has grave implications in the historical context. On the one hand, thelegal sovereignty of the Westminster parliament reigns not only over Great Britain but
also over all the colonies of the worldwide British Empire. It is the strongest sovereign

23 Dicey, The Law o f the Constitution, the third edition (1889), pp. 65-66.
24 Ibid., pp. 64-70. It should be noted that as a result of the three electoral reforms undertaken in thenineteenth century, the number of electors increased from four thousands in Austin's time to five millions in
1885.

95

in the world.

On the other hand, the British people are given another title ofsovereignty. Although parliament is also called the legal sovereign, the British people
are the politically absolute sovereign. In short, Dicey's theory of sovereignty at once
explains the imperial principle of sovereignty in the international field and thedemocratic and national principle of sovereignty in the domestic field.
Under this formal principle, it is asserted that not only the Victoria (New Zealand)parliament but also the Belgian parliament together with railway companies and English
school boards are included in the same category of 'non sovereign law-making body'.
The New Zealand parliament as well as other much less independent colonial
legislatures are subject to the 'Imperial Parliament', which is the author of theConstitution of the Commonwealth. It follows that there is no significant difference
between the New Zealand parliament and the South-Eastern Railway company for bothare subordinate to the sovereign Imperial Parliament. Neither the Belgian nor the
French parliaments can rival the British Imperial Parliament, as the former parliaments
are subordinate to their Constitutions.25 The legal sovereignty of the United States isadmitted to 'the majority of a body constituted by the joint action of three-fourths of theseveral States'. But it is a miserable sovereign, for Dicey conceives it to be like 'amonarch who slumbers and sleeps.'26 Mystifying the sovereignty of the British
Parliament, Dicey is also proud of the tradition of the rule of law in the Anglo-American
states in contrast with the tradition of the French 'administrative law' (droit
administrate).27 It is almost impossible, therefore, to imagine any legal sovereign thatis stronger and less arbitrary than the British Imperial Parliament.
Dicey is ready to admit that sovereignty is in practice limited externally andinternally. The external limit to the real sovereign consists in the possibility or certaintyof the resistance o f his subjects.28 Internal limit arises from the nature of sovereign
power itself, as legislators must go mad when they pass absurd laws. These twolimitations do not always coincide. But the difference between the will of the sovereign
and the nation may be terminated by the foundation of'a system of real representative
25 Ibid., pp. 85-124.
26 Ibid., p. 136.
27 Ibid., pp. 179-216.
28 Ibid., p. 70.

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government'. Where a Parliament truly represents the people, the divergence between
the external and the internal limit to the exercise of sovereign power can hardly arise,or if it arises, must soon disappear.29 Dicey first divides legal and political sovereignty.
Only then does he express his hope for the unity of the two. This approach is quite
cautious and clever, but fatally academic. What happens if the two sovereigns conflictwith each other? Practically this is a crucial question, which Dicey, expounder of
constitutional law, does not attempt to solve. He instead hides it behind highly formal
devices of the theory of sovereignty.

Decline o f Constitutionalism

When the eighth edition of The Law o f the Constitution was published in 1915, Dicey
added quite a long introduction. It was intended to trace the changes of the working of
the Constitution in the three decades after the publication of the first edition. For
instance, the Parliament Act, 1911, cast serious doubt upon the subject of sovereignty.
Did it deprive the House of Lords of sovereignty? Dicey's conclusion is that sovereignty
still resides in the same place. He argues that the House of Lords constitutes a part ofsovereignty with its power to delay the passing of any Act. Then he concedes that 'theParliament Act has greatly increased the share of sovereignty possessed by the Houseof Commons and has greatly diminished the share thereof belonging to the House ofLords.'30 But what is the 'share' of sovereignty belonging to the House of Lords whichis exerted only in a negative way? How can we imagine the 'share' of sovereignty which
is supposed to be intrinsically indivisible? Democratic movements of 'politicalsovereignty' were overwhelming 'legal sovereignty' in nineteenth century Britain. But
Dicey did not have an image of an integral constitution which would encompass the twosovereigns.
Dicey also remarks that while the Imperial Parliament still possesses absolute
sovereignty, it has become impossible to exert equal power throughout the whole of animmense Empire. Dicey concedes that the omnipotence of Parliament has been applied

29 Ibid., p. 77.
30 Dicey, Introduction to the Study o f the Law o f the Constitution, eighth edition (1915), p. xxiv.

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in its full effect only to the United Kingdom.31 The Imperial Parliament retains absolute
sovereignty, although it is a more or less fictitious omnipotence. He observes that theImperial Parliament has sovereignty over the Dominions, although the colonial policy
of England is to grant every Dominion absolute, unfettered, complete local autonomy.32
Moreover, Dicey deplores the decline of the rule of law. Dicey asserts that 'In
England democratic government has already given votes. . . to citizens who . . . hardly
perceive the risk and ruin involved in a departure from the rule of law.'33 Now Dicey
stands up to say in defence of governmental power that 'the authority or the sovereigntyof the nation, or even the conception of the national will, is a sort of political or
metaphysical fiction which wise men will do well to discard.'34 Dicey, aged almost
eighty, remains a conservative scholar, who still fears the national sovereignty of theFrench Revolution. It is his own distinction of the two sovereigns that is now the mostcritical problem in Britain.
It might be safe to say that whatever Dicey's own intention was, legal and politicalsovereignty corresponded with the form and the content of sovereignty that had been
'discovered' by the German philosophers. In this sense Dicey truly struggled with the
problem of sovereignty that suffered from nationalism and democratisation in themodem era. He certainly realised that a traditional constitutional order could not hide
the gap between the form and the content that became evident in his time.
Unfortunately, however, he did not have dialectic to unify the form and the content. In
Britain the two sovereigns reign in their own distinct spheres without theoreticalconnections between them.
Quite interestingly, James Bryce, influential political scientist, develops the theoryof the distinction between the two sovereigns along the line of form and content.
According to him, there are 'Legal Sovereignty (de iure)' and 'Practical Sovereignty (defacto)'. 'Legal Sovereignty exists in the sphere of Law*. 'Practical Sovereignty exists inthe sphere of Fact'. The former is 'Formal', and the latter 'Material'35 'Legal Sovereignty

31 Ibid., pp. xxvi-xxvii.
32 Ibid., pp. xxix-xxxii.
33 Ibid., p. lix.
34 Ibid., p. xliii.
35 Bryce, 'The Nature o f Sovereignty' (1901), pp. 69-70.

98

is Divisible', as different branches of it may be concurrently vested in different persons
or bodies. By contrast, 'Practical Sovereignty seems indivisible', for it belongs to thestrongest person or body only (though perhaps not known to be the strongest).
Similarly, 'Legal Sovereignty may be Limited' under certain rules. 'Practical Sovereignty
is, by definition, incapable of being limited.'36 In short, what is divisible and limited is'Legal Sovereignty'. What is not is 'Practical Sovereignty'. Bryce expects that 'Had thequalifying terms de iure or de facto been added every time the word "Sovereignty" wasused, most of these difficulties would have disappeared.'37 For instance, the belief thatsovereignty cannot be divided is extremely artificial.38 The recognition of the twosovereigns will eradicate such a misunderstanding. It also explains why sovereignty islimited domestically, namely in the legal sphere, while it is unlimited internationally,that is, the exclusively de facto sphere.39
Where the Legal is not at the same time the Practical, it is difficult to discover thelatter. In no two countries are the phenomena of'Practical Sovereignty' quite the same.
Bryce asserts that, nevertheless, there are two kinds of Sovereign in every politicalcommunity . At stake is to find and analyse the relationship between the twosovereigns. Bryce formulates four patterns of their relationship. When sovereignty deiure attains its maximum of quiescence, Sovereignty de facto is usually also steady, andhidden behind it. When Sovereignty de iure is uncertain, Sovereignty de facto tends tobe disturbed. When Sovereignty de facto is stable, Sovereignty de iure, though it may
have been lost for a time, reappears, and ultimately becomes stable. When Sovereignty
de facto is disturbed, Sovereignty de iure is threatened.40
H. Sidgwick, an authority in the field of political science, is more willing toaccommodate the new political trends than Dicey and Bryce. He asserts that if, in acountry under simple parliamentary government, any constituency could dismiss its
representatives at any time by the vote of a simple majority, 'it could hardly be doubted

36 Ibid., pp. 70-71.
37 Ibid., 96.
38 Ibid., p. 93.
™Ibid., p. 110.
40 Ibid., p. 69.

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that the electorate was sovereign'.41 If supreme power is attributed to a body that has aconstitutional right to change the structure and regulate the action of government, it
ought to be attributed to the mass of the people in any state. In any state, if a sufficiently
large majority of the people altogether refused obedience, the power of government
would come to an end. Sidgwick thus confesses that the mass of the people in any
country may be said to be the ultimate depository of supreme political power.42
According to him, 'political power that is not merely exercised at the discretion of apolitical superior, - and that must therefore be regarded as supreme or ultimate - isusually distributed in a rather complex way among different bodies and individuals'.43
Political philosopher, David G. Ritchie, recognises the distinction of two
sovereignties as a constitutional problem. He finds three types of the sovereign: thenominal, the legal and the political. He insists that while Hobbes, Bentham and Austin
identified all the three as one, Locke described all of them. Locke does not 'shirk theverbal paradox of saying that there are three supremes, and yet there is not one
supreme'.44 This characterises Locke's constitutionalism, while 'The historically true andvery convenient phrase "limited monarchy" makes' Austin and his predecessors andfollowers angry.45 Ritchie interprets the coexistence of the multiple sovereigns as anelement of constitutionalism. Yet his emphasis upon constitutionalism derives from a
conception of an organic society. For instance, he even asserts that natural selection
determines which nation shall survive in the field of international law.46 Constitutionalsovereignty distinct from abstract legal sovereignty is for him in the law of organism.
W. S. M'Kechnie, a constitutional lawyer in Glasgow, also distinguishes between thelegal sovereignty of parliament and the political sovereignty of the people, in addition
to the nominal sovereignty of the crown. Political sovereignty, which implies negatively'the independence of a State' and positively 'its efficient organization', represents 'thepower of the whole over every part - of the State over the individual with all his

41 Sidgwick, The Elements o f Politics, second edition (1897), p. 628.
42 Ibid., p. 630.
43 Ibid., p. 638.
44 Ritchie, 'On the Conception of Sovereignty', (1891), p. 393.
45 Ibid., p. 395.
46 Ibid., p. 410.

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associations, institutions, and relations.' It is difficult to distinguish sovereignty fromthe state itself. It 'cannot be lost unless the State itself is annihilated.'47 Legalsovereignty derives from the necessity for 'the common will or supreme political powerin the State' to 'find some recognized constitutional method of expressing itself.. . . The
legal sovereign is, then, the authorized embodiment of the political one. The wholeconstitutional history of a nation is a record of the efforts made by the general will,
which is the source of law, to realize itself in an external form.'48 Thus M'Kechnieemphasises the unity of the two sovereigns. Legal sovereignty is 'a true manifestationof the will of the people, the true political sovereign.'49
W. Jethro Brown in his excursus of Austin's Jurisprudence written in 1906 reveals
what has happened since the early nineteenth century when Austin was writing. He
finds at least four distinct types of the conception of sovereignty in the British
Constitution; first, the dominating power of the government, second, the electoral body,third, the popular majority, and finally, the state as a moral organism.

Brown

remarkably holds that the theory of sovereignty must keep pace with the progress ofsociety. It follows that society proceeds from the large political aggregate, through the
democratic community, to the realization of a national life.50
Referring to Dicey, Brown turns to legal sovereignty. The difficulty is the locationof sovereignty in a constitution. He asks, 'To what power ought formal supremacy to
be attributed in the case of a State with a written and rigid constitution containing noprovision for its amendment?' One solution is the agreement of the people. But Brown
believes that the 'more logical solution would be to attribute the sovereignty to the State
itself.'51 The theory of the sovereignty of the state maintains the perfect meaning ofsovereignty. Browns articulates: 'The sovereign is the source of all law, and so cannot
be limited by law; where a legal limitation is held to exist upon a power claiming to besovereign, we are compelled to infer that legal theory looks beyond the pretended

47 M'Kechnie, The State and the Individual (1896), pp. 127- 130.
48 Ibid., p. 131.
49 Ibid., p. 137.
50 Austin, op. cit., p. 277.
51 Ibid., pp. 282-283.

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sovereign to the State itself as true sovereign and ultimate source of law.'52
Starting from Dicey's doctrine, Brown goes beyond it for 'very practicalconsiderations'. 'In a multitude of ways the State, as owner of its territory, as invested
with property and the dubious blessing of a National Debt, demands legal recognition.
But if once the law recognises the state as an entity capable of rights and duties, it isalmost compelled to attribute sovereignty to that entity, and to regard the supreme law­
making institution as merely an actualization of a formal supremacy which in the last
analysis can only be found in the State itself.153 Brown puts it thus:

Although the location of the sovereign varies in the different legal theories of different
nationalities, it seems probable that the Jurisprudence of a near future will recognizethat the State itself is the true sovereign, and that such a body as the Parliament ofGreat Britain should be described, not as the sovereign, but as the sovereign-organ..
. . We shall not fear to think of the State as a unity, a personality, a sovereign - asovereign in whose presence the visible ruler can aspire to no higher title than that ofsovereign-organ.54
Although Brown's notion of legal personality of the State was very formalistic, his
doctrine of legal sovereignty amounted to the sovereignty of the state. And in his
proposal, the search for new locations of sovereignty reached the point of what
Continental scholars of national sovereignty had expressed for a long time. British
scholars were very slow to dissolve constitutional premises into an organic entity of thestate.
But why did British scholars not discard the problem of sovereignty as 'the outward
form', as their predecessors did some decades ago? It seems that for scholars in the ageof imperialism, 'sovereignty' was a reality which had to be identified somewhere andsomehow. Under the conditions of laissez faire doctrines, the issue of sovereignty neverarose as an object of serious investigations. But if'sovereignty' is not a reality, how canimperial policies be maintained? How can international competitions among leading
nations be understood? How can an ideal state be pursued in the face of democratic
movements? It is not the purpose of this thesis to explore the details of historical

52 Ibid.
53 Ibid., p. 284.
54 Ibid., pp. 296-297.

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backgrounds of this sudden reification of sovereignty. But it seems safe to say that thephenomenon of the reification of sovereignty exactly satisfied the needs of animperialist age.

Philosophical Idealists

We shall now look into the philosophical attack on the tradition of constitutionalsovereignty. In the field of Political Theory, there arose a siginificant theoreticalmovement towards the end of the nineteenth century. So-called British idealists,55 whoemphasised the organic understanding of the state, began to attack traditional British
political theories. The theory of an organic state demanded a modification of theconcept of liberty.

The British tradition of negative liberty was based on thepresupposition of the distinction of the state and individuals, which was not suitable foran organic state.
In his lectures delivered in 1879-80, T. H. Green examines the problem of politicalobligation to the state in connection with the problem of sovereignty. Green finds inRousseau’s theory the value of the conception of the state as representing the sovereign
general will. According to Green, Rousseau's sovereign is the only sovereign de jure,which is distinguishable from the sovereign de facto in the actual ordinary States56 It
is the sovereign de jure, which is the source of justification of political obligation. The
sovereign de facto or the 'ostensible sovereign' is only able to exercise coercive powerin virtue of an assent on the part of the people. Green intends to reconcile Rousseauwith Austin in order to gain 'the truest view of sovereignty'57 Austin's coercive
sovereign is justified only when there is a sense of possessing common interests which
Rousseau's general will expresses.58 Green states that:

55 'Idealism' in this sense has nothing to do with what is called 'idealism' in the discipline of International
Relations.
56 Green, 'Lectures on the Principles of Political Obligation' (1879-80), pp. 395-398. It is interesting that
Green's conceptions of two sovereignty are the reverse of Dicey's. Both o f them place sovereignty of the people
beyond their own academic field.
57 Ibid., p. 402.
58 Ibid., p. 403.

103the institutions of political society - those by which equal rights are guaranteed tomembers of such a society - are an expression of, and are maintained by, a general
will. The sovereign should be regarded, not in abstraction as the wielder of coercive
force, but in connection with the whole complex of institutions of political society.59
Green justifies the political obligations of individuals by delineating the structure of
the two sovereigns.

If the general will is the source of sovereignty and of thejustification of the government, individuals participating in sovereignty cannot therefore
criticise the sovereign. Green asserts: 'A right is a power claimed and recognised ascontributory to a common good. A right against society, in distinction from a right tobe treated as a member of society, is a contradiction in terms.160 Green's 'obligation' does
not derive from the British tradition of the rule of law. Political obligation is justified,because those who are subordinate are the sovereign. The Rousseauean identificationof the ruler and the ruled dispels the Lockean distinction of government and society.
Green points out that previous political theorists make no inquiry into thedevelopment of society and of men through society. They treat sovereign and subject
apart, which are in fact correlative.61 He implies that society and men are able to merge
into one and become inseparable. According to Green, morality and political subjection
have a common source, which is the rational recognition by certain human beings of acommon well-being.62 Therefore, a basis of political or free society 'should represent
an idea of common good'.63 This means that it is realised only in the state. Green's
notion of the state is above the sovereign.

The state is above monarchical,

parliamentary, and popular sovereignty. Every mode of sovereignty should be merged
into the only supreme mode of sovereignty, namely, state sovereignty.
The attack on the constitutional understanding of the state in its strongest form
appeared with Bernard Bosanquet. He insists that the originality of his work lies in that
it is an 'attempt to apply the conceptions of recent psychology to the theory of State
coercion and of the Real or General Will, and to explain the relation of Social

59Ibid., p. 409.
60Ibid., p. 416.
61 Ibid., p. 427.
62 Ibid., pp. 430-431.
63 Ibid., p. 432.

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Philosophy to Sociological Psychology'.64 What is really remarkable in Bosanquet, evencompared with other British idealists, is his very organic notion of the nation-state.
He identifies the peculiarity of the nation-state as the phenomenon of the selfgoverning individual community.65 Bosanquet remarks that the self-governing
community is not merely a unit of legal personality. There must be moral content in themodem nation-state. Legal ideas and natural growth merge in 'a self-conscious
purposive organism'.66 This understanding of the modem nation-state inevitably leads
him to re-examine the concept of 'self. The critical issue is the conception of 'selfgovernment', because it is a conceptual device to justify political obligation, an
imperative task for political theorists in the time of revolutionary movements.
Bosanquet finds a paradox in 'self-government'. In what way can the term 'self, derived
from the 'individual' mind, be applicable to social coercion exercised by some persons
over others?67
First of all, Bosanquet asserts that the conception of'self-government' is incompatible
with 'primafacie theories' or 'theories of the first look', by which he means the theories
guided by the 'impression of the natural separateness of the human unit'68 In thosetheories the factors of self and government are alien and opposed.69 As long as theantithesis of self and government continues, the conception of 'self-government' also
continues to be paradoxical as well. In prima facie theories, government always reveals
itself as coercion exercised by 'the others' over 'the one'. In this context Bosanquet
praises the transformation of the notion of'person' from the physical individual throughthe legal 'person' (Hobbes) towards the 'moral person' of a higher or greater self
(Rousseau).70
There must take place 'a transition from the private self into the great communion of

64 Bosanquet, The Philosophical Theory o f the State (1899), p. ix.
65 Ibid., pp. 3-16.
66 Ibid., p. 36.
61 Ibid., p. 55.
68 Ibid., pp. 80-82.
69 Ibid., p. 64.
70 Ibid., pp. 93-96.

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reality'. What the self ought to be, governs causal private selves.71 As freedom fromconstraint includes freedom from a part of self to be governed, negative freedom is 'only
an elementary type or symbol' without the fuller freedom of positive freedom.72 It is
positive freedom which provides 'a system of self-government', namely, the governmentof what ought to govern over what ought to be governed. This 'system of selfgovernment' is thus 'the ultimate root of political obligation'.73 Accordingly, he assertsthat 'the State' is not a number of persons, but 'a working conception of life'.
Now the notion of sovereignty is defined in accordance with the unity of the nation­state. Bosanquet stipulates: 'Sovereignty, therefore, resides in no one element. It is,essentially, the relation in which each factor of the constitution stands to the whole.
That is to say, it resides only in the organised whole acting qua organised whole.'74
Analysing Hegel's idea of the state, Bosanquet also says: 'Law and constitution areutterances of the spirit of a nation'.75 The common good expressed by the nation is thereason why the constitution is important, and why the system of self-government needs
the higher notion of'The Nation-State', which 'is recognised as absolute in power overthe individual, and as his representative and champion in the affairs of the world
outside.'76
Bosanquet's argument characterises the challenge from the national to theconstitutional theory of sovereignty in his era. This is not to say that Bosanquet's theory
dominated British political theories. A counter-attack of constitutionalism occurred in
the time of Anglo-German conflicts in the twentieth century. Nevertheless, Bosanquet's
theory signifies the development of the theory of state sovereignty in the nineteenth
century. At the end of the century of nationalism, national sovereignty achieved its
theoretical completion even in the country of the champion of Classicalconstitutionalism.

71 Ibid., pp. 126-127.
72 Ibid., pp. 136-146.
73 Ibid., p. 149.
1AIbid., p. 282.
75 Ibid., p. 283.
76 Ibid., p. 320.

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Discourses on Sovereignty in International Law in Britain
To conclude our investigation into nineteenth century notions of sovereignty in
Britain, we shall now examine the discourses on sovereignty in the field of internationallaw. The appearance of the nation-state in the modem age changed the conceptual map
in people's minds dominated by the laws of nations and nature. When nations wereconceived to be like-men in a society of nations, it was supposed that the society ofnations was a higher equivalent of human societies.

In other words, under 'theanthropomorphism of nations'77, international society began to be looked upon in
analogy with domestic society, whether it would lead to a super-state or anarchy.
But the individualistic tendency in Britain had difficulty in accepting theanthropomorphism. At first, British international lawyers were perplexed with thedifference between international law and constitutional law. In the age of laissez faireliberalism, the constitutional mind might reject the anthropomorphic analogy between
men and nations. But in the age of imperialism, the analogy became no longer doubtful.
As a result, there appeared several main features of British constitutionalism in British
international law. For instance, as we shall highlight in comparison with Americaninternational law in the next chapter, one of the features of British traditional
constitutionalism was (in spite of the tradition of the protection of individual rights) thevindication of the inequality of individuals. Constitutionalism rather meant a balanceof power between multiple social classes. Inequality was not a predicament, but asource of constitutionalism in Britain. This feature in traditional constitutional law
applied in international law demanded the rejection of the principle of the equality ofnations. It rather functioned to justify the balance of power among great powers thatwas supposed to maintain international order.

Traditional International Law

For British lawyers in the nineteenth century, 'international law' was better than the771 mean by 'the anthropomorphism of nations' the identification of nations as living organic entities.

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'law of nations', but not a satisfactory expression, as 'nation' should be replaced with'states'. They found it difficult to identify nations with states.78 Nations could mean
English, Welsh, Scottish and Irish; the state is the commonwealth composed of theUnited Kingdom and its dominions.79 The nation and the state must be distinguishedas rigidly as possible. In the first place it should be emphasised that states differ fromindividuals subject to the natural law, for a 'State is a metaphysical entity, a mere
abstraction'.80 The actual subjects of international law are thus said to be therepresentatives of states: the sovereigns and their ambassadors.81
It is also said that 'The State is a Community of persons, living within certain definedboundaries, subject to a constituted government, and freely united together for theircommon good.' With such a constitutional structure of the ruler and the ruled, as lateas 1887 it is said that 'In the United Kingdom all sovereignty vests in the Queen, acting
through her Ministers in Council, responsible to Parliament'. In addition, a state may'consent to have its own sovereignty limited or qualified.'82
In nineteenth century Great Britain, at least towards the end of the century,
modernisation has more to do with constitutionalism than nationalism. Therefore,
William O. Manning observes: 'The resemblance, indeed, between a private citizen ina State and the State itself, as a member of a society of States, becomes less and lessnoticeable, as a simple monarchical system of government becomes exchanged, in one
State after another, for more complex systems, - as a constitutional monarchy, arepublic, or a federal government.' The state is now 'seen to be an aggregate of humanbeings'. Accordingly, the conception of sovereignty is modified in a constitutionalmanner. 'The sovereignty of a State is the inherent capacity it enjoys to select, tomaintain, or to change its own form of government'.83

78 '[I]n so far as States are distinct from nations, the former, not the latter, are subjects o f International Law.
T. J. Lawrence, A Handbook o f Public International Law, (1885), p. 3. By contrast, in America the word, state,
is 'not satisfactory, because it is employed to define parts o f territory'. Herbert W. Bowen, International Law(1896), p. 3.
79 'A State may consist o f one or more people or nations.' 'A State includes all its colonies and dependencies.'
Leone Levi, International Law with Materials fo r a Code o f International Law (1887), p. 80.
80 Archer Poison, Principles o f the Law o f Nations, with practical notes (1848), pp. 2-3.
81 Robert Phillimore, Commentaries upon International Law, vol. 1 (1854), p. 10.
82 Levi, op. cit., p. 82, 94.
83 Manning, Commentaries on the Law o f Nations, a revised edition (1839), pp. 91-94.

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The simple presupposition of the existence of separate equal nations is too artificial
for British lawyers like Manning. This realistic attitude leads him to assert that the'doctrine of the equality of States is, in some measures, an artificial one, and very
imperfectly corresponds with actual political facts.' At least, there must be 'a distinction
between legal and political equality'.84 This candid acceptance of dualism of politics andlaw, to which Dicey gives an authoritative expression, is also one of the characteristics
of British international law.85 British jurists tend to emphasise that political reality
exists regardless of legal principles. And international law must recognise the reality.86

Sovereignty in the Age o f Imperialism

The recognition of the reality of international politics leads lawyers to regard politicalaspects in the age of imperialism as an indispensable part of international studies. For
instance, John Westlake urges 'the student of international law1to 'appreciate the actual
position of the great powers of Europe'. He asserts: 'At no time and in no quarter of the
globe can small states ever have been admitted by large ones to political equality withthemselves'. The legal field cannot exist aloof from this actuality.87 He rather prefers
to say that there are two 'facts'. In spite of the equality of states as the first fact, 'thesecond fact' is that the 'general rules of international law apply in their fulness [sic] only
to sovereign states like France or the United Kingdom, and to natural persons brought
into relation with sovereign states . . . Between sovereign states and natural persons
international law recognises groups of the latter not on an equality with the former, ofMIbid., pp. 100-101.
85 In international relations where no legislative authority exists, it is not the political but the legal sphere thathas a revolutionary force. Admission of international political order by mainstream British international lawyers
derives from this twisted relationship of the two spheres.
86 The 'Great Powers of Europe have obtained such a position of authority that they are able to exercise
predominance over other States. This position is now well recognised.' Sherston Baker, First Steps inInternational Law (1899), p. 46. Thomas A. Walker stipulates that political sovereignty is one sovereign whole
which 'unites Independence with Constituent Power'. Legal sovereignty is 'the authority o f Functionary' limitedby constitutional law, or 'Representative o f National Independence, and the Exerciser o f National Government orSupremacy.' While Walker unequivocally expresses the principle that 'All States are formally equal', he takes for
granted the gap between this 'formal' principle and the reality of the supremacy of the Great Powers. Walker, The
Science o f International Law (1893), pp. 37, 41; A Manual o f Public International Law (1895), pp. 11-13.
Lawrence distinguishes between 'the Great Powers' and 'Ordinary Independent States' among 'sovereign states'
distinct from 'part-sovereign states'. Lawrence, op. cit., pp. 18-21. See also Lawrence, The Principle o f
International Law (1895), pp. 55-77.
87 Westlake, The Collected Papers o f John Westlake on Public International Law (1914), pp. 92-93.

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which Bulgaria may be taken as an example, and which may be classed together as semisovereign though they may and do differ in their particular condition and rights.' Inorder to explicate the two 'facts', he strictly distinguishes between sovereignty andindependence. 'Sovereignty is partible', while independence is not. Independence
corresponds with 'full sovereignty'; but there is no such thing as 'partial independence'corresponding with 'semi-sovereignty'.88
By the beginning of the twentieth century, one of the features of the British
constitutional way of thinking, a formal notion of the state composed of individuals, hasdeclined. The most authoritative British international lawyer who immigrated from
Germany, L. Oppenheim, clearly explicates: 'Sovereign States exclusively areInternational Persons - i.e. subjects of International Law.' This means that monarchs,
diplomatic envoys, and private individuals are not international persons.89 Now
Oppenheim numerates four conditions for the existence of a state as an exclusive subjectof international law: a people, a country, a government and a sovereign government.90
If a state lacks 'full sovereignty', it is named 'not-full Sovereign State', which isunderstood as an 'imperfect International Person'. He explains that such 'imperfect
International Personality is, of course, an anomaly; but the very existence of States
without full sovereignty is an anomaly in itself.'91
Oppenheim notes that the conception of sovereignty 'has never had a meaning which
was universally agreed upon', for there have been two schools on sovereignty; one
admits the divisibility of it, and the other does not. Especially after the Westphalian
Peace the existence of several hundred reigning princes 'enforced the necessity upon
publicists to recognise a distinction between an absolute, perfect, full sovereignty, on
the one hand, and, on the other, a relative, imperfect, not-full or half-sovereignty.'
Oppenheim succinctly demonstrates what happened to the conception in the
88 Westlake, Chapters on the Principles o f International Law (1894), pp. 86-87. See also Westlake,
International Law, Part I Peace (1904), pp. 20-22. T. Baty argues that there exists a kind o f superiority which
was neither equivalent to sovereignty nor merely nominal, i.e. semi-sovereignty or mi-souveraintes. The South
African Republic is a contemporary example of a semi-sovereign state. See Baty, International Law in South
Africa (1900) pp. 45-68.
89 Oppenheim, International Law: A Treatise, vol 1, Peace (1905), pp. 99-100.
90 Ibid., pp. 100-101.
91 Ibid., pp. 99-102. Horace S. Seal also has the idea of'perfecf and 'imperfect' sovereignty. The former isirresponsible, indivisible, unlimited, instant and unavoidable. The latter is also irresponsible and indivisible, but
limited and not immediate. Seal, Sovereignty and the State (1907), pp. 7, 10.

110nineteenth century. The generally recognised fact is 'that a sovereign monarch may well
be restricted in the exercise of his powers by a Constitution and positive law.' In
addition, several federal states show 'the divisibility of sovereignty between the memberStates and the Federal State.' Furthermore, 'the science of politics has learned to
distinguish between sovereignty of the State and sovereignty of the organ which
exercises the power of the State. The majority of publicists teach nowadays that neither
the monarch, nor Parliament, nor the people is originally Sovereign in a State, but theState itself.' Nevertheless, 'the old controversy regarding divisibility of sovereignty has
by no means died out.192 Oppenheim's statement is noteworthy for he is in the country
where Dicey has strongly denied the divisibility of sovereignty. In order to maintainlegal order in international as well as domestic society, sovereignty in international law
must be divided, while sovereignty in constitutional law must not.
Oppenheim's admission of the divisibility of sovereignty reinforces the reality of theage of imperialism. The states are not in fact equal. In addition to colonial-states, there
are non-full sovereign states in international society.

That is the reality whichinternational lawyers must recognise. He concludes that 'those who do not want tointerfere in a mere scholastic controversy must cling to the facts of life and the practical,
though abnormal and illogical, condition of affairs. As there can be no doubt about thefact that there are semi-independent States in existence, it may well be maintained thatsovereignty is divisible.'93
In the beginning of the twentieth century the inequality between states was such aclear reality that the title of sovereignty had to be restricted to the limited number ofstates. This was a basis of the British class system of constitutionalism. The different
classes of states composed an international constitution in accordance with theirpositions. Great powers acted as great powers; minor states as minor states.
Two points can be emphasised here. First, despite the difference as regards thedivisibility of sovereignty, Dicey's imperial theory of sovereignty and Oppenheim's
international law are based on the same perception of reality. Among numerous unequal
states in the world, the perfect sovereign is the British Imperial Parliament or Great92 Ibid., pp. 103-107.
93 Ibid., p. 108.

I ll

Britain as an international person. Most of the other states except some other great
powers are not entitled to sovereignty. Second, dualism runs through both Dicey and
Oppenheim. Dicey refines legal sovereignty by excluding political sovereignty from thestudy of constitutional law. On the other hand, Oppenheim degrades legal sovereignty
by including political sovereignty in the study of international law. But this academic
difference again points in the same practical direction; a hierarchical governmental
system. Dicey's political sovereign was a bulk of subjects who were sovereign outside
the scope of constitutional law. His legal sovereign ruled over the subjects in Britain
as well as the British colonies. Oppenheim's legal sovereigns were nominally sovereignstates. Great powers governed international society. Dicey and Oppenheim in two
different fields constructed different theories, but in order to accommodate the same
reality. Sovereignty was no longer a principle of Classical constitutionalism; but it wasan expression of the reality in the age of imperialism.

In the nineteenth century Great Britain experienced hidden but great changes in its
constitutional system due to the waves of democratisation, nationalism and imperialism.
Accordingly, the traditional nature of constitutional sovereignty gradually became oldfashioned. This is the process of a reluctant acceptance of the national theory ofsovereignty in Britain, which scholars in International Relations tend to ignore under thepresupposition of the 'Westphalian' nation-state system. However, this does not meanthat the tradition of British constitutionalism completely disappeared. We shall see later
an international application of the tradition of constitutionalism, which is constructedupon the basis of the achievement of nationalism: the anthropomorphism of nations.
Before that, we shall turn to the process of the development of national sovereignty in
the United States.

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Chapter 4

The Spread of National

Sovereignty in America
The United States was an embodiment of constitutionalism in the early nineteenth
century. Although its national power was undeveloped in comparison to Great Britain,
its embodiment of many liberal and democratic ideals made it the source of interest
amongst political theorists. Domestically, it maintained the principles of popularsovereignty and supremacy of the Constitution; it continued to implement democratic
reforms but still avoid the spellbinding obsession with absolute sovereignty of thepeople which frightened European intellectuals after the French Revolution.
Internationally, the pillar of US foreign policies was the Monroe Doctrine of 1823,
which established the principle of non-interference with the Western Hemisphere. It canbe said that the Monroe Doctrine was a principle of negative liberty in the international
field. It sought to establish the principle of non-interference, rather than the realisationof democratic ideals, in the society of nations. However, as the United States finished
its westward expansion, developed economic and military strength, and consolidated
national identity after the American Civil War, it gradually emerged as a new great
power. In the late nineteenth century, the Monroe Doctrine was modified by the socalled 'Roosevelt corollary'. It ceased to be a principle of non-interference and becamea principle of US imperialism in the Western Hemisphere.
In this chapter we shall examine the development of notions of sovereignty in the
periods leading up to the development of US nationalism and imperialism. The firstsection deals with the debates on the issue of sovereignty up to the outbreak of the Civil
War. The second section focuses on the post-Civil War era. The third section covers
American discourses on sovereignty with respect of international law.

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Debates about Sovereignty around the Time o f the Civil
War
While the theory of divided sovereignty became an orthodox doctrine after theratification of the Constitution, the ambiguity of the location of sovereignty remained
a hotbed of political conflict. In the last decade of the eighteenth century the legislaturesof Virginia and Kentucky passed resolutions to declare that each State was sovereign
and independent.

Even some of the Northern States considered secession after

Jefferson's agrarians won the presidential election in 1800.1 It is no wonder that
Tocqueville had a pessimistic opinion about the Union's future, for he was in America
just when the 'nullification' claimed by the Southern States was in dispute.2 The
question whether the states have the right of secession or not cannot be settled, for the
US Constitution has no provision of it.3 In the following decades constitutionalism as
the golden mean principle declined, and national sovereignty of the States and that of
the Union confronted each other.

Sovereignty as Allegiance

President Andrew Jackson proclaimed in 1832:

The States severally have not retained their entire sovereignty. It has been shown that,in becoming parts of a nation, not members of a league, they surrendered many of theiressential parts of sovereignty.. .. The States, then, for all these purposes, were nolonger sovereign. The allegiance of their citizens was transformed, in the first

1 See Jacobson, op. cit., p. 411.
2 As regards the relevance of sovereignty with the doctrine o f nullification, see Johnson, op. cit., pp. 308-34.
3 In a chapter added in 1856, Grimke insists that although sovereignty can be alienable and divisible, theStates wield the right to secede. See Grimke, op. cit., pp. 503-17. On the contrary, Edward Everett argues thateven if the States are sovereign, 'State sovereignty does not authorize secession1. According to him,"'sovereignty" is a word o f very various signification'. Everett, 'Introductory Address' in Frank Moore (ed.), The
Rebellion Record, (1861). J. S. Wright enthusiastically advocates the sovereignty o f the State as 'a demigod
person', and denies national as well as divided sovereignty. But he does not admit secession, and accuses the
seceding southern States o f breaking the contract. Wright, Citizenship Sovereignty (1862), p. 72.

114

instance, to the Government of the United States'.4
This statement, of a president famous for democracy in the Union, indicates that atstake was the direction of the 'allegiance of their citizens'. The issue of the 'allegiance'
is an old topic. But it can be noted that in America the people were not just subjects;
they are the sovereign as well. This means that their allegiance was directed not towards
their king, but ultimately towards themselves. The 'allegiance' was nothing but the
problem of identity. Modem men in America had to decide what identity they foundmost significant. The political struggles that led to the Civil War revolved around thatissue.
The confrontation between the 'nationalists' and the 'particularists'5was illustrated bya famous debate in the Senate in 1833. Daniel Webster defended the unity of the Union
by saying that a Constitution was not a league, compact, or confederacy, but afundamental law. And he argued that sovereignty was not a doctrine of the State but thepeople as a whole nation. He asserted that the 'sovereignty of government is an idea
belonging to the other side of the Atlantic. No such thing is known in North America.
. . . In Europe, sovereignty is of feudal origin, and imports no more than the state of thesovereign. . . . But with us, all power is with the people. They alone are sovereign.'
According to Webster, 'the people of the United States are one people.'6 This populist
argument of Webster became influential in the Northern States around the time of the
Civil War.7

4 'Proclamation of President Jackson to the people of South Carolina1, December 10, 1832, in Johnson, op.
cit., p. 337.
5 In nineteenth century American history, the 'nationalists' mean. pro-Union advocates and the 'particularists'
are State rights defenders.
6 Daniel Webster, The Papers o f Daniel Webster, volume 1, 1800-1833, (1986), p. 589-92. See also 'Second
Reply to Hayne', January 26-27, 1830, in which Webster argued that the government of the United States was not
the agent o f the state governments. He emphasised 'the people's Constitution, the people's government, made forthe people, made by the people, and answerable to the people.' He continued to say that the 'States are,unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the Statelegislatures, as political bodies, however sovereign, are yet not sovereign over the people. So far as the people
have given power to the general government, so far the grant is unquestionably good, and the government holds
o f the people, and not o f the State governments. We are all agents o f the same supreme power, the people. The
general government and the State governments derive their authority from the same source.. . . the people o f theUnited States have chosen to impose control on State sovereignties.' Ibid., p. 330.
7 Webster's logic was adopted by John L. Motley during the Civil War: sovereignty only resides in the people;
if the traditional understanding o f sovereignty demands its association with the state, there is no such concept assovereignty in America. See John L. Motley, 'Causes of the Civil War: A Letter to the London Times' in Moore,
op. cit., Documents and Narratives, p. 211.

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Webster's adversary, John C. Calhoun, represented particularism. He contended thatthe terms like union, federal, united, implied the sovereignty in the several States, notin the American people in the aggregate. He asserted that:the sovereignty is in the several States, and that our system is a union of twenty-foursovereign powers, under a constitutional compact, and not of a divided sovereignty
between the States severally and the United States. In spite of all that has been said,
I maintain that sovereignty is in its nature indivisible. It is the supreme power in aState, and we might just as well speak of half a square, or half of a triangle, as of halfa sovereignty.'8
Both Webster and Calhoun, despite their confrontation, adopted populist tones. In
addition to Webster's stress upon the American people, Calhoun's insistence is thatsovereignty resides in the people of the States respectively.9 Both of them resort topopular sovereignty; the question is whether the sovereign people exist in the nation orin the States. There must be somewhere a natural entity called the people, who alone
hold sovereignty; but are they in the nation or in the States? Either national sovereignty
or State sovereignty must monopolise the allegiance of the citizens. The constitutional
concept of sovereignty has evidently started to decline; the notion of sovereignty is now
enthusiastically confirmed as 'absolute, unqualified, unconditional and unlimited'.10
The fact that the issue of sovereignty was at the core of the confrontation between the
North and the South is shown by the ordinances of secession by the Southern States in1861. They declared that the seceding state was 'in the full possession and exercise of
all the rights of sovereignty which belong and appertain to a free and independent* Calhoun, 'Speech on the Revenue Collection [Force] Bill', in op. cit., pp. 433-434.
9 John C. Calhoun, 'Exposition and Protest', December 19, 1828, pp. 343-344. William D. Porter defends
State sovereignty 'for sovereign power is inherent, original, and self-existent', which means that the people in theState are the only sovereign. He denies the exercise o f sovereignty by the federal government as well as
municipal governments in the name of the popular sovereignty of the State. Porter, State Sovereignty and theDoctrine o f Coercion (1860). John Jay asserts on the side o f the North that 'the rebel government is an
usurpation o f the grossest kind, not only against the people of the United States in their sovereign capacity, but
against the people of the States in whose name it assumes to act, and by whose will it pretends to have been
established.' 'An Address delivered at mount kisco, Westchester county, New York, on the 4th o f July, 1861, byJohn Jay' in Moore, op. cit., Documents and Narratives, p. 381. See also Jay, New Plottings in aid o f the rebel
doctrine o f state sovereignty (1864).
10Abel P. Upshur, A BriefEnquiry into the True Nature and Character o f our Federal Government (1863),
p.78.

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State'.11 South Carolina, the first secessionist State and Calhoun's native place, did not
mention sovereignty in its Ordinance. Instead, it explained that the State retained
sovereignty under the Constitution of the United States. 'Declaration of Causes which
induced the Secession of South Carolina' appended to the Ordinance implied that there
was no need for mentioning the restoration of full sovereignty because the State retained
it even before the secession.12 According to it, history proves that the sovereign people
in the State is inherent and natural, compared with the artificiality of the Union.
Jefferson Davis, President of the Confederated States during the War, emphasises in
his post-Civil War lengthy work that 'the only political community - the only
independent corporate unit - through which the people can exercise their sovereignty,
is the State.'13 Davis supposes that all governments are in subjection to the will of thepeople, and that the sovereign will is expressed only in the State. Thus State sovereignty
is the only possible expression of undivided and indivisible sovereignty. According toDavis, historical documents prove that the founders of the American system and menof those days, far from considering sovereignty a term of feudal origin, seem to haveregarded it as a very vital principle in that system.14 As 'the allegiance of the citizen isdue to the sovereign alone', 'the people of each State alone possessed sovereignty, andconsequently were entitled to the allegiance of the citizen.'15 Davis professes that 'wedared to draw our swords to vindicate the rights and the sovereignty of the people, that
we dared to resist and deny all sovereignty as inherently existing in the Government of
the United States'.16
Davis's argument illustrates the modem logic of the 'allegiance of the citizen'. Daviscontends that the citizen of the State, not of the Union, must comply with the allegianceto the people of the State, not of the Union. This might mean that a person as a citizen
11 The same phrases were used in the Ordinances of Secession by Georgia, Louisiana, Virginia, North
Carolina and Arkansas. Other seceding States also declared themselves to be sovereign. See Moore, op. cit.,
Documents and Narratives, pp. 20,22,26, 27, 70, 203, 260, 264. 'Constitution for the Provisional Governmento f the Confederate States o f America' and 'Constitution o f the Confederate States o f America' o f 1861 expressed
each state as 'sovereign and independent'. See Provisional and Permanent Constitutions o f the ConfederateStates (1861).
12 See ibid., p. 3.
13 Davis, The Rise and Fall o f the Confederate Government (1881), p. 141.
"Ibid., p. 145.
15Ibid., p. 154.
"Ibid., p. 582.

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of a State should pledge the allegiance to himself as a part of the people in the Stateagainst himself as a part of the people in the Union. Is this really possible? Only if we
can identify which is the truer people.
The same logic is adopted by Alexander H. Stephens, Vice President of theConfederated States and 'next to Calhoun, the leading political thinker produced by theSouth'.17 In a post-Civil War book in which he delved into historical details in order toprove the sovereignty of States, Stephens asserts that he and Jefferson Davis were notpro-slavery. They just identified themselves with those who maintained the federative
character of the general government.18 He explains that the subject of slavery 'was, to
the Seceding States, but a drop in the ocean compared with those other considerations.
. . . Hence, during the whole war,. . . I was wedded to no ideas as a basis of peace, butthat of the recognition of the ultimate absolute Sovereignty of all the States as theessential basis of any permanent Union between them'.19 The reason why he fought isthe allegiance 'to Georgia in her sovereign capacity'. This allegiance is not given to thegovernment of the State, but to 'the people of the State in a regularly - constituted
Convention, embodying the real Sovereignty of the State'.20
Stephens's understanding of sovereignty is tantamount to allegiance, as sovereignty
is the paramount authority to which allegiance is due. Thus he makes clear that'allegiance and Sovereignty, as we have seen, are reciprocal'.21 Stephens distinguishes
allegiance from legal matters. 'Paramount authority of Sovereignty' and allegiance aredifferent from law including the Constitution, because the former can set aside the latter;
allegiance and sovereignty have priority over the Constitution. Although he was not asecessionist before the War, he duly acknowledged that 'the Sovereign will of the State,when expressed through its properly constituted organ, was for secession, or awithdrawal of the State from the Union.' Thus he 'obeyed the high and Sovereign behest

17 Herbert McClosky, 'State Sovereignty: Alexander H. Stephens' Defense of Particularist Federalism' (1948),
p. 170.
18 See Stephens, A Constitutional View o f the Late War between the States (1868), p. 10.
19 Ibid., p.542.
20 Ibid., pp. 19-20. The same sentiment was expressed by Sam Houston to Texas. Houston respected thesecession o f Texas, though he had been opposed to it. 'Sam Houston's Speech, Texas, May 10, 1861' in Moore,
op. cit., Documents and Narratives, p. 267.
21 Stephens, op. cit., p.492.

118

of my State'.22
Stephens does not necessarily intend to ignore the Constitution. But he finds in theConstitution the federative character of 'a Union of Sovereign States'; it is the essenceof the Constitution. According to him, there was no fundamental change between the
Articles of Confederation and the Constitution, as both instituted a Government by
States and for States.23 This is a historical fact, no matter how much it could be
modified theoretically. This historical fact is evident in the debates around the time of
the ratification of the Constitution, and is confirmed by the resolutions in the Senate
proposed by Calhoun in 1838, and by Davis in I860.24 In short, Stephens recognises theConstitution only as an embodiment of a union of sovereign states. In other words,
sovereignty associated with allegiance is superior to the Constitution. What is mostimportant is not the Constitution, but the sovereignty of and allegiance to the State.

Majority Sovereignty

The most prominent and influential theorist among the particularists is Calhoun. Hispolitical view on the Constitution of the United States is expressed in A Discourse on
the Constitution and Government. He asserts that the United States is composed of free,independent and sovereign States. The federal Union is not national.25 For instance, heargues that historical investigation shows that the preamble of the Constitution refers to
the people of the several States of the Union, not in the aggregate.26 He also repudiates
the idea of divided sovereignty, because 'Sovereignty is an entire thing - to divide, is to destroy it.'27
The Constitution imposes restrictions on the exercise of sovereign power which theseveral States voluntarily established. Yet, this does not mean that the creator - the22 Ibid., pp. 19-25.
23 Ibid., pp. 50-59.
24 For instance, the resolution passed on May 24,1860 stipulates that 'in the adoption o f the Federal
Constitution, the States adopting the same, acted severally as free and independent Sovereignties'. Quoted in
ibid., p. 409.
25 Calhoun, 'A Discourse on the Constitution and Government', written shortly before 1850, in Calhoun, op.
cit., p. 83.
26 Ibid., p. 92.
21 Ibid., p. 105.

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people of the several States - is subordinate to the created. The Constitution binds
between the States as a compact, and not on, or over them as a constitution. '[I]t is but
a compact and not a constitution - regarded in reference to the people o f the several
States, in their sovereign capacity.' According to Calhoun, it is a constitution for theUnited States - not over them; and established, not over, but between the States ratifying
it. But 'The case is reverse, as to the action of its citizens, regarding them in theirindividual capacity. To them it is a law - the supreme law within its sphere.'28 Although
the people in the States are sovereign, the citizens must obey both State sovereignty andthe US Constitution.
It is worth comparing this particularistic view of the United States with his generalpolitical theory. In ^4 Disquisition on Government, also written just before his death, he
explains his doctrine of'the concurrent or constitutional majority' in opposition to 'thenumerical or absolute majority'. He reasons that the community is always divided into
two great parties - a major and minor - between which there will be incessant struggles
to retain the control of the government. Therefore, the principle of universal suffrage
is not sufficient, though it is indispensable and primary, to attain constitutional
governments. The principle of dividing and distributing the powers of government
perfects the constitution in its strict and limited sense.29 From these principles, Calhoun
describes 'two different modes in which the sense of the community may be taken'. Hesays that one sense of the majority, which constitutes the majority by the right ofsuffrage, regards numbers only, and considers the whole community as a unit. The
other, which needs a proper organism, regards interests in addition to numbers, andconsiders the community as made up of different and conflicting interests. The former
is 'the numerical, or absolute majority'; The latter, 'the concurrent, or constitutional
majority'.30 Calhoun asserts that 'it is, indeed, the negative power which makes theconstitution - and the positive which makes the government. The one is the power ofacting - and the other the power of preventing or arresting action. The two, combined,
make constitutional governments.'31 Thus for Calhoun, 'the great and broad distinction
28 Ibid., p. 195.
29 See Calhoun, 'A Disquisition on Government', written shortly before 1850, in ibid., pp. 5-23.
30 Ibid., pp. 23-24.
31 Ibid., p. 29.

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of governments is - not that of the one, the few, or the many - but of the constitutional
and the absolute.'32
Calhoun's doctrine is usually regarded as a justification of State sovereignty.
However, he did not literally connect his theory to the issue of sovereignty in America.
We can easily ascertain the reason. If State sovereignty is really absolute as Calhoun
emphasises, it has nothing to restrain itself. But to discuss the concurrent majority inthe context of the United States implies the existence of a political community above thesovereign State. Calhoun's political theory and his advocacy of State sovereignty giverise to a subtle but critical tension. If Calhoun wants to commit State sovereignty to thetheory of the constitutional majority, he has to suppose that the United States is 'a properorganism'. But it is contradictory to his definition of sovereignty.
Calhoun's theory of the concurrent majority does not justify secession, let alone
absolute sovereignty of the State.

The 'conservative principle' of constitutional

governments is compromise, while that of absolute governments is force.33 But absolute
sovereignty of the State rejects any proper organism that circumscribes it. Although theparticularists repeatedly warned about the tyranny of the majority, they never warned
about the tyranny of the majority in the State.34 The nationalists sanctified the majorityof the Union, but not the majority in the State. Struggles for the national theory ofsovereignty were tantamount to struggles for the true majority.
No other examples can more clearly show the conceptual struggle appertaining to the
Civil War than the comments made by two presidents of the United States. When South
Carolina declared secession in December, 1860, the then president of the Union, James
Buchanan, explained in a reply to the South Carolina commissioners that the president
had no power to admit independence of a State. He wrote: 'it would be to invest a mere
executive officer with the power of recognizing the dissolution of the Confederacy

32 Ibid., pp. 29-30.
33 See ibid., p. 30. Calhoun distinguishes secession from nullification. See 'The Fort Hill Letter on State
Interposition1, Calhoun to Governor Hamilton, August 28, 1832., quoted in Johnson, op. cit., p. 324-325.
34 A convention in South Carolina addressed: 'The government of the United States is no longer a governmento f a confederated republic, but of a consolidated democracy.. . . "The right divine to rule in kings" is onlytransferred to their majority. 'Sovereignty o f South Carolina / The Address o f the people o f South Carolina,
assembled in convention, december, 1860, to the people of the slaveholding States o f the United States / Dec. 29,
I860' in Moore, op. cit., Documents and Narratives, pp. 396-400.

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among our thirty-three sovereign States'.35 What is remarkable is that he had also
confirmed in the same month that 'the federal government embraces the very highest
attributes of national sovereignty.'36 When he faced a seceding State, he looked for aconstitutional measure to solve the problem in vain, and then tried to leave the problem
to Congress. He was perplexed because he had overlapping sovereignty in mind.
However, only less than a month later, the new president of the United States,
Abraham Lincoln, emphasised in his inaugural address the need for the minority toacquiesce in the majority. He proclaimed:

A majority held in restraint by constitutional check and limitation, and always
changing easily with deliberate changes of popular opinions and sentiments, is the
only true sovereign of a free people. Whoever rejects it, does, of necessity, fly toanarchy or to despotism. Unanimity is impossible; the rule of a majority, as apermanent arrangement, is wholly inadmissible. So that, rejecting majority principle,
anarchy or despotism in some form is all that is left.37
To be sure, Lincoln refers to 'restraint by constitutional check and limitation'. But
it is still remarkable that he ordains a majority to be 'the only true sovereign'. He
demands that the minorities obey not the Constitution, but the sovereign majority. Even
if Lincoln says that he does not admit the permanent rule of the majority, it does notchange the fact that the sovereign national will is represented by a majority.
This assertion of the sovereignty of a majority of the 'nation' marks a turning pointin American history. The traditional constitutional theory of sovereignty began to give
way to national sovereignty of the American nation, into which State sovereignty was
eventually absorbed.

35 'The President Reply / Washington City, Dec. 30. I860' in ibid., p. 12.
36 'President Buchanan's message of December 3, I860’ in Johnson, op. cit., p. 456.
37 'Inaugural o f Abraham Lincoln' in Moore, op. cit., Documents and Narratives, p. 38. John L. Motley also
insists that sovereignty is the will of the people expressed by majority. Ibid., p. 211. What is noteworthy is thatwhen Lincoln directly repudiated sovereignty o f the States, he resorted to the logic o f abstract political entity. He
proclaimed that 'Much is said about the "sovereignty" of the States, but the word even is not in the National
Constitution, nor, as is believed, in any of the State constitutions. What is a "sovereignty" in the political senseo f the term? Would it be far wrong to define it "a political community without a political superior"? Tested bythis, no one o f our States, except Texas, ever was a sovereignty; and it even Texas gave up the character on
coming into the Union'. 'President Lincoln's Message of July 4, 1861', in Johnson, op. cit., p. 470. There is asignificant gap between Lincoln's two ideas of sovereignty: the sovereignty o f a majority o f a free people andsovereignty defined as 'a political community without a political superior'. The majority in a State is not asovereign majority; the majority as 'the only true sovereign o f a free people' exists only in the Union.

122

The Emergence o f American Conception of National
Sovereignty
It was natural that national sentiment grew out of the aftermath of the Civil War.
Congress implemented coercive measures to reform the Southern States.

The

Presidency, symbolised by the myth of Lincoln, increased its authority and prepared forthe imperial policies of later periods. The US Supreme Court also gradually politicised
itself as a national organ.38 It should be noted that as American industries realised rapid
nation-wide growth, the US became one of the most powerful nations in the world. Ininternational fields, it entered into an imperial stage towards the end of the nineteenth
century. In reinterpreting the Monroe Doctrine, the US Secretary of State, Richard
Olney, asserted in 1895 that 'the United States is practically sovereign on thiscontinent'.39 In domestic fields, further democratisation of the federal government wasa necessity, as the nation came to monopolise the allegiance of the citizens. The 1913
constitutional amendment of the direct election of Senate was a result of the process ofnationalisation. Until then the constitutional nature of the United States had decisively
changed.40 This was the age of growth of national sentiment in the United States.

Sovereignty o f the United States

There was a transitional period after the Civil War. As the orthodoxy of traditional
constitutionalism did not completely disappear, we can find the advocates of non- or
anti- national sovereignty in the period after the Civil War. Thomas M. Cooley,
Supreme Court judge, maintained the legal understanding of divided sovereignty. As

38 Judge Oliver Wendell Holmes said in 1899: 'Where there is doubt the simple tool of logic does not suffice,and even it is disguised and unconscious, the judges are called on to exercise the sovereign prerogative of
choice.' Holmes, 'Law in Science and Science in Law' in Collected Legal Papers (1920), p. 239.
39 Quoted in Dexter Perkins, A History o f the Monroe Doctrine (1941), p. 175.
40 Walter Neale attacked the national government. According to him, after the two historical stages, 'theAmerican kingdoms (1578-1783)' and 'the American Republics (1783-1865)', there appeared the age of'theAmerican Monarchy (1865-1910)'. Neale, The Sovereignty o f the States (1910). Frank Buffington Vrooman
observes: 'The Civil War settled the question of state sovereignty. The Civil War was the ultimate amendment to
the Constitution.' Vrooman, The New Politics (1911), p. 255.

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late as 1868 he defines the notion of sovereignty as 'the supreme, absolute,uncontrollable power by which any State is governed'. 'In American constitutional law,however, there is a division of the powers of sovereignty between the national and State
governments by subjects'.41 The 'subjects' according to which sovereignty is divided
should be found in the Constitution. But Cooley's position did not appear to be
persuasive or attractive, since the difficulty in defining the 'subjects' had eventually
resulted in the tragedy of the Civil War.
It is fair to say that the States' rights theory was not abandoned immediately after thewar. P. C. Centz defends the defeated theory of State sovereignty. In order to prove that
the States are sovereign in the Union, Centz emphasises the absolute notion ofsovereignty. Sovereignty is indivisible; it is not qualifiable or limitable. Thus there is
only one sovereignty in a political community. American history proves that it is thepeople. Both the federal and State governments are the delegates of the sovereign
people. But where are the people? History shows that the people are in each State.42
O. A. Brown pronounces a compromise position. First of all, he confirms thefundamental principle of popular sovereignty by saying that 'supposing a political people
or nation, the sovereignty vests in the community, . . . by the natural law, or law bywhich God governs the whole moral creation.143 Then he proceeds to the 'simple fact''that the political or sovereign people of the United States exists as united States, andonly as united States. The Union and the States are coeval, bom together, and can exist
only together.144 He continues saying that 'while the sovereignty is and must be in theStates, it is in the States united, not in the States severally,so the sovereignty is in

the Union, not in the States severally; but there could be no sovereign union without theStates, for there is no union where there is nothing united.'45
But what does this mean in practice? In the atmosphere after the Civil War, it was

41 Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power o f the States o f
the American Union, (1868), p. 2. See also Cooley, The General Principles o f Constitutional Law in the UnitedStates o f America, (1880), pp. 14, 19.
42 Centz, The Republic o f Republics, (1865), pp. 305-324. John C. Hurd denies that the nation holds
sovereignty. See Hurd, The Theory o f our National Existence, as shown by the Action o f the Government o f theUnited States since 1861 (1881), pp. 112-115.
43 Brown, The American Republic (1866), p. 133.
44 Ibid., p. 219.
45 Ibid., p. 221.

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quite natural that there appeared more 'nationalist' positions. John Alexander Jameson
proclaims that sovereignty resides in 'the nation, considered as a political society or body
corporate.' But this is not a theory of the sovereignty of the Union. He writes: 'Back of
all the States and of all forms o f government for either the States or the Union, we areto conceive of the N a t i o n , a political body, one and indivisible, made up of the citizensof the United States'.46 This 'vast body, as a corporate unit' distributes powers to theUnion and the several States. This is the reason why 'although the nation is the only real
sovereign, the States are often called sovereign'. On account of their permissive
supremacy in local State affairs, the States are but 'quasi sovereign'47 For Jameson
unequivocally refuses to admit the sovereignty of the constitutional convention48 histheory of the sovereignty of the nation does not have any single sovereign representative.
Instead, he proclaims a historical necessity of an organic theory of the nation tosynthesise constitutional conflicts.
John Norton Pomeroy has no hesitation in adopting the sovereignty of the nation in
the field of constitutional law. In 1868 he expresses that 'There can be no nation without
political sovereignty, and no political sovereignty without a nation.49 He defines theterm, sovereign, as 'the expression of an absolute idea; it does not admit any notion ofgrades, of inferiority, of dependence, or of division.' Then he concludes that 'the UnitedStates fulfils all the requirements which have been mentioned as necessary to theexistence of a nation; that the people thereof is an independent, separate political society
with its own organization and government, possessing in itself inherent and absolute
powers of legislation.'

By contrast, each State is 'in a position of permanent

subordination.'50 The sovereignty of the whole nation as an organic entity was the mostnecessary and promising doctrine in America in the last third of the nineteenth century.

46 Jameson, The Constitutional Convention (1867), p. 54.
47 Ibid., p. 55.
“ Ibid., pp. 290-303.
49 Pomeroy, An Introduction to the Constitutional Law o f the United States (1868), p. 27.
50 Ibid., 30-31.

125Discovery o f a Nation

In 1868 William B. Greene in Boston wondered why several States including
Massachusetts stipulated their sovereignty in their constitutions.

Sovereignty ispossessed by the United States; but it is possessed by the Commonwealths too. Thus
he observes that 'Sovereignty, as it exists in God, is simple and indivisible; but, as itexists among men, it is multiple and separable into parts.' This means that 'Neither theUnited States nor the Commonwealths possess absolute sovereignty: no body-politic
either does, ever did, or ever can possess absolute sovereignty.'51
Greene argues that the several States granted certain powers to the United States.
The latter then assumed sovereignty in the strength of these powers. Sovereignty, notpower, cannot be granted, but can only be assumed. 'Sovereignty is (under God, whois the sole fountain of might and dominion) original, self-derived authority to decree,
tojudge, and to do. . . . Sovereignty is prevailing force, and subsists by divine (perhaps
diabolical) right: it is violent, heroic, extra-human, inexplicable.'52 The manifestation
th a t'Sovereignty is self-derived authority' implies that constitutional designs are notdecisive. Sovereignty is self-sufficient and not a product of a constitutional allocationof powers. Sovereignty always exists by itself; it is a real entity. This is now a morepersuasive argument than the theory of divided sovereignty. As in the case of GreatBritain, in America there emerged a phenomenon of the reification of sovereignty in theage of imperialism.53
In the process of this reification, 'sovereignty' surpasses any constitutional settings.
Francis Lieber, the leading national theorist who came from Germany, proclaims in1865 that 'Sovereignty is inherently an attribute of a society, or of the representing agentof society . . . sovereignty is not a sum total of many or a few fractional sovereignty, it

51 Greene, The Sovereignty o f the People (1868), pp. 5-6.
52 Ibid., p. 11.
53 For instance, Lawrence Lowell stipulates that 'the existence o f any law is a question o f fact.' In other words,'the extent o f sovereign power being, like the very existence of sovereignty, a pure matter o f fact, depends
entirely upon the extent of the obedience actually rendered.1 Lowell, 'The Limits o f Sovereignty', (1888).
Franklin Henry Giddings provides a sociological search for the emergence of'sovereignty', not o f the idea ofsovereignty, in history. See Giddings, The Principles o f Sociology (1896), pp. 285, 314. He also formulates fourtypes o f sovereignty: personal, class, mass and general sovereignty. Giddings, 'Sovereignty and Government'(1906), p. 12.

126

is the attribute of an organized or organizing people.'54 In accordance with this organic
view he also insists that a 'double allegiance' is impossible. He advises on theamendments proposed for the constitution of New York that the word, sovereign, which
was attributed to the State of New York, be omitted in the revised constitution.55
Lieber's work in 1838 was a forerunner of the philosophical justification of thenation. He contended in it: 'Man cannot exist without the state.' 'And this absolutenecessity, with the power necessarily flowing from it over all outward relations, we callsovereignty. The right, obligation and power, which human society or the state has, todo all that is necessary for the existence of man in society, is the true sovereign power.'
According to Lieber, 'sovereignty is a power and energy naturally and necessarily
inherent in society; it only exists with society, it cannot pass from it. It is the vital
principle of the state'. This he calls a theory of'the sovereignty of society', which is 'theself-sufficient plentitude of sovereignty'56 This is not particularly a manifestation of thesovereignty of the American nation. But it was understood so in American history after
the Civil War.
The most expressive national doctrine of sovereignty is articulated by E. Mulford.
His thesis is that 'the nation is a moral person

The central attribute of personality

is the will. The will in its freedom is defined in no formal or empty notion; it is the selfdetermination of a person, and that alone is free.'57 Thus he criticises 'the fiction ofsocial contract'.58 The nation is not a formal organization. 'The nation is the realizationof the freedom of the people. The freedom of the people subsists in the being of thenation as a moral person, the real freedom of the nation . . . can have no ground in a

54 Lieber, 'Amendments Proposed for the Constitution of the United States, 1865' in Contributions to Political
Science, including Lectures on the Constitution o f the United States and Other Papers, being volume II o f his
miscellaneous Writings (1881), pp. 155, 157.
55 Lieber, 'Amendments Proposed for the Constitution o f New York, 1867 in ibid., p. 216. The third
Constitution o f New York adopted in 1846 stipulates that the 'people of this State' have 'their right ofsovereignty'. The Constitution o f the Several States o f the Union and United States (1852), p. 144.
56 Lieber, Manual o f Political Ethics, Part 1 (1838), pp. 246-247,250-251,269-270. It may be noted that
Lieber's theory of sovereignty is not as organic as Hegel's. He clearly takes sides with 'the government of
Anglican liberty' in opposition to 'the Gallican type', which means 'the unity o f power' or 'the undivided
sovereignty o f the people' or 'the absolute rule of the majority'. Lieber, On Civil Liberty and Self-Government(1853), pp. 122-123, 235.
57 Mulford, The Nation (1872), pp. 72-73.
58 Ibid., p. 76.

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merely formal conception.'59 Thus he proclaims that 'Political sovereignty is theassertion of the self-determinate will of the organic people, and in this there is the
manifestation of its freedom.'60 He stresses that 'The people' is not the mob with aformal organisation. 'The sovereignty is of the organic people, constituted as a nation.'61
This is the pivotal principle of politics, for 'The sovereignty of the nation is the original
power through whose self-determinate action the political order is established, and init all the other powers subsist and from it they proceed.*62 The law which is understoodin the light of this principle is no longer formal and abstract. It is 'the will of the people
in the nation, as organic and moral.'63 That is to say, 'The nation is the domain of law;
the law is of the nation, for the nation.'
Naturally, Mulford identifies the nation with the government. 'The government is of
the people and it is over the people. There is no contradiction, but it is predicated in the
being of the nation as a moral person. . . .

It is the will of the people in its self-

determination, that is its sovereignty and its freedom.164 He goes on to assert that 'The
government is the manifestation of the sovereignty of the people. It rests on no contract.
. . . . The government as the representative of the will of the people as a moral person,
has its strength in the will.'65
Mulford distinguishes between the nation and the commonwealth. Contrary to thenation, the commonwealth is a formal organisation; it is the civil order of society, which
precedes the nation. His conception of the nation and the commonwealth correspondwith the state and civil society in Hegel's philosophy, and the Union and the State inAmerica.66 He explains: 'The commonwealth is invested with a formal sovereignty. It
is not the sovereignty of the people,. . . but a formal sovereignty, limited to a certain
process and to the formal exercise of certain powers for the prosecution of the process.'67

59 Ibid., p. 113-114.
60 Ibid., p. 129.
61 Ibid., p. 135.
62 Ibid., p. 136.
63 Ibid., p. 137.
“ Ibid., p. 141.
65 Ibid., p. 142-143.
66 Ibid., pp. 238-239.
67 Ibid., pp. 302-303.

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He proclaims: 'The real sovereignty is in the organic people, whose will is the supreme
law; but it is the people of the United States, and not of each or any particular State,whose will is the supreme law.'68
Sovereignty as the will of the organic people is almost a perfect manifestation ofnational sovereignty. Not least due to the experience of the Civil War,69 Mulford
develops a complete theory of national sovereignty for the American nation. Mulford's
conception of nation is a real being and a synthesis of content and form. Mulford's
argument represents the degree to which the philosophical foundation of nationalsovereignty has taken root in America.

Scientific Justification o f Sovereignty

Another feature of

discourses on sovereignty at the end of the nineteenth century

is 'scientific' justification of the absolute notion of national sovereignty. With the
emergence of a new science called political science, the concept of sovereignty obtained
the sanction of some prominent 'political scientists' in the last decade of the nineteenth
century.
What is characteristic is that the justification of American national sovereignty was
conducted in the name of popular sovereignty. We can easily ascertain the reason for
it. The nineteenth century was ending with the rise of popular and national movements.
It was not the time for the Americans to simply hold to the principle of checks andbalances, and non-interference. Why should the Americans not be proud of their leadingrole in world history as the most successful state of popular sovereignty?
For instance, John A Jameson found that the age of national sovereignty, thenineteenth century, was the American age. He claims that 'the sovereignty of the people,
in the American sense, is afact', that it is not a law or a right™ And the fact is that 'thesovereignty of the people' means nothing other than 'national sovereignty'. The issue for

68 Ibid., p. 312.
69 Mulford accuses formal theorists of regarding 'the battle for the nation and its unity and authority, at least
with indifference, and as void o f moral content, until it should become an immediate war against slavery'. Ibid.,
p. 134.
70 Jameson, 'National Sovereignty' (1890), p. 198.

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Jameson is not divided sovereignty or any other constitutional devices. According tohim, the enemy of the Americans is not national or state sovereignty, but 'feudal'
sovereignty in Europe. Jameson proves that only the 'nation, i.e. the people of theUnited States, acting either in solido, or in groups by states' is the sovereign in the
United States.71 While the individuals who compose the nation are amenable to theirauthorities, 'as an organized political community, free and independent' they are thesovereign.72
According to him, 'that the nation, the people, is superior in strength and inendurance to any part of itself, is, I take it, both a mathematical and a sociological truth.'
He asks, if it is not the case, how it can be explained that the great amount of voluntary
efforts of the people were offered in the Civil War.73 He thus concludes that 'no theoryof sovereignty but that of the people as a whole is in harmony with the facts of American
political life.' The American theory has worked well. It promises to work equally wellin the future. He asserts that 'if for any reason it be thought to be less scientific or lessconsistent with abstract political theory than that of Austin, so much the worse for
abstract political theory. It is the American doctrine of sovereignty, and not theEuropean.'74
Jameson follows Webster's doctrine expressed more than half a century later. But
no one challenges the validity of this statement after the Civil War. It has become anestablished fact. The sovereignty of the American people, the national sovereignty of
the United States, is a fact. This truth should be shown to Europe where people are stillsearching for the true sovereign.
John W. Burgess, an eminent political scientist who studied in Germany, explains theimportance of the role of American scholars for the study of sovereignty. He begins bydefining the state as 'a particular portion of mankind viewed as an organized unit'.75 The

71 Ibid., p. 202.
11 Ibid., p. 203.
73 Ibid., pp. 209-210.
74 Ibid., p. 213. According to Frank S. Hoffman, sovereignty as the essential attribute o f a state is 'in thepeople in their organic capacity as a State, and not in the government.' See Hoffman, The Sphere o f the State or
the People as a Body-Politic (1909), p. 4.
75 Burgess, Political Science and Comparative Constitutional Law, vol. I (1896), p. 51. It is worth noting this'concept' o f the state may be the stages in the realization o f the 'idea' of the state defined as 'mankind viewed as anorganized unit'. Ibid., pp. 49-50.

130state so defined is all-comprehensive, exclusive, permanent and sovereign.

Bysovereignty he means 'original, absolute, unlimited, universal power over the individual
subject and over all associations of subjects'. This principle reveals the dual characterof sovereignty; it is on the one hand inimical to individual liberty and individual rights,
but on the other hand it is their only solid foundation and guarantee. These prove thatthe principle of sovereignty cannot be logically and practically avoided.76
If limited, Burgess contemplates, it is not sovereignty. It is conceivable 'that a state
may outgrow its form of organization, so that the old organization no longer contains
the real sovereignty'. So when a sovereign seems to be limited, we must look for thereal sovereign. The 'real sovereignty' resists triumphantly the 'apparent sovereign', for'the state must always hold its form to accord with its substance'.77 The state is thesovereign; or Burgess seems to say that what is sovereign is the state. He ordains: 'The
state must have the power to compel the subject against his will: otherwise it is no state;
it is only an anarchic society. Now the power to compel obedience and to punish fordisobedience is, or originates in, sovereignty.'78
Not paradoxically, the sovereign state is the source and support of individual liberty.
The reason lies in the realisation of the 'modem national popular state'. It 'is the mostperfectly and undisputedly sovereign organization of the state which the world has yet
attained. It exempts no class or person from its law, and no matter from its jurisdiction.
It sets exact limits to the sphere in which it permits the individual to act freely.'79
Burgess systematises what European political theorists have found inconsistent; thepeople are the sovereign and at the same time subjects. At the end of the nineteenth
century the American political scientist is proud of postulating that it is the highest
development of the state. It is no wonder that Burgess is willing to assert that 'the more
completely and really sovereign the state is, the tmer and securer is the liberty of theindividual.'80

16 Ibid., p. 52-53.
77 Ibid., p. 53.
78 Ibid., pp. 55.
79 Ibid., pp. 55-56.
80 Ibid., p. 56. James Wilford Gamer supports this view and says that with the introduction of
constitutionalism 'it became an easy matter to reconcile the doctrine o f an unlimited sovereignty with that of alimited government.' Gamer also emphasises that there is a division by the sovereignty itself o f governmental

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Burgess goes so far as to say that 'the state can do no wrong'.81 But his account is not
the Continental philosophical affirmation of the organic state. Instead, he emphasises
the importance of the distinction of the state and the government. As the sovereign isthe state, not the government, there is no danger of an unlimited power of the state.
Burgess asserts that while Europeans, especially Germans feel it difficult to distinguishbetween them, 'In America we have a great advantage in regard to this subject. With us
the government is not the sovereign organization of the state. Back of the government
lies the constitution; and back of the constitution the original sovereign state, which
ordains the constitution both of government and of liberty'. Now the American politicalscientist is able to say that 'The national popular state alone furnishes the objective
reality upon which political science can rest in the construction of a truly scientificpolitical system'.82
It is no less true to say with Burgess that 'the national popular state' arose most clearlyin America. However, this does not mean that German theorists did not recognise
national sovereignty. Rather, it is German theorists who developed the organic theoryof the state throughout the nineteenth century. The significant fact is that 'the national
popular state' was not an ideal of the Federalists. The Constitution was proposed bythose who feared the tyranny of the people. This suggests that the history of the UnitedStates was being modified in the direction of national sovereignty after the Civil War.
In the field of legal science absolute state sovereignty was strongly glorified by W.
W. Willoughby, authoritative juristic and political philosopher. He reinforces the theoryof state sovereignty, taking advantage of the distinction between the state and thegovernment. The state includes three elements; 'a community of people socially united','a body of rules or maxims determining the scope of public authority and its exercise'and the government. The government is 'a political machinery'. For instance, thegovernment is not allowed to enter the domain of individual liberty. From the power

powers, but 'no division o f the will itself. Gamer, Introduction to Political Science (1910), pp. 257, 262.
81 Burgess, op. cit., p. 57.
82 Ibid., p. 58. See also Burgess, The Foundation o f Political Science (1933), pp. 56-61. John C. Gray
distinguishes between the two forms o f political organisation; one o f them gives all political power to one man
and the other to a body o f men organized in a particular way. In the former which is the typical Austinian state,t h e r e s o v e r e i g n and subjects. In the latter, a commonwealth and citizens. It is the latter which spread in themodem period, although the former remains in the countries o f Europe. Gray, The Nature and Sources o f theLaw, (1909), pp. 74-75.

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of the state, however, it cannot be shielded. Sovereignty is 'the vital principle in the lifeof the State'. The government is an organ of the state and possesses sovereignty together
with other organs. It is merely given sovereignty for its exercise.83
Willoughby goes on to say that sovereignty 'belongs to the State as a person, andrepresents the supremacy of its will.' He also maintains that sovereignty 'is the very
possession of this sovereign will that gives personality to a politically organizedcommunity. Sovereignty, as thus expressing a supreme will, is necessarily a unity andindivisible, - unity being a necessary predicate of a supreme will.64 Neither international
nor constitutional law can limit state sovereignty. International law is not law in thestrict sense, for it is a mere product of the will of the sovereign states. As regards
domestic law, Willoughby notes that 'All law is a formal limitation of Sovereignty.'85
It is merely formal, as any law can be changed at the mercy of the sovereign will.
Constitutional law is, as it can also be amended, not different from any other laws. He
explains: 'The state is not and cannot be itself controlled (except formally) byconstitutional law. Somewhere within its power must lie the legal competence toexpress a will that is sovereign and therefore without limitation.'86
Willoughby propounds a categorical distinction between law and fact. But he does
not formulate legal and political sovereignty like British theorists. Instead, he demands
that sovereignty be an omnipotent substance in the sphere of fact. He says: 'Sovereignty,
upon which all legality depends, is itself a question of fact, and not of law.'87 Any legal
issues do not affect sovereignty 'except formally', for sovereignty is a resident of adifferent world. Sovereignty, the 'very life and personality' of the state, is no more able
to be transferred 'than a man has the power to transfer his life or personality.'88
Willoughby's theory of sovereignty changes the nature of the traditional question of
the location of sovereignty. He does not see the necessity to ask whether sovereignty
is located in a definite individual or body of individuals, or in the entire people, as the

83 Westel Woodbury Willoughby, An Examination o f the Nature o f the State (1896), pp. 4, 183, 185,204-206.
84 Ibid., p. 195.
85 Ibid., p. 209.
86 Ibid., p. 219.
87 Ibid., p. 217.
88 Ibid., p. 221.

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answer is, 'Sovereignty is a necessary ingredient of the State'.89 Sovereignty does notreside in the ruler or in the ruled or even in the nation. It resides in the state. He thus
concludes that 'all organs through which are expressed the volitions of the State, be they
parliaments, courts, constitutional assemblies, or electorates, are to be considered as
exercising sovereign power, and as constituting in the aggregate the depository in which
the State's Sovereignty is located.'90
Willoughby's theory of sovereignty contains some of the main characteristics of themodem theory of national sovereignty. While it is not a philosophical argument ofsovereignty, it presupposes the substantial existence of sovereignty. Like German jurists
Willoughby also constructs a perfect world of reified abstract forms. This theory of thereification of abstract forms does not lead to constitutional sovereignty. The concept ofsovereignty conceptualised as a perfect and self-sufficient substance is not deduced fromthe actual world; instead, the actual world is deduced from the concept of sovereignty.
It is no wonder that Willoughby and Burgess are not able to admit constitutional
theories like divided sovereignty. It is natural for them to ordain that 'In a Federal Statea true central State is created, the several units are legally and constitutionally united the power of ultimately determining its own legal competence - resides in the federal
body.. . . its foundation rests in itself. It is created by the people as a whole, and theso-called individual States, or, as we prefer to term them, "Commonwealths," arecreations of its will.'
There is only one state called the United States. That the Commonwealths areconventionally called States is misleading. Otherwise, the United States becomes a
confederacy of several states. This conclusion is not derived from the observation of
actual political events, but from the definition of sovereignty. The scientifically justified
and substantiated notion of sovereignty reigns in the world of'fact' in absolute terms.

89 Ibid., p. 285.
90 Ibid., p. 307.

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Discourses on Sovereignty in International Law inAmerica
Unlike British international lawyers who were sceptical of the principles ofinternational law, American counterparts had historical reasons to take them at facevalue. Above all, one of the major principle of international law, the equality of states
regardless of their size and power, was one of the major principles of the US
Constitution too.

Before the Civil War in particular, the boundaries between

constitutional and international laws were blurred, for the issue of the 'composite state'composed of several states was a problem discussed in both disciplines. To explain that
the United States was an international actor, while the German confederacy (until 1871)
was not, was a critical point. Moreover, the Concert of Europe, quasi-government ofgreat powers, was foreign to American international lawyers who were rather obliged
to explain the legal nature of the Monroe Doctrine and adhere to the principle of theequality of states. As a result, when classical constitutional theories disappeared,
international law remained an arena for classical constitutionalism. We shall observein this section that the changes in constitutionalism in the domestic field after the Civil
War did not obstruct, but rather prepared for the emergence of international
constitutionalism in the period after the First World War.

Traditional International Law

According to Henry Wheaton, an authority among nineteenth century international
lawyers, 'The law of nations, or international law, as understood among civilized,
Christian nations, may be defined as consisting of those rules of conduct which reason
deduces, as consonant to justice, from the nature of the society existing among
independent nations; with such definitions and modifications as may be established bygeneral consent.'91 In America there was no gap between nations and states ininternational law. This marks the constitutional feature of American international law

91 Wheaton, Elements o f International Law, vol. 1 (1836), p. 54.

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based on the anthropomorphism of nations. On these conditions the subjects ofinternational law, the sovereign states, are defined by Wheaton in Vattel's terms as'separate political societies of men living independently of each other'. He admits thatsome states are 'completely sovereign, and independent', while 'the sovereignty of otherstates is limited and qualified in various degrees.' Nevertheless, he asserts: 'All
independent states are equal in the eye of international law, whatever may be theirrelative power.'92
It was quite common in the nineteenth century to classify states into some categories
like 'tributary and vassal states', 'personal and real unions under the same sovereign','incorporate union', 'confederate states' and 'composite states', etc.93 The politicalcommunities called states had such great differences that it was natural for international
lawyers to limit the number of genuine sovereign states. Sovereignty was the privilegeof a few Christian and civilized states. But what was characteristic in America was that
this inequality did not discourage American international lawyers from emphasising theprinciple of the equality of states.
Of course, the principle of the equality of states had to be modified in accordancewith certain laws among states. Theodore D. Woolsey points out three attributes of theconception of states: sovereignty, independence and equality. Sovereignty, which may
include them all, is defined as 'the uncontrolled exclusive exercise of the powers of thestate'. Independence is 'the negative side of sovereignty'. 'States which are truly
sovereign are necessarily equal in rights'94 A sovereign state is always independent andequal as regards its rights. But not all states are completely independent and equal; only
sovereign states are fully independent and equal. For instance, the states composing a
confederation imply 'a surrender of sovereignty and independence in some degree'.
Similarly, 'A state which is under the protection of another may be sovereign in some

92 Ibid., p. 62.
93 As late as the year o f the treaty of Versailles the Department o f State o f the United States issued aconfidential pamphlet written by W. W. Willoughby and C. G. Fenwick on the various types 'of restrictedsovereignty and o f colonial autonomy'. According to it, states are classified as 'sovereign and semi-sovereignstates', 'protected independent states', 'guaranteed states', 'neutralized states' and 'protected dependent states'
including 'colonial protectorates' and 'spheres of influence'. Non-state categories are 'administered provinces','autonomous colonies and dependencies' and 'members of federal union and o f confederacy'. Willoughby andFenwick, Types o f Restricted Sovereignty and o f Colonial Autonomy (1919).
94 Woolsey, Introduction to the Study o f International Law (1860), pp. 82-83.

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respects, but not absolutely sovereign'.95
Yet H. W. Halleck insists that the mere fact of dependence does not prevent a statefrom being regarded as a separate and distinct sovereignty. He admits that 'many
European sovereign states do not exercise the right of self-government entirely
independent of other states, but have their sovereignty limited and qualified in various
degrees'.96 Nevertheless, Halleck asserts that 'all sovereign states, without respect totheir relative power, are, in the eye of international law, equal'97 George G. Wilson andGeorge F. Tucker also emphasise that the state as 'a sovereign political unity' mustpossess sovereignty which is defined as 'supreme political power beyond and above
which there is no political power'. According to them, it is not inconsistent withsovereignty that a state should voluntarily take upon itself obligations to other states.98
Whether limited or not, all the sovereign states are equal as regards their rights andduties. For American jurists 'it is also a cardinal and axiomatic principle of international
law that all states are equal, - absolutely equal, unquestionably equal. . . This applies
as well to Hawaii as to Russia; to the smallest state as well as to the greatest.'99
William Ladd, president of the American Peace Society, illustrates the Americanmodel of international constitutionalism.100 Ladd at once aimed for an international
congress and the independence and equality of nations. He proposed a Congress of suchnations as actually constituted and retaining equal votes.101 Ladd's article was based on
the analogy between men and nations and mutual consent of equal nations.102 He writes:
95 Ibid., p. 84.
96 Halleck, International Law (1861), p. 65.
97 Ibid., pp. 97-98.
98 Wilson and Tucker, International Law (1901), p. 45.
99 Cushman K. Davis, A Treatise on International Law including American Diplomacy (1901), pp. 45-46.
George B. Davis writes: 'a state possesses a certain number of sovereign rights and powers. These rights arepossessed in precisely the same number and to the same degree by every sovereign state.1 Davis, The Elements o f
International Law (1908), pp. 35-36. According to Charles H. Stockton, 'Legally all sovereign states within thepurview o f international law are equal, that is, equal in their rights and in their obligations, equal in theirsovereignty and in their independence.' Stockton, Outlines o f International Law (1914), pp. 62-63.
100 By 'the American model' I mean a type of international constitutionalism which is mainly derived from theideas o f the US Constitution.
101 James Brown Scott, 'Introduction' in William Ladd, An Essay on a Congress o f Nations (1916), p. xxxviii.
See also Hidemi Suganami, The Domestic Analogy and World Order Proposals (1989), pp. 49-54.
102 Ladd, Essay on a Congress o f Nations (1840), pp. 8-10. Ladd's article is composed of'all the matter worth
preserving' taken from the rejected essays which were written for a competition organized by the American Peace
Society. Ladd's originality is the division o f the subject into two distinct parts, an international congress and acourt o f nations.

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'The ascending scale of justice, from the mayor's or justice's courts, to the inferior andthe superior courts, and finally to the Supreme Court of the United States' will becompleted by 'a court which shall settle disputes between sovereign and independent
nations'. The international court will function 'in the same manner as the Supreme Courtof the United States which has settled many cases of disputes between several sovereign
and independent States of North America'.103 Ladd extended a gradation of sovereignty
in the US constitutional system to the international field. This flexible conception ofsovereignty is a classical manifestation of the American model of international
constitutionalism.

Post Civil War International Law

The application of the US constitutional system to international society remained
valid after the Civil War, while the premises of classical constitutionalism within the US
became obsolete. As a result, it came to be emphasised that there were two kinds ofsovereignty: internal and external.104 Interactions of 'sovereign' states were now
exclusively concerned with 'external sovereignty' in international law. The problem,
whether sovereignty is divisible, limitable, and supreme or not, was understood with thehelp of the demarcation of 'internal' and 'international' laws. For instance, Robert T.
Crane insists that the concept of sovereignty in constitutional law is supreme will whichis indivisible, while sovereignty in international law is supreme power which isdivisible.105 According to Amos S. Hershey, 'On its external side, sovereignty may belimited in various ways'.106 Edwin Maxely adds that the supreme power of a state
viewed from the inside is sovereignty, while viewed from outside it is independence.
The former is possessed by de facto as well as by dejure states, the latter only by de jurestates. 'The former is a question of constitutional law, while the latter is a question of

103 Ibid., p. 112.
104 Hannis Taylor thinks that 'an internal sovereignty' is 'inherent in the people as a whole, whose exercise isvested in its rulers by virtue of its constitutional law', while 'an external sovereignty' is 'consisting o f its right as
an independent political community to deal with all others o f its class upon equal terms under the rules o finternational law'. Taylor, A Treatise on International Public Law (1901), pp. 184-185.
105 See Crane, The State in Constitutional and International Law (1907).
106 Hershey, The Essentials o f International Public Law (1912), p. 100.

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international law'.107
The classical constitutional theories have become outmoded in American
constitutional law. Accordingly, they began to be regarded as a topic of internationallaw. As we shall see later, therefore, when the establishment of the League of Nations
is discussed, the history of the United States is understood as a precedent of thefederation of sovereign states.108

American traditions of constitutionalism changed its nature in the post-Civil War
period. Domestically, the theory of national sovereignty overwhelmed the classicaltheory of divided sovereignty. Internationally, this process coincided with the rise ofnationalism and the advent of the age of imperialism in international relations, with theUnited States emerging as one of the major imperial powers. Yet national sovereignty
did not dominate all areas of political discourses and practice. In the domain ofinternational law, the premises of classical constitutionalism remained. This aspect ofAmerican constitutionalism would lead to future plans for a federation of national states,
reinforced by the hostility of Anglo-American liberalism towards German politicalthought.

107 Maxley, International Law with Illustrative Cases (1906), p. 85.
108 See Scott, 'Preface' in James Madison's Notes o f Debates in the Federal Convention o f 1787 and their
Relation to a More Perfect Society o f Nations (1918); 'Preface' in The United States o f America: A Study inInternational Organization (1920), p. x. Thomas W. Balch recognises the Supreme Court o f the United States ofAmerica as a precedent of 'a Supreme Court o f the World'. Balch, A World Court in the Light o f the UnitedStates Supreme Court (1918), p. 6. In Britain H. G. Wells repeatedly reminds readers o f the fact that 'thirteen
various and very jealous states worked out the problem o f a Union' and became the United States o f America.
See Wells, In the Fourth Year (1918), pp. 4-6.

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Chapter 5

The Rise of International

Constitutionalism
After the Vienna Conference in 1814-15 the growth of international activities
demanded the establishment of a system of international law. Accordingly, there
appeared two ways of understanding sovereignty in the international environment. If
the nation-state is really supreme on earth, international law is nothing but the collectionof agreements of the states; it has no legal effect. However, if the states are understoodon the analogy of domestic society, there can be constitutional rules, just as thesovereign king or people are restricted as well as guaranteed by constitutions. The
former may be termed absolute national sovereignty, and the latter international
constitutional sovereignty.
At the beginning of the twentieth century many jurists expected a new era forinternational cooperation, which would encourage practitioners to build up a
constitutional framework of international society.

The belief in international

constitutionalism was reinforced by the Hague Conferences of 1899 and 1907. The
influence of German philosophy became less explicit as the Anglo-German
confrontation proceeded. The US and British governments wanted to play major roles
in 'the family of nations' and needed an international order which would encourage
liberal economic sylstem. The overwhelming power of the United States and GreatBritain together with France after the First World War seemed to promise a great
opportunity to establish a new system for the management of international society. All
the more because the First World War was a serious blow to optimism regarding
conventional international order, Anglo-American intellectuals pursued international
constitutionalism as a missionary task to be achieved in the post-Great War era. This
chapter deals with theories of sovereignty in the development of international
constitutionalism around the time of the establishment of the League of Nations.

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Sovereignty in the Anglo-American Debate on the League
ofNations
When the First World War was over, it was obvious to many that the constructionof a new international order would predominantly be in the hands of 'English speaking
countries', the United States and Great Britain. The core intention of the project of the
League of Nations was to establish an international constitution in the form of aninternational organization. It was quite significant in this sense that President Woodrow
Wilson's original draft of the Covenant of the League ofNations expressed itself as 'theconstitution'. The wording was deleted at the final stage of the drafting in order not togive the impression that the League was a super-state. However, it was quite common
among publicists before and after the establishment of the League to discuss its'constitution'. And this 'constitution' is evidently coloured by the tradition of AngloAmerican constitutionalism.
Before examining the notion of sovereignty in the debate on the League ofNationsin Britain and America, it is important to see that the main idea of the League originatedfrom Anglo-American sources which are contrasted with the Continental tradition.
American and British commentators were conscious or even proud of the exaggerated
difference of their ideas from the German and French types of sovereignty. First of all,the image of the German tradition was militaristic and autocratic in comparison with theliberal and democratic Entente. William H. Taft, the former president of the UnitedStates who later became the president of an American association for the establishmentof the League ofNations, the League to Enforce Peace, represents the typical view on
German sovereignty in America. He writes:

what is sovereignty? Well, I can give you the German view and I can give you theAmerican view. The German view is that sovereignty is the power to overcome thesovereignty of other nations by force. That is all. What is the American idea ofsovereignty? It is a sovereignty regulated by international law and international
morality and international decency and international neighborly feeling. Do we wish
any sovereignty greater than that? Sovereignty is analogous to the liberty of theindividual. The latter is liberty regulated by law which protects that liberty: and141

sovereignty is the same thing applied to nations.1
This crude image of German national sovereignty in contrast with American
constitutional sovereignty was very common after the Great War among AngloAmerican publicists.2
France's position is a mixed one. It is a major country on the side of the democratic
Entente. But at the same time it is an alien from the Anglo-American point of view. In
the drafting of the Covenant, the French view was in most cases overwhelmed by the
Anglo-American. Alfred Zimmem, considering the drafting process, makes clear thatthe tendency of French internationalism is a construction of the world-community. Thatis the tradition of Saint-Simmon and Napoleon, which shares the theoreticalcharacteristics of Bodin and Rousseau. If national sovereignty reveals serious problems,
it must be denied and higher sovereignty must be established. This is a logicalenlargement of national sovereignty. Either the national state or the world community
possesses sovereignty. By contrast, Zimmem stresses, no matter how much Wilson
looked a populist, he never entertained an idea of world government. Zimmem
describes the conflict between the two views as the 'clash between World-Sovereignty
and American Sovereignty, between a Rousseau enlarged by the experience of theWorld War and a Jefferson who had accepted, however reluctantly, the complete Union

1Taft, 'Address at San Francisco, Feb. 19, 1919' quoted in Theodore Marburg (ed.), Taft Papers on League o f
Nations, (1920), p. 148.
2 Theodore Marburg expresses the same view. He says: 'Sovereignty is shown to be just so much liberty ofaction on the part o f States as is consistent with their obligation, under international law and morality, to permito f the exercise o f equal sovereignty of liberty of action by their sister Statesand he who wants more is reallyseeking the license selfishly to disregard these obligations - to reject, for example, the just judgements of aproperly constituted tribunal - which is the German conception o f sovereignty.' Marburg, 'Introduction' in ibid.,
p. vii. The former Secretary of State, Senator Elihu Root also says that 'The change involves a limitation ofsovereignty, making every sovereign state subject to the superior right o f a community o f sovereign states to havepeace preserved. The acceptance o f any such principle would be fatal to the whole Prussian theory o f the stateand o f government.' Quoted in Alfred Zimmem, The League ofNations and the Rule o f Law, 1918-1935 (1939),
p. 232. Dwight W. Morrow also explains: 'For three hundred years the world has been trying to get a rational
understanding o f State-sovereignty. If that phrase means that each State in its external relations has the right todo whatever it has the power to do, it is to be hoped that the defeat o f Germany has marked the end of thedoctrine.' Morrow, The Society o f Free States (1919), p. 184. In Britain, Horace Samuel Seal, who discussed'perfect' and 'imperfect' sovereignty in the age of imperialism, now explains two meanings o f the state according
to the difference between German and Anglo-American traditions. 'Teuton publicists' confuse the instrument ofgovernment with the people, the real sovereign. Seal then loftily proclaims; 'The British conventional idea is thatthe location of Sovereignty is in the people, and the Government - the so-called State - is their servant or
governing instrument'. Seal, The State (1921), p. 3.

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of the United States'.3 American international constitutionalism neither repudiates statesovereignty nor establishes world sovereignty. It aims to restrict state sovereignty in aninternational constitution. In short, it is an expression of the tradition of constitutionalsovereignty.

Sovereignty in the League Debate in Britain
In Great Britain as well as the United States, the League is not treated as a super­state. Sovereignty remains in the hands of states, though it is certainly restricted.4 But
there is a difference in the argument in Britain and that in America. Zimmem stresses
that behind British thinkers there is age long Custom, the venerable Common Law, andthe experience of the Concert of Europe; they are apt to be gradualists. There are the
Declaration of Independence, the United States Constitution and the Monroe Doctrine
behind American theorists; they are eager to establish institutions to realise ideals.5
The analogy between the League and the United States is nonsense for an
authoritative British international lawyer, T. J. Lawrence. Americans forget the fact thatthe settlers in the thirteen colonies on the Eastern side of the American Continent 'were
generally of British parentage'. The states in the League ofNations by no means havesuch a condition. It must be said that 'the United States of the World are, and mustremain, the baseless fabric of a dream.'6 On this line Oppenheim objects to a draft for
the League by an American activist, Theodore Marburg, for it proposes 'a state-like

3 For example, see Zimmem, op. cit., pp. 253-254. See plans for the establishment of a super-state composedby some French thinkers, Lepert and Otlet, in John H. Latand (ed.), Development o f the League ofNations Idea,
vol. II, pp. 767-768. However, the president of the French 'Association for a Society of Nations', L6on Bourgeois
is more practical. He is an advocate of the Anglo-American type restricted sovereignty. An interesting
difference between the English-speaking countries and France is illustrated by the fact that 'the League of
Nations' in English is Societe des Nations in French.
4 Viscount Bryce writes: 'We propose, then, that existing States, retaining their sovereignty, should enter intoa treaty arrangement with a view to the preservation o f peace.' Bryce, Proposals fo r the Prevention o f Future
Wars (1917), p. 13. A proposal for the amendment o f the Covenant of the League by the British delegation at theParis Peace Conference reads as follows; Nothing in this Covenant shall be deemed to limit the sovereignty o f
the States members o f the League or their right to decide their own domestic policy, except as herein expressly
stated.' Lord Cecil o f the British delegation said that 'only when sovereignty is expressly limited, is it limited.'David Hunter Miller, The Drafting o f the Covenant (1928), vol. I, pp. 332, 306.
s Zimmem, op. cit., p. 233.
6 T. J. Lawrence, Lectures on the League ofNations (1919), pp. 27-28.

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Constitution of the League'.7 The difference between British and American attitudes
towards the League stemmed from the difference between British and American
constitutionalism.

Gradualist Sovereignty

The general attitude of British theorists towards the issue of sovereignty is very
cynical. Oppenheim maintains the position that there has been no general agreement
upon the contents of sovereignty. The definition of the word is always crucial. On the
one hand, 'If sovereignty were absolutely unfettered liberty of action, a loss ofsovereignty would certainly be involved by membership of the League'. On the other,
it is possible to argue that 'in fact sovereignty does not mean absolutely boundless libertyof action'.8 Then he expresses as 'my opinion' that the independence of a state is little
infringed by an agreement to submit all its judicial disputes to the judgement of a Court.
Furthermore, it would by no means be a serious problem if the entrance of a state into
the new League of Nations did involve an infringement of its sovereignty andindependence. Oppenheim proclaims: 'The Prussian conception of the State as an end
in itself and of the authority of the State as something above everything else and divine a conception which found support in the philosophy of Hegel and his followers - isadverse to the ideal of democracy and constitutional government.'9
It is noteworthy that Oppenheim is a self-conscious gradualist.

When hecontemplates 'a constitution' of international community inferred from the experienceof the Hague Peace Conferences, he maintains that 'such a constitution can in no way
infringe on the full sovereignty of individual states.' Sovereignty has no rigid meaning.
Times and circumstances have influenced and shaped it in different ways. Thisdevelopment of the idea 'may go further still in the future.'10
7 'Notes by Professor L. Oppenheim on the Tentative Plan for the Organization o f the League to Enforce
Peace as Submitted by Mr. Theodore Marburg (Referred to in Oppenheim letter of Nov. 29, 1917)' in Latand, op.
cit., pp. 804-805.
8 L. Oppenheim, The League ofNations and its Problems (1919), p. 75-76.
9 Ibid., p. 78.
10 Oppenheim, The Future o f International Law (1921), p. 20. Geoffrey Butler also expresses his expectationo f the future development o f the League. '[I]n so far as the League ofNations supplies a mechanism for thepreservation o f those rights [of humanity] and values, the conception of sovereignty, with its necessary144

A method taken by another famous international lawyer to justify sovereignty in the
League ofNations is the distinction between 'limitation' and 'surrender'. T. J. Lawrence
admits that the League of Nations is said to derogate from the independence andsovereignty of the states which compose it. Undoubtedly, a limitation is imposed upon
the right of the states to resort to war. 'But would this limitation of its activities amountto a surrender of sovereignty? Assuredly not, seeing that the restriction is the result ofa pact freely entered into in pursuance of its own right of self-limitation.' If it were asurrender of sovereignty, it would lead to the conclusion that there does not exist in thewhole world a single state which is sovereign and independent. But that is 'palpableabsurdity'. In the first place, 'To deny independence and sovereignty to Great Britain,
the United States, Italy, and the other leading powers of the civilized world would be an
act of supreme folly.'11 It must be argued, therefore, that in the establishment of the
League the states agree on 'self-limitation', not on a 'surrender' of sovereignty.
This remark on the inseparability of sovereignty from the several powers isimportant. It suggests that when the League was being justified, theorists like Lawrence
resorted to the nature of great powers as sovereign states. Sovereignty is always
supposed to be inherent in them. If their nature changes, it is not because they become
non-sovereign states; this cannot happen. It is because the sovereign states modify themeaning of sovereignty. Lawrence represents a peculiarity of British constitutionalism.
He modifies the notion of sovereignty in accordance with the inequality of nations. In
relation to other small states, the several great powers must be said to be sovereign.
Lawrence does not merely limit state sovereignty; he takes for granted the supremacyof the sovereignty of the several great powers. He maintains sovereignty; however, hederogates from the concept. This is a subtle but certain symptom of the demise of thereification of sovereignty.12

implication o f moral authority, can for the first time be applied to external affairs in a more adequate sense thanas a mere assertion o f the unchecked power either o f the states or o f some central federation.' Butler,'Sovereignty and the League of Nations' (1920), p. 41. Gradualism also demands manipulation at the first stageo f the League. Henry N. Brailsford argues that because 'Anglo-American' sovereignty may not fully beunderstood by other states in the League, 'we' must say in plain words in what particulars the court limits
sovereignty. Brailsford, A League ofNations (1917), pp. 309-310.
11 Lawrence, Lectures on The League ofNations, p. 22-24.
12 The same symptom can be found in other publicists. J. G. S. MacNeil writes: 'The League ofNations
involves, in the words of Lord Curzon, "a restriction, almost a derogation, o f the sovereignty o f sovereign
States." . . . The argument, which is irrefragable, that the League ofNations would impair the sovereignty o f its

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The Derogation from Sovereignty

Lawrence remains in the mainstream of international law when he distinguishes
between a limitation and a surrender. But the connotation of the derogation fromsovereignty could go further. W. T. S. Stallybrass, a fellow at Oxford, asserts that undera League ofNations '[t]he derogation from sovereignty is therefore general.' A state has
no choice whether it shall or shall not submit a particular question for judicial decisionso long as it remains a member of the League.13 According to him, in the name of these
mystic words - sovereignty, independence and equality - much false doctrine has been
advanced. He observes that the use of these words is expiring. 'The doctrine of theabsolute sovereignty and independence of States. . . no longer serves a useful purpose,
for it is not in conformity with fact'.14 Although the League of Nations involves a
rupture with the orthodox theory of sovereignty, it is not a great departure from thepractice.
It is the Germans who have deviated from the fact and developed too logical theories
of sovereignty. The Germans infer from the presupposition of absolute sovereignty thatthe preservation of its sovereignty entire and its aggrandisement at the expense of otherstates are its chief end. Stallybrass adds that 'All nations, however, are not so clear­headed or so logical as the German.' The British can easily say that 'law must be inconformity with fact. . . States are not in fact equal in every respect. It is scarcely moretrue that States are sovereign or independent in an absolute sense.' The facts in history
tell the British that 'It is clear, then, that independence no less than sovereignty does notbear quite its face-meaning for the international lawyer.' The rights of equality are 'formembers must be accepted subject to the understanding that sovereignty or independence in its very widest sense
is not boundless liberty o f a State to do what it likes without any restriction whatever.' MacNeil, 'Is a League of
Nations Illusory?' (1918), p. 302. A typical intellectual assertion is 'that the legal, political, and diplomatictheories of the independence and sovereignty of States are illogical and the result o f confused and timid thinking,and that the passion, directed and controlled only by false theory, is destructive o f the best things in society
which mankind has so slowly and so laboriously acquired.' L. S. Woolf, International Government (1916), p.
219. As regards W oolfs conception o f sovereignty and interdependence, see Peter Wilson, 'Leonard W oolf andInternational Government' in David Long and Peter Wilson (eds.), Thinkers o f the Twenty Year's Crisis (1995),
p. 139.
13 Stallybrass, A Society o f States or Sovereignty, Independence, and Equality in a League ofNations (1918),
79.
14 Ibid., p. 16.

146the most part illusory', or at most 'the rights of sovereignty, independence, and equality,
were moral rights, not legal rights'. While 'To the Germans it is impossible to conceivethat there should be a judge of a sovereign State not of its own choosing', 'English
common sense . . . has determined that the rule of law is consistent with the retention
by the State of its sovereign powers.'15
He observes and predicts the divisibility of sovereignty. 'The weight of modem
authority is that internal legal sovereignty is divisible

If we look at facts rather thantheories we shall find examples which seem to prove that de facto it has already beenrecognized that external sovereignty also may be distributed in different organs fordifferent purposes.' The formation of the League does not necessarily mean any radical
alteration in the modified conception of sovereignty which was 'the received doctrineof the nineteenth century'. The League will develop the conceptions further. If 'thefuture prove [sic] that the League meets a human need and its legislative and executive
power is extended, it may well be that we shall have an example of divided sovereignty
on an incomparably larger scale than we have ever had before.'16
Stallybrass continues saying that as 'International Law is an evolutionary science',
there is every reason to believe that the idea of sovereignty will be modified as it wasin the past. Internal sovereignty may remain, while external may become dubious. But
in defence of the League Stallybrass goes beyond the official line. It is certain for him
rthat 'We shall speak not of the sovereign independent State but of the Free SelfGoverning State'.17
The authority in the study of Common Law, Frederick Pollock, argues that in order
to organise the League ofNations and to make a binding convention the 'renouncementof sovereignty' is necessary.18 Earnest Barker, one of the leading idealists in politicaltheory, constructs an ideal form of 'a Confederation of the Nations'. In his plan the
powers of the League 'involves the surrender of independence or "sovereignty" by theStates belonging to the League' in two ways; they surrender their right to make war, and

15Ibid., pp. 24, 25, 27, 58, 62, 67, 80.
16Ibid., pp. 94, 112, 114.
11 Ibid, pp. 117-121.
18 Pollock, The League ofNations and the Coming Rule o f Law (1918), pp. 5-6. He maintains, however, theofficial line after the League was actually formed. See Pollock, The League ofNations (1920), pp. 80, 128.

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they accept the duty of making war.19 He is so candid as to say that 'the mere existenceof a League exercising any degree of power . . . is already pro tanto a diminishing andimpairing of sovereignty.' When states enter a League, they surrender at least part oftheir sovereignty.20 This surrender takes place only in the sphere of 'inter-State
relations'. Barker's League of Nations is a 'confederation' in which states remainsovereign. Thus he can appeal to readers by saying, 'Do not fear the loss of sovereignty
in the League ofNations.' 'You shall be masters of your fate', for force is never free;
only the law is free21 It can be observed, however, that what Barker means by 'the lossof sovereignty' in a confederation of sovereign states leads to no less than Stallybrass's'free self-governing states'.
We may argue that although British theorists shared with American counterparts thesame tendency of what I call international constitutionalism, gradualism and thederogation from sovereignty were characteristics of British features. Constitutionalrules in Britain originated from customs and common law. And they believed that
history showed that the equality of states was no more than an artificial principle; reality
approved of international order maintained by the supremacy of great powers. Now thenecessity of the establishment of the League ofNations seemed to provide a new groundfor the derogation from sovereignty (of small states). This was a theoretical discrepancy
between Great Britain which remained in the League until its end and the United States
which would not take part in the League.

Sovereignty in the League Debate in America
The official line of the American advocates of the League ofNations was almost thesame as the British. Sovereignty should not be abolished; but it must be limited. The
differences lie in the tendency among Americans to observe the principles of theequality of states.

It led President Wilson to advocate that the League was anenlargement of the Monroe Doctrine, rather than the Concert of Europe. As a result,

19 Barker, A Confederation o f the Nations: Its Powers and Constitution (1918), p. 18.
20 Ibid., pp. 29-30.
21 Ibid., pp. 30, 31, 36.

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Article 21 of the Covenant clearly stipulates that the League will not affect the Monroe
Doctrine.22 The League of Nations was conceived by Wilson as nothing but theextension of US foreign policies and the US Constitution, which contained original
American foreign policy and constitutional principles within itself. Although he faced
the opposition from the people who were against such an enlargement, they all believedin the same value system.

The New Federalists

As early as January, 1915, the first meeting of the famous American organization, theLeague to Enforce Peace, was held. It is interesting that one of the two principles of thefunction of the future League agreed upon by the attendants reads 'Guaranteeing theterritorial integrity and sovereignty of a member of the League as against outside
parties.1 Yet there was an opinion on this principle that this paragraph might cause war
between some member of the League and an outside nation23 This shows that the issueof sovereignty was a critical problem in establishing the League. No American dared
say that sovereignty should be abolished. But the supporters of the League also knewthat the League would not accommodate the absolute notion of sovereignty.
Theodore Marburg, one of the chief organisers of the League to Enforce Peace,clarifies what needs to be done to the idea of sovereignty in order to establish a Leagueof Nations. The notion of absolute sovereignty, which was originally set up to guard thestate itself against interference by other states, must give way before the conception ofa society of nations. He thus explains that if'sovereignty unimpaired leads to disaster. . . it should not be suffered to continue. The state should retain only so muchsovereignty as makes for the welfare of men organized in states.' The United States ofAmerica is 'really an application of this conception', for 'The Union was constituted ofsovereign and independent states.

They surrendered sovereignty but not self-

government. . . . Absolute sovereignty was surrendered by them in the common

22 The French delegates opposed the Article at the Paris Peace Conference, and the French text o f theCovenant was contradictory to the English.
23 Latan6, op. cit., vol. I (1932), pp. 704-705.

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interest.'24 Marburg does not insist that sovereignty be abolished. But the 'absolute'
implication of sovereignty should be discarded; then restricted sovereignty will remain.
Taft as the president of the League to Enforce Peace repeatedly preaches the'American' conception of sovereignty. He asserts: 'Sovereignty is only a matter ofdefinition and degree.' He proclaims that the sovereignty of the United States has
actually been limited by arbitrations and treaties prior to the League of Nations. He
asks, 'Are we ashamed of that limitation on our sovereignty? Are we not on thecontrary, proud of it?'25 Taft strongly denies that the League of Nations is 'a super­
sovereignty'. National sovereignty should be limited all the more because it is to be
secured.
Sovereignty is defined by Taft as 'freedom of action of nations'. He addresses: 'The
Sovereignty that we should insist upon and the only sovereignty we have a right to insist
upon is a sovereignty regulated by international law, international morality andinternational justice, a sovereignty enjoying the sacred rights which sovereignties ofother nations may enjoy, a sovereignty consistent with the enjoyment of the same
sovereignty of other nations.' The sovereignty which goes beyond the limit 'is not inaccord with American principles nor with the Constitution of the United States'.26
A professor at Yale University, Simeon E. Baldwin, gave an academic defence ofsovereignty in a League of Nations. He unequivocally renounces Willoughby's doctrinethat sovereignty cannot be divided and a League of Nations cannot possess any portionof national sovereignty. Willoughby's position of indivisible sovereignty is contrary to
the past decisions of the Supreme Court of the United States.27 Baldwin examines thepossibility of'sovereignty in a League of Nations' from the perspectives of the historical,
philosophical and pragmatic schools. History provides many an example of the division

24 Marburg, 'Sovereignty and Race as affected by a League of Nations' (1917), pp. 142-143. Darwin P.
Kingsley argues that 'Unconditioned sovereignty was the fundamental error in the civilization o f 1914.' Heinsists that his country 'has shown how so-called sovereign states can be merged into a larger state without losing
their individuality and without parting with democratic principles. . . . pf] the present doctrine o f unconditioned
sovereignty must be abandoned, if as a nation we must surrender what each Colony seemed to surrender in 1789,
we should stand for that.' Kingsley, Democracy vs. Sovereignty (1915), pp. 10-12.
25 Taft, op. cit., p. 191.
26 Ibid., p. 279.
27 Baldwin, 'The Vesting of Sovereignty in a League of Nations' (1919), p. 212. Willoughby was one o f theattendants o f the first meeting o f the League to Enforce Peace, at which sovereignty was an object to beguaranteed by the League o f Nations.

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of sovereignty. As far as American conceptions are concerned, the philosophical school
stipulates that 'the right of a sovereign to exist depends on the consent of his people' and'they can retain part of the sovereign power. If so, 'why cannot a division be made ona basis of vesting part of the whole of sovereignty exclusively in one public agency andthe rest of that whole in another agency?' In addition, 'The American pragmatist does
not have to look far for division of sovereign power which has worked well for over a
century, and is working well to-day.'28
Baldwin seems to say that Americans do not find difficulty in the idea of sovereignty
in a League of Nations, no matter what the traditional European theory of sovereignty
suggests. This is not to say that the United States is an anomaly. Rather, it shows the
future course for mankind. There is in Baldwin's insistence a kind of confidence in theleading role of the United States in world history. He can thus easily assert that 'As thelife of mankind grows larger and reaches farther, it is logical and fit that nations should
frankly recognize the movement by adapting their governmental institutions to it. They
have surrendered the theory of a divine right of sovereign power in State or Church.
They take but a short step further in asserting their right to associate on terms of dividing
sovereignty.'29
This kind of implicit connection of the idea of'sovereignty in a League of Nations'with Americanism is more explicit in some unknown earlier pamphlets on the issue.
When an American lawyer, Joseph C. Clayton, wrote a plan for 'the United Nations' forthe second Hague Conference in 1907, he strongly advocated American nationalsovereignty. The U.S. Constitution is a proof of national sovereignty. A plan for aninternational constitution by no means interferes with national sovereignty. Rather, it
is a realisation of American ideals. His plan is a simple application of the U.S.
Constitution to 'the United Nations' which is to be led by Americans.30
Raleigh C. Minor's plan for 'the United Nations' is also such an application of the
U.S. Constitution, as the Constitution is 'the least centralized and nationalized'. He asks,'Is any nation in the world today absolutely sovereign and independent?' His answer is

28 Ibid., pp. 213-217. See also Baldwin, 'The Division of Sovereignty', (1918), pp. 57-59.
29 Ibid., p. 218.
30 Clayton, Pax Nobiscum: A Plan fo r a Tentative Constitution o f the United Nations (1907).

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that an international League 'can hardly, if successful, be looked upon as a conservatorof the sovereignty and independence of the nations.' Nevertheless, in accordance with
Amendment X of the US Constitution, Minor adds that 'A clause is therefore inserted
expressly declaring that the powers not delegated to the United Nations by theconstitution, nor prohibited by it to the component nations, as well as the sovereignty
and independence of the latter, are reserved to those nations, respectively.' Anotherdirect application of the U.S. Constitution is that in 'the United Nations' 'the balance ofthe equal representation of sovereignty in the upper house against the unequal
representation according to population in the lower'.31
It is noteworthy that the making of the 'constitution' of the League of Nations wasmany a time compared to that of the United States designed in the Constitutional
Convention of 1787. However, the similarity between the supporters of the League andthe 'Federalists' implies the existence of'the Anti-Federalists' in 1919.

The New Anti-Federalists

The major stumbling block in Congressional approval was Article X of the Covenant
which would involve the US in European wars.32 A leading figure of the new 'AntiFederalists', Senator Henry C. Lodge, replied to Taft's arguments. While admitting thatin every treaty there is some sacrifice of sovereignty, he emphasises that 'The question
and the only question before us here is how much of our sovereignty we are justified insacrificing.' It is obvious for him that the participation in the League goes beyond 'one
point of sovereignty which ought never to be yielded, the power to send American
soldiers and sailors everywhere'.33 Another 'Anti-Federalist' Senator accuses president
Wilson of making concession to Europe by saying that 'Where Washington fought toestablish the right of this Nation as a sovereign to control its own affairs, Woodrow
Wilson counsels with the representatives of kings to transfer the sovereignty

31 Minor, A Republic o f Nations (1918), pp. 28, xxiv, xxviii, 222,240.
32 It should be noted that it was President Wilson who finally abandoned the US application for the League of
Nations.
33 'Speech o f Henry Cabot Lodge in the Senate of the United States, August 12, 1919' in Henry C. Lodge, The
Senate and the League o f Nations (1925), p. 407.

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Washington gained to a league which they will dominate.'34
Outside Congress Henry A. Wise Wood delivered an Address Opposing the
Ratification o f the Constitution o f the League o f Nations. He asked in a letter to Taft,'Are you willing we should thus surrender into the hands of such a coalition of Europeanand Asiatic Powers the security upon which depends the sovereignty of the UnitedStates? I am not.'35 He conceives the League of Nations to be a world super-state
exercising sovereignty over states. He asks, 'how then dare we trust this new dimcovenant of half-measures and weak sanctions to take over our sovereignty and place
it in the hands of a polygenous [sic] body of men sitting in the Tower of Babel 3,000
miles from our shores?' As war is a recurring phenomenon, he predicts that the 'idealist'
will definitely fail.36
The victor at this time were the new 'Anti-Federalists'. In other words, althoughconstitutional sovereignty won the day in 1788, it gave way to national sovereignty in
1919. But this does not mean that the 'Anti-Federalist' in 1919 never entertained
constitutionalism. American constitutionalism as well as the Monroe doctrine was what
they were proud of. The opposition between the 'Federalist' and the 'Anti-Federalist' wasin this sense a civil war among Americans. David J. Hill, anti-League former US
ambassador to Germany, shows an interesting argument concerning American
sovereignty and international constitutionalism.
In 1915 Hill opposes absolute sovereignty both of the king and the people. In the
French Revolution the sovereignty of kings was simply substituted by the sovereigntyof the people. Absolute sovereignty is a denial of human rights and the opposite of the
fruit of the American Revolution, which was 'a revolt against absolutism in every form'.
He even says that 'Democracy, as well as monarchy, may be imperial andunconstitutional.' 'The real struggle is not between democracy and monarchy, it isbetween constitutionalism and imperialism'. What he aims for is not 'authoritative
democracy', but 'constitutional democracy'. The former is 'the Napoleonic type of

34 The League o f Nations: Speech o f Senator James A. Reed o f Missouri in the Senate o f the United States,
September 22, 1919, p. 47.
35 Wood, Address Opposing the Ratification o f the Constitution o f the League o f Nations (1919), p. 18.
Almost the same sentence can be seen in 'Fellow Americans' published in The Washington Post, Feb. 24, 1919.
See ibid., p. 32.
36 Ibid., pp. 9-11.

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democracy, the type which formerly prevailed in France, places confidence in persons';
the latter is 'the Washingtonian type of democracy, the type which has hitherto prevailed
in the United States, places its confidence in principles'37
But it is paradoxical that referring to Gierke's interpretation, Hill finds his theoreticalstarting point in a very Germanic theorist, Althusius. When he says that sovereignty is'the foundation and the substance of a State' and 'it belongs not to the category of Might
but to the category of Right', what he has in mind is an organic state. He believes that'sovereignty first comes into being through a coordination of parts that are already inorganic relations.'38 In the name of 'Americanism' as renouncing absolute sovereignty,
Hill pronounces 'the organic unity of a coherent people, associated together for the
security of their individual rights.'39 All these suggest that while Hill is an American
constitutionalist, the Constitution he means is no longer the constitution as a product ofClassical knowledge. It is a manifestation of the organic unity of the American nation.40
It is not surprising that Hill unequivocally rejects the idea of American participationin the League of Nations. He asserts in 1919 that what the Entente needs is not a mereorgan of power, but an institution of justice. The League of Nations creates 'a defensive
alliance and an imperial syndicate for the regulation of the world under the control ofa small group of Great Powers'; it is not pledged to 'the maintenance of International
Law or to the recognition of the inherent rights of States.141 It is a logical antinomy for
Hill to adopt 'a partial renunciation of national sovereignty and the complete attainmentof self-determination' at the same time. The League creates nations which are too
powerful and those which are too oppressed. It follows that 'the people of the UnitedStates would suffer more than any others'. The League is an extension of the system of
the British Empire in which only the European powers gain great advantages.42
The only authority which can issue 'commands' to sovereign states 'would be a

37 Hill, The People's Government (1915), pp. 41, 106-107,116, 215, 220-222.
38 Hill, World Organization as affected by the Nature o f the Modern State (1911), pp. 23, 100.
39 Hill, Americanism what it is (1918), pp. 19-20.
40 Thomas R. Powell criticises Hill by saying that he talks about something ideal rather than something actual;
he confuses law and morals. See Powell's ‘Review of Americanism: What It Is and The People's Government ’,(1916).
41 Hill, Present Problems in Foreign Policy (1919), pp. x-xi.
42 Ibid., pp. 27, 32,154

superstate'. The fact that the 'covenant' has been referred to as a 'constitution' as well as
a 'treaty' indicates that 'the League created by this Constitution is not merely a corporate
entity but in effect a super-government.' This means that 'It claims a sovereignty thatnullifies the sovereignty of the States'. It is a super-state with a constitution whichcontains no guarantees for the rights of sovereign states. Its nature is imperialistic indefiance of international law.43 Being an 'Americanist', Hill cannot accept international
constitutionalism in which 'full sovereignty' of the United States is 'surrendered' to 'a
new sovereign and imperial Power.'44
However, he explains that the American people have for the first time in humanhistory shown that consent to the rule of law is not a surrender of sovereignty. He israther proud of the American ideal.45 These two positions are not contradictory for Hill.
The expansion of the legal system implemented in the U.S. Constitution is part of'Americanism'. But the British type of the rule of law, on which the League of Nations
is founded, is imperialism, and therefore not part of'Americanism'.
The notion of sovereignty in the debate between the new 'Federalists' and 'AntiFederalists' is an application of American constitutionalism in the international field.
The reasons for the support of and opposition to the U.S. entiy into the League he in thesame history. The former stresses formal understanding of sovereignty. The latter
esteems sovereignty as an expression of national existence. Despite their difference,
however, both of them can find their predecessors in American history.

Wilson and Lansing
I have intentionally deferred discussing Woodrow Wilson's view on sovereignty, as
it should be examined more carefully than any others. It is generally held that he wasa proponent of popular sovereignty. But his discourses on sovereignty do not read so
simply. In addition to Wilson's statement on sovereignty in his presidency, we shall
examine an essay on sovereignty written by him when he was a professor of political

43 Ibid., pp. 82, 104-105, 112,126, 131, 255.
44 Ibid., p. 133.
45 Hill, The Problem o f a World Court (1927), pp. 9-10.

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science. We shall also deal with several essays on sovereignty which Robert Lansing,
Secretary of State of the Wilson administration, wrote when he was an international
lawyer. It is widely known that Lansing resigned as Secretary due to his conflict with
Wilson at the Paris Peace Conference. The issue of sovereignty was the very point of
their discrepancy. We shall find that Wilson and Lansing respectively represented two
types of views on sovereignty in twentieth century America: the constitutional andrealist schools of thought.

Wilson's Views on Sovereignty

Wilson thoroughly discussed the problem of sovereignty in 'Political Sovereignty(1893)', before he launched his political career. Those who expect Wilson to advocate
popular sovereignty will be disappointed when reading the essay.

He makes

qualifications about 'the orthodox creed' of the sovereignty of the people.

He

contemplates that the American people 'never have acted as a unit, nor ever can act asa unit under our existing constitution. They have always acted, and must always act, instate groups.' This means that 'They must be consulted concerning government, but they
do not conduct it.'46 The people do not have unlimited power, for there is not such athing on earth. Sovereignty 'is not general vitality of the organism, but the specificoriginative power of certain organs.' Sovereigns exist, but they are not the state as awhole. They are not the community itself over which they preside.47
Wilson evidently stands on the position of a traditional constitutionalist. He is
consciously opposed to Hegelian national sovereignty. He is thus able to admit thatsovereignty can be limited. According to him, we must distinguish 'the powers andprocesses of governing' from 'the relations of the people to those powers and processes'.
There always exists a distinction between 'the phenomena of command' or 'governing'and 'the phenomena of obedience' or 'being governed'.48 The development of politics is
not a history of the identification of the governing and the governed; instead, it is 'a

46 Wilson, 'Political Sovereignty' (1893), p. 73-74.
47 Ibid., p. 80.
48 Ibid., pp. 80, 82.

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process of differentiation'. The development of political liberty has enlarged 'the sphereof independent individual action at the expense of the sphere of dictatorial authority.'
The identification of the two spheres is the world of the ancient states. Wilson
witnesses in his age 'a gradual disintegration, a resolution of the State into its constituent
elements, until at length those who govern and those who are governed are no longer
one and the same'.49
Wilson accepts the Austinian definition of sovereignty as 'the habitual obedience ofthe community'. This definition does not contradict the fact that 'liberty has encroachedupon sovereignty.' 'The conditions of sovereignty and the exercise of sovereignty' arequite different matters. To be sure, 'the will of the community, the inclinations anddesires of the body-politic as a whole', is always the foundation of law. But these
preferences of general body are exercised by way of approval or disapproval,acquiescence or resistance. Constitutions determine the relationship between those who
govern and are governed. Constitutions are 'covenants' made by communities with theirsovereigns.50
Now Wilson formulates the concept of'control' in opposition to that of sovereignty
by saying that 'Sovereign power is a positive thing; control a negative thing. Powerbelongs to government, is lodged in organs of initiative; control belongs to thecommunity, is lodged with the voters. To call these two things by the same name issimply to impoverish language by making one word serve for a variety of meanings.'51
Wilson knows that traditional American constitutionalism needs to be modified. In
the United States the right to self-determination of each state has been abandoned.
Sovereignty resides in the federal state, especially its law-making organ.52 But thisposition is maintained in the context of constitutionalism. In his masterpiece, The State,
he says that 'with us sovereignty rests in its entirety with that not very determinate bodyof persons, the people of the United States, the powers of sovereignty resting with thestate and federal authorities by delegation from the people'. Along the same lines of his
contemporaries, Willoughby and Burgess, Wilson argues that 'Sovereignty resides in the
49 Ibid., p. 83.
50 Ibid., pp. 84-88.
51 Ibid., p. 90.
52 Ibid., pp. 94-95.

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community'. Yet, this is not an expression of the doctrine of national sovereignty; it israther derived from Locke's classical model of the source and the exerciser ofsovereignty. In the first place, Wilson confesses that 'Sovereignty, as ideally conceived
in legal theory, nowhere actually exists'.53
Compared to his contemporaries, it is striking that Wilson maintains the basic lineof rather old-fashioned constitutionalism. Considering the Declaration of Independence
as well as English constitutional history, Wilson defines 'the philosophy of constitutional
government' as the assertion that 'men have always the right to determine for themselves. . . whether the government they live under is based upon such principles oradministered according to such forms as are likely to effect their safety and happiness.
In brief, political liberty is the right of those who are governed to adjust government totheir own needs and interests.' To designate 'a definite understanding between governors
and governed' in constitutional rules does not mean the absorption of their relationshipinto an organic entity. As 'Nations are made up of individuals', 'A man is not freethrough representative assemblies, he is free in his own action. . . or he is not free at all.
There is no such thing as corporate liberty. Liberty belongs to the individual, or it does
not exist.' He continues saying that 'The theory of England and American law' stipulates
that 'representatives of government have no authority except such as they derive fromthe law, from the regulations agreed on between the government and those who are to
be governed.'54 It is on this principle that Wilson understands the notion of sovereignty.
The element which distinguishes Wilson from old constitutionalists is his belief insocial progress. If classical constitutionalism is based on 'the Newtonian theory of theuniverse' in which government is described as 'a machine', his contemporaries follow
Darwin's 'theory of organic life'. Accordingly, Wilson finds several stages in the
progress of constitutional government. Its final stage is either the English or American
form.55 Wilson is a traditional and progressive constitutionalist; and it is this type of
constitutionalism that is the archetype of his internationalism.56
53 Wilson, The State (1889), p. 625, 635.
54 Wilson, Constitutional Government in the United States (1908), pp. 4, 9-10,16,20.
55 Ibid., pp. 54-56, 40.
56 While he maintains traditional constitutionalism in the international field, his progressivism does not know
the pre-Civil War theory of divided sovereignty. For instance, considering the clause in the Covenant o f the rightto withdraw from the League, Wilson is reported to have said: 'The sovereignty o f their country was the fetish o f

158Political statements by Wilson the statesman which are regarded by many as
manifestations of his belief in popular sovereignty were in fact expressed in accordancewith his original constitutionalism. He reinforced his academic view of the sovereignty
of federal governments.57 To be sure, he emphasises that 'every people has a right tochoose the sovereignty under which they shall live.158 To repudiate the right to 'handpeoples about from sovereignty to sovereignty as if they were property' is to recognisethat 'governments derive all their just powers from the consent of the governed'.59
Although consent is the source of sovereignty, this does not mean that the organic nationis the sovereign. What he says is that the people have the power of consent coexistent
with the sovereign power of government.60
Wilson sometimes spoke of the sovereignty of people. But popular sovereignty
appeared in Wilson's comments only when he mentioned the people oppressed by 'theImperial German Government' or 'a mere military despotism' in Mexico.61 This attitude
is consistent with classical constitutional theory. Locke justified the supreme power ofthe people as well as that of the legislative power. The power of the people can be
many republic men. He thought that the clause would have no practical effects, while its omission might havevery serious results. The time would come when men would be just as eager partisans o f the sovereignty of
mankind as they were now o f their own national sovereignty.1 Quoted in Florence Wilson, The Origins o f the
League Covenant (1928), p. 26. Wilson looks upon the US Constitution from the viewpoint o f hindsight.
Divided sovereignty is merely a transitory stage in the development of the Union which has revealed its complete
form in his age. He observes regarding the US Constitution that 'Only the extraordinary foresight and sagacity ofthe men who framed and advocated the federal constitution, - only the prevailing force of such men as
Washington, and Hamilton, and Madison, - could have secured so compact and strong a central government in
the face o f the jealousy o f local interests.' Wilson, Constitutional Government, p. 45.
57 'The place where the strongest will is present will be the seat of sovereignty. If the strongest will is present
in Congress, then Congress will dominate the Government; if the strongest guiding will is in the Presidency, thePresident will dominate the Government.' Address o f Wilson in New York, May 13, 1912, quoted in Saul K.
Padover (ed.),f)vilson's ideals (1942), p. 40.
58 Wilson'suddress at the first annual national assemblage for the League to Enforce Peace in Washington D.
C., May 27, 1916., quoted in ibid., p. 72. Wilson also expresses the traditional American view on internationallaw by saying that 'the small states o f the world have a right to enjoy the same respect for their sovereignty andfor their territorial integrity that great and powerful nations expect and insist upon.' See 'Broader Aspects o f the
League Program' in Enforced Peace (1916), pp. 159-164.
59 Wilson's message to the Senate, January 22, 1917, quoted in ibid., p. 131.
60 The fifth of'the Fourteen Points' stipulates the principle 'that, in determining all such questions ofsovereignty, the interests of the populations concerned must have equal weight with the equitable claims o f thegovernment whose title is to be determined.' Quoted in ibid., p. 113.
61 'We believe that the intolerable wrongs done in this war by the furious and brutal power o f the Imperial
German government ought to be repaired, but not at the expense o f the sovereignty o f any people'. Wilson's
Reply to the Pope, August 27,1917., quoted in ibid., p. 89. Justifying the intervention in Mexico in defiance of
the unrecognised government of General Huerta, Wilson says that 'I wish to reiterate with the greatest earnestness
the desire and intention o f this Government to respect in every possible way the sovereignty and independence ofthe people o f Mexico.' Wilson's comment in New York Times, April 24, 1914, quoted in Cynthia Weber,
Simulating Sovereignty, p.64.

159exercised only when a government violates the consent with the people; the sovereigntyof the people is restored only when a revolution is justified.
Theoretical confusion arises when Wilson began to use the expression, 'selfdetermination', instead of'the consent of the governed'. The problem with which many
have been concerned is the subject of 'self-determination'.

Who is the 'self?

Theoretically, the 'self is the 'people' who live within a constitutional framework of astate. The 'self is in the first place a very artificial entity formulated by a constitution.
But the fact is that the 'self was understood by most people as the 'nation' in the processof the peace settlement. Wilson himself confused his theoretical standpoint with thevindication of the independence of nations. The contradiction is shown by the fact thatthe independence of small states was the matter decided by the great powers, not by 'theconsent of the governed'. While the national integrity of Germany was denied, theGerman people were taken as responsible for the unconstitutional acts of thegovernment of Imperial Germany. That was the tragic confusion which perplexed many
people including Wilson's Secretary of State, Robert Lansing.

Lansing's Views on Sovereignty

Lansing as an international lawyer wrote four essays on sovereignty before he wasengaged in his career in the Department of State. Lansing's theory of sovereignty issignificantly different from Wilson's. If we read his four essays, we do not have towonder why Lansing could not come to terms with Wilson's position at the Peace
Conference.
Lansing's notion of sovereignty is founded on force. Sovereignty in a state is defined
as 'the power to the extent of the natural capacity of the possessor to do all things in astate without accountability.' It is 'real only when the possessor can compel theobedience to the sovereign will of every individual composing a state'. It arises from'the possession of physical force superior to any other such force'. Its exercise is simply'the application or the menace of brute force'.62
What is characteristic is that Lansing only talks about sovereignty in a state. He

62 Lansing, 'Notes on Sovereignty in a State: First Paper1(1907) in Notes on Sovereignty { 1921), pp. 6-7.

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rejects the idea of the sovereignty o f a state, for sovereignty is not possessed by a state
but by 'the individual or body of individuals in the state possessing the physical strength'
in a state. The sovereign force is not possessed by an abstract entity like a state, but by
the possessors of the physical power to compel obedience. Thus he distinguishes
between the real and artificial sovereigns. While sovereignty is legally attributed to thelatter, the former possesses the actual force to compel obedience. Lansing's sovereignty
is only concerned with real sovereignty, as the artificial sovereign is a fiction and nota sovereign in fact.63
It can be observed that this definition is a result of the reification of sovereignty. The
abstract concept of sovereignty is now conceived as a substance distinct from the state.
That Lansing seriously discusses the pure sovereignty of 'an Omnipotent and Eternal
Being' is a proof of this phenomenon.64 Lansing does not think that the state as ajuridical person possesses such a force. There must exist somewhere real sovereign
individuals who embody sovereignty; otherwise, a state cannot exist. A state does notconstitute sovereignty; sovereignty constitutes a state.
Lansing believes that the real sovereign appears in the time of civil war or
revolutions. It is certainly difficult to find the real sovereign in times of peace. The
American Civil War has proved that sovereignty resides in the body of individuals whocompelled obedience of the Southern States.

'Resistance that is absolutely andgenerally successful is essential to make resistance to law a disapproving act of the real
sovereign.165 In other words, if secession had succeeded, sovereignty would have resided
in the Southern States. No one knows the location of real sovereignty until politicalconflicts have ended.
Thus we cannot generalise sovereignty in the form of'the consent of the governed'.
To be sure, as long as the government needs the support from the real sovereign, the'assertion' of the 'consent of the governed' is true. However, according to Lansing, as thereal sovereigns 'never include all the members of the state, the assertion is never correct.'
Such an assertion is an intellectual product.66
63 Ibid., pp. 13-14.
“ Ibid., p. 3.
65 Lansing, TMotes on Sovereignty in a State: Second Paper1(1907) in ibid., p. 52.
66 Ibid., p. 53.

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It is not paradoxical that Lansing contemplates 'World Sovereignty'. Since theinterdependence and mutual responsibility of states enable people to conceive of thehuman race as one body, 'there must be a certain body of individuals possessing aphysical might sufficient to compel obedience by every member of the human race
throughout the world.'67 Even if it has not been organised, the sufficient union of thephysical power is supposed to constitute 'World Sovereignty' in a still unorganised worldcommunity. In other words, in order to construct a world community Mankind mustacknowledge the existence of'World Sovereignty'. It is logically consistent to say that'the sovereignty in a state is artificial when compared with the reality of World
Sovereignty',68because the latter is able to compel the obedience of the formfg^Asthe'sovereignty of God' was the only possibility to preserve absolute sovereignty inreligious discourses, World Sovereignty is the real sovereign of the real sovereigns.
Lansing affirms Bodin as 'nearer the truth'. He asserts that 'the essence of sovereignty
is physical power.169 This is 'a practical working theory' of which Lansing is proud, as
he takes sides with 'actuality' in opposition to 'legal fiction'.70 Lansing is not a theoristof Continental national sovereignty. Nevertheless, in his theory traditional American
constitutionalism is collapsing. Since he has discovered the existence of the real
sovereign who appeared in the time of the Civil War, constitutional sovereignty is now
merely fictional.
Lansing's academic standpoint may not, at a glance, necessarily seem relevant to his
opinions at the Paris Peace Conference. He was opposed to Wilson's draft of theCovenant which contained the use of force to settle international disputes. He wasafraid that the League would lead to 'an international oligarchy of the Great Powers' anddestroy the principle of 'the equality of nations'. Furthermore, he objected to theapplication of'self-determination' as it would cause great turmoil in future. The system

67 Lansing, 'Notes on World Sovereignty' (1906) in ibid., p. 57.
68 Ibid., p. 61.
69 Lansing, 'A Definition o f Sovereignty' (1913-1914) in ibid., pp. 81-84.
70 Ibid., p. 93. In considering the issue o f the islands o f Spitzbergen which was known as a 'no-man's land',Lansing distinguishes between territorial and political sovereignty. The latter 'has to do with the ideas ofnationality, allegiance, and kindred relations' without regard to the place of its exercise. His notion o f real
sovereignty is in fact political in contrast with territorial or legal sovereignty. See Lansing, 'A UniqueInternational Problem' (1917), pp. 765-766.

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of mandates also contained a serious problem in its legal character.71
A commentator remarks that Lansing's opposition to Wilson is rarely rigid, as heinsisted on preserving the principle of the equality of nations, while renouncing selfdetermination.72 It can be noted, however, Lansing's insistence as well as his academic
doctrine is very consistent and simple, in view of the reality of sovereignty. In hisacademic works he sought for the location of invisible but absolute sovereignty. At
Paris he objected to the Covenant, for he thought it derogated from sovereignty. The
equality of nations should be observed, for it 'is imposed by the very nature ofsovereignty'. Self-determination is also a violation of sovereignty, for it ignores thesovereignty over minorities. The system of mandates is misleading, because German
sovereignty over territories cannot be transferred to the League which does not by itself
constitute a sovereign state.

These objections were inevitable, only because hecherished 'the very conception of national sovereignty both as a term of politicalphilosophy and as a term of constitutional law'.73
During the period of the Conference in Paris, Wilson asked Lansing to prepare aresolution, which was never discussed. Lansing later suspected that Wilson had neverintended to consider his ideas. It was just a measure to close Lansing's mouth and'pigeonhole' his resolution. The main purpose of the resolution was to stipulate: 'allnations are equally entitled to the undisturbed possession of their respective territories,
and to the full use of their respective sovereignties'.74 Wilson could not accept Lansing's
rigidity concerning sovereignty. Wilson stated that 'he did not intend to have lawyers
drafting the treaty of peace.' Wilson also dismissed Lansing's concern about the locationof sovereignty in the system of mandates as 'legal technicalities'.75
It is no wonder that Lansing who maintained so political and realistic a position in
his academic essays was treated as a useless lawyer by Wilson. In Paris Wilson was an

71 Lansing, The Peace Negotiations (1921), pp. 81-105, 149-161.
72 See Robert A. Klein, Sovereign Equality among States (1974), pp. 71-72.
73 Lansing, The Peace Negotiations, pp. 58, 164. As early as May, 1916, Lansing opposed the use o f force asa measure o f the League o f Nations and writes in a letter to Wilson that 'I do not believe that it is wise to limit
our independence o f action, a sovereign right, the will o f other powers beyond this hemisphere'. Ibid., p. 39. If
sovereignty is the supreme physical power, coercive force on sovereignty is not only dangerous but also logicallycontradictory.
74 Ibid., pp. 113-121.
75 Ibid., pp. 107, 153.

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international constitutionalist. He limited, modified, and reinterpreted the concept ofsovereignty.

He was a political scientist who constructed an international legal

framework. Lansing saw politics beyond the sphere of law. Politics was the world ofreality, while law was the accumulation of artificial principles. This meant for him thatthe reality of politics was unchangeable; sovereignty was untouchable. Lansing could
not modify legal principles, all the more because he believed in the absoluteness ofpolitical reality which he believed sustained legal notions.
Lansing took for granted the reification of sovereignty. His consistency was basedon the reality of sovereignty. No matter how difficult it was to find the real sovereign,no matter how necessary to the League to implement an 'affirmative guaranty' of thegreat powers, no matter how inevitable to the democratised world to adopt selfdetermination, sovereignty was always real.

If reality was constructed uponsovereignty, anything which would violate sovereignty was against reality.
It is no wonder, therefore, that Lansing could not reconcile himself with Wilson who
represented the tradition of constitutionalism when he constructed an international'constitution'. Unlike Lansing who believed in the reality of sovereignty, for Wilson
constitutional principles like 'the consent of the governed' could, or rather should, be
implemented by the great powers which were willing to observe international
constitutional rules. Wilson could easily argue that as the American States were under
the protection of the federal union from foreign threat, the effective Executive of the
League would protect the constitutionally equal rights of nations. By contrast, for
Lansing constitutional principles were in the sphere of legal theory. To apply it toreality would cause great confusion. Although the 'World Sovereign' might decide thestructure of world community, the 'oligarchy of the Great Powers' and the independenceof small nations pointed in a quite different direction. It was neither realistic nor
idealistic. To identify 'legal fiction' with 'actuality' is just 'an evil thing', to which
Lansing felt he had to object. Lansing wondered if Wilson would have had permitted
the Southern States to secede from the Union.76 If Wilson asked why he should not use
his power to implement international constitutional rules, Lansing could argue that those
constitutional principles are merely legal fictions. He could not see any reality in

76 Ibid., pp. 147-148, 93-105.

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international constitutionalism. What was real, the highest realisation of the reality of
power, was sovereignty. Sovereignty was a harsh reality which could not be clothedwith constitutional fictions.
This is a conflict between the Articles of Confederation and the experience of the
Civil War on the one hand, and the Declaration of Independence and the Constitutionof 1787 on the other. When sovereignty is reconciled with constitutional order, Wilson
stands as a traditional constitutionalist. When constitutionalism is subordinated tosovereignty, Lansing insists on the reality of sovereignty. Lansing was inclined in the
direction of national sovereignty, although he was by no means a philosophicalnationalist, nor was he a theorist of the organic state.
After the French Revolution Maistre pointed out that 'to raise the world, you need afulcrum outside the world.' In the twentieth century it was no longer possible todesignate an eternal location of such a fulcrum. Some still felt, nevertheless, that apolitical community could not be constructed without such a fulcrum. As there seemed
to be no person who could maintain such a fulcrum, the reality of the notion ofsovereignty itself had to preserve it.

If the period during and after the First World War is characterised by the AngloAmerican hostility towards Germany, it is no wonder that international constitutionalism
inspired by traditional Anglo-American constitutionalism became a foundation ofnumerous plans for a new international order. Some of the Anti-federalists and Lansing
adhered to nationalistic or 'realistic' notions of sovereignty and constituted struggles withthe tendency of international constitutionalism. But the tide was on the side of the latter.
This tendency continued at least for the first decade of the interwar period. However,the strength of international constitutionalism was destined to decline as world-wide
economic and political crises in the thirties undermined the international orderconstructed upon Anglo-American power. We shall turn to this process in the next
chapter.

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Chapter 6 The Collapse of International
Constitutionalism
This chapter deals with the Continental and Anglo-American discourses ofsovereignty during the interwar period. It is the period which started with the optimism
regarding the possibilities for realising international constitutionalism, but ended withthe revenge of the Continental powers and the collapse of the international system. The
establishment of the League of Nations and the Briand-Kellogg Pact of 1928 represented
the optimism in the first decade of the interwar period, in which the concept ofsovereignty was not abandoned, but considerably limited.1 But as international societyfell into political and economic turmoil, optimistic tendencies disappeared. In this
Chapter we shall first briefly view Continental theories of sovereignty in order to better
understand their influence upon Anglo-American scholars. Next we shall examine thedevelopment and the decline of the discourses on constitutional notions of sovereignty
in Britain and the United States in the interwar period.

1The Permanent Court o f International Justice in the case of S. S. Wimbledon, 1923 'declines to see in the
conclusion o f any treaty by which a State undertakes to perform or refrain from performing a particular act anabandonment o f its sovereignty. No doubt any convention creating an obligation o f this kind places a restriction
upon the exercise of the sovereign rights of the State' for 'the right of entering into international engagements is
an attribute o f State sovereignty'. In the case of the Lighthouses in Crete and Samons (1937), Judge Hudson
more candidly expresses his Separate opinion that the theoretical sovereignty remaining in the State consenting
to the limitation o f its independence is 'shorn of the last vestige of power,' and in which 'a ghost o f a hollow
sovereignty cannot be permitted to obscure the realities o f this situation.' Viscount Finlay stated in 1924 in theHouse o f Lords respecting the case of Duff Development Company, Limited, v. Government ofKelantan andAnother. 'It is quite consistent with sovereignty that the sovereign may in certain respects be dependent uponanother Power'. Quoted in Green H. Hackworth, Digest o f International Law, volume I, pp. 51-53; Georg
Schwarzenberger, International Law, volume I, (1945), p. 50. In the age o f imperialism a restriction o fsovereignty necessarily meant a semi- or half- or even non- sovereign state. In the interwar period, however,derogation does not diminish sovereignty. The principle of sovereignty in the interwar period is not a matter o f
substance which has degrees. It is a formal concept which survives any restriction in reality. 'Rulers come andgo; governments end and forms o f government change; but sovereignty survives. A political society cannot
endure without a supreme will somewhere. Sovereignty is never held in suspense.' United States v CurtissWright Export Corporation et a l, US 304, 316-171 (1936), quoted in Michael Ross Fowler and Julie Marie
Bunck, Law Power, and the Sovereign State (1996), p. 69.

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Continental Theories o f Sovereignty in the Interwar Period
The reification of sovereignty declined even in the Continental countries around thetime of the First World War. Many theorists and publicists began to doubt thesupremacy of the sovereign state.

One exemplar of this development was thesociological claim that the state was merely one of several social associations. Anotherwas the legal claim that the sovereign state was subordinated to the system ofinternational and constitutional laws. Although they grew from quite different roots,
both of them were highly critical of the theory of sovereignty.
In France, Leon Duguit set out a serious attack on sovereignty from the sociologicalperspective. According to him, sovereignty is an historical product. In the seventeenth
and eighteenth centuries sovereignty was a property of the king. As it was so deeply
rooted in absolute monarchy that sovereignty was to disappear with the circumstances
which gave it birth. The reason why it survived the changes in circumstances is that thelegislators of the Revolution replaced the king with the nation. Like the king, the nation
became a person, a subject of right, the holder of the sovereign power. Throughout thenineteenth century, in France and in the whole world influenced by political events inFrance, national sovereignty spread as an almost religious dogma.
Duguit identifies the doctrine of national sovereignty to be 'a belief in a myth' whichis contrary to fact. In the first place, there is no correspondence between state andnation. In addition, the two facts of the modem world, decentralisation and federalism,
have made the principle of national sovereignty inconsistent. Previous thinkers were so
hypnotised by the dogma of sovereignty that they did not see the contradiction between
the concept and the facts of actual life. What most characterises Duguit's insistence is
his idea of public service. Duguit finds it contradictory for the 'sovereign' state toprovide public service. The dogma of sovereignty as 'a subjective right to command'cannot explain the state as having duties to perform activities for the individual well­being and the prosperity of the nation. Modem institutions take their origin, not fromthe theory of sovereignty, but from the notion of public service. Duguit also emphasises

167the existence of'a mass of rules' which governs the organisation of public utilities.2 But
this does not mean that he belongs to the tradition of Anglo-American constitutionalism.
Rather he foresees a modem welfare state. He stipulates that the government is a public
servant and people are the recipient of the service. And the obligation of public service
is the rule which government must observe.3
In the German speaking world, the Austrian school including Hans Kelsen developed
highly formalistic ideas of sovereignty. Kelsen proclaims the primacy of internationallaw over the legal order of the state. Sovereignty constitutes the binding validity of thelegal order. But it does not constitute a kind of natural reality. It is a purely juristic
idea. To be sure, the sovereign state is a highest system of norms. However, as
sovereignty is only in juristic construction, a legal system of the state is n o t : , free fromthe norms of international law. There is no sovereign state which is completely free inthe actual world.4 In other words, 'In the world of physical reality, there is no such thing
as sovereignty.'5
The doctrine of the 'sovereignty of law' is put forward by H. Krabbe. According tohim, 'the old idea of the state' is based on the sovereign person, whether he is the king,the people, or even the state itself. By contrast, 'the modem idea of the state' is thedoctrine of the 'sovereignty of law'. Historically speaking, the sovereign authority wasat first limited by the positive law. Then the mere will of the sovereign began to be
replaced by law. Finally, the 'unconditional victory of the law' was brought about by theexclusion of all original sovereign authority. 'The modem idea of the state' recognises
the impersonal authority of law as the ruling power. The authority of the state is nothingother than the authority of law. Krabbe says that in the modem age we no longer live
under the dominion of persons, either natural persons or fictitious legal persons, but
under the dominion of norms, of spiritual forces.62 Duguit, Law in the Modern State, pp. 1-32,49; Les Transformations du Droitpublie (1913), pp. 1-34, 52.
3 Nicolas Politis, professor at the University of Paris, is driven to 'the necessity o f utterly abandoning thenotion o f sovereignty and looking facts in the face.' Politis, The New Aspects o f International Law (1928), pp. 413.
4 Mattem, op. cit., pp. 121-134; Rupert Emerson, op. cit., pp. 167-173.
5 Kelsen, Law and Peace in International Relations (1942), p. 78.
6 Krabbe, The Modern Idea o f the State (1922), pp. 1-11; De Moderne Staatsidee ('S-Gravenhage: Martinus
Nijhoff, 1915), SS. 3-10.

168Despite these strong arguments against the absolute notion of sovereignty, theContinental tradition of sovereignty was never completely subdued. Carl Schmitt, who
is famous for his later support for Hitler, revitalises the absolute theory of sovereignty.
According to him, 'he who decides on the exception' is the sovereign. In the case of an
extreme emergency there exists the sovereign whose action is not subject to controls,
nor hampered by checks and balances. According to Schmitt, every legal order is basedon a decision and not on a norm. When unlimited authority appears in an exceptionalsituation, law recedes while the state remains.

The constitutional tendency ismisleading, for 'The rule proves nothing; the exception proves everything.'7
It is evident that Schmitt reverses the arguments of formalists like Kelsen and AngloAmerican constitutionalists. The 'decisionist', Schmitt, thoroughly renounces the ideaof 'the rule of law'. He asserts that 'What matters for the reality of legal life is who
decides'.8 No matter how much constitutional rules seem to diminish sovereignauthority, the sovereign appears when an emergency terminates legal constraint.
Sovereignty always coexists with the sovereign person, even if it is latent in normal
situations. Liberal constitutionalism may be valid, as long as normal situations last. But
normal situations are not essential in the operation of the state. The exception is thevital moment for the state. A decision makes norms; not vice versa.
Schmitt developed his theory referring to the Weimer Constitution. However, thepolitical implication of his theory is obviously tremendous. In the age of the dominanceof Anglo-American international order, Schmitt denies the superiority of legalsovereignty.

When the exception occurs, the fragile structure of international

constitutionalism will give way to the decision of the sovereign who is normally latent.
The theorists who see the restriction of sovereignty will know in the exception that theinternational constitution established by the Anglo-American world is not permanent.
They will know that when normal situations collapse, there will emerge the sovereign
who makes a decision in order to restore or reestablish a constitution. It is no wonderthat Schmitt welcomes the rise of Hitler who proves the validity of Schmitt's theory bymaking exceptional decisions against the structure of Anglo-American international

7 Schmitt, Political Theology, pp. 5-15; Politische Theologie (1922), SS. 9-15.
8 Political Theology., p. 34; Politische Theologie, S. 33.

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society.9

Discourses on Sovereignty in Interwar Britain
Political theory was the field which was most characterised by hostility towards thenineteenth century doctrine of national sovereignty. Pluralism in connection with guild
socialism and pragmatism marked a strong intellectual tradition against nationalsovereignty. Although they had diverse theoretical foundations, they all agreed on the
point that the theory of sovereignty was too fictitious and no longer sustainable. They
contended that 'realistic' insight into actual social forces revealed that the notion ofsovereignty was a false belief of the politically dominant class. In the sense that they
all emphasised the existence of multiple social forces, we shall see that their claims
eventually converged into the position of constitutionalism. This was the case in theworks of Harold J. Laski, who had great influence in both America and England.

Laski's Pluralistic Attack on Sovereignty

In order to understand Laski's rejection of sovereignty, it is important to understandwhat he is arguing against. Studies in the Problem o f Sovereignty (1917) shows that thetarget of his criticism is German philosophy, especially that of Hegel. Laski observes
that 'the monistic theory of the State' became dominant in the late nineteenth century due
to the doctrine of the Germans like Hegel and Treitschke. It is the doctrine of the unityof the state. It ordains that the state be one and indivisible. Trade-unions, churches,
universities etc. must be embraced in the Absolute or Oneness, i.e. the state.
Sovereignty is the expression of this philosophical tradition.

9 It is true that the fascists stressed the typical Continental theory o f the organic state. According to Alfred
Rocco, a leading Italian fascist theorist, 'Fascism discovers sovereignty to be inherent in society when it isjuridically organized as a state.1 Alfred Rocco. 'The Political Doctrine of Fascism' [1925] in Margaret Spahr(ed.), Readings in Recent Political Philosophy (1935), p. 687. An influential German jurist, Ernst Huber assertsthat the FUhrer's will is 'the collective national wi l l . . . The Ftihrer unites in himself all the sovereign authority of
the Reich.' Quoted in Richard H. Cox, The State in International Relations (1965), p. 58. But the antagonism
against liberal democracy led the fascists to deny the constitutional roles o f the people as well as limited
government. Like Schmitt's theory, Fascism is a doctrine o f the inversion of normality in Anglo-American
constitutionalism.

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In the midst of the Great War, Laski identifies the theory of sovereignty with a purenotion of national sovereignty. Laski implements constitutional measures to object tothe 'monistic' notion of sovereignty. Political rule is not founded on sovereign forces.
Its validity depends upon the consent of the members of the state. Law is obeyed, notbecause it is a command, but because it is a rule of convenience. Where sovereignty
prevails and the state acts, there must be the consent of men. Furthermore, the state ismerely one of the associations to which men feel allegiance. If the state obtains pre­eminence over other groups, it is because the state is expected to act to coordinate social
forces. It is a matter of degree and not of kind that the state may have more usual
acceptance than any other association. Laski admits that his idea of sovereignty is far
wider that which lawyers recognise. He says that he does not challenge the juristic
definition of sovereignty, but is concerned with sovereignty in reality. He begins withthe statement that the real rulers of a society are undiscoverable. As sovereignty mustgo with the real rulers, sovereignty is also beyond the reach of human insight. Laski
thus asserts that 'in a time when the State enjoys its beautification', it is worth while
advocating the 'deepest harmony' of'consent to disagreement'.10
Critics argue that Laski's notion of sovereignty is not attributed to the state, but the
government. Moreover, 'monistic' Anglo-American jurists from Hobbes to Austin neverinsisted on the omnipotence of sovereign power, but only the need for sovereignauthority.11 Indeed, what Laski intends to destroy is the absolute sovereignty of theunitary state. According to him, the state is always 'a territorial society in which there
is a distinction between government and subject.' This standpoint of pluralism excludes'the oneness of society and the state.' Laski stresses that the sovereignty of the state infact means governmental sovereignty. This implies the necessity of a limitation upon

10 Laski, Studies in the Problem o f Sovereignty (1917), pp. 1-25.
11 Johannes Mattem defends Willoughby's sovereignty o f the state, not the government. See Mattem, op. cit.,
pp. 101-120. F. W. Coker argues that Bodin and Austin have the restraint o f natural and divine law or of
opinions and sentiments o f the community, and that the pluralistic writings supplement the traditional theories bygiving emphasis upon the field left inadequately covered. Coker, 'Pluralistic Theories and the Attack upon State
Sovereignty' (1924), pp. 80-119. P. W. Ward makes clear that 'The sovereign State in political theory
corresponds to the Absolute of metaphysics'. This means that the attacks on sovereignty are not aimed so muchat Austin as at Hegel. Ward, Sovereignty (1928), pp. 105,175. See also Kung Chuan Hsiao, Political Pluralism(1927), pp. 9-31, 126-145; Raymond G. Gettell, Political Science (1933), p. 139; Francis G. Wilson, The
Elements o f Modern Politics (1936), pp. 579-584; Chester C. Maxey, Political Philosophies (1938), p. 622; G.
N. Sarma, The Political Thought o f Harold Laski (1965), pp. 48-53.

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the sovereignty of the state.12 It seems fair to say that his argument is along the lines of
Anglo-American constitutionalism. Although Laski denies the validity of sovereignty,
his conceptions of the formal sovereignty of the government and real forces in society
are derived from the Lockean dichotomy.

Laski is not an anarchist, but aconstitutionalist who opposes the government to society.13
What Laski contributes to traditional constitutionalism is the addition of social
associations to the constitutional structure. The state does not merely stand against
individuals. Society, composed of various social groups, is faced with the state. Whilethe crux of political theory in the nineteenth century was the antithesis of 'the stateversus man', in the twentieth century it becomes that of'the state versus groups'.
Laski shifted from pluralism in the early 1920s to Marxism in the 1930s. In thesecond decade of the interwar period, disillusionment with liberalism was generally
shared by intellectuals.

The Great Depression deprived economic liberalism ofcredibility. The conflict of interests between economic classes became acute in the
United States as well as Great Britain. The Roosevelt administration of the New Dealand the 'national' government after the collapse of the Labour government drasticallychanged the nature of Anglo-American democracy. In the international field, fascist
Italy, Nazi Germany and militant Japan challenged the established international order.
Having experienced these incidents, Laski in 1935 attacked the capitalist state assuch. It remains sovereign merely in order to protect the interests of capitalism and may
resort to war as the supreme expression of sovereignty. He therefore proclaims thatsovereignty a ndcapitalism are incompatible with an effective world-order.14

Observing 'a growing movement towards a less formal, and more realistic,
jurisprudence' in this era, Laski adds that pluralism was a stage on the road to Marxism.

12 Laski, Authority in the Modern State (1919), p. 26, 65, 119. Laski argues elsewhere that the politicalphilosopher will be driven to 'the perception that, politically, there is no such thing as sovereignty at all.' Instead,'the starting-point of enquiry is the relation between the government o f a state and its subjects.' Laski, 'Popular
Sovereignty' (1921), pp. 229-230. In the interwar period pluralism was proud of'realism', for it recognises only
the sovereignty of the government which is a merely formal concept. For example, see Laski, 'Law and the State'(1929), pp. 267-295. Sociologists reinforced the view by emphasising the limitations upon sovereignty. See
Franklin H. Giddings, The Responsible State (1919), pp. 46-48; Harry E. Barnes, Sociology and Political Theory(1924), p. 139.
13 In 1925 Laski insisted that state sovereignty should be abolished for the interests o f humanity, but still
admitted that the state was an inevitable organisation. See Laski, A Grammar o f Politics (1925), pp. 44-88.
14 Laski, The State in Theory and Practice (1935), p. 209.

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Only Marxism can explain the real nature of the state as an expression of class-relations;the abrogation of sovereignty necessarily involves a revolution in the economic structureof the modem world.15 In the beginning, Laski stressed the discrepancy between thestate and society which could not be concealed. In the time of a more serious
constitutional crisis, he naturally identifies the state with an economic class in
opposition to other classes.
Although it was the case that not many intellectuals followed Laski in the directionof Marxism, neither were they able to maintain confidence in international
constitutionalism in the 1930s. The events in the second decade of the interwar period
revealed the sour fact that international order was collapsing. It is the shift from
optimism to the recognition of the failure that we shall see in Jh^mterwar AngloAmerican discourses on sovereignty in Britain and the United States.

Sovereignty o f the Constitution in Britain

Thd^iscourses on internal sovereignty in Britain during the interwar period show thatthe traditional constitutional relationship between the state and the individual came to
be a minor issue. The crux of constitutionalism, the relationship between the mler andthe ruled, became ambiguous in the twentieth century.16 The pluralists were a kind of
new constitutionalist who responded to this reality, for it can be said that they pointed
to the more comprehensive notion of the state.17 Whether being a pluralist or not, thetheorist of sovereignty had to face the reality in the era after democratic reforms.
The most characteristic doctrine is 'the sovereignty of the constitution'. It is
propounded by A. D. Lindsay who reconciles the theories of Austin and Bosanquet.
According to Lindsay, the people do not merely obey a determinate person or persons.
The distinction between the mler and the ruled has more or less been dissolved in the

15 Laski, 'Introduction' in A Grammar o f Politics, fourth edition (1938), pp. iii-xxi.
16 B. M. Laing observes that the traditional notion o f sovereignty depended on the constitutional distinction
between state and individual or class of individuals, between state and society. But such a distinction is a little
difficult to understand in the context o f the theory o f popular sovereignty. Laing, 'Aspects o f the Problems o f
Sovereignty', (1921), pp. 5, 16. See also C. A. Hereshoff Bartlett, 'The Sovereignty o f the People' (1921), p. 508.
17 K. H. Hsiao emphasises that as the pluralists are finally compelled to restore sovereignty, 'the real problemof the pluralists is not to destroy sovereignty, but to reorganize it, so that political power shall become the true
expression o f the community.' Hsiao, op. cit., p. 140.

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modem state. But the constitutional relationship between them did not completely
disappear. This means that what people really obey is the coijstitution.18 Lindsay insiststhat 'If the sovereign is that whose recognized authority makes government and forcesanctioned law possible, then the constitution is sovereign'. The constitution retains theunity, indivisibility, and supremacy which havebeen maintained to be of the essence ofsovereignty.19
Another way to express almost the same idea is that it is 'not sovereignty but the law
and the constitution that wear the legitimate armour of might.' R. M. Maclver reasonsthat the government is supposed to have power as the guardian of the constitution, as theexecutor of law, not in its own right. The mere command of a government has no
attributes of political sovereignty. The modem state points to 'the definite assertion of
the limited and relative character of sovereignty.' This position is in fact an implicit
doctrine of the sovereignty of the constitution, as Maclver mentions 'the sovereignty oflaw' over 'the proper sovereignty of the state'. The state is a mere organ of thecommunity.20
William S. Holdsworth insists that England never accepted the Continental theoryof sovereignty, due to the existence of Parliament, the supremacy of the law and thesystem of local government. The constitutional rights of Englishmen and division of thesovereign power assumed a position of greater importance than the theory ofsovereignty. To be sure, the changed industrial and intellectual conditions of the lateeighteenth and nineteenth centuries made inevitable the sovereignty of the Legislature.
But this rather proves that in 'our legal history' it is possible to recognise constitutionalrights without abandoning sovereignty. English sovereignty and constitutional rights
coexist and share the same history.21
18 Lindsay, 'Sovereignty' (1924), pp. 235-254. See also Lewis Rockow, 'The Doctrine o f the Sovereignty of
the Constitution' (1931). This view was accepted by many scholars in the interwar period. For instance, C. F.
Strong stresses that ultimately 'The legal sovereign in a federation is the constitution itself, which sets out thedivision o f power between the federal and state authorities.' Strong, Modern Political Constitutions (1930), p.
83.
19 Lindsay, The Modern Democratic State, vol. I (1943), pp. 224, 226. Lindsay also says that his theory o f thesovereignty o f the constitution gives an intelligible account o f international relations. See ibid., pp. 229.
20 Maclver, The Modern State (1926), pp. 15-16,468,479. He was in the University o f Toronto.
21 Holdsworth, Some Lessons from Our Legal History (1928), pp. 123, 126, 130-131,137-140. William K.
Wallace finds in the evolution o f English constitutional government the establishment of modem statesovereignty. See Wallace, The Passing o f Politics (1924), pp. 59-61. As regards the role o f economic
adjustment for the state in England, see Morris R. Cohen, 'Property and Sovereignty' (1927), pp. 8-30.

174It has become rather orthodox in Britain to admit that sovereignty is no longer
unlimited and indivisible.22 However, this kind of argument had no influence upon the
Axis powers. If sovereignty coexisted with constitutional rights in England, that notionof sovereignty might be simply English and have nothing to do with German nationalsocialism. The dream of universalisation of the English rule of law collapsed at theoutbreak of the Second World War. It is no wonder, therefore, that in the same year E.
H. Carr struck a death blow to 'utopianism', namely, Anglo-American constitutionalism
which many a publicist hoped would lead to the implementation of the international ruleof law. We shall return to this point later.

British Discourses on Sovereignty in the International Environment

The attack upon sovereignty in the field of international studies was harsher than inpolitical science. Philip Kerr, an international political theorist and practitioner, argued
in 1923 that 'the fundamental cause of war' was the division of humanity into separate
sovereign states, while sovereignty was groundless in an interdependent world. Kerr
asserts that 'Do sovereign national states really exercise sovereignty in the world spherenow? They manifestly do not.' In a lecture in the United States, Kerr referred to thehistory of the establishment of the US Constitution as a precedent of the federation ofstates. According to Kerr, between L781 and 1789 the people of America were not free.
But after 1789 'they were free and had dominion, because they had brought themselves
under the reign of a single sovereign law.' Kerr's argument was that 'the only method[to end international war] is the substitution of the reign of law over all nations for thepresent reign of force.'23 Representing the standpoint of the international rule of law in
the interwar period, Kerr continues;

The peoples of the world today are neither sovereign nor free, in any real sense of theword. Their only power is to fight, and that is not freedom. They cannot control theworld in which they live. The only way in which they can become free and become
sovereign is to pool their sovereignty, so to speak, in that sphere which lies beyond

22 See L. Bartlett, Questions and Answers on Jurisprudence (1934), p. 23.
23 Kerr, The Prevention o f War (1923), p. 67, 50.

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national rights, and create an organism, responsible to themselves, through which they
can control world issue by law, instead of by the savage and often meaningless meansof war.24
International lawyers in the interwar period shared almost the same standpoint.
While they were more optimistic than Kerr about the future of the League of Nations,they also needed to demystify the absolute notion of sovereignty in a formalistic manner.
Robert Jones and S. S. Sherman expect that No single state, no empire, will in the near
future dare to claim, or wish to claim, full sovereignty.' They assert that a League of
Nations is a federation; and 'there is no complete sovereignty allowed to any constituent
part'. The League is 'a public disavowal of the Renaissance [absolute] theory of thesovereign state'.25 According to C. Howard-Ellis, sovereignty is nothing but 'a mystic
sentiment expressed in abstruse legal doctrines' which is a kind of lay theology of theold dogma of absolutism and of the new religion of nationalism. That international law
is based on the principle is its most serious defect.26
In the first place, the orthodox interpretation of the 'constitution' of the League showsthat while the Covenant recognises national sovereignty, it limits the exercise of statesovereignty. It is a product of'the old conception of the absolute sovereignty of States
and the newer and bolder conception towards which the world is moving - that States
must accept some limitations of their sovereignty.'27 A conspicuous tendency among
publicists is revealed in H. R. G. Greaves's assertion that for economic and security
reasons 'the theory of the sovereign state is out of line with the facts of to-day'.28

24 Ibid. Two points are worth noting here. One is that Kerr's argument is based on the logic of'positive
liberty' unlike the American 'Federalists'. He does not intend to 'limit' or 'divide' sovereignty like thinkers in theClassical age. Instead, he argues that his idea will fulfill the content o f sovereignty. Second, although hefavourably mentions the history o f the United States in the lecture in America, he also stresses that 'it will repay
you to study the constitutional theory, and still more, the practice and spirit o f the modem British
Commonwealth. . . . The British Commonwealth, indeed, shows that the idea o f world unity is not so far-fetchedas at first appears, and involves far less interference and change in the existing national system, than people
believe.' Ibid, p. 71. As regards the relationship of Kerr with the American Federalists, the British Empire and'the British federalist tradition', see Andrea Bosco, 'Lord Lothian and the Federalist Critique of National
Sovereignty' in Long and Wilson, op. cit., pp. 247-253.
25 Jones and Sherman, The League o f Nations from Idea to Reality (1927), pp. 66-67,70, 72.
26 Howard-Ellis, The Origin, Structure & Working o f the League o f Nations (1928), p. 120, 304.
27 League o f Nations, The Aims, Methods and Activity o f the League o f Nations (1935), pp. 23-24. Hugh
Dalton predicts that 'The national myth must fade and national sovereignty, in its old rigid form, must gradually
wither away.' Dalton, Towards the Peace o f Nations (1928), p. 284.
28 Greaves, The League Committees and World Order (1931), p. 244.

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According to the words of L. P. Mair, the concept is 'an illusion' of the nineteenth
century.29
In international law the anomalies of sovereignty were rather familiar. For instance,
it was claimed that the mandate system produced areas over which there was nosovereignty.30 The peace settlement after the First World War also brought about theconcern of the autonomous status of the British Dominions. They had truly entered into
the sphere of international law, but at least until the time of the Statute of Westminsterof 1931 their status was not the same as that of other 'sovereign' states. The issue
necessarily shows that sovereignty can be divided and that in any country both internaland external sovereignty may be shared by various authorities.31 According to Philip J.
N. Baker, the Dominions are not 'fully sovereign independent states', even if they havethe right to make treaties. The Dominions and Great Britain are separate persons inInternational Law; but they are bound together in British constitutional law and act
together in international society. Baker asserts that one and indivisible sovereignty is'the aged fallacy'. It is enough for him to say that the Dominions have a special
relationship with Great Britain. Baker contends that the sovereignty of the Dominions
is not perfect, but other sovereign states are not entirely free either.32
In the light of such a critique it became evident that the notion of sovereignty could
not remain untouched. F. A. Vali argues that there are two alternatives: either toseparate the conception of sovereignty in its international aspect from that of the Stateor, to alter the original meaning. Although the former is more logical, the latter is moreconvenient and in accordance with actual terminology.

The modified notion ofinternational sovereignty is defined as 'only a certain legal order or competence'. In line
29 Mair, The Protection o f Minorities (1928), p. 22.
30 See James C. Hales, 'Some Legal Aspects of the Mandate System' (1938), pp. 94. M. E. Lindley adopts thetheory o f limited sovereignty by attributing sovereignty to the mandatory powers. According to him, sovereignty
is limited by the conditions laid down in the respective mandates. It is not an anomaly, as general internationallaw imposes limitation upon sovereignty. Lindley, The Acquisition and Government o f Backward Territory inInternational Law (1926), pp. 266-267.
31 See Arthur B. Keith, The Sovereignty o f the British Dominions (1929), pp. 1-2.
32 Baker, The Present Juridical Status o f the British Dominions in International Law (1929), pp. 190-191,
371. H. Goitein see the similarity between the British Empire and the League o f Nations. He concludes that 'thecustomary hard-and-fast distinction between Constitutional and International Law should be relaxed. If theinvestigation is conducted in this spirit and along these lines there is no reason why, in time, there should not
emerge a new theory of the proper division o f functions to replace the outworn and dangerous notion ofsovereignty, and a brighter era open in the study of International Law.' Goitein, 'Some Problems o f Sovereignty'(1928), p. 93.

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with this definition it is said that 'all communities having international personality aresovereign'. This can be called the doctrine of 'the sphere of sovereignty'.33 In otherwords, sovereignty simply demarcates 'a certain legal order', but does not meanomnipotence.
But it was the 'sphere' of sovereignty which was of vital importance in internationalsociety especially after the Great Depression. 'The economic aspect of sovereignty'
becomes a crucial topic for the survival of nations.34 During the 1930s optimism wasgradually replaced with pessimism. The Marquis of Lothian (Philip Kerr) argues that'economic nationalism, the characteristic expression of state sovereignty' is the very
cause of the international economic plight. He furthermore emphasises that 'the League
cannot save us from war and that we can never escape from war as long as we build on
the sovereignty of the national state'.35 John F. Williams argues that as sovereignty
originates from the relationship between rulers and ruled in a community, sovereignty
is the most troublesome word in international relations.36
In the 1930s the focal point of the debate was the issue of national sovereignty versus'the rule of international law'. Then Williams asserts that 'What is sovereignty is notlaw; what is law is not sovereignty.'37 Political as well as economic investigations
suggest that sovereignty is deteriorating 'the rule of international law'. George W.
Keeton finds that even if sovereignty is limited, sovereign states are able to withdraw
the consent to the limitation, as Japan, Germany and Italy withdrew from the League.38
Edward Jenks writes that sovereignty is 'one of the greatest stumbling-blocks in the path
33 V&li, Servitudes o f International Law (1933), p. 8-9. John F. Williams also mentions 'spheres ofsovereignty'. If this is not the case, sovereignty cannot find its place in international law. Williams, Chapters on
Current International Law and the League o f Nations (1929), p. 10-11, 288.
34 See R. G. Hawtrey, Economic Aspects o f Sovereignty (1930).
35 The Marquis of Lothian (Philip H. Kerr), Pacifism is not Enough nor Patriotism either (1935), pp. 12-13,
26-27. F. N. Keen believes that 'The theory of the sovereignty of national states has been a fertile source ofm isconception,... Of course that is really nonsense.' Keen, A Better League o f Nations (1934), p. 20. Arnold
J. Toynbee recognises that 'the devotion of each state member to its own local sovereignty has been one of theprincipal obstacles to success in making the Covenant work.' Toynbee, 'The Nature and Paramount Aim of the
League of Nations' in The Royal Institute of International Affairs, The Future o f the League o f Nations (1936),
pp. 12-13.
36 Williams, Some Aspects o f the Covenant o f the League o f Nations (1934), pp. 48-49.
37 Williams, Aspects o f Modem International Law (1939), p. 26. By contrast, however, Edward Mousley still
believes that sovereignty and law are interdependent. This means that sovereignty operates only internally. In
the external arena to the state, there is as yet no reign o f law, neither can there be sovereign power operative, assovereignty only can operate within the realm of law. Mousley, Man or Leviathan? (1939), pp. 251-253,260.
38 See Keeton, 'National Sovereignty and the Growth of International Law' (1938), p. 394.

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of international progress.'39 The establishment of a super-state may be the only answer.40
In retrospect, the League was too compromising. David Davies thinks that if thepooling of sovereignty is not enough, a further contribution should be added41 W.
Friedman insists that there must be a definite choice between 'national sovereignty, withthe consequence that there can be no international legal order' and 'internationalsovereignty, which means the supremacy of International Law and the subordination of
the State'. According to him, the experiencesof the last twenty years have proved thatall solutions which want to have both ways are disastrous.42
The discrepancy between the two sovereigns identified by Dicey appears to remain
unsolved despite the victory of Anglo-American power. There are in international
relations the legal sovereignty ordained by the Anglo-American powers and the politicalsovereignty pushed by the Continental powers. For instance, international law limits theaction of the sovereign states, but guarantees their territorial sovereignty at the sametime. But Hitler's national sovereignty under which he claims the allegiance of all
Germans, wherever situated, abandons theories of territorial sovereignty 43
When E. H. Carr describes 'utopianism' and 'realism' in The Twenty Years' Crisis(1939), he means by 'utopianism' Anglo-American international constitutionalism andby 'realism' Continental nationalism. Bentham and Locke to whom Carr attributes thecharacteristic of'utopianism' are, of course, the main figures of British constitutionalism.
On the other hand, Hegel is the prominent figure of the 'realist' camp as well as other
German intellectuals including Marx. 'Utopianism' which Carr says 'bears clear marks

39 Jenks, The New Jurisprudence (1933), p. 82. F. N. Keen urges that the notion o f absolute sovereignty is ananachronism and should be surrendered. Keen, Crossing the Rubicon or the Passage from the Rule o f Force to
the Rule o f Law among Nations (1939), p. 17.
40 In The Times, July, 1938, there appeared several correspondences which discussed the necessity of a super­state. Lord Lothian wrote that the only way of ending world war was 'to pool enough of their sovereignty tocreate a common representative Government'. The Archbishop of York replied, 'the root evil is unlimited
national sovereignty'. But W. R. Bisschop said, 'An international police force could only exist if emanated froma sovereign power over and above the nations which could enforce its sovereign w ill.. . . The rule o f law
without a sovereign power to enforce it is devoid o f all substance.' Quoted in George W. Keeton, National
Sovereignty and International Order (1939), pp. 156, 153, 160.
41 Davies, The Problem o f the Twentieth Century (1930), p. 201. Arnold Foster also expects further
curtailment o f the 'sovereign rights' of League members after the war, and hopes for 'Progress towards the goal ofworld order through world government'. Foster, 'National Sovereignty and the Covenant' (1939), p. 5.
42 Friedman, What's Wrong with International Law? (1941), p. 13.
43 See Geroge W. Keeton and Georg Schwarzenberger, Making International Law Work (1939), p. 72.

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of its Anglo-Saxon origin144is the belief of'the satisfied states'. By contrast, 'realism' isthe anti-constitutional attitude of'the dissatisfied states'.45
What is 'utopian' is not the theories of Bentham and Locke as such. It is theapplication of their thoughts to international society, which Carr observes was mainly
conducted by the Americans.46 It is the dream of the universalisation of AngloAmerican principles in international society. Similarly, 'realism' does not stand for theactuality of the philosophy of Hegel. It is the cynical attitude towards the international
application of the Anglo-American rule of law. In so doing, Carr describes thefundamental opposition between the Anglo-American and Continental camps.
Carr's remarks on sovereignty are not a deviation of his realist 'statism', to which heby no means commits himself. To think so is simply to look at Carr from the viewpointof the post-war North American realists. Carr writes that:

The concept of sovereignty is likely to become in the future even more blurred andindistinct than it is at present. . . . It was never more than a convenient label; andwhen distinction began to be made between political, legal and economic sovereignty
or between internal and external sovereignty, it was clear that the label had ceased toperform its proper function as a distinguishing mark for a single category ofphenomena.. . . It is unlikely that the future units of power will take much accountof formal sovereignty.47
Carr understands 'formal sovereignty' as a product of nineteenth century liberalism
which is destined to disappear. There is no contradiction between Carr's sympathy with'realism' and his prediction of the disappearance of'formal sovereignty' as an analytical
tool. In the interwar period, there was a common understanding that reality did notcorrespond with 'formal sovereignty'. Political scientists and international lawyers also
recognised the discrepancy between 'reality' and 'formal sovereignty'.

Whileconstitutionalists aimed to construct a notion of sovereignty within a constitutionalframework, Carr did not trust it in the time of the resurgence of Continental national

44 Carr, The Twenty Years' Crisis 1919-1939 (1939), p. 51.
45 For instance, Carr says that 'For the past hundred years, and more especially since 1918, the Englishspeaking people have formed the dominant group in the world; and current theories o f international morality
have been designed to perpetuate their supremacy and expressed in the idiom peculiar to them.1 Ibid., pp. 79-80.
46 See ibid., pp. 27, 51.
47 Ibid., pp. 230-231.

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sovereignty. Carr does not share the 'reality' of Continental national sovereignty, but at
the same time rejects the 'formal sovereignty' of international constitutionalism.
The Twenty Years' Crisis was written at the end of the interwar period. Its tone does
not overlap with the 'political realism' of post-war North American realists. It was
written before the Second World War and when the resurgence of German power wasat its peak. It was a book for appeasement. It was a record of self-reflection of a British
intellectual and a proposal for reconciliation with the dissatisfied Continental powers.

Discourses on Sovereignty in Interwar America
The same attitude of international constitutionalism and its decline existed ininterwar America. Although most of them were sceptical of Laski's attack uponsovereignty, they still pursued the possibility of constructing an international
constitutional framework. It was in America, led by refugees from Germany, thatpolitical realism emerged to dominate tho-diseiplme'af international studies.

Sovereignty and the Rule o f Law in America

In America, political theorists did not respond favourably to Laski's theory. Theirconcerns were the political implications of pluralism. In the face of international as wellas domestic socialist movements, the curtailment of the central authority of the liberalstate might involve a serious damage to domestic and international liberal order. In
America national unity was still something for which the sovereign people had fought.
Traditional constitutionalism never denied the validity of sovereignty; it simply
restrained sovereign power within its rules. It is too hasty to thoroughly abandon thenotion, for the sovereign territory is needed to protect American values.48 Marshall E.
Dimock therefore argues that although 'Sovereignty is a fiction', 'it seems to have some
practical value.'49 Edgar Bodenheimer insists that it could even serve as 'a weapon

48 'The boundaries o f sovereignty, therefore, are the boundaries o f morality.' Stephen C. Pepper, 'The
Boundaries o f Society' (1922), pp. 440-441.
49 Dimock, Modern Politics and Administration (1937), p. 24.

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against syndicalist anarchy'.50 If pluralism goes so far as to ignore the importance ofstate authority, the constitutional instinct takes sides with the sovereign authority anddefends the value of order. That is the reaction of American theorists to the curtailmentof sovereignty by the pluralists.
William E. Hocking deduces that so 'realistic' a dogma as pluralism would lead to adominance of the strongest private force. No person can live without 'a supreme
authority of ideas'. Minorities should be protected by the sovereign state. The dualism
in England which Laski takes for granted is not evident in America where popularsovereignty has been an orthodox dogma. Thus Hocking criticises pluralism bystressing the importance of'an alternate strengthening of whole and part, not a relative
weakening of the whole'.51 Sovereignty in the country where the sovereign central
authority coerced local authorities to abolish slavery is an issue of'the whole' rather thanthe dominant class.52
While admitting the validity of pluralism, W. Y. Elliot recognises the significanceof sovereignty. It is idle to consider adequate 'the formal or intellectualistic conceptionof legal sovereignty'. Yet it is no less idle to attack the concept while such a unifying
principle is present and actually operative in law. Constitutional history after theAmerican Civil War exposes the weakness of the pluralists. It proves 'the essential unityof the rule of law.' Elliot then asserts that 'Constitutionalism is the necessary context of
single laws.' And the acceptance of the rule of law implies a delimitation of rights.53
C. H. Mcllwain argues that sovereignty is a purely juristic idea and it has no proper
meaning if carried beyond the sphere of law. He says that 'Sovereignty is authority, notmight.' He even rejects the distinction between legal and political sovereignty as 'thenineteenth century form of an ancient confusion of thought'. There is no such thing as
50 Bodenheimer, Jurisprudence (1940), p. 70. F. W. Coker warns that if pluralism risksdiscarding the concepto f sovereignty, it falls into anarchism and syndicalism. Coker, op. cit., pp. 80-119.
51 Hocking, Man and the State (1926), pp. 389-403.
52 For instance, Baron S. A. Korff finds that despite the tradition o f the rule o f law, the Anglo-American
tradition does not know the sovereignty o f law proclaimed by Kelsen and Krabbe. The concept o f law in contrast
with Droit and Recht is so limited that it does not interfere with individuals. Thus there is no need to be afraid ofsovereignty, so long it is o f a purely legal character. Korff, 'The Problem of Sovereignty' (1923), pp. 407-408,
412. On the same line Arthur N. Holcombe adopts the traditional British distinction between legal and politicalsovereignty. Legal sovereignty is merely 'a fiction of the lawyers'. Holcombe, The Foundations o f the Modern
Commonwealth (1923), p. 115..
53 Elliot, 'Sovereign State or Sovereign Group?' (1925), pp. 494-498. See also Elliot, The Pragmatic Revolt in
Politics: Syndicalism, Fascism, and the Constitutional State (1928).

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political sovereignty. Sovereignty is always legalistic, and from the practical point ofview, a fiction. The clear thinking is that sovereignty may be destroyed or limited, but
by power only, not by law. This indicates that the pluralists are right, but overemphasise
the case. Sovereignty, being a legal fiction, has a certain function. Mcllwain finallyinsists that 'the legal conception of sovereignty is still useful and must be kept'.54
John Dickinson's 'working theory of sovereignty' is also along this line. The legal
doctrine of sovereignty is a demand for the unified organisation of authority in order toprovide the necessary basis for a system of legal order. He insists that 'a regime of
positive law' must be accepted as the normal status of civil society; and 'a regime of
positive law' presupposes and requires the existence of juristic sovereignty.55 The
pluralists confuse legal with moral, social, and factual considerations. All the morebecause divergent competing interests exist in a nation-state, a central authority ought
to hold legal superiority. It does not matter whether such an authority really exists.
Legal sovereignty may come into existence, be transferred, or disappear, even thougha sovereign de jure but not de facto is to all political intents no sovereign at all. Whatis important is not the definite location, but the function of sovereignty. Sovereignty is'a prerequisite of legal order'. It is impossible to assume that civil society can exist
without state sovereignty.56
In this historical context Max Radin explains an 'intermittent sovereign'. He says thatthe single unlimited sovereign is a fiction. To act as sovereign is therefore to besovereign. When the sovereign functions he comes into existence, and he lapses when
he ceases to function. In the intervals, if the conditions are not fulfilled, there is simply
no sovereign at all. 'The full sovereign' is an inference from a past event and can berecognised only when it is past. 'The pro-sovereign' is occasional, intermittent, andconditional. Even though the sovereign may be intermittent, a sovereign is needed as

54 Mcllwain, 'Sovereignty Again' (1933). According to W. W. Willoughby, sovereignty is always a legal
notion and political sovereignty should be called 'public opinion' or 'general will'. It is also meaningless to talkabout 'the sovereignty o f the constitution' or 'the sovereignty o f the law'. The constitution limits the government,
but not the state. See Willoughby, The Fundamental Concepts o f Public Law (1924), pp. 112, 89, 117-118. See
also Raymond G. Gettell, Political Science (1933), pp. 124-125,135.
55 Dickinson, 'A Working Theory o f Sovereignty I' (1927), pp. 527, 548.
56 Dickinson, 'A Working Theory o f Sovereignty II' (1928), pp. 37,41, 44,47, 51-55. According to George E.
G. Catlin, sovereignty means 'only final authority to arbitrate', which we can say is obviously associated with therole of the federal government in the United States. Catlin, A Study o f the Principles o f Politics, (1930), p. 434.

183

soon as emergencies are contemplated.57 Radin's argument is a logical result, if wesatisfy two demands: on the one hand, sovereignty is a fiction; on the other, sovereignty
must exist.
The search for the universal theory of sovereignty has now been abandoned and 'a
relativistic view of sovereignty' has become inevitable. Francis G. Wilson finds that themonistic position is more reasonable as a long-run interpretation of the state, whilepluralism asserts itself to be pragmatic and scientific. The enduring value of the ideaof sovereignty is in its adaptation to particular moments. Thus both monism andpluralism are in fact particular and relativistic. No one interpretation or organisation ofsovereignty is exclusively true. Monism must be localised, while it is difficult touniversalise the attack on sovereignty. A pragmatic and localised conception of monism
is the conclusion of the relativism of the theory of sovereignty.58
As long as sovereignty is in danger of being denied, the 'golden mean' principle
encourages publicists to defend and formulate it within the constitutional framework.
In the 1930s there was no need to defend the idea of sovereignty. The antithesis of'national sovereignty versus the rule of law1 became the object of considerations in
America too.59 Publicists resumed seeing sovereignty as an obstacle to the rule of law.
They attempted to reconcile sovereignty with the established order.60
While arguing that 'the contemporary crisis in the theory of sovereignty' is caused by
the concept of sovereignty becoming 'homeless' as a result of'the depersonalization' in
the modem constitutional state, Heinz H. Eulau urges in 1942 that the crisis must be
solved as soon as possible.61 Authoritarian regimes are overturning constitutional

57 Radin, 'The Intermittent Sovereign', (1930), pp. 522, 530.
58 Wilson, 'A Relativistic View of Sovereignty', (1934), pp. 388, 398-400, 409-410.
59 Walter Sandelius, 'National Sovereignty versus the Rule o f Law' (1931).
60 Douglas W. Campbell defines sovereignty as 'that power within a social unit which decides between therules and regulations which the organization, and force, of the social unit as a unit will sponsor and those it will
not sponsor - that is, which both organized social unit into a working political unit and denotes that it is aworking political unit.' Campbell, 'Sovereignty and Social Dynamics' (1934), p. 832. He hopes that if
sovereignty is redefined sociologically, it may be properly dealt with. Another commentator believes that there isno need for controversies over the nature of sovereignty, once law is proved to be immune from the validity o f
the concept o f sovereignty. Roland Pennock, 'Law and Sovereignty' (1937), p. 637. The point is that if law isthoroughly independent o f sovereignty, it will become possible to let the former prevail and the latter perish. As
regards the advocation o f the sovereignty of the moral law, see Nicholas M. Butler, The Path to Peace (1930), p.
162; The Family o f Nations (1938), pp. 12, 125,258.
61 Eulau, 'The Depersonalization o f the Concept of Sovereignty' (1942), pp. 3-16.

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achievements and taking advantage of the inability of theorists to give an explicit
formula of sovereignty to the rule of law. There is no time for playing with the
ambiguity of sovereignty, because 'the struggle between the two political systems of
democracy and dictatorship' has already begun. Therefore, Eulau strongly appeals by
writing that:the democratic constitutional State, based on the consent of the people to be governedby its elected or appointed representatives, needs an alternative theory to that of Carl
Schmitt, a theory which will also serve as a fighting weapon in the struggle ofideologies. The issue between autocracy and democracy, avoided on the whole formore than a century, can hardly be evaded any longer.. . . The proposition advanced
here is that the political and legal theorist in the still existing constitutional
democracies is obliged to pronounce his belief in the existence and workability of
popular sovereignty.62
Sovereignty is not just an academic problem. The survival of constitutional
democracies is at stake in the midst of the theoretical predicament of the antithesis
between national sovereignty and the rule of law. Eulau's appeal is a prediction of the
post-war usage of sovereignty as a weapon in the struggle of ideologies.

American Discourses on Sovereignty in the International Environment

The limitation of sovereignty is a common topic for American international lawyers
too. It is difficult to deny the fact that the establishment of the League of Nations was,even though the United States did not participate in it, a historic event in internationallaw. It was supposed to control the activities of sovereign states. Although it was notregarded as a super-state, it demanded the limitation and modification of the idea ofabsolute sovereignty. The idea of sovereignty did not correspond with the existence of
the League. One international lawyer declares that he does not use such an ambiguous
word.63 Another expects that sovereignty, the source of international anarchy, must

62 Ibid., p. 18.
63 Roland R. Foulke proposes 'to waste no time in chasing shadows, and will therefore discard the word
[sovereignty] entirely. He substitutes 'independence' for 'sovereignty'. Foulke, A Treatise on International Law,
vol. I (1920), p. 69.

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disappear or be so qualified as to admit that states are bound by international law.64-To
say the least, as Charles G. Fenwick argues, sovereignty is restricted 'as a directconsequence of the binding character of the rules of international law'.65
It is not easy to understand the principle of sovereignty in harmony with the League.
Therefore, a commentator observes in accordance with the logic of the US Constitutionthat the League possesses 'some attributes of sovereignty'. While the states grant to the
League 'certain so-called rights of sovereignty formerly belonging to themselves, theyretain 'the residue of sovereignty'. And this is the application of 'the rule of law' to theinternational field.66 Another goes so far as to say that we are compelled to recognise
the League as a super-state. It is 'a new nation with certain powers of sovereignty,
however limited, superior to those of the sovereign nations composing the League.'67
The mandate system under the terms of Article XXII of the Covenant of the League
perplexes international lawyers, as it seems impossible to decide the location ofsovereignty. Quincy Wright asserts that 'From the practical point of view perhaps it isunnecessary to solve these problems.' Like the divided sovereignty of the United States
and the ambiguity of the location of sovereignty as to the self-governing Dominions of
the British Commonwealth of Nations, 'the mandatory system may work without
ascertaining whether sovereignty resides in the mandatory, the mandated community,
the League of Nations, or elsewhere.168
In 1930 Wright confirms that the mandate system has worked successfully for nearlya decade without an official assertion of the location of sovereignty. Although territorial
division has been the most convenient method for organising government, 'it is neither
necessary nor is it a condition actually existing in every part of the world.' The notion
does not correspond with the diverse political structures of the day. From the standpoint

64 E. M. Borchard, 'Political Theory and International Law' (1924), pp. 122, 139. See also Oscar Newfang,
The Road to World Peace (1924) pp. 35-44.
65 Fenwick, International Law (1924), p. 89. James Brown Scott argues that 'law does not mean restriction
upon sovereignty, but restriction upon the agents of sovereignty'. Scott, Sovereign States and Suits before
Arbitral Tribunals and Courts o f Justice (1925), p. 8.
66 John E. Harley, The League o f Nations and the New International Law (1921), pp. 41, 56-59. It is also
possible to say that although national sovereignty is limited by the League, it is an extension o f an old principle.
The Covenant is a treaty; every treaty contains a limitation o f sovereignty. See Lindsay Rogers, 'The League of
Nations and the National State' (1919), pp. 88-93.
67 Edward A. Harriman, The Constitution at the Cross Roads: (1925), p. 23.
68 Wright, 'Sovereignty of the Mandates' (1923), p. 691.

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of international law, sovereignty is susceptible to analysis, division, and limitation. Theline between a fully sovereign and a partly sovereign state is not precise and iscontinually changing with the development of international relations. The difference
between 'corporations of quasi-sovereigns' like the British Dominions and 'corporations
or unions of full sovereigns like the League of Nations' is not great. Wright concludes
that 'Sovereignty in international law is thus a relative term.'69
Aaron M. Margalith observes that while Continental scholars tend to invest
sovereignty in either the principal Allied and Associated Powers or the League of
Nations or the mandatory Powers or inhabitants of the mandated territories, AngloAmerican scholars like Wright attribute it to 'a combination of these'. Article XXII of
the Covenant is historically regarded as 'a typical child of the Anglo-Saxon mind'.
Although Margalith is not entirely satisfied with the 'Anglo-Saxon' theory of themandatory system, he admits that it is the 'best theory'.70 This does not mean, however,the principle of sovereignty itself has become invalid. While in his time 'it has become
the fashion to assault the sovereignty of the state, qualify it, diminish it, or even destroy
it altogether', Margalith considers sovereignty to be an indispensable as well as usefulprinciple.71 In other words, the principle of sovereignty can coexist with anomalies likethe mandate system.72 Clyde Eagleton has argued that sovereignty as well as
independence is 'a relative term'. Independence would be measured by responsibility
more easily than responsibility by independence.

He insists that absolute andirresponsible sovereignty is in international relations merely 'a figment of theimagination', logically impossible in the face of the facts of practice. According toEagleton, the idea of sovereignty is thoroughly out of harmony with modem theories
necessarily resulting from an age of increasing interdependence between men andbetween geographical and economic areas. In short, 'The old arguments based upon
69 Wright, Mandates under the League o f Nations (1930), pp. 265, 268, 277,286,294, 305-306. Leonidas
Pitamic also describes sovereignty as 'something relative'. Pitamic, A Treatise on the State (1933), p. 25.
Wright's definition of sovereignty is 'the status of an entity subject to international law and superior to municipal
law'. He also suggests the possibility o f further changes or even the disappearance o f the notion of sovereignty.
See Wright, 'National Sovereignty and Collective Security' (1936), pp. 94-103.
70 Margalith, The International Mandates (1930), pp. 145-170, 179.
71 Ibid., p. 174.
72 As regards the chaotic confusion o f the Anglo-American theory o f sovereignty in the mandate systemcaused by the Japanese withdrawal from the League o f Nations, see Paul H. Clyde, Japan's Pacific Mandate(1935), pp. 178-201.

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sovereign irresponsibility have been replaced by a very definite responsibility'.73
The modification of the meaning of sovereignty is inevitable, for international society
has been experiencing great changes. James W. Gamer argues that the society of statesis by no means an anarchy of sovereignties. The absolutist conception of sovereignty
ought to be abandoned along with other useless fictions such as the equality of states.
The term, sovereignty, is not only 'inapt, unscientific and confusing, but the notion itself
is misleading and even dangerous'. As the harmony of interests of states has become
evident, 'states in general have found it to their advantage to accept limitations upon
their freedom'.74
Despite 'the apparent logical and or theoretical difficulty', Pitman Potter thinks thatthe reconciliation of international authority with national sovereignty is 'perfectly plain
and perfectly practical'. An original agreement whereby states agree to be bound solves
the problem.75 But even this deduction is 'idle' for Edmund C. Mower. The fact is thatthe state cannot escape legal restraints in international society. The age of absolute
sovereignty is over. The world of interdependence has produced 'the new conceptionof sovereignty'.76 When the conception is to be restated in international law, it must
accept limitation.77
However, as we have seen, international crises in the 1930s changed the optimistic
attitude of publicists. During this period, sovereignty became a matter of the survivalof states. In 1932 another 'new conception of sovereignty' is constructed by Felix
Morley. According to him, once we recognise that the vital issue of the modem state
is not the extension of its power but that of its services, we realise that the League is

73 Eagleton, The Responsibility o f States in International Law (1928), pp. 11, 16, 41-42, 206. See also
Eagleton, International Government (1932), pp. 24-30.
74 Gamer, 'Limitations on National Sovereignty in International Relations' (1925), pp. 20, 24. Compare thiswith his opinion before the First World War which justified Willoughby’s views in Chapter 4, note 80. Charles
Pergler also stresses that 'in actual international life there is no such thing as absolute sovereignty'. But <*■limitation, upon sovereignty »«? 'not a limitation o f independence of states'. As long as there is no superior, therelative position o f the members of the society of nations remains unchanged; if powers are equally limited, thesituation in effect remains the same. He also suggests that while constitutional law implements absolute andindivisible sovereignty, in international law sovereignty is limited and divisible. Pergler, Judicial Interpretationo f International Law in the United States (1928), pp. 34-40.
75 Potter, This World o f Nations (1929), p. 230.
76 Mower, International Government (1931), p. 109-116.
77 The definition of sovereignty in international law merely presumes that 'action taken by the state withincertain recognized limits is justifiable. International law may and does set the limits o f this presumption.' Ellery
C. Stowell, International Law (1931), p. 59.

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promising an extension of national controls.

'The society of nations' has been

established not to override the independence of the nation-state, but to avert thedeterioration and submergence of the national contribution in the interdependent world.
The League is 'an expression of the new concept of sovereignty as demanded by thefacts of the post-war and depression-ridden world.'78
But it was rather evident to many that the existing League was not an appropriateorganisation to maintain international order in the critical age. Traditional American
constitutionalists might think that a stronger international government was needed. An
example of such an attitude in the year of Hitler's seizing of power was a 'Constitutionof the United Sovereignties of the World' proposed by Joseph P. Tanney. The proposedconstitution, which began with 'We, the people of the sovereignties of . . . ', wasintended to set up strong legislative, executive and judicial bodies of the world. Ideas
and wordings in Tanney's Constitution were almost a direct application of the US
Constitution. But his tone was rather grave. Tanney's belief was that the crisis in theworld was so critical that the people of the nations could not afford to reject his plan.79
Reflecting the international crisis in the second decade of the interwar period, in a
newly developed discipline, International Relations, the concept of sovereignty began
to be understood in an old-fashioned way. In the same year in which Tanney revealed
his plan while Hitler assumed power, Frederick Schuman expressed the view that theconcept of state sovereignty and the politics of the balance of power were the twocornerstones of the Western state system. He argues that while sovereignty may havebecome a myth as some commentators affirm, 'it nevertheless remains a mythenormously potent to stir peoples and governments to action in international affairs.' Heconcludes that 'The sovereignty of the territorial State remains in the twentieth century,
as in the sixteenth'.80
As the discipline of International Relations grew out of the study of international
history, it is not surprising that sovereignty was the key to the making of a theoreticallyconsistent narrative of international relations. Even if sovereignty might have become

78 Morley, The Society o f Nations (1932), pp. 602-603, 628.
79 Tanney, Sovereignty (1933), pp. 131-159.
80 Schuman, International Politics (1933), pp. 49, 53.

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[

j

i

obsolete as a philosophical doctrine, it was still indispensable for some scholars ofinternational relations or politics. Two international relations scholars thus admit thatthe doctrine of absolutely unrestrained sovereignty ’is false when measured by actual
facts of international life.' Yet, 'it is an influential doctrine because it may be offered toan ignorant, unthinking, and emotional nationalistic mass of people as an excuse forillegal acts by their government.'81 These scholars of international relations did not takethe absolute theory of sovereignty at face value. But they conceived the issue ofsovereignty to be purely political and felt that they could not afford to abandon theconcept in light of the reality of international politics. In this respect, although they did
not cherish any dogmatic understanding of sovereignty, they were the predecessors of
the post-1945 political realist.

The interwar period shows a history of disillusionment in which constitutionalsovereignty was betrayed by national sovereignty. The hope for constitutionally limited
sovereignty was lost in the face of the political revenge of national sovereignty. It was
this bitter experience as well as the power politics of the Cold War which would
determine the attitude of theorists after the second Great War. However, it should be
noted that international constitutionalism in this period was based on a product ofnationalism in the modem age: the anthropomorphism of nations. Although scholars
in this period considerably derogated from the notion of sovereignty, they tended toresort to the method of applying domestic constitutional laws to international society.
The pluralist attack upon sovereignty only coincided with a pluralistic understanding ofa society of nations. This form of international constitutionalism which was founded
upon an analogy between men and nations was prevalent because the sovereignty o f thenation-state was a given fact.

81 Frederick A. Middlebush and Chesney Hill, Elements o f International Relations (1940), p. 43. In thetwenties, Sterling E. Edmunds understands that the 'inherent vice' o f the society of nations lies in 'its fraudulent
organization o f ruling politicians throughout the world disguised and glorified as Sovereign, that is, omnipotent
States, whose power no people can limit, constitutionally or otherwise.' He finds no reconciliation but only thecontradiction between constitutional rights of individuals and 'the evil political genius o f Sovereignty'.
Edmunds, The Lawless Law o f Nations (1925), pp. 11-13.

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Chapter

7

The

Containment

andFormalisation of Sovereignty
This chapter examines the transformation of notions of sovereignty through the three
decades during and after the Second World War. In addition to the bitter experience ofthe collapse of international constitutionalism in the interwar period, the new reality of
the Cold War gradually forced Anglo-American intellectuals to change their optimism
regarding the possibilities for international projects which revived to some extent in the
post-1945 era. The rise and dominance of political realism can be interpreted in thishistorical context of international politics. National sovereignty, which communists andnewly independent states vigorously advocated, was accepted in the process of thisemergence of political realism. National sovereignty was not an object to be limited byconstitutional rules. Instead, national sovereignty would challenge national sovereignty.
In other words, our national sovereignty contains their national sovereignty. This was
the method to maintain peace and order in the Cold War era. I characterise thisphenomenon as the containment of national sovereignty.
However, this does not mean that most scholars regarded sovereignty as auncontroversial notion. They did not take the absolute concept of national sovereignty
at face value. In consequence, they began to avoid or ignore the issue of sovereignty,
because strategically as well as scientifically the issue of sovereignty appeared to beirrelevant. Strategists and social scientists recognised the necessity of the principle ofsovereignty, but they lost the incentive to seriously analyse and discuss the problem ofsovereignty. Sovereignty was accepted, but only as a formal notion. I call this process
the formalisation of sovereignty.
In this chapter the first section deals with the discourses on sovereignty in the AngloAmerican world in the 1940s. The next focuses on Morgenthau's epoch-making theoryof sovereignty. The third section sees the process of the formalisation of sovereignty inthe 1950s and 1960s.

191The Revival of Constitutional Sovereignty
National sovereignty was seldom regarded as an indisputable principle in the 1940s,
before the outbreak of the Cold War.1 While the Second World War had a serious
impact on interwar 'idealistic' projects, it was also clear to British intellectuals that Carr's
appeasement was not satisfactory.2 It was not strange, therefore, to see that Leonard
Woolf still insisted in 1940 that sovereignty, which he characterise as 'criminal idiocy',must be limited under the rule of law. The idea that the peace of the world can be
maintained without some kind of world organisation is 'a dangerous illusion'.3 William
Beveridge thus proposes 'the world-wide rule of law', which involves 'no surrender ofsovereignty'. He believes that 'the rule of law increases national independence . . . .
Just as the freedom of citizens is made greater and not less by the rule of law, so is theindependence of nations.'4
Robert Fedem goes so far as to speak of the 'quasi-sovereignty' of the nation-state
given by 'the Federation of Mankind, the democratic World Federation'. He claims that
'What was hitherto called sovereignty and should be called self-government, depends
not only on the will of the society which wants to be self-governing, but also on
recognition by other states.'5 Politicians as well did not fail to propose limitations onstate sovereignty. In the House of Commons during November 1945, in reply to former
Foreign Secretary Anthony Eden who alleged that 'Every succeeding scientific discovery
makes greater nonsense of old-time conceptions of sovereignty,' Foreign Secretary

1 Concise historical summaries of various doctrines of sovereignty are found in Marek Stanislaw Korowicz,'Modem Doctrines of the Sovereignty of States'-I, II (1958).
2 According to Emery Reves, 'hopeless Utopians who live entirely in the past. . . call themselves realists andpractical men and deride any attempt at rational thinking as "idealism".' What is at stake is 'the correctinterpretation and application of sovereignty'. Reves, The Anatomy o f Peace (1947), pp. 115-129.
3 Woolf, The Future o f International Government (1940), pp. 4-12. By advocating 'functionalism', David
Mitrany emphasises that sovereignty would be preserved after international integration, although its content andworking 'could be modified'. Mitrany, A Working Peace System (1943), p. 29. Allan G. B. Fisher's suggestion
was also to construct international institutions but not to impair 'the formal apparatus of sovereign power'.
Fisher, 'International Institutions in a World o f Sovereign States' (1944), p. 14.
4 Beveridge, The Price o f Peace (1945), pp. 50-53. But Alfred Cobban rejects national self-determination as afoundation o f sovereignty. The two principles have their separate spheres. Sovereignty is concerned with thepreservation o f law and order and the social fabric, not with nationality. Cobban, The Nation State and National
Self-Determination (1945), pp. 130-142.
5 Fedem, Peace Prosperity International Order (1945), p. 117.

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Ernest Bevin provided a radical plan. He emphasised the necessity of'world law' anda 'world assembly' elected directly from the people of the world as a whole, who Bevinarticulated is 'the great world sovereign'.6
In America too, it was asserted that in international law sovereignty was 'an
impossible postulate'.7 About one hundred and fifty American and Canadian jurists andother scholars argued that 'constitutional international law' should limit the sovereigntyof the states.8 But the Americans, whose own soil was not sacrificed during the war,
were not ready to surrender sovereignty. While they agreed that 'the classical idea ofsovereignty' had to be 'modified', they still discussed and sought for 'a middle groundbetween the superorganization and individualism run riot'. It was not sovereignty, but'the abuse of sovereignty' that had made for war and tragedy.9
In the United States, sovereignty was still an inviolable principle.10 Sovereignty
should not be abandoned; but should not be misused either. Wendell L. Willkie, former
Republican presidential candidate, writes that 'we shall have to give up the idea thatsovereignty is something simply to be conserved . . . it is an active force to be used.'This means that 'our use of our sovereignty to create an effective instrument of peace isthe best way of protecting our sovereignty'.11
6 But Bevin explained that his plan did not lead to the surrender o f sovereignty. Referring to the history o f theUnited States, he said, 'no one ever surrenders sovereignty: they merge it into a greater sovereignty.' His idea of
the world law and a world assembly as well as his plan of the 'United States o f Europe' in the interwar period was
supposed to be set up with 'a limited objective - the objective of peace'. Parliamentary Debates, Fifth Series, vol.
416 (1946), pp. 612, 781-787. A month later, Canadian Prime Minister, Mackenzie King, declared that a world
government should be created. However, a Soviet view is that Bevin's idea of a world government is a capitalist
conspiracy. See George W. Keeton and Georg Schwarzenberger, Making International Law Work, second
edition (1946), pp. 172-175; Elliot R. Goodman, The Soviet Design fo r a World State (1960), p. 396; Korowicz,
op. cit., pp. 98-100.
7 Jackson H. Ralston, A Quest fo r International Order (1941), p. 55.
®Carnegie Endowment for International Peace, The International Law o f the Future (1944), pp. 29-31.
9 Ben M. Cherrington, 'Must Sovereignty be limited' and R. E. Pattison Kline, 'Must Sovereignty be limited?'in Julia E. Johnsen (ed.), World Peace Plan (1943), pp. 204, 207-208. As regards sovereignty and the PanAmericanism, see Ezequiel Padilla, Secretary of State for Foreign Affairs of Mexico, 'Sovereignty and Peace'(1942).
10 Many believed that it was the isolationist understanding of the word which had prevented the US fromjoining the League and incurred the Second World War. For instance, Kenneth E. Appel, psychiatrist, analyses
that isolationism is an unhealthy sign. The vocabulary associated with sovereignty is of the delusions ofgrandeur o f the manic patient or the paretic. Then he makes a diagnosis by writing that 'The peace which follows
this war will be psychologically unsound and provocative o f another war, unless a new concept o f shared cooperative - contributing sovereignty forms the basis of our thinking and dealings with other nations.' Appel,■Nationalism and Sovereignty: A Psychiatric View' (1945), pp. 357, 359, 361.
11 Willkie, 'Our Sovereignty: Shall we use it?' (1944), pp. 347, 360, 361. Like President Roosevelt somepublicists were drawn upon regionalism as a 'middle ground' to use American sovereignty. But their plans were
evidently 'American'. For instance, Haridas T. Muzumdar believes that 'the doctrine of Nation-State sovereignty

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This orientation towards a 'middle ground' was part of a further search for aconstitutional theory of sovereignty. Edward S. Corwin thinks that the right to makewar distinguishes the doctrine of unlimited from legally limited sovereignty. He alsoemphasises that total war is the price of total sovereignty. Thus he concludes thatinasmuch as law always implies the existence of institutions to support the obligations
which it imposes, there is no obstacle in the way of the participation by the United States
in an international organization for peace. He insists that rather, American statesmen
have generally espoused such a relationship between sovereignty and international law.12
Charles E. Merriam also stresses that 'Sovereignty must make friends with constitutional
values, scientific values, idealistic values, which are the heart of our new civilization.'13
As Pitirim A. Sorokin argues, it may follow from this that if an explicit limitation ofsovereignty is impossible, 'a lasting peace is impossible'.14 Frank G. Tyrrell furthermore
asserts that 'the timidity and aversion shown by those who think they are opposed to aworld federation' arises from taking the definition of sovereignty at its face value. But
in the sense of abstract definitions there is not and cannot be a sovereign nation
anywhere. '[T]o extend our sovereignty in combination with that of other nations, ismerely to extend and initiate the reign of .law in an area where at present there is no
vestige of authority, or coercive power of law.'15
The very traditional themes of the rule of law and individual liberty were also
prominent among American writers. Margaret Spahr offers 'a possible redefinition ofmust be modified to conform to the actual status of the forty-eight states in the United States of America.' He
thus foresees five regional sovereignties in the united nations of the world, which is 'a logical culmination' o f theUSA. Muzumdar, The United Nations o f the World (1942), pp. 26,44, 129. According to Ely Culbertson's plan,
the world is divided into nine 'Sovereign Regional Federation' led by nine powers. The united nations at war
play significant roles. For instance, the USA is allocated the largest portion of'the National Contingents' andGreat Britain and Russia the second largest. But Culbertson's world constitution stipulates that this highly
hierarchical world federation does not impair the sovereignty of each state. Culbertson, Total War: What makes
Wars and how to organize Peace (1943), pp. 242-257.
12 Corwin, The Constitution and World Organization (1944), pp. 1-6.
13 Merriam, 'Sovereignty' (1944), pp. 24-25.
14 Sorokin, 'Cause of War and Conditions of a Lasting Peace' (1944), p. 105. Amos J. Peaslee also says that 'If
we are still not prepared to admit the basic fact that sovereignty is merely a relative term, that unrestrictedsovereignty means merely a license to outlawry, and that any effective international organization will mean an
exchange o f some national sovereignty for something else, then we shall still be merely trying to fool ourselves
and others.' Peaslee, United Nations Government (1945), p. 60.
15 Tyrrell, 'Sovereignty not impaired by World Federation' (1944), p. 43. As regards the concept ofsovereignty subject to international federation, see also Pitman B. Potter, An Introduction to the Study o f
International Organization (1948), pp. 183-194.

194

sovereignty in the light of Locke's theory of liberty'. According to her, 'sovereignty
under law for the state is no more absurd than liberty under law for the individual.' Her
logic is a direct application of Locke's liberalism to international society in analogy ofindividual liberty with state sovereignty. She insists that 'Once it is granted that liberty
is subject to limitation even in the state of nature, and that sovereignty is limited evenin an unorganized world community, it follows easily that liberty is more effectively
enjoyed in a civil state and sovereignty in an international organization.'16
In the 1940s Western publicists and practitioners repeatedly confirmed thatsovereignty was and should be limited in international society.17 The United Nations
Charter was interpreted in line with a constitutional understanding of sovereignty.18 The
majority of international lawyers found no difficulty in such an argument. Article 14 of
the Draft Declaration on Rights and Duties of States adopted by the International Law
Commission of the United Nations in June, 1949, reads that 'Every State has the duty
to conduct its relations with other States in accordance with international law and withthe principle that the sovereignty of each State is subject to the supremacy ofinternational law.'19 All these statements demonstrate the consistency of the discourses
on the limitation of sovereignty after the Second World War, which were destined to
face the reality of the Cold War and the theory of national sovereignty of the politicalrealist.

16 Spahr, 'Sovereignty under Law' (1945), pp. 350, 354.
17 For instance, in the military field, General Omar N. Bradley, Chairman o f the US Joint Chiefs o f Staff, said
in 1950, 'With such an agreement [NATO], of course, a small bit of sovereignty is relinquished.' British Field
Marshall Bernard L. Montgomery also said in India in 1949, 'It is quite illogical for nations to agree on acommon cause and then not to pool their sovereignty in order to pursue that cause, when it may well be a mattero f life and death to them.' Quoted in Norman D. Palmer and Howard C. Perkins, International Relations (1954),
p. 65.
18 '[Sovereignty in the Charter must obviously mean sovereignty subject to the provisions o f the Charter.
This implies that the Member States are free and sovereign within the limitations imposed upon them by theCharter.. . . [T]he "sovereign equality" of the Member States does not mean that they are absolutely sovereign orabsolutely equal.' Leland M. Goodrich and Edvard Hambro, Charter o f the United Nations (1946), pp. 64-66.
19 Sohn, op. cit., p. 27-29. Essentials o f Peace, the UN General Assembly Resolution 290 (IV) o f 1949, calls
upon every nation 'to agree to the exercise o f national sovereignty jointly with other nations to the extent
necessary to attain international control of atomic energy which would make effective the prohibition o f atomic
weapons and assure the use of atomic energy for peaceful purposes only.' Ibid., pp. 29-30.

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The Counterattack o f Political Realism
When Hans Morgenthau published 'The Problem of Sovereignty Reconsidered' in
1948, which was later included in Politics among Nations, the Cold War had alreadybegun. Morgenthau argued that the theory of sovereignty was not immune from thenecessity for change. According to him, 'The concept of sovereignty, being relative tothe political situation existing in a particular period of history, is in need of periodical
re-examination in the light of the actual political conditions of the time'.20 This implies
that the theory of sovereignty which accords with the Cold War must now beestablished.
What are the characteristics of realist discourses on sovereignty during the Cold
War? Morgenthau conceives sovereign states to be 'the supreme law creating and law
enforcing authorities, independent of legal restraint'.21 What is striking in this definitionis that it is thoroughly inward-looking. Namely, sovereignty is determined mainly bydomestic conditions; it presupposes a domestic power relationship between the ruler andthe ruled.

This highlights three fundamental aspects of Morgenthau's notion ofsovereignty.
First, the concept of sovereignty is autonomous.

It has little relevance tointernational conditions. This signifies that Morgenthau's notion of sovereignty is notderived from a set of universal principles like natural law; instead, sovereignty is prior
to any international norms. Morgenthau sees no contradiction between sovereignty andinternational law, not because the former exists within the framework of the latter, but
because the complete decentralization of the legislative, judicial, and executivefunctions in international law l$t but so many manifestations of sovereignty.22 Thus theprinciples of independence, equality and unanimity are said to be the synonyms ofsovereignty. In Morgenthau's deduction, the principle of sovereign equality is justredundant language.23 However, he also finds that 'Sovereignty is not equality of rights

20 Morgenthau, 'The Problem of Sovereignty Reconsidered' (1948), p. 343.
21 Ibid., p. 343.
22 Ibid., pp. 344-345.
23 Ibid., pp. 345-347.

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and obligations under international law .. . . The actual inequality of states and theirdependence upon each other has no relevance in so far as the legal status calledsovereignty is concerned.124 The inequality of states, which brings about a harsh realityof the struggle for power in international politics, is rather an inevitable result of theabsolute notion of sovereignty.
Second, the subject of Morgenthau's sovereignty is not the state as usually conceived
in international law.

Morgenthau unequivocally attributes sovereignty to thegovernment in a traditional way. It cannot be overemphasised that Morgenthau defines
only 'states being sovereign', but not sovereignty. The sovereign government is thesupreme authority within the state. Sovereignty is a purely domestic matter. It is nowonder that this sovereign state cannot be accommodated in the international sphere.
It is not contradictory that Morgenthau identifies a government as representing a whole
nation-state.25 Morgenthau identifies government sovereignty with state sovereignty.
For him, whatever the American tradition is, there is no such thing as sovereignty otherthan government sovereignty.
Third, in Morgenthau's theory sovereignty is an absolute and indispensable attributeof the state. If there is a state, there must be sovereignty within it. Whatever thepolitical fact is, sovereignty always resides in the state. But Morgenthau never looks for'limited' or 'half-sovereign' or 'quasi-sovereign' states; he denies a possibility of thedegree of sovereignty. Sovereignty exists as an inviolable fact regardless of thedifference of political power, while it is 'the quality of the government's political control
which determines the issue of sovereignty.'26 Later, he would insist that he was not a
statist and the nation-state was not a proper unit of political analysis. But the point is

24 Ibid., p. 348.
25 Morgenthau also equates 'nations' with 'states' and contemplates 'politics among nations'. In other words,
Morgenthau believes that a nation as an autonomous and self-sufficient entity is tantamount to a state which isperfectly represented by a sovereign government. It is noteworthy that Morgenthau regarded seventeenth andeighteenth century aristocratic diplomacy as 'international' or 'supranational' in contrast to 'nationalistic' politics
in the modem age. It follows from this that 'the content and objectives of today's ethics of nationalistic
universalism'8r£not similar to the Westphalian system, but to 'those o f primitive tribes or of the Thirty Years'
War'. See Morgenthau, Politics among Nations (1948), pp. 260-274 Compare it with publicists like G. F.
Hinman who maintains that the 'sovereignty o f politicians must be vanquished.' Hinman, War is Preventable(1945), pp. 130-136. The 'Westphalian system' was not considered as the origin o f international anarchy in thisage. For instance, for Peter W. Berger, the Peace of Westphalia is a symbol o f international peace which
embodies (relative) sovereignty, international law and the balance o f power. See Berger, 'National Sovereignty
and World Unity' (1945).
26 Morgenthau, 'The Problem', p. 353.

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that he believes in the sovereign 'quality' of government that must exist in a state.
These characteristics of Morgenthau's notion of sovereignty are illustrated in his
denial of divisibility of sovereignty. His method of proof is based on his reasoning of
the logic of domestic politics. According to him,that authority within the state is sovereign which in case of dissension among thedifferent law making factors has the responsibility for making the final binding
decision and which in a crisis of law enforcement, such as revolution or civil war, has
the ultimate responsibility for enforcing the laws of the land. That responsibility must
rest somewhere - or nowhere, but cannot be both here and there at the same tim e...
. If it rests nowhere. . . in times of constitutional crisis either one of the constitutional
authorities will usurp that responsibility, or else revolution will invest somebody . . .
with supreme authority to end chaos and to establish peace and order. If the locationof sovereignty seems to be held in abeyance because the constitution lends itself todifferent interpretations on that point, a struggle, political or military, between thepretenders to supreme authority will decide the question one way or the other. The
struggle between the federal government and the states, issuing in a civil war which
decided the question in favor of the federal government, is a classic example of thissituation.27
This is a manifest invasion of the Anglo-American world by the spirit of Carl
Schmitt. Sovereignty always functions in an autonomous entity. It decides the locationof the supreme government. It is an invisible substance which must exist somewhere
in a state. If it cannot be found, it will appear in a crisis. There is no room forconstitutional rules binding upon sovereignty. Nor is any possibility of the limitationof sovereignty. Morgenthau's attempt was intended to be a complete overthrow of theAnglo-American constitutional theory of sovereignty in the name of power politics.
This point is also highlighted when Morgenthau repudiates the idea of the rule oflaw. Morgenthau criticises 'the popular constitutional doctrine' for confounding the
subjection of the sovereign authority to legal controls and political restraints with its
elimination. They have forgotten that in any state 'there must be a man or a group ofmen ultimately responsible for the exercise of political authority.' The Anglo-American
tradition of constitutionalism replacing the rule of men with the rule of law is a wrong
doctrine. The sovereign in America has not been law, but people like Lincoln, Wilson,

27 Ibid., p. 361.

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and Franklin D. Roosevelt.28 Morgenthau goes on to say that:

Since it is constitutionally and politically impossible to deny that the federal
government is sovereign and since it is psychologically impossible to admit that theindividual states are no longer sovereign, constitutional theory simply divides
sovereignty between the federal government and the states, thus trying to reconcile
political realities with political preferences. . . . It is owing to a similar need forbuilding an ideological bridge between political realities and political preferences thatthe doctrine of divided sovereignty has gained wide acceptance in the field ofinternational relations. . . . The doctrine of the divisibility of sovereignty makes it
intellectually feasible to reconcile not only what logic proves to be incompatible: togive up sovereignty while retaining it, but also what experience has shown to be
irreconcilable under the condition of modem civilization: national sovereignty andinternational order. Far from expressing a theoretical truth or from reflecting theactuality of political experience, the advice to give up "a part of national sovereignty"
for the sake of the preservation of peace is tantamount to the advice to close one's eyesand dream that one can eat one's cake and have it, too.29
However, in practice, it is not impossible to 'eat your cake and have it too' if the cakecan be divided.

Morgenthau is right only if the cake cannot be divided.

It is

Morgenthau's own conception of sovereignty formulated in the atmosphere after the two
total wars that denies the history of pre-Civil War America. It is his own definition ofsovereignty that proves the validity of his argument. It is his own distaste of theprinciple of a 'golden mean' that renounces the constitutional theory.
How was this revolutionary attempt accepted as a new orthodoxy of the AngloAmerican world? The answer is that it became dominant according to the change in theperception of'reality'. There were times when the perception of'reality' which pluralists
and international lawyers discovered invalidated the absolute and invisible notion ofsovereignty. But another perception of 'reality' now took sides with a once outmoded
understanding of sovereignty. International institutions were defeated by power politics
that led to another world war. New efforts to construct international order met power
politics between the major allies in the war. International constitutionalism did not lookpowerful enough to secure the interests of the United States in the face of the hostilityof the communist bloc. The revolution embodied by Morgenthau was a reflection of the

28 Ibid., pp. 362-363.
19 Ibid., pp. 363-365.

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change in the perception of ’reality’ as a result of the two total wars and the ongoing
Cold War.
After Morgenthau the study of international relations produced plenty of strategic
works. National sovereignty was then used to contain national sovereignty. The
strategic way of thinking is that it was only national sovereignty which could challenge
national sovereignty. Constitutional rules do not limit national sovereignty. In fact,international constitutionalism gradually ceased to be a design to maintain order. This
does not mean, however, that Morgenthau's idea of sovereignty was never challenged.
On the contrary, it was subject to incessant criticisms. Behaviourism soon undermined
dogmatic aspects of Morgenthau's theory. But the significance of the Morgenthau
revolution lay at a deeper level. His revolution made the attempts to limit sovereignty
look unrealistic and obsolete, at least in the field of international politics. Nationalsovereignty became an undeniable reality, although it still had to be watched over. Thus
sovereignty became an object to be contained.

The struggle between nationalsovereignty versus the rule of law was now an outmoded topic. National sovereignty
versus national sovereignty characterised the nature of international studies, inaccordance with the practical interest among politicians and strategists in thecontainment of national sovereignty of others by our national sovereignty. Sovereignty
shook hands with reality, as the age of the derogation from it was over.

From Limited to Formal Sovereignty
In this section we shall examine the development of notions of sovereignty in the
1950s and 1960s in the UK and in the USA. In this period the Morgenthau revolution
influenced political realists, who took sovereignty as a given fact in international
politics. But the advent of behaviourism made the problem of sovereignty obsolete.
The abstract and ambiguous nature of the concept of sovereignty did not fit in with
scientific analyses of politics. We shall see that the result was that sovereignty ceased
to be 'limited'; it was either reaffirmed in classical terms or accepted as a formal notion.

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Formalisation o f Sovereignty in Britain

Great Britain after the Second World War was caught up in the debates surrounding
European integration.30 However, the British 'golden mean' was searched for in relation
to the US and the Commonwealth as well as Europe. These complex British interests
were alien to Continental European countries that sought to establish a strong regional
supemational community. France and West Germany as the core advocates of theintegration went far ahead of Britain.31 With decolonisation and the decline of the
Empire, Britain was eventually forced to apply for the membership of the European
Communities, although French President Charles de Gaulle rejected the application
twice in the 1960s. By that time Britain had lost a privileged position to limit
sovereignty in Europe and in the Commonwealth.32
During the 1950s political scientists who were not under the influence of theMorgenthau revolution still regarded sovereignty as a confusing concept. There werea few attempts to clarify its ambiguity. W. J. Ress classifies sovereignty in six
categories such as supreme legal authority, a supreme coercive power exercised by a

30 For instance, a congress held in 1948 with Winston Churchill as Honorary President in its resolutions
declared: 'for the people o f Europe the hour has come to hand over and merge a part of their sovereign rights'.
Quoted in Forest L. Grieves, Supranationalism and International Adjudication (1969), p. 154.
31 The Preamble o f the French Constitution of 1946 declares: 'On condition of reciprocity, France accepts thelimitations o f sovereignty necessary to the organization and defense of peace.' Amos J. Peaslee (ed.),Constitutions o f Nations (1956), p. 7. The French Foreign Minister Robert Schuman proclaimed in an address to
the Consultative Assembly of the Council of Europe, August 10, 1950: 'For my pjjrt, I accept the principle o f therenunciation of sovereign rights not for itself, not as an end in itself, but as a necessary, as the only means wehave of rising above the national egotisms, antagonisms, and narrowness which are killing us.' Quoted in Palmer
and Perkins, op. cit., p. 65. Basic Law for the Federal Republic o f Germany o f 1949 also stipulates thefederation may 'transfer sovereign powers to international institutions' and 'consent to the limitations o f its
sovereign powers which will bring about and secure a peaceful and lasting order in Europe and among nations of
the world.' Peaslee, op. cit., p. 34. When the European Coal and Steel Community Treaty was ratified in all six
countries, the German Chancellor Konrad Adenauer among others remarked to the Bundestag that for the firsttime in history nations were voluntarily 'giving up a portion of their sovereignty' to a supranational institution.
Quoted in Grieves, op. cit., p. 129. Adenauer advocated an integrated 'Defense Community' to which member
states 'give up their sovereignty in the field of defense'. Adenauer, 'The Political Unification of Europe' (1953),
pp. 489-490. By contrast, in a debate in the House o f Commons in 1950, British Prime Minister Clement Attlee
explained the decision of the Labour Government to stay out o f the European Communities by saying: 'It isquite true in the world as it is placed today it is ridiculous to try to stand for the absolute sovereignty o f theindividual state . . . but the question arises when there is to be a surrender of sovereignty, to what body thatsurrender should be made.' Attlee believed that 'Schuman plan' was not the international arrangements, but to set
up 'a supra-national authority' which is not 'responsible to Parliaments'. Parliamentary Debates, Fifth Series, vol.
476 (1950), pp. 2163-2164. He only finds the 'surrender o f sovereignty in the British Commonwealth'. Atlee,'The Perils of Absolute Sovereignty' in Cox, op. cit, p. 92.
32 As regards the lost sovereignty of parliament in the Commonwealth, see Edward McWhinney,'"Sovereignty" in the United Kingdom and the Commonwealth Countries at the Present Day' (1953); Geoffrey
Marshall, 'What is Parliament? The Changing Concept o f Parliamentary Sovereignty' (1954).

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determinate body of persons possessing a monopoly of certain instruments of coercion,
the strongest influence, etc.33 But Stanley I. Benn exposes the defects in Ress's
complicated and perplexing distinctions of sovereignty. Benn concludes that 'there
would seem to be a strong case for giving up so Protean a word'.34 It was common in
the field of political theory that sovereignty was denied for the sake of liberty orconceptual clarity.35
In the field of international studies, H. Lauterpacht, a main target of Carr's attack
upon 'utopianism', challenged state-centric international law. Despite the ouibfcak of
the Cold War, the Nuremberg and Tokyo tribunals and the Universal Declaration of
Human Rights of 1948 provided considerable momentum for the establishment of aworld-wide constitutional framework.36 In his International Law and Human Rights
written in the year of the European Convention on Human Rights in 1950, Lauterpachttakes advantage of the momentum and challenged the conventional premises ofinternational law. His main purpose is to explore the possibility of adopting 'aninternational Bill of Rights', which necessarily involves 'some sacrifices of sovereignty'.
Lauterpacht maintains the traditional Anglo-American liberal premises by confirmingthat the purpose of the State is to safeguard the interests of the individual human being.
Therefore, it is inadmissible that the state claims to be the protector of all these interestsand exclude individuals and non-governmental bodies from the international legal
sphere. And it is possible that Great Britain will 'resume the position of leadership towhich she is entitled by virtue of her historic contribution to the ideas and the practiceof the rights of man.'37
Lauterpacht's argument partakes of a 'utopian' tendency when he talks about 'theconstitution of the Federation of the World'. However, it can be noted that in the timeof world-wide reconstruction, even Morgenthau mentioned a world government as a

33 Ress, 'The Theory of Sovereignty Restated' (1950).
34 Benn, 'The Use of "Sovereignty"' (1955), p. 122.
35 For instance, see Isaiah Berlin, 'Two Concepts of Liberty' (1958), pp. 162-166; F. A. Hayek, The
Constitution o f Liberty (1960), p. 106.
36 It is interesting that the Universal Declaration o f Human Rights contains the wording o f the 'limitation ofsovereignty'. Article 2 stipulates that no distinction shall be made on the basis of the country or territory towhich a person belongs, 'whether it be independent, trust, non-self-governing or under any other limitation ofsovereignty.' Brownlie, op. cit., p. 257.
37 Lauterpacht, International Law and Human Rights (1950), pp. 68, 305-310.

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future, although probably unforeseeable, goal. Lauterpacht does not simply propose aplan of a world federation.38 What he seeks to establish is a global constitutionalframework which means 'the curbing of the pretensions and aberrations of the doctrineof sovereignty, and the effective protection of human rights as part of the constitutionof international society.' In line with the Grotian tradition,39 Lauterpacht asserts that 'no
integration of international society is possible without far-reaching limitations of thesovereignty of its component units. At the same time such limitation of sovereignty,
profound as they are, can be achieved without interference with their international
personality and status.'40
In the light of 'sovereignty within the law', C. Wilfred Jenks also explores apossibility of 'the common law of mankind'. According to him, 'the concept thatsovereignty is limited by the law' is familiar to all of the major legal systems in theworld with the exception of Soviet Law.41 Sovereignty cannot achieve peace, security,
justice, freedom, prosperity, welfare, etc. The newly independent states are in 'a snare
and a delusion'. So Jenks proclaims that 'I prefer to abandon it as misleading.' To say
the least, it must be recognised that sovereignty is 'the creature and not the master of thelaw'.42
By contrast, another prominent international legal scholar, Georg Schwarzenberger,
offers a pessimistic account in the face of the harsh reality of the Cold War. He
critically describes the history of the concept of sovereignty. But he cannot end up witha simple accusation of the principle. He calmly observes that his country is in the
middle ground 'between States which, in the atomic age, are still politically sovereign

38 Lauterpacht contemplates that the differenc^of the typical forms o f unions o f States are matters o f degree;that any substantial measure o f success does not postulate the disappearance o f the international personality ofexisting sovereign states; that there is no practical limit to the abandonment o f rights of sovereignty within a state
association; and that there is no contradiction between the notion of sovereignty in international law and thegradual approximation o f the federation o f the world. Lauterpacht, 'Sovereignty and Federation in International
Law' presumably written in 1940, p. 25. See also Lauterpacht, 'State Sovereignty and Human Rights' (1950).
39 See Lauterpacht, 'The Grotian Tradition in International Law'.
40 Lauterpacht, International Law and Human Rights, pp. 310, 460, 461. Lauterpacht expects a 'European
Court o f Human Rights' to be a regional bridge to a world constitution. See ibid., pp. 453-456. See also D. R.
Gilmour, 'The Sovereignty of Parliament and the European Commission of Human Rights' (1968), pp. 62-73.
41 Jenks, The Common Law o f Mankind (1958), pp. 123-129.
42 Jenks, Law in the World Community (1967), pp. 6, 23, 31-40. See also Arthur Larson, C. Wilfred Jenks andothers, Sovereignty within the Law (1965), chapters 1, 2 ,3 , 24, 25; Jenks, A New World o f Law? (1969), pp. 131137, 295.

203

and others who can claim sovereignty only under international law.' In the age ofideological struggles he recognises that 'international society has reached thepenultimate stage in the process of complete concentration of political power in one
world State.' Sovereignty has not been extinct, as there are values more important tostates than the well-being of international society or even the maintenance of peace. He
concludes in a cool tone that 'the doctrine of state sovereignty is more than a relic of thepast. The old bottles have been filled with a new and virulent vintage.'43
Before the First World War international lawyers distinguished between sovereignand other non-full sovereign states. Under the United Nations legal system it has
become politically incorrect to call minor states non-full sovereigns. So what was
implemented in line with a British tradition of the inequality of states is a variety of theforms of sovereignty, which demonstrated the ranks of sovereign states.44 Sovereignty
constitutes 'bottles' and states are 'vintage'. It is the latter which decides the ranks ofgoods. In other words, Schwarzenberger supposes that nations are a 'reality', andsovereignty is 'merely ideological symptom'.45
This highlights the dilemma. Sovereignty was just an old idea with no substance incontemporary international society. However, it seemed to be indispensable as well.
Sovereignty was a groundless, but principal notion. There were two ways to get out of
this dilemma. One was to understand sovereignty in a formal way. In 1965 John Burton
insists, by criticising 'orthodox' theories of international relations that have sought tolimit sovereignty, that 'Any realistic system in current world politics must assume thecontinued existence of sovereign States'. But by sovereignty the theorist who will write
World Society seven years later means 'territoriality', and nothing else.46 This
territoriality is a fact in international relations. If there are many states that demand

43 Schwarzenberger, 'Sovereignty: Ideology and Reality' (1950), pp. 1-22.
44 Schwarzenberger attempts to explain the contemporary world by using six forms of sovereignty by using
such categories as positive-negative, political-legal, and absolute-relative. In so doing, he identifies the use ofsovereignty corresponding to actual power politics. He recognises that while between 'ordinary' members of theUnited Nations 'sovereign equality' means reciprocal respect for the legal and negative sovereignty o f member
States, between the 'overmighty' members and others in a state o f de facto dependence it means 'sovereign
inequality' and acceptance of the political and positive sovereignty of those above the law o f Charter.
Schwarzenberger, 'The Forms o f Sovereignty' (1957), pp. 264-295. See also Schwarzenberger, International
Law and Order (1971), pp. 57-83.
45 Ibid., p. 20.
46 Burton, International Relations (1965), pp. 67-71,116-118.

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sovereignty, it is better to give it to them in a formal way. Sovereignty is not an
uncontrollable power. It is 'the basic constitutional doctrine of the law of nations.'47
It was not accidental, even though paradoxical, that F. H. Hinsley's affirmation of theclassical theory of sovereignty appeared in such circumstances. His method of restoring
the classical authority was the other way to escape from the dilemma. Hinsley's 'modem
theory of sovereignty' is mainly devoted to explaining the classical doctrine of Bodin.
Indeed, Hinsley asserts that the history of the concept after Bodin is 'a history of its use
and misuse in varying political conditions.148 This is timely conservatism to the effectthat it is intended to put an end to fluctuations of the idea of sovereignty.
Hinsley defines sovereignty as 'the idea that there is a final and absolute politicalauthority in the political community . . . and no final and absolute authority exists
elsewhere.' Hinsley understands that the age of reification is over in the West andemphasises that sovereignty is an idea. But it is also noteworthy that Hinsley identifies
a condition for the concept of sovereignty so defined to emerge. Sovereignty appears
in full when the interest of society is identified with that of a state. Sovereignty is asymbol of the unification of the state and society49 Hinsley also emphasises thatsovereignty is the doctrine located between universalism and absolutism; it justifies bothnational and international politics.50 In short, sovereignty is a theory of the identificationand nationalisation of the state and society in the family of nations.
It can be noted in this context that European countries had adopted welfare policies
after the Second World War. The Labour government in the UK implemented a seriesof policies for nationalisation and welfare systems. The continental European countries
also took major steps in the same direction.51 In this sense it is of importance that
Hinsley emphasises the identification of the interests of the state and society. In the year
Hinsley's book was published, de Gaulle withdrew French forces from the integrated

47 Ian Brownlie, Principles o f Public International Law (1966), p. 280.
48 Hinsley, Sovereignty (1966), p. 125.
49 Ibid., pp. 1-26.
50 Hinsley, 'The Concept of Sovereignty and the Relations between States' (1967), pp. 242-252.
51 J. D. B. Miller says that the combination of'people's ancient need for order and their modem search for
welfare' helps to explain 'why the sovereign state, instead o f becoming outmoded (as many hopeful people havesuggested at various times in this century), has become the model and aim o f every community which is denied
its benefits.' Miller, The Nature o f Politics (1962), p. 139.

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NATO command structure. In the previous year, European integration fell into a serious
crisis as a result of the French Gaullist policy.52 As a consequence, the character of theEuropean institution dramatically changed. By the time the UK finally succeeded injoining the European Community in 1973, the enthusiasm for a super-state had gone.
This does not mean that nationalism as ideology was resurging in Europe throughout the
1960s. But it seemed true that the nation state presented itself to be too strong a unit towither away.
W. J. Stankiewicz explains the political connotation of Hinsley's attempt.
Contemporary political scientists decry sovereignty and analyse government solely interms of power. But behind such a tendency, according to Stankiewicz, there is 'a
serious gap between government and the governed, and between society and the state',
which leads to 'a persistent decline in the sense of obligation felt by the governed' and'a growing lack of purpose' on the part of government. That is why 'The harmony ofinterest which Bodin and Hobbes sought by developing a logical theory of sovereignty
needs now to be revived.'53 There might be a sense of decaying political morals in thelate 1960s when a revolution of culture among younger generations was in progress. For
Stankiewicz sovereignty is a tool to restore Bodin and Hobbes's theory of harmony54
As the enthusiasm for nationalism declined, the classical doctrine of sovereignty
revived. While behaviourists lost interest in the problem of sovereignty, the authority
of Bodin and Hobbes was reiterated. The intellectual movements to cultivate newmeanings of sovereignty were over. The formalisation and the atavism of sovereignty
were the two sides of the same coin.

52 Fancis Rosenstiel, who might be said to represent a kind of idealised French position, dismissed in 1963
'supranationality' of the European community as it was still the Europe of the Communities made up o f
concurrent sovereignties. He writes that 'it is impossible for an entity without any sociological basis to aspire to
the slightest sovereignty. "Supranational" communities are only technical extensions dependent upon theexercise o f national sovereignty.' His argument is that sociological bases o f nation states on which sovereignty isfounded 'aienever reduced to the secondary level of administration'. Rosenstiel, 'Reflections on the Notion of"Supranationality"' (1963), pp. 128-130.
53 Stankiewicz, 'In Defense of Sovereignty: A Critique and an Interpretation' (1969), p. 38. He was a Polish
who was educated in Britain and later became a professor at the university of British Columbia.
54 Stankiewicz believes that 'when the need for action in the face of an implicit threat o f conflict arises, thelogic of sovereignty prevails over the logic of democracy. . . . On balance, democracy may be prone to this typeo f "defeat"; the shortcomings inherent in its pronouncements about social order - in particular the anti-social
nature o f its individualism - may tend to produce conditions propitious for the full-fledged classical theory o fsovereignty.' Ibid., pp. 6-7.

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Formalisation o f Sovereignty in America

In America the tendency towards the formalisation of sovereignty became more
conspicuous. The United States enjoyed supreme power after the Second World War,although the US government had to pay formal respect for sovereignty in order to keep
its allies on its side and maintain 'peaceful coexistence' with the communist camp. But
whatever the definition of sovereignty was, the US and the USSR continued to manage
the bipolar world.
There were also some political theorists who advocated the abandonment of the word
'sovereignty'.

According to Jacques Maritain, sovereignty means a natural andinalienable right to supreme independence and power which are absolute andtranscendent. But neither a body politic nor the state as a part of it possesses such aright. Thus 'political philosophy must eliminate Sovereignty both as a word and as aconcept.'55 But this elimination itself partakes of the abstractness of political philosophy
for empirical political scientists. When Harold D. Lasswell and Abraham Kaplan definesovereignty as 'the highest degree of authority' in their inquiry into empirical politicalresearch, they have no intention of arguing for sovereignty. Their definition ofsovereignty is just an 'attempt to specify a clear meaning for the term which will be
useful for inquiry into the political process, without regard to its function in politicalphilosophy.' Sovereignty is only concerned with the 'formal basis' of the justificationof power. They insist that 'the highest degree of authority' is far from being unlimited,absolute or complete. Their definition of sovereignty enables them 'to deal with it on
the basis of observable practices and perspectives - those of "habitual obedience". . . or,more precisely, of habitual formalized obedience.' With their notion of the state being'a formal one', they see no difficulty in accepting Schmitt and Bluntschli's theories. This
represents the dominant approach of social scientists to sovereignty in the latter half ofthe twentieth century.56
In a constitutionalist vein, a leading student of international relations argued for the
possibility of a modification of sovereignty. Quincy Wright warned in 1951 that a world

55 Maritain, 'The Concept of Sovereignty1(1950), pp. 343-357.
56 Lasswell and Kaplan, Power and Society (1950), pp. 177-185.

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'safe for democracy' might not mean a world all of which is democratic as Americans
interpret the term. In order to secure the world constitution, the United States must be
ready to modify the exercise of sovereignty, or sovereignty itself.57 Wright points outthat while national capitalists have developed powerful movements for world
government, cosmopolitan communists are strongly advocating national sovereignty.
On the one hand, the unstable world has converted nationalism and sovereignty into
terms of reproach. On the other hand, the attention of most thinkers has highlighted thepotentialities of a world state for oppressing humanity and for frustrating progress. He
thus emphasises that the United Nations may develop into something different fromnational sovereignties or world government, namely, a more complex balance ofpower.58 As the two superpowers somehow maintained a fragile 'peaceful coexistence',
Wright proclaims in 1961 that 'legal sovereignty' is not hostile to international
cooperation. He argues that 'The problem of the world is, therefore, one of educating
governments and peoples of the diverse civilizations and ideologies to an appreciationof the nature and value of sovereignty under law'.59
Sovereignty is by no means omnipotent, but may well be 'useful'. Charles P.
Schleicher argues that it should be left open to many interpretations. He exemplifies
absolute, conventional (limited), partial, and conditional sovereignty.60 In a moreconstitutional vein, in World Peace through World Law, dedicated 'to all those who seek
the rule of law in world affairs', two international lawyers, Grenville Clark and Louis B.
Sohn, propose a revision of the UN Charter. Under the revised Charter sovereignty is
modified to the extent that 'certain enumerated and limited powers' would be granted to
the United Nations; the exercise of a few other sovereign powers relating to military

57 Wright, Constitutionalism and World Politics (1951), pp. 7-8, 19-20.
58 Wright, Problems o f Stability and Progress in International Relations (1954), pp. 206-207. As examples ofthe discussion of limited sovereignty, see Norman Bentwich and Andrew Martin, A Commentary on the Chartero f the United Nations (1951), pp. 10-12; P. E. Corbett, Law and Society in the Relations o f States (1951), p. 265.
59 Wright, 'Sovereignty and International Cooperation1(1961), pp. 14-37. As examples o f the argument o f thecompatibility o f sovereignty and international cooperation, see also Karl Loewenstein, 'Sovereignty andInternational Co-operation' (1954); Wolfgang Friedmann, 'National Sovereignty, International Cooperation, andthe Reality o f International Law' (1966), pp. 508-522. Friedmann observes that 'there is no clear-cut alternative
between national and international sovereignty, but a complex, evolving and checkered relationship'. Friedmann,
Changing Structure o f International Law (1964), pp. 113-114.
60 Scleicher, Introduction to International Relations (1954), pp. 173-183. Norman Coussins insists that there
are two kinds o f sovereignty: absolute and relative. The conditions o f a new world enabled the former to perish
and the latter to prevail. Coussins, In Place o f Folly (1961), pp. 105-109.

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affairs would be prohibited to all nations, while the revised Charter calls for areservation to all nations of'all powers inherent in their sovereignty, except such as aredelegated to the United Nations'.61
These attempts show that the theme of the constitutionalisation of internationalsociety was still an undercurrent issue in the early 1960s. 'Sovereignty under law62 and'sovereignty within law (except Soviet law)63 are the phrases that drew attention frominternational lawyers. In 1961 Clarence K. Streit contrasts 'the true democratic conceptof sovereignty' in the free world with absolute national sovereignty in the communist
world. Contrary to the latter, the former prevails under the rule of law. 'Freedom's
sovereignty', which is always subject to the will of the citizens, has a historical example
in American history. In order to cure 'cancer cell no.l in the free body politic', it isimperative to substitute this 'freedom's sovereignty' for the false concept of nationalsovereignty.64
However, neither the vigorous national sovereignty nor traditional constitutionalsovereignty enjoyed a complete victory in the 1960s. No one enthusiastically defended
the sacredness of sovereignty as Morgenthau had, while sovereignty was no longer
seriously challenged. Academia was dominated by the scientific and 'neutral' methodsof behaviourism. The issue of sovereignty was not solved, but it was accommodated
through benign neglect.65

61 It goes without saying that this provision is an application of the US Tenth Amendment to the UN Charter.
Grenville Clark and Louis B. Sohn, World Peace through World Law (1958), p. 9. See also World Peace
through Law: The Athens World Conference (1964), p. 105-106. In 'Preliminary Definitions' at the conference
Cipriano Codas from Paraguay defines sovereignty as 'an attribute of the will o f the people of the nation, andwhich consists in its supreme juridical authority, based on natural law and exercised in the framework of the rules
necessary for the peaceful and harmonious co-existence of nations.' In opposition to the movement of'world
peace through world law', a left wing organisation, the International Association o f Democratic Lawyers, insiststhat 'The principle o f sovereignty is by no means out-moded, since the number o f sovereign States continues togrow. It is, on the contrary, a prior condition for the constitution of a legal community o f nations sprung fromdifferent civilisations and invested with different institutions.' According to them, the advocates of'world peace
through world law' in the American Bar Association 'are thinking in terms o f an international law <made in the
U.S.A>'. The International Association of Democratic Lawyers, Law in the Service o f Peace (1963), p. 7, 15.
62 Arthur Larson, When Nations Disagree (1961), pp. 28-35.
63 Larson and Jenks, op. cit.
64 Streit, Freedom's Frontier (1961), pp. 91-129. The contrast between (American) sovereignty of theindividual and absolute national sovereignty (of communism) is seen in Whitney H. Slocomb, The Sovereign
Individual vs. Communism and Fascism (1951), p. 3; Arthur Freud, O f Human Sovereignty (1964), chapters 1,
10, 11, 16.
65 The expansion of state activities in the post-1945 era was seldom linked with the issue of sovereignty.
'What is meant by the "state" in both the Gaullist and neoliberal reaction is,' as Carl Joachim Friedrich observes,'a strong government rather than a state in the classical sense. . . . Hence even though we observe in

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As a result, the concept of sovereignty in the study of international politics receded
to a minimum standard. J. Roland Pennock and David G. Smith maintain that asovereign state must have not only legal but also political independence. They definesovereignty as 'that quality or characteristic of a state by virtue of which its legal system
is unified, self-consistent, self-defining, self-contained, and capable of change.' The'self-contained' conception of sovereignty leads them to proclaim that it is not concernedwith the location of final authority, for 'Sovereignty is a quality of a state.66 What they
actually say is that a state is sovereign. It matters little whether the sovereign reallyexists within a state. A state must be unitary as it is a sovereign entity; therefore,
sovereignty means unity.
K. J. Holsti recognises that sovereignty is one of the fundamental rules of the modem
international system.67 Whether or not it constitutes a substantial aspect of internationalsociety, it is a useful term to systematise international relations. Thus E. Raymond
Platig argues that while the 'utility as an analytical concept' of such a controversial
concept as sovereignty is limited, 'it is useful word for designating that class of statesin which can be found most of the major centers of power on the contemporary global
scene.'68 Sovereignty is here justified to the effect that it is useful for study.
That sovereignty is recognised as a formal principle might mean that 'reality' should
be found somewhere behind sovereignty. Morton A. Kaplan and Nicholas deB
Katzenbach suggest that in order to bypass much of the inconsistent and confusing usageof language, 'First, we must think of sovereignty in relational terms. . . . Second, theclaim to sovereignty is a claim to formal authority and not necessarily to effective

contemporary politics a certain reemergence of "sovereignty" in the classic meaning o f the term, few are willingto claim that a state depends upon it and is well governed only if it possesses such a sovereign.' Friedrich, Man
and His Government (1963), pp. 553-554. In the sixties a belief in popular sovereignty also hinders thegovernment from claiming on sovereignty. Dell Gillette Hitchner and William Henry Harbold explain: 'Only thecontinuing concentration and liberation of authority expressed in sovereignty will enable us to live with thetensions inherent in the dynamic pluralism of modem life, with its rejection o f custom in favor o f continuing
innovation.' Hitcher and Harbold, Modern Government (1963), p. 181. Robert Dahl deduces multiple non­absolute sovereigns from the American dogma o f popular sovereignty and pluralism. See Dahl, Pluralist
Democracy in the United States (1967), pp. 18-24.
66 Pennock and Smith, Political Science (1964), pp. 131-134. Concerning the location o f the sovereignty of
the USA, Andrew Hacker asserts that 'The real answer is that sovereignty is not something that can be identified
or discovered. It is, on the contrary, a process' Hacker, The Study o f Politics (1963), p. 41.
67 Holsti, International Politics (1967), p. 82.
68 Platig, 'International Relations as a Field of Inquiry' (1969), p. 15.

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control.' States may increase effective control by limiting formal authority.69
In the late 1960s, the decline of US economic and political power, and lost
confidence ushered in the sense of national disruption. The Vietnamese War invoked
mass protests against the government on the one hand, and the realpolitik of Nixon andKissinger on the other. Accordingly, behaviourism was attacked for its indifference tomoral issues. In place of constitutional harmony, or even of Morgenthau's realism, there
was a clear discrepancy between legal norms and political reality. It is no wonder that
American jurists politicised their work in the realistic and progressive vein.70 New
American legal realism arose to modify traditional American constitutionalism.71
Traditional constitutional issues like divided sovereignty were almost forgotten.
Eventually, an expanded central government in the 1960s produced the NixonKissinger administration that disrupted and unified the nation in substantially 'realistic'
terms. It secretly bombed and invaded Cambodia to end the war in Vietnam. Like the
US intervention in its 'backyard' of Guatemala (1954) and the Dominican Republic(1965), the operations in breach of international law were, of course, conducted without
a revision of the theory of sovereignty.72 Sovereignty was there as a simply formal oreven nominal principle. Behind it 'real' politics worked. What was needed was not tocontemplate how to limit or constitutionalise sovereignty. It was to leave it aside anddo politics. With its declining power, the United State was ceasing to be the championof the international rule of law.

69 Kaplan and Katzenbach, The Political Foundations o f International Law (1961), pp. 136-140. According
to Karl Deutsch, 'The naive assumption o f concentrated sovereignty may even be more misleading ininternational politics.' The fact is that 'The higher the actual degree o f concentration, the greater the actual degreeo f vulnerability is apt to be'. Deutsch, The Nerves o f Government (1963), pp. 212, 211.
70 Richard Falk, active critic of the US involvement and operation in Vietnam and Cambodia in defence o fsovereignty, advocates 'legislative intervention by the United Nations in the internal affairs of sovereign states'.
He asserts that 'Sovereignty only confers a primary competence upon a nation; it is not, and never was, an
exclusive competence. Intervention in some form is an unavoidable concomitant o f national existence.' Falk,
Legal Order in a Violent World (1968), p. 339. He also tries to discard the principle of sovereign immunity.
Falk, The Role o f Domestic Courts in the International Legal Order (1964), pp. 139-169.
71 As regards the difference between British and American international law, see Rosalyn Higgins, 'Policy
Considerations and the International Judicial Process' (1968).
72 Paragraph 12 o f the Final Declaration o f Geneva Conference of 1954, which the US government refused tosign, stipulated respect for the sovereignty of Cambodia, Laos and Vietnam. See The Consultative Council o f the
Lawyers Committee on American Policy towards Vietnam, Vietnam and International Law (1967). See also the
Declaration o f Inadmissibility o f Intervention adopted by the UN General Assembly in 1965, which expresses its
concern about armed intervention threatening the 'sovereign personality' of states. See Sohn, op. cit., p. 31.

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In the period after the Second World War the fledgling of international
constitutionalism was overwhelmed by the political realism led by refugees from
Germany like Morgenthau. There was the historical necessity of the dominance ofpolitical realism in this period. After the projects of international constitutionalism
failed and the Cold War began, many Anglo-American intellectuals including policy­
makers in the Truman Administration turned to political realism as a necessary basis formaintaining a desirable international order. The theory of national sovereignty wasrevitalised in the post-1945 era. However, this does not mean that the idea of nationalsovereignty became a scientific truth. It was still an outmoded doctrine. Many theorists,
including the behaviourists, failed to address the question of sovereignty arguing either
that it was not worth discussing or it should not be challenged. An anachronistic victoryof political realism eventually led Anglo-American theorists to accept a highly
formalistic notion of sovereignty.

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Chapter 8 Sovereign Equality and National
Sovereignty in Communist and Third WorldCountries
It is now necessary to look into non-Anglo-American discourses on sovereignty inorder to understand international conceptual struggles in the post-1945 era. We haveseen in the last chapter that the emergence of political realism led Anglo-American
theorists to admit and formalise the notion of sovereignty. There was also the reality of
the Cold War which reinforced the academic trend. With the confrontation between theWest and the East, it was impossible for both camps to implement any projects to 'limit'
sovereignty in the international field. Although the US led camp was able to establish
international institutions for its benefit, they were not powerful enough to completely
dominate the whole world. While Germany ceased to be a major ideological enemy ofBritain and America, the Soviet Union and other communist countries became theserious ideological threat in the Cold War period. In addition, newly independent states
were more or less hostile to former colonial powers. To accommodate their demand fornational sovereignty was an indispensable task for the Anglo-American powers in order
to contain the communist threat.
The era is symbolised by the principle of 'sovereign equality' that appeared in theCharter of the United Nations and became an indispensable pillar of internationalsociety. From immediately after the Second World War, the Soviet Union interpreted
this principle in a peculiar way so that it challenged the Western bloc led by the UnitedStates. China and other socialist states followed suit to reinforce the challenge. Newly
independent states also endeavoured to put the principle into practice. Sovereignty was
no longer an outmoded idea of Western international society. It was a vital element of
global international society. It was the very conceptual field in which power politics inthe age of the Cold War and decolonisation took place. In this chapter we shall trace thediscourses on sovereignty in socialist and Third World states in order to identify thenecessity of a re-establishment of the principle of sovereignty after the Second World
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War.

The Principle o f Sovereign Equality
The milestone of the post-war era in the history of the idea of sovereignty is theprinciple of'sovereign equality' in Article 2 (1) of the Charter of the United Nations.
This particular combination of words was unfamiliar in the long history of the idea ofsovereignty.1 The phrase 'sovereign equality' was derived from the terminology of Latin
American diplomats who were the hard-line advocates of the equality of states. They
had perplexed European delegates at the Second Hague Peace Conference of 1907; thenone of them invented and used the phrase. Jose Tible Machado of Guatemala opposed
the composition of the arbitral court as it was a violation of'the fixed principle of thesovereign equality of the States as political entities'.2 Sovereignty was a catchword for
Latin American states during the period of the 'Roosevelt corollary' of the Monroe
Doctrine until it was finally repudiated in 1930.3
When F. D. Roosevelt took office in the turmoil of the Great Depression, the US
government adopted a foreign policy of respecting non-intervention and equality among
all the American states in pursuit of economic and political cooperation of the region.
Several documents that were produced during the period of the 'Good Neighbor' policyemphasised the principle of national sovereignty.4 The famous Montevideo Convention
clarified the components of state personality in such an atmosphere. The phrase,'sovereign equality', which reappeared in the 1930s, was incorporated into US postwar

1Before the myth o f the Peace of Westphalia was combined with the principle of sovereign equality in the
post-1945 period, scholars in the interwar period acknowledged that state sovereignty was by no means
tantamount to the equality o f states. In his well cited book published immediately after the establishment o f the
League o f Nations, Edwin E. Dickinson has proved neither Grotius nor the Westphalian system knows natural
equality o f states. According to Dickinson, Grotius 'held that important limitations upon the exercise of politicalpower were consistent with the enjoyment of international personality and even o f perfect sovereignty. Feudal
vassals might be sovereign. Sovereignty was not infringed by an unequal alliance which imposed a permanent
obligation upon the inferior state'. Dickinson, The Equality o f States in International Law (1920), p. 58.
2 Quoted in Klein, op. cit., p. 57.
3 For instance, in the spring of 1919 the Mexican Foreign Office sounded off on Article 21 of the Covenantguaranteeing the Monroe Doctrine, declaring 'that Mexico had not recognized and would not recognize theMonroe Doctrine . . . since it attacks the sovereignty and independence o f Mexico and would place the nations ofAmerica under a forced tutelage.' Quoted in Perkins, op. cit., p. 326. See also pp. 342-343.
4 See ibid., pp. 352, 353, 355, 356.

214policy planning to secure the cooperation of small states with the future plan of theGreat Powers. Then on 30 October 1943 the Moscow Declaration of the Four Nations
was issued, paragraph 4 of which made public the necessity of establishing aninternational organisation based on the principle of'the sovereign equality of all peaceloving states.'5 Immediately after the Declaration, US Senator Tom Connaly offered aresolution approving the creation of'a general international organization, based on theprinciple of the sovereign equality of all peace-loving states'. The proposal for anamendment to the resolution in order to define all the key words was rejected. The
resolution was accepted by the Senate on 5 November.6
These events show that the incorporation of the principle of 'sovereign equality' into
the postwar system was a major factor in committing great as well as small states to a
new international organization. However, this does not mean that there was a universal
understanding of the content of the principle. When the leaders of the three great
powers met at Dumbarton Oaks during the summer of 1944 and agreed on the main
structure of an international organisation, the conceptual gap between the great powers
and small states became evident. The privileged position of the great powers in asecurity council showed that 'sovereign equality' meant only 'equality before the law1orat best 'equality of capacity for duties and rights'. By objecting to great power primacy,small states articulated an understanding of'sovereign equality' as 'equality of duties andrights'.7

5 C&rlos Saavedra Lamas, the Argentine delegate at the Inter-American Conference for the Maintenance ofPeace in 1936, praised the non-intervention protocol for reiterating 'the application of the principle o f thesovereign equality o f all the States on this Continent1. Sumner Wells of the US delegation at the Conference used
a variation o f the term in two addresses in 1942. In the same year he became active in the State Department's
postwar policy planning preparations and was involved in the drafting of the Moscow Declaration. See Klein,
op. cit., pp. 104, 108,111-112. Compare the Moscow Declaration with the Wilsonian terms of'the Atlantic
Charter' o f 1941, which stipulated 'the right of all peoples to choose the form of government' and 'sovereign
rights and self-government'.
6 See ibid., p. 113, and Denna Frank Fleming, The United States and the World Court (1945), pp. 174-175.
When the UN Charter was ratified in the US Senate, Senator Raymond E. Willis declared: 'We have protected thesovereignty o f the United States of America.' Quoted in Cox, op. cit., p. 71.
7 Hans Kelsen explains that 'sovereign equality' is correct only if equality does not mean equality o f duties andrights, but rather equality of capacity for duties and rights. Kelsen, Peace through Law (1944), pp. 36-37. See
also Leland M. Goodrich and Edvard Hambro, Charter o f the United Nations: Commentary and Documents(1949), p. 100. An UNCIO (United Nations Committee on International Organization) Committee interprets'sovereign equality' as including the following elements; (1) that states are juridically equal; (2) that each state
enjoys the rights inherent in full sovereignty; (3) that the personality of the state is respected, as well as its
territorial integrity and political independence; (4) that the state should, under international order, comply
faithfully with its international duties and obligations. Quoted in ibid., p. 99. The Declaration o f Principles o f
International Law Concerning Friendly Relations and Co-operation among States in Accordance with the215

It is fair to say that the structure of the United Nations remained open to these two
aspects; the constitutional sovereignty of great and small states and the nationalsovereignty of absolutely equal states. While the United States and Great Britain moreor less continued to take sides with the former after the Second World War, the Soviet
Union moved in the direction of the latter. While formally respecting the principle ofsovereign equality, the Anglo-American conservative camp responded to the challengeof revolutionary communist and Third World states by implementing policies to limit
the national sovereignty of small states.8 We shall now look more closely at thechallenge of the communist and Third World countries.

Discourses on Sovereignty in Socialist States
The Soviet Union

As soon as the UN organisation was established, the ideological confrontation
between the United States and the Soviet Union became evident. The US government
attempted to use the UN system in order to stabilise the international order in which the
US held a paramount position. But the USSR repeatedly vetoed the proposals led by the
US camp. For instance, when the US government sought to institute the Atomic
Development Authority to control atomic energy, the USSR, which had not yet
developed an atomic bomb, vigorously opposed the US proposal. Andrei Gromyko, therepresentative of the USSR at the UN atomic energy commission, stated as early as July,
1946, that the proposed Atomic Development Authority could not be reconciled withthe sovereignty of member states. He said that the principle of sovereignty was one of
the cornerstones on which the United Nations structure was built and if this wereCharter o f the United Nations adopted by the United Nations General Assembly in 1970 added anotherprovision: 'Each State has the right freely to choose and develop its political, social, economic and cultural
systems'. See Ian Brownlie (ed.), Basic Documents in International Law, p. 44. See also Aleksandar
MagaraSevid, 'The Sovereignty Equality of States' in Milan Sahovid, Principle o f International Law Concerning
Friendly Relations and Cooperation (1972), pp. 171-218.
8 An example o f the usage of'sovereign equality' o f a small state against great powers is the Egyptian
government's complaint about the presence o f British troops in Egyptian territory. See Egypt and the United
Nations (1957), pp. 76-83. See also Mohamed El-Hadi Afifi, The Arab and the United Nations (1964), pp. 4050; Ezzeldin Foda, The Projected Arab Court o f Justice (1957), pp. 91-123.

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touched the whole existence and future of the United Nations would be threatened.9
In the early stages of the Cold War the US led camp dominated the organisations of
post-war international society. The USSR formed a revolutionary camp and remainedon the defensive. Despite its official internationalist position, the USSR adhered to theprinciple of sovereignty with its veto to block US initiatives. By so doing, the USSR
claimed to be a protector of small states in defiance of imperial powers. The USSR
frequently resorted to the principle of sovereignty to thwart the objectives of the Westand gain ground in the world-wide Cold War.
The Soviet Union had a quite peculiar concept of sovereignty from its birth. The
1936 Constitution of the USSR expresses that 'the sovereignty of the Union Republics
is limited' by the USSR. But 'the USSR protects the sovereign rights of the Union
Republics.'10 This was intended to respect national self-determination as well as the
dictatorship of proletariat. Yet Soviet jurists never favored the idea of divided
sovereignty. They explained that due to 'the singular nature of the Soviet federation',
there was 'a joint and fully compatible sovereignty of the USSR with the sovereignty of
the Union Republics'.11 The centralisation of power in the Kremlin was understood as
an achievement of national self-determination and class struggle in the name of the
dictatorship of the proletariat.12 In other words, the nations of the autonomous units 'do
not possess their own state sovereignty' but realise 'national sovereignty, that is

9 The Department o f State, International Control o f Atomic Energy (1946), p. 219. This obstinacy can beseen in numerous Soviet statements. On the US proposal o f the Atomic Development Authority, A. Vyshinsky,
head of the Soviet delegation in the United Nations, expressed the view that it was a question 'of totallyliquidating the state sovereignty, as such, of all other states.1 Quoted in Goodman, op. cit., p. 401. A reply ofPravda to Bertrand Russell's cry for the creation of a world state is that 'Russell is shouting about the inevitableend of the world unless nations give up their national sovereignty and replace it by a world state headed by the
U.S.A. and Britain.' Quoted in ibid., p. 399. As regards the Soviet opposition to the Western states on the issueo f state sovereignty and human rights, see The United Nations and Human Rights (1968), pp. 65, 127. Bycontrast, the appeal to the limitation of sovereignty by Western states in the General Assembly is seen L. Larry
Leonard, International Organization (1951), p. 285.
10 Amos J. Peaslee, Constitution o f Nations, vol. Ill (1956), p. 487. The Declaration o f Rights o f the Peoples
o f Russia on November 15, 1917 stipulates the 'equality and sovereignty of the peoples of Russia'; the 'right ofthe peoples o f Russia to free self-determination up to and including withdrawal and the formation o f an
independent state'. See P. Yudin, 'Socialism and Law' (1937), p. 289.
11 Quoted from I. P. Trainin and I. D. Levin (eds.), Sovetskoe gosudarstvennoe pravo in Goodman, op. cit., p.
122 .

12 See T. A. Taracouzion, The Soviet Union and International Law (1935), pp. 26-47; Julian Towster,
Political Power in the U.S.S.R. 1917-1947(1948), pp. 46-49, 109-115.

217

independence in utilizing all of their national capacities and abilities'.13 In order toexplain the sovereignty of the component republics two of whichobtained UN membership, some Soviet international lawyers advocated that 'The USSR
possesses sovereignty because it is an expression of the sovereignty of the Union
Republics. The sovereignty of the USSR is a result of the sovereign will of the
Republics.'14 This means that 'within the framework of the Union, each republic had all
the attributes of a sovereign State and enjoyed full sovereign rights.'15 Only within the
USSR does the national sovereignty of the union republics realise its higher capacities.
In the external sphere, Soviet jurists maintained that it was important to distinguishbetween two kinds of states: proletariat-democratic and capitalistic-imperialistic. Anyintervention conducted by the latter cannot be permitted, while the former has genuine
popular sovereignty. Intervention to help people in capitalist states and oppressednations under imperial regimes does not deny the principle of sovereignty, but assists
in its realisation. E. Korovin, one of the most influential Soviet jurists, stated in a
lecture delivered in 1947 that 'sovereignty, as conceived by Soviets, is a weapon in the
struggle of the progressive-democratic forces against the reactionaiy-imperialistic
ones.'16
The difference between the two is explained by another Soviet jurist, Levin, whowrites that 'In the bourgeois state the proclaimed form of "the sovereignty of the people"
conceals class dictatorship of the bourgeoisie

For the first time in history the Soviet

13 Quoted from Trainin, 'Questions of Sovereignty in the Soviet Federal State' (1945), in Towster, op. cit., p.
113.
14Nedbailo and Vassilenko, 'Soviet Union Republics as Subjects o f International Law' (1963), quoted in Ivan
Bernier, International Legal Aspects o f Federalism (1973), p. 23.
15 The views o f the representatives of the USSR, Byelorussia and the Ukraine at the United Nations
Conference on the Law of Treaties in 1969. Quoted in ibid., p. 24. This argument clearly indicates the logic ofpositive freedom in contrast with negative. The logic of positive liberty was used in a notorious way when theBaltic states were incorporated into the USSR in 1940. The Soviet puppet government in Lithuania declared;'The People's Sejm o f Lithuania is confident that only admission into the Union of Soviet Socialist Republics will
insure the real sovereignty o f the Lithuanian State.' In the same vein a member of the Central Committee o f the
Rumanian Communist Party responded in 1951: 'Only now, when the reins o f power are in the hands ofgovernments led by Communists, have the peoples of these countries acquired, with the fraternal aid of theSoviet Union, genuine national independence and state sovereignty'. Quoted in Goodman, op. cit., pp. 119-120.
16 Quoted in Mintauts Chakste, 'Soviet Concepts of the State, International Law and Sovereignty' (1949), p.
31. This position leads Korovin to demand the supremacy o f national over international law. See Hans Kelsen,
The Communist Theory o f Law (1955), pp. 158-161.

218

state has realized the real sovereignty of the people.'17 While the capitalist state disrupts
the content and form of sovereignty, the communist state unifies them into one real
popular sovereignty. Soviet jurists think that the Soviet Union realised true sovereignty.
It could-not indulge a bourgeois and imperial deceit of limited sovereignty; the trueC«organic realisation of sovereignty in the communist state discloses and surpasses the
hypocrisy of the bourgeois constitutional state.18 All these suggest that while Soviet
solidarity is supposed to be superior to national sovereignty, the organic basis of its
justification in contrast to constitutional formality accords with the logic of nationalsovereignty in the traditional Continental theory.19
The Soviet adherence to absolute sovereignty as 'a reliable means of defending thesmall States'20 also concurred with the demands of the newly independent states. The
socialist members of the International Court of Justice acted as the shields of statesovereignty21 The communist bloc conceived as the challenger of imperial international
order thus emphasised the revolutionary importance of the principle of sovereignty. A
Soviet textbook of international law states that national sovereignty is 'the right of eachnation to self-determination and independent development . . . regardless of whether or
not it has its own statehood.'22 This revolutionary but vague stipulation of the subject
17 Quoted in Chakste, op. cit., p. 32. As regards several Soviet statements which identified socialist
sovereignty as the only popular sovereignty, see Bernard A. Ramundo, The (Soviet) Socialist Theory o f
International Law (1964), pp. 35-39. Andrei. J. Vyshinsky said in 1946 on purpose to challenge the sovereign
right of Holland over Indonesia that the UN Charter represented 'certain limitation of sovereignty o f sovereignstates'. Quoted in Goodman, op. cit., p. 114. In 1949 Izvestiia recognised: 'The Lenin-Stalin teaching on
independence . . . o f states by no means implies the acceptance of the principle of absolute sovereignty' in terms
o f a treaty o f alliance. Quoted in Jan F. Triska and Robert M. Slusser, The Theory, Law, and Policy o f Soviet
Treaties (1962), p. 211. By contrast, in 1948 Vyshinsky insisted: 'Propaganda against national sovereignty
disguised by attacks against absolute sovereignty was nothing but an ideological preparation for a country's
political surrender to a more powerful State and its economic might.' Sovereignty was 'the sole protector o f thesmaller countries against the expansionist dreams o f more powerful States.' Quoted in Werner Levi,
Fundamentals o f World Organization (1950), p. 32. The Foreign Minister W. M. Molotov in 1947 warned
Poland and Czechoslovakia against the Marshall Plan for the sake o f their sovereignty; the Cominform asked
communists to grasp national sovereignty in their own countries. The same anti-imperial and anti-US position
led Stalin to remark in 1952, 'Today the bourgeoisie sells the rights and independence of nations for dollars. The
banner o f national independence and national sovereignty has been thrown overboard. There is no doubt thatyou, the representatives of Communist and Democratic Parties will have to pick up this banner and carry it
forward1. Quoted in Goodman, op. cit., pp. 114, 117.
18 See Jones, The Soviet Concept of'Limited Sovereignty'from Lenin to Gorbachev (1990), pp. 1-19.
19 Korovin wrote in 1923 that 'While the general movement of the evolution of the European international law
was towards restriction o f the notion of sovereignty . . . Soviet Russia appeared to be a champion o f the classicalconception o f sovereignty.' Quoted in Kazimierz Grzybowski, Soviet Public International Law (1970), p. 33.
20 V. V. Yevgenyev, International Law (n.d.), quoted in Cox, op. cit., p. 61.
21 See Grzybowski, op. cit., pp. 459-464.
22 V. V. Yevgenyev, 'The Subject of International Law' (1962), p. 98.

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of international law was not immune from political abuse. In the face of the Hungarian
uprising in 1956, Izvestiia justified the Soviet intervention as a measure to keep
Hungarian people's sovereignty against 'the Fascist cutthroats'.23
According to Korovin's 1956 article, the 'restriction of sovereignty' or othereuphonious conceptions like the 'common interest' and the 'common good' is 'nothing
more than the diplomatic screen hiding the avaricious and predatory aims of thestrongest imperialist Powers'. The bourgeois conception of sovereignty is merely theformal recognition of certain rights of a state which often serves to cover actual
inequality. The socialist countries not only recognise these rights but also ensure that
all material conditions are available for their realisation. As far as Soviet sovereignty(the first people's sovereignty in world history) is concerned, national sovereignty is by
no means dangerous. Under socialism there are not and cannot be radical contradictions
between individual and collective builders of socialism and between the national
interests of a socialist nation and the interests of international co-operation. Korovinhailed this as 'the new conception of sovereignty.'24
According to Korovin, the unity among socialist states is contrasted with the policiesof the US government.25 Korovin insists that the Soviet Union has never championed
the 'concept of absolute, unrestricted sovereignty' that the 'US ruling circles' aredemonstrating. Korovin thus implies that as long as the US ruling class dominatesinternational society, the sovereignty of the Soviet Union must not be restricted.26 E.
Kuzmin adds that the contemporary contempt for sovereignty among Western
intellectuals is due to the fact that sovereignty has become a fetter on the bourgeois
class. The bourgeoisie now wishes to pursue the expansionist designs of capitalism at
its highest stage. The real reason behind the calls to give up sovereignty lies in that themost powerful monopolies want to derive maximum profits from economic and political
integration and exploit the socialist and newly independent states. From the Soviet

23 See Goodman, op. cit., pp. 121-122.
24 Korovin, 'Respect for Sovereignty - An Unchanging Principle of Soviet Foreign Policy1(1956), pp. 32, 3739.
25 See Korovin, 'Sovereignty and Peace' (1960).
26 See Korovin, 'Disarmament and Sovereignty' (1961).

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perspective national sovereignty is a guarantee of stable peace and national security.27
The invasion of Czechoslovakia did not change the official position of the Soviet
Union. The famous article in Pravda on 'Sovereignty and International Duties ofSocialist Countries' did not contain an expression such as 'limited sovereignty'. The
thrust of the article by S. Kovalev is that the 'sovereignty of each socialist country
cannot be opposed to the interests of the world of socialism'. This stems from therecognition that 'the counterrevolutionary elements in Czechoslovakia undermined thevery foundations of the country's independence and sovereignty.' Thus, 'the help to theworking people of Czechoslovakia by other socialist countries, which prevented theexport of counterrevolution from abroad, constitutes the actual sovereignty of the
Czechoslovak socialist republic against those who would like to deprive it from its
sovereignty and give up the country to imperialism.'28
At least, according to this official explanation, the USSR did not intend to 'limit'
sovereignty. Brezhnev himself declared immediately after the invasion, 'the socialist
states stand for strict respect for the sovereignty of all countries. We absolutely oppose
interference in the affairs of any states and violations of their sovereignty.' This socialist
conception of sovereignty, according to G. I. Tunkin, includes 'the duty to renderassistance in the enjoyment of these rights [of respective states], as well as jointly
defending them from the infringements of imperialists, in conformity with the principleof socialist internationalism.'29 In the end, as Robert A. Jones observes, the Soviet
conception of sovereignty may be likened to a distorting mirror which inverts surface
appearances: what may look like a prima facie case of aggression is said to be a
defensive, altruistic action undertaken out of respect for the sovereignty principle.30 The
real sovereignty of communist states is always superior to the false sovereignty ofcapitalist states.

This can be called the left wing attack upon the formality of

constitutionalism.

27 Korovin, 'Sovereignty and National Security' (1966), pp. 17, 20.
28 Kovalev, 'Sovereignty and International Duties of Socialist Countries' (1968), pp. 137-138, 141. See also
Jones, op. cit., pp. 153-156.
29 Tunkin, Theory o f International Law (1974), p. 440.
30 Jones, op. cit., p. 90.

221Communist China

While the USSR gradually receded from its position of absolute national sovereignty
with the emphasis upon socialist internationalism in the post-Stalin era, communist
China took on the role of reinforcing the doctrine. Nationalist China before thecommunists took power in 1949 favoured liberal and limitable sovereignty.31 But the
government of the People's Republic of China insisted on the strict observance ofsovereignty. From the time of the birth of the People's Republic of China, Mao Tse-tung
discussed the principle of sovereignty. Premier Chou En-lai also repeatedly emphasised
the inviolability of sovereignty.32 The communist government was determined to
oppose Anglo-American international political behaviour, the 'transnational' tendency
among Anglo-American publicists, and even the International Court of Justice which
was exploited by the 'imperial' Anglo-American bloc.33
Ying T'ao argues that 'bourgeois international law . . . openly attempts to bury theprinciples of inviolability of sovereignty in order to meet the practices of imperialist
aggression.' T'ao asserts that the theory of absolute and indivisible sovereignty wasdeveloped in order to facilitate bourgeois interests. But in the international fields,
sovereignty was divided in order to justify the existence of vassal and protected states.
The search for a 'higher legal order' symbolises the stage of imperialism that more andmore exploits small countries. International legal jurists are 'imperialism's perfect slaves
and servants'. The principle of equality was never applied to oppressed nations like
China that suffered unequal treaties and colonisation.34
Yang Hsin and Ch'en Chien stress that the Chinese conception of sovereignty isdifferent from the imperialistic theories of absolute sovereignty; it is also different fromrestrictive sovereignty and denial of sovereignty in that it is based on mutual respect.
31 For instance, the Chinese Foreign Minister in 1942 stated: 'China will gladly cede such of its sovereign
power as may be required.' The Chairman of the Chinese delegation to the United Nations Conference declaredin his speech on 26 April 1945: 'we must not hesitate to delegate a part o f our sovereignty to the newinternational organization in the interests of collective security.' Quoted in China Institute o f International
Affairs, China and the United Nations (1959), pp. 23, and see also pp. 64,139.
32 See Yang Hsin and Ch'en Chien, 'Expose and Criticize the Imperialists' Fallacy Concerning the Question ofState Sovereignty' (1964), pp. 110-111.
33 See James Chieh Hsiung, Law and Policy in China's Foreign Relations (1972), pp. 72-79.
34 Tao, 'A Criticism of Bourgeois International Law Concerning the Question of State Sovereignty' (1960), pp.
106-110.

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They argue that the attack upon sovereignty has become the main current and fashionin American legal circles, because the United States has become the chief representativeof neocolonialism. The US approval of national independence is a legal camouflage toconceal 'neocolonial rule'. Secretary of State Dulles's insistence on the acceptance ofinterdependence and President Kennedy's 'Declaration of Interdependence' are nothing
but neocolonial pretence. The interest among American jurists in 'transnational law' inconnection with the issues like how to promote safer international transactions is 'an
extremely tricky way for imperialism to destroy the principle of sovereignty.65 Later,
the list of imperialists who attacked sovereignty included the USSR.36 In place of the
USSR, China claimed to be a defender of small states. It is for this reason that a
Chinese legal scholar emphasises that 'any nation, regardless of its economic, politicaland cultural level of development, should in no way be deprived of its right to the claimof international entity.'37 The support for decolonisation was an important means tojustify the ideological standpoints in the Cold War.

Discourses on Sovereignty of the Third World
Decolonisation

The issue of sovereignty in the post-1945 world was intrinsically tied with theappearance of the 'Third World'. Through the rise of national independence movements,
the principle of sovereignty became linked to revolutionary agendas and was given a
new meaning. In the process of decolonisation the provision of Article 1 (2) and 55 of
the UN Charter, 'self-determination of peoples', was interpreted as a guarantee of theright of nations to independence. The judges of the International Court of Justice in the

35 Hsin and Chien, op. cit., pp. 110-117. See also Suzanne Ogden, 'Sovereignty and International Law: The
Perspective o f the People's Republic of China' (1974), pp. 10-16,22-30.
36 An example of a harsh Chinese criticism of the 'renegade' USSR invasion o f Czechoslovakia is Chi Hsiangyang, 'Smash the New Tsars' Theory of Limited Sovereignty' (1969), pp. 153-155.
37 Quoted from K'ung Meng, 'A Criticism of the Theories of Capitalist International Law on International
Entities and the Recognition o f States' (1960) in Ogden, op. cit., p. 17. As regards the argument that Tibet is nota state and China wields sovereignty over Tibet, YU Fan, 'Speaking about the Relationship between China andthe Tibetan Region from the Viewpoint o f Sovereignty and Suzerainty1(1959), pp. 395-404.

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case of International Status o f South West Africa in 1950 suggested that Namibia'constituted a subject of law . . . , possessing national sovereignty but lacking theexercise thereof.. . . Sovereignty . . . did not cease to belong to the people subject tomandate' and it 'had simply for a time, been rendered inarticulate and deprived of
freedom of expression.'38 More importantly, the Declaration of the Granting ofIndependence to Colonial Countries and Peoples adopted by the UN General Assemblyin 1960 provided 'all peoples' with 'an inalienable right' to 'the exercise of theirsovereignty'.
Here is a clear example of the conflict of ideas that evolved around the notion ofsovereignty. The ICJ and the UN General Assembly cultivated the revolutionary agendaof the doctrine of national sovereignty. Under the formula of the revolutionary doctrineof national sovereignty the 'nation' was conceived to be a natural entity. Whether
independent or colonised, a nation was a natural entity that had the natural right tosovereignty. The rule that classic international law had stipulated - international law
knows no nation, only the state - fluctuated in the process of the collapse of European
colonial systems. Just as popular sovereignty had been advocated by revolutionaries
against royal sovereignty, national sovereignty of colonised 'peoples' was now justified
against colonial state sovereignty.39 It is no wonder that Third World states that had
thrown off the yoke of the sovereignty of Western powers repeatedly invoked theimportance of the principle of sovereignty.40

Thus after the movement of

38 Quoted in Rebecca M. M. Wallace, International Law (1992), p. 66. See also 'Separate Opinion of VicePresident Ammoun' on the continued presence of South Africa in Namibia in 1970. Judge Ammoun argues thatthe law which denied a legal personality to Namibia under colonial and mandatory systems is obsolete. Namibia
always constituted a subject o f law, possessing national sovereignty but lacking the exercise thereof. It isbecause 'sovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore
did not cease to belong to the people subject to mandate.' I.C.J. Reports 1971, p. 68.
39 For instance, in advocating 'the principle o f racial sovereignty', Ali A. Mazrui insists: 'For many nationalists
in Africa and Asia the right to sovereignty was not merely for nation-states recognizable as such in a Westernsense but for "peoples" recognizable as such in a racial sense, particularly where differences o f colour weremanifest.' By defining colonialism as 'permanent aggression', namely, 'a violation o f racial sovereignty', Mazrui
proposes to extend the notion of'illegitimate sovereignty' to a paradoxical notion of'illegal sovereignty'. He
continues that 'if it was illegal to usurp the sovereignty of a people o f different colour, it could not be illegal toattempt the restoration of that sovereignty.' Mazrui, Towards a Pax Africana (1967), pp. 33-35, 39. The two
conflicting notions of sovereignty were discussed in Alfred Cobban's classic book. According to Cobban, 'thetrue function o f sovereignty' is the preservation of law and order, and the maintenance of the social fabric.
'National sovereignty, on the other hand, is irreconcilable with any solution o f the fundamental political problems
o f the modem world.' Cobban, op. cit., pp. 141-142.
40 For instance, see the Pact o f the Arab League (1945), Inter-American Treaty o f Reciprocal Assistance(1947), the Charter o f the Organization of American States (1948), the South-East Asia Treaty (1954), the 1954
Declaration by India and China (Five Principles of Peaceful Coexistence), the 1955 Resolutions of the 29-nation

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decolonisation, national sovereignty of 'peoples' converged on the formula of statesovereignty. The Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of the United
Nations of 1970 stipulates: 'The establishment of a sovereign and independent State ..
. constitute modes of implementing the right of self-determination by that people.'41
However, this was not the end of the conflict between national and constitutional
notions of sovereignty caused by decolonisation.
From the time of decolonisation the issue of sovereignty inevitably reflected a
divided world: sovereignty of the 'haves' and the 'have-nots'. This is a vision of adivided world that E. H. Carr formulated by contrasting the victors and the losers of theFirst World War. But the division of the two camps after decolonisation reasserted theconflict of the two notions of sovereignty on a globalised scale. While the majority ofWestern publicists were to be silent on different meanings of sovereignty and regarded
it as a formal common denominator of states, those in Third World and socialist states
saw international relations from the perspective of a divided world. One of theexamples of the perspective was the doctrine of 'permanent sovereignty over natural
resources', to which we shall now turn.

Permanent Sovereignty over Natural Resources

It is of importance for our study that the rule of 'permanent sovereignty over natural
resources'42 developed hand in hand with decolonisation. The General Assembly of theUnited Nations in which the number of newly independent states surpassed that ofBandung Conference (Ten Principles of Bandung), Charter o f the Organization o f African Unity (1963). The
principle o f sovereignty was also used within the US and USSR blocs to smooth the concern of the aligned small
states. See the North Atlantic Treaty (1949) and the Security Pact o f Warsaw (1955). See Marek Stanislaw
Korowicz, 'Some Present Aspects of Sovereignty in International Law' (1961) pp. 33, 54-56; Louis B. Sohn (ed.),Basic Documents o f the United Nations (1968), pp. 119,125-128.
41 Brownlie, op. cit., p. 43. Aureliu Cristescu writes: 'The self-determination o f peoples is thus the basis o f thesovereignty o f the State . . . Relations in the international community cannot be imagined without respect for thesovereign rights o f nations and peoples.' Cristescu, The Right to Self-Determination (1981), p. 47.
42 According to the definition of Aureliu Cristescu, 'Permanent sovereignty over natural resources means thatnatural resources belong to the peoples of the territory in which they are situated; that, whether or not thosepeoples constitute independent States, the resources in question must be exploited for their benefit; and that thelegal regime governing such exploitation must be established or modified in accordance with the will o f thosepeoples by their independent State or, in the case o f peoples still dependent, by the authorities administering
them.' See ibid, p. 71.

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industrialised states adopted a series of resolutions to enhance their development. In
1952 the Commission on Human Rights adopted a provision: 'The right of peoples toself-determination shall also include permanent sovereignty over their natural wealthand resources'. The words were deleted in the Third Committee of the General
Assembly in order to meet objections that it could be invoked to justify expropriation
without equitable compensation.43 Yet, the UN General Assembly Resolution 626 (VII)in the same year stated its awareness that 'the right of peoples freely to use and exploit
their natural wealth and resources is inherent in their sovereignty and is in accordancewith the Purposes and Principles of the Charter of the United Nations'.44 In 1954 thephrase, permanent sovereignty over natural resources, was coined in deliberations to
prepare the Covenants on Human Rights, although the suggestion to include the phrase
was finally abandoned.45 However, Resolution 1314 (XIII) of 1958 acknowledged that'the right of peoples and nations to self-determination . . . includes permanent
sovereignty over natural resources'.46 The establishment of the Commission on
Permanent Sovereignty over Natural Resources in the same year led to Resolution 1803
(XVII), adopted by the General Assembly in 196247 It declared: 'The right of peoples
and nations to permanent sovereignty over their natural wealth and resources must be
exercised in the interest of their national development and of the well-being of thepeople of the State concerned'. The most important 'nationalisation' provision in the
Resolution dictated: Nationalization, expropriation or requisitioning shall be based on
grounds of reasons of public utility, security or the national interest which arerecognized as overriding purely individual or private interests', while 'the owner shall

43 See ibid., p. 72.
44 Adopted with a vote o f 36-4-20. The United Kingdom and the United States were among the four countries
which voted against the resolution. See ibid., p. 73, A. Akinsanya, 'Permanent Sovereignty over Natural
Resources and the Future o f Foreign Investment1(1979), pp. 73. See also Mannaraswamighala Sreeranga Rajan,
Sovereignty over Natural Resources (1978), p. 16.
45 See Rudolf Dolzer, 'Permanent Sovereignty over Natural Resources and Economic Decolonization' (1986),
pp. 218. The United States and Great Britain voted against the 1955 Covenant on Human Rights as regards theright o f states over natural resources, while the Afro-Asian-Arab group supported it. See Akinsanya, op. cit., pp.
73-74.
46 With a vote of 52-15-8. The US was among the countries voting against. See Cristescu, op. cit.,
Akinsanya, op. cit., p. 74.
47 The resolution was adopted with a vote of 87-2-12. The UK and the US voted in favor o f it, after having
their joint amendments adopted. See Rajan, op. cit., p. 20; Somendu Kumar Banerjee, 'The Concept o f
Permanent Sovereignty over Natural Resources - An Analysis' (1968), pp. 528-535.

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be paid appropriate compensation'.48 This is a resolution of a compromise between
developing and developed states, in other words, from the perspective of our study,
between an ideal of national sovereignty and the protection of the private sphere, apremise of constitutionalism. The conflict continued for the next decade, but withininternational organisations it gradually evolved in favour of the demand of nationalsovereignty.49
The notion of permanent sovereignty over natural resources reached its high pointin the 1970s. Resolution 3016 (XXVII) of 1972 reaffirmed the rights of states topermanent sovereignty over natural resources and declared that any coercion against astate seeking to exercise its sovereign rights over natural resources was a violation of
the UN Charter.50 The UNCTAD Resolution 88 (XII) in 1972 declared that any disputes
resulting from permanent sovereignty fell within national courts.51 The General
Assembly Resolution A/3171, passed in 1973, treated domestic law as being the only
source of law relevant to expropriations of alien property.52 In 1974 the General
Assembly adopted Resolution A/3201 (S-VI) and 3202 (S-VI), the Declaration on the
Establishment of a New International Economic Order and the Program of Action on the
Establishment of a New International Economic Order.53 They went beyond previous
pronouncements by calling for a right of restitution and full compensation on the partof developing countries in order to compensate for previous measures of exploitation.
The Charter of Economic Rights and Duties of States, passed as Resolution A/3281(XXIX) in 1974, stipulated the rights derived from 'full permanent sovereignty of every
state over its natural resources and all economic activities' 'to regulate and exercise

48 See Brownlie, op. cit., pp. 237-238.
49 For instance, the General Assembly Resolution 2158 (XXI) of 1966 reiterated the principle o f permanent
sovereignty. It was adopted by a vote of 104-0-6, with the United States among the countries abstaining. Other
examples are Resolution 2173 (1966), 2542 (1968) and 2692 (1970). See Cristescu, op. cit., p. 75; Akinsanya,
op. cit., pp. 79, 90.
50 Adopted by a vote of 102-0-22, with the US among the countries abstaining. See Akinsanya, op. cit., p. 90.
Security Council Resolution 330 (1973), adopted by 12 votes to none with 3 abstention, noted 'with deep
concern the existence and use of coercive measures which affect the free exercise o f permanent sovereignty overthe natural resources o f Latin American countries.' See Cristescu, op. cit., p. 75.
51 See Akinsanya, op. cit., p. 78.
52 Adopted with a vote o f 108-1-16, with the United Kingdom voting against, and the United States, France,
Japan and West Germany abstaining. See ibid', Elian, op. cit., p. 105.
53 Adopted without a formal vote. The United States, Japan, France, West Germany and the United Kingdom
entered reservations to both resolutions. See Akinsanya, op. cit., p. 78.

227authority over foreign investment', 'to regulate and supervise the activities oftransnational corporations' and 'to nationalize, expropriate or transfer ownership offoreign property'.54 The Charter carried the exclusive emphasis of the domestic legal
order over natural resources to its logical extreme.
By 1974 the concept of permanent sovereignty over natural resources had become
the political demand for a new international economic order and went beyond thelimited aim of terminating colonial arrangements.55 It is noteworthy that there were 875
cases of nationalisation or take-over by 62 countries during the period 1960 to mid1974.56 That indicates the 'dramatic shift toward absolute sovereignty and towards anextreme version of economic self-determination beyond the process of decolonization'.57
It was no accident that the oil crisis caused by the OPEC actions in 1973 occurred at
the high point of the principle of permanent sovereignty over natural resources. The
Declaratory Statement of Petroleum Policy in the Member Countries of OPEC, issued
in 1968, had already emphasised 'the inalienable right of all countries to exercise
permanent sovereignty over their natural resources'. Rilwanu Lukman maintains thatthe collective actions of the OPEC members derived from this principle. They adopted'collective sovereignty' over individual sovereignty. It was based on 'the determinationof OPEC's Member Countries to establish their right to exercise sovereignty over their

54 Adopted with a vote of 120-6-10. The US and the UK among the countries voting against. See Brownlie,
op. cit., pp. 240, 244-45.
55 For instance, the Economic Declaration of the Fourth Conference of Heads o f State and Government o f
Non-Aligned Countries of 1973 states: 'The Heads o f State or Government denounce before world public opinion
the unacceptable practices of transnational companies which infringe the sovereignty o f developing countries andviolate the principles o f non-interference and the right of peoples to self-determination1. See Cristescu, op. cit.,p. 78. By contrast, the sole arbitrator Depuy in Texaco v. Libya case decided that in terms o f the voting pattersand other reasons, Resolution 1803 of 1962 seemed to reflect customary law but the Charter of Economic Rights
and Duties o f States was a 'political rather than legal declaration concerned with the ideological strategy ofdevelopment and, as such, supported only by non-industrialized States.' See Robert B. von Mehren and P.
Nicholas Kourides, 'International Arbitrations Between States and Foreign Private Parties' (1981), p. 526.
56 See Wang Xuan, 'Permanent Sovereignty of States over Natural Resources' (1983), pp. 144.
57 Dolzer, op. cit., p. 222. It may be added that to a certain extent the development o f the law o f the sea wasbased on the same presupposition of national sovereignty over natural resources. For instance, the Convention of
the Territorial Sea and the Contiguous Zone (1958) stipulates in Articles 1 and 2: 'The sovereignty o f a State
extends, beyond its land territory and its internal waters, to a belt o f sea adjacent to its coast, described as theterritorial sea.' 'The Sovereignty of a coastal State extends to the air space over the territorial sea as well as to its
bed and subsoil.' The Continental Shelf Convention also points out: 'The coastal State exercises over thecontinental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.' See
Brownlie, op. cit., p. 89, 119. The UN General Assembly in 1970 and 1972 adopted Resolutions 2692 (XXV)and 3016 (XXVII) expanding the permanent sovereignty o f the States over natural resources to the contiguous
water zones and superjacent waters over the continental shelves. See Xuan, op. cit., p. 131. See also George
Elian, The Principle o f Sovereignty over Natural Resources (1979), pp. 88-89.

228

own hydrocarbon resources.' OPEC's Secretary General thus explains that in the system
of OPEC 'each Member agrees not to exercise one aspect of its sovereign rights - theright to determine its own level of oil production - in the knowledge that the effects ofthe collective sovereignty that the Organization exercises on behalf of its Member will or at least should be - beneficial.'58 It may be added that 'collective sovereignty' wasexercised in the early 1970s with a clear intention to challenge the post-war political andeconomic system established by the West.
While the theory of permanent sovereignty over natural resources was generally
regarded as a nuisance in the West especially in terms of the problem of compensation
to investors in the event of nationalisation, it was strongly defended by mostpractitioners and publicists in Third World and socialist countries. The delegates of thedeveloped countries spearheaded by the UK and the US maintained that an agreementwith investors, far from limiting sovereignty, was an exercise in sovereignty. Theyemphasised the complementarity and validity of contractual and international law
obligations of states. By contrast, the developing countries in the United Nations insisted
that sovereignty was indivisible, that the political and economic aspects of sovereignty
could hardly be separated from each other and that the right of sovereignty over natural
resources was a corollary to the right of self-determination.59
A brief look at the debate in the United Nations General Assembly indicates thedepth of the commitment of Third World, as well as socialist states, to the issue ofpermanent sovereignty. For instance, a representative of Algeria asserted that the
principle of the right of sovereignty over natural resources is to economics what theuniversally-recognised principle of the right of peoples to self-determination is topolitics. The representative of UAR said that 'absolute sovereignty' was essential toeffective planning and projection. The Iranian representative proclaimed that under the
principle of sovereignty, every state had an unlimited right to dispose of its natural
resources as it saw fit. According to a Yugoslav delegate, economic sovereignty was
58 Rilwanu Lukman, 'OPEC: Collective or Individual Sovereignty?' (1996), pp. 4-6.
59 See Rajan, op. cit., pp. 39-100. It is also interesting to see that Geoffrey Chandler o f Shell International
Petroleum Company wrote: 'We should therefore not start lamenting prematurely a hypothetical world dominatedby mythical beasts (a few hundred companies), but consider coolly whether there is not a danger thatinternational enterprise . . . may be circumscribed before its costs and benefits have been weighed in the balance,or even understood.' Chandler, 'The Myth of Oil Power: International Groups and National Sovereignty' (1970),
p. 718.

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the essential complement of political sovereignty and inconceivable without fullsovereignty over natural resources. The Soviet Union took advantage of the debate byaccusing the Western powers of sidetracking the question of sovereignty for the sake ofprivate capital. A Chilean delegate pointed out that the term 'economic sovereignty' wasincomprehensible to industrial countries because of the extent to which it was a reality
for them. For a representative of Guinea, permanent sovereignty over natural resources
was linked to a state's very existence. The Indonesian representative also stated that anation did not really achieve full sovereignty until it became economically independent.
A representative of Iraq argues that the United Nations was obliged to assist developing
countries in acquiring sovereignty over natural resources and a delegate of Byelorussia
said that the UN should strive to have the principle of sovereignty over natural resources
made universal practice in international relations. The representative of Ecuador
explained their position thus: 'It was a matter of recognizing that the twentieth century
was the century of nationalism, which was nothing but the total expression of nationalsovereignty'.60
In a document prepared for the United Nations, Aureliu Cristescu declares thatpermanent sovereignty over natural wealth and resources is vested in peoples
themselves, by virtue of their right of self-determination, whether or not they constituteindependent states. Accordingly, nationalisation is a sovereign act of the state. For
newly independent states nationalisation is a means of achieving economic
independence; nationalisation measures are a part of the struggle of peoples for national
liberation. The state has the sole right, by virtue of its sovereignty, to regulate questions
relating to ownership, acquisition, transfer and deprivation of property. Since thenationalisation of the property of foreigners is an act of sovereignty, it cannot be
reviewed or challenged at law by other states or by any international organisation.61
Among the publicists who enthusiastically support the doctrine of permanent
sovereignty, George Elian of Rumania proclaims that sovereignty over natural resources
is the 'fundamental, permanent right of States and people . . . to manage its own natural
resources in its own way' and that it is 'the supreme prerogative of the State.' He

60 See Rajan, op. cit., pp. 40-61.
61 See Cristescu, op. cit., p. 78-79.

230continues that 'However diverse the forms of internal ownership of natural resources,
it is the State that has a determining say in the internal utilization of its resources andriches, in guiding international trade and business exchanges as well as in their carrying
out.' It is because 'Sovereignty includes the right of the State to freely exploit its
resources and wealth on the basis of its economic independence.' In other words, 'there
can be no complete sovereignty unless economic liberation is achieved alongsidepolitical emancipation.' Elian adds that the universality of Western sources of law is nolonger accepted. Thus he justifies the objectives of OPEC as the establishment of theirpermanent sovereignty.62
Wang Xuan at the Beijing Institute of Political Science and Law also explains thatpolitical and economic sovereignty are interdependent. Thus he is sympathetic to theapplication of permanent sovereignty over natural resources. He justifies the rule thatthe amount and the mode of compensation should be decided by national laws. It rules
out 'the unreasonable demand which developed countries may raise because the socalled "rapid, full and effective" compensation is in fact impossible in view of theeconomic situation in the developing countries.' When the question of compensation
gives rise to a controversy, it should be settled under the domestic law of thenationalising state and its tribunals. He concludes: 'This stipulation in the Charter is astrong measure to safeguard the permanent sovereignty of the developing countries overtheir natural resources and ensure thier (sic) effective exercise of this sovereignty.'63
The advocates of permanent sovereignty over natural resources did not always justify'absolute' sovereignty that may override any other authorities and private investors in any
circumstances. But still they resorted to the theoretical conclusion derived from thevision of'complete' national sovereignty. As a result, despite the doubt cast by Westernjurists upon the binding effect of resolutions of the UN General Assembly, it was moreor less accepted by the majority of states that nationalisation or expropriation became
lawful in international law and disputes concerning compensation were deemed to fallwithin the national jurisdiction. As Georges Abi-Saab of Egypt argued, 'permanent'sovereignty 'cannot be severed from territorial sovereignty'. This means in the first place

62 Elian, op. cit., p. 11-12,15,27, 29, 71-72.
63 Xuan, op. cit., pp. 125,146.

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that natural wealth and resources by their very nature 'always fall in the public domainof the State.'64 The new paradigm is justified because it calls upon the concept ofsovereignty to reinforce sovereign equality and to invest it with a more substantive
rendering. The legal regime of permanent sovereignty is constructed upon the premisethat 'the principle of permanent sovereignty lays the ground for a more balanced, hence
more meaningful and stable co-operation.'65 In other words, the advocates of permanent
sovereignty are the people who believe that international co-operation is to be achieved
only when the principle of sovereign equality realises its 'full' substance in the actual
world.

It is no wonder that UN Secretary-General Kurt Waldheim remarked in 1977:
National sovereignty and national feeling are a vital element of our society.66 There
was a revitalisation of the theory of national sovereignty in the post-1945 world.
Paradoxically, communism, which was originally hostile to the idea of sovereignty, wasa major factor in solidifying the principle of national sovereignty during the Cold War.
More importantly, decolonisation and nationalism in Third World states globalised theprinciple of national sovereignty by the 1970s.67 All these were the achievements of thetheory of national sovereignty.
But in the 1980s the conditions in those blocs changed rapidly and significantly. As
it became more and more evident that the political and economic power of the Soviet
Union was declining, communism lost its ideological power. The justification ofnational sovereignty that was founded upon the hostility towards capitalism lost

64 Georges Abi-Saab, 'Permanent Sovereignty over Natural Resources and Economic Activities' (1991), p.
602.
65 Ibid., p. 615.
66 Quoted in Elian, op. cit., p. 85. Waldheim also remarked in the 1975-6 Annual Report: 'We live in atransitional period when the undoubted fact o f increasing interdependence has by no means decreased the poweror the prevalence of the concept of national sovereignty.' Quoted in Rajan, op. cit., p. 151.
67 It was not until the end o f the sixties that the universal system of international law became almost complete;
the whole earth came to be covered with numerous 'sovereign and equal' nation-states. For instance, in contrast
with the nineteenth century orthodoxy of international law, nothing in the late sixties obstructed the statementthat 'neutralized states are also sovereign states.' Furthermore, 'the class of semi-sovereign states has become
obsolete.' To the lawyers' relief, in addition, 'The former League o f Nations mandates and those later transferredto the United Nations system as trust territories have all become independent nations', with a few exceptions. See
William L. Tung, International Law in an Organizing World (1968), pp. 43-47. As regards the difficulty o f the
problem o f sovereignty in trust territories in the early fifties, Hans Kelsen, The Law o f the United Nations (1950),
pp. 688-694; L. Larry Leonard, International Organization (1951), pp. 509-514.

232

validity.68 Furthermore, the trend that had produced permanent sovereignty over natural
resources was reversed in some areas. Instead of nationalisation, host countries offeredlegal arrangements to attract foreign investment. The new trend was that the 'radicalemphasis on an absolute concept of economic sovereignty and the corresponding
negative attitude toward foreign private investment has disappeared in the light ofsobering economic realities'.69
In parallel and in compliance with these changes, Western countries no longer felt
the necessity to disingenuously support the newly emergent Third World. In the courseof the 1980s they would become more self-assertive as regards traditional liberalprinciples. We shall see in the next chapter how discourses regarding constitutionalsovereignty in Britain and the United States struggles with and gradually displaces thediscourses regarding the national sovereignty of non-Westem countries.

68 See Jones, op. cit., pp. 230-256.
69 Dolzer, op. cit., p. 230.

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Chapter 9 Towards New Constitutional
Sovereignty
In this chapter we shall examine the discourses on sovereignty in the 1970s and1980s. We shall see that this period marks a new tendency in the understanding ofsovereignty. For a long time international politics took the anthropomorphism ofnations for granted. A great conceptual change in the period was the decline ofinternational anthropomorphism. In 1966 Foucault asserted in The Order o f Things thatthe 'death of man' was becoming a contemporary conceptual problem. In our study thismeans a relative decline of the importance of the nation as the subject of sovereignty.
Indeed, the interwar projects to implement an international constitution disappeared in
the field of international studies and were replaced with the highly formal doctrine ofsovereignty. To write a constitution for international society relied on a simple domestic
analogy, i.e. the anthropomorphism of nations. By contrast, a new mode of international
constitutionalism delineates sovereignty in a conceptually different sphere; it does not
limit sovereignty, but formalises it within the framework of international society.
From the time of the Soviet invasion of Czechoslovakia, the doctrine of 'limited
sovereignty' became primarily associated with the USSR. The Western camp that had
blamed the USSR for its vigorous adherence to sovereignty now labelled the USSR as
the usurper of the principle of sovereignty. In addition, sovereignty in the decolonised
world did not simply represent a problem of anarchy, but also a principle of theprotection of formerly colonised peoples. Does this not mean that sovereignty ought tobe observed rather than attacked? The task to be accomplished by Anglo-American
theorists was no longer to limit sovereignty, but to conceptualise international society,which was founded upon sovereignty as its constitutive principle and still contained akind of constitutional rules. International society is primarily a society of states. But
it is not a chaotic meeting place of absolute sovereigns egoistically pursuing power.
There is no international constitutional law, nor is there a world government. But many
feel that it ought to have, and has continued to have to some extent, the values of234

constitutionalism like the protection of individual rights and free economic activities.
International society has its own rules in which sovereign states are embedded. I shallcall this phenomenon 'new international constitutionalism'. Few dared use the word,
constitutionalism, to describe international rules. But the lack of a constitutional world
government did not change the fact that international society had its own constitutionalrules and principles.
This chapter identifies the gradual emergence of the new kind of international
constitutionalism. I shall explore in the first two sections leading theories in Britain andin America in the 1970s and 1980s. Furthermore, in the historical context I shall focus
on the theoretical connotation of the emergence of the restrictive theory of sovereign
immunity together with discourses on human rights.

Sovereignty in International Society
British politics in the 1970s evolved around the issue of the European Community.
But despite the significance of the entry into the EC in terms of the doctrine ofsovereignty, the majority of people behaved in a practical way.1 Although the opponentsof the British entry into the EC repeatedly mentioned sovereignty, mainstream
intellectuals rationalised 'constraints on economic sovereignty' for real gains.2 The proCommunity side emphasised that entry was a practical exercise of British sovereignty
and there would be no loss of it. It should be emphasised that the implementation of areferendum after the decision by parliament was also innovative from the perspectiveof traditional parliamentary sovereignty. The validity of parliamentary sovereignty wasleft in the air, for both sides needed the confidence of popular votes. The applicationof a referendum meant that Dicey's 'political sovereign' was put in the position to givesanction to the 'legal sovereign'. But such a theoretical argument was beside the point

1For instance, see two pro-EC Conservative Members of Parliament, Tufton Beamish and Norman St JohnStevas, Sovereignty: Substance and Shadow (1971). Edward Heath, British prime minister at the time o f theentry into the EC, attributes the change in the meaning of sovereignty to interdependent international society.
Heath, The Place o f Sovereignty in an Interdependent world (1984).
2 See John Williamson, 'Constraints on Economic Sovereignty' (1972). See also William Wallace, The
Illusion o f Sovereignty (1979).

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in the face of so practical a problem as the entry into the EC. Britain continued toremain sovereign, although publicists admitted that the European Communities Act
1972 gave primacy to Community Law over the parliament of Great Britain.3
Sovereignty survived within the intensive web of international rules and institutions; itproved its tenacious nature. Moreover, British politicians repeatedly resorted to the ideaof sovereignty when they negotiated with the other members of the Community for
British national interests. Sovereignty, which was no longer absolute, was persistent.
It never died; rather, it showed its value in a strong international institution.
Interestingly, during this period there arose the major statements of the 'English
School' in the discipline of international relations. The English School was a rareexample in maintaining the concept of sovereignty as a basis of political theory. In the
period of the 'apparent paradox', namely, 'the near-universal denial of the fundamental
importance of sovereignty at the moment of its universal triumph',4 the English School
approach aimed to examine the historical paradox.
One of the characteristics of the English School was to identify international society
in the conceptual framework of international rules and principles. For instance, F. S.
Northedge together with M. J. Grieve emphasises that the confusion about sovereignty
derives from the misunderstanding that sovereignty means supremacy above the law.
This may be true for internal sovereignty. But in speaking of the external aspects ofsovereignty, in terms of the state as a whole in relation to other states, to be a sovereignstate is not to be above the law; it is to be subject to 'all the existing rules and obligationsof international law, and only sovereign states and, to some extent, international
institutions can be so bound since other entities have no locus standi in the sight ofinternational law.'5 Northedge's argument is characterised by a strong belief in theexistence of international society. Sovereignty does not exist prior to international

3 See J. D. B. Mitchell, 'The Sovereignty of Parliament and Community Law' (1979), pp. 33-46; M. A. Fazal,'Entrenched Rights and Parliamentary Sovereignty' (1974), pp. 295-315; Chijioke Dike, 'The Case against
Parliamentary Sovereignty' (1976), pp. 283-297. But John Taylor argues that 'losses of sovereignty Vemore
apparent than real. Taylor, 'British Membership of the European Communities' (1975). The orthodox
interpretation is, as Roy Piyce says, that the British entry into the EC is not a surrender o f sovereignty, but 'thevoluntary acceptance of self-imposed rules of conduct governing the exercise of sovereignty by a group o f states.'
Pryce, The Politics o f the European Community (1973), pp. 52-55.
4 Christopher Brewin, 'Sovereignty' (1982), p. 35.
5 Northedge and Grieve, A Hundred Years o f International Relations (1971), pp. 342-343.

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society.6 It is embedded in international society. The sovereign state 'could not exist
outside the international political system.'7 Even if Northedge's ideas are not completely
shared by all other scholars in the English School, the importance of the notions ofinternational society and sovereignty within it is a core interest that characteris©the
School.

Constitutional Insularity

C. A. W. Manning, one of the leading scholars in the English School, starts with thetraditional approach of the analogy between natural and artificial persons.

Heemphasises that constitutional law as well as international law is binding 'in idea'; it is'a matter of dogma'.8 Ascertaining this claim, Manning finds that the world of ideas,
constitutional law, can work on the consent of individuals in a society. Similarly,
international law is a product of the consent of states as constitutive entities. The ideathat constitutional law is binding is 'logically pre-\egal dogmatic premise number one';international law exists because sovereign states as the members of international society
accept as self-evident the value of a modicum of voluntary collective self-discipline.
They do so through diplomacy from a natural necessity for coexistence. Thus Manningdefines sovereignty as 'an aspect of their [states'] nature as organizations constitutionallyinsular' The individual members of domestic society have the competence to exist andto function as human beings primordially independent of municipal law. Accordingly,'the nature of the sovereign states as constitutionally insular is analogous to that of theindividual as a developed personality, dependent indeed upon society, yet at the sametime inner-directed and self-contained.'9
Manning's logic of constitutional rules relies on the existence of constitutional

6 For instance, compare Northedge with a contemporary publicist, D. J. Latham Brown, who identifies two
sovereigns that differ from Northedge's notions of sovereignty. Natural sovereignty' is the degree o f
independence and concerns a relationship of power. Potentially each man and woman has natural sovereignty,
but they abandon it by accepting the notional social contract. Positive sovereignty is the limited internal
authority. Namely, according to Brown, while internal sovereignty is limited and social, external sovereignty isnatural and concerns power relationship. Brown, Public International Law (1970), p. 11.
7 Northedge, The International Political System (1976), pp. 143-144.
* Manning. 'The Legal Framework in a World of Change' (1972), p. 306.
9 Ibid., p. 306-307.

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principles in international society, while he does not intend to apply a domestic
constitution to international society. Although constitutional law and international law
are two different legal systems, and the perception of constitutional aspects ininternational society no longer relies on a simple domestic analogy, a fortiori, therelationship between international law and sovereignty are no more contradictory than
the relationship between constitutional law and the individual. For Manning externalsovereignty no longer entails supremacy.

External sovereignty that constitutes

international society is 'constitutional insularity or self-containedness' that belongs to'the state as such, as an international person, a performer upon the international stage.'10
Manning does not say that this definition is the only meaning of sovereignty. But heinsists that international society is based on the notion of sovereignty defined as'constitutional insularity'. The effort to impose a written constitution upon internationalsociety misses this point. International society is not simply a primitive figure ofdomestic society. It is a society of corporate persons that has its own rules andprinciples. As even constitutional law in domestic society rests on the acceptance of its'pre-legal dogmatic premise' by individuals,11 international law stems from theacceptance of'pre-legal' rules and norms by sovereign states.
Alan flames follows Manning, taking his argument in a more formalistic direction.
In the early 1970s James argued that sovereignty had two sides. The first is supremacy,
the location of which in a state is almost impossible to find. But James emphasises that
this does not deny the theory of sovereignty as the state as a whole possesses
sovereignty. The sovereign state is still supreme as a distinct constitutional system; itis the sole guardian of its constitution. As long as there is no constitutional superior, thesovereign state is supreme in constitutional terms. The second aspect of sovereignty is
separateness. No matter how much the state seems permeable, interdependent andrestrained, it is sovereign as long as it is constitutionally separate. This constitutional
self-containment is a necessary consequence of the state's supremacy. This does notmean that sovereignty has internal and external aspects.

10Ibid., p. 308.
11 This point applies to English constitutional law in particular.

238

The supremacy andseparateness of the state is the same thing in terms of its constitutional status.12 The
importance of sovereignty lies in the fact that it is the requirement for membership ofinternational society. Only the entities which are able to demonstrate their sovereign
status can enter international society to enjoy their pre-existing status and acquire newrights and duties.13
Sovereignty is the qualification which states must have before they can joininternational society.14 James's peculiarity lies in this belief. To say that sovereignty
exists before states join international society is different from saying that the membersof international society are sovereign states. James's position implies that sovereignty
is an independent factor of social conditions. He argues that sovereign states existed in
the beginning of the sixteenth century or before it.15
In the middle of the 1980s James refined his argument by defining sovereignty as'constitutional independence'. James explains that the state is composed of the threeelements of the Montevideo conditions: a government, territory and population. Thus
he speaks of a territory which itself becomes sovereign, as territory is part of thesovereign entity.16 Sovereignty resides in the constitutional structure of the state that isconceived to be independent.

'Constitutional independence' exemplifies formal

conditions of state sovereignty, and nothing more.17 It is furthermore evident that
James's notion of sovereignty is highly formal and ahistorical. For instance, Jamesadmits that sovereignty is sometimes used as a synonym of ownership,18 implying there

12 James, 'The Contemporary Relevance o f National Sovereignty' (1972), pp. 17-19.
13 Ibid., p. 29.
14 James, 'International Society' (1976), pp. 103-104.
15 Ibid., p. 105. It is theoretically possible that sovereignty as constitutional insularity might exist even in
Jupiter or Pluto. See the implication of this point in James, Sovereign Statehood (1986), p. 34.
16 See Ibid., pp. 13, 23-25.
17 With almost the same intention as James's, David T. Llewellyn, in discussing monetary integration,
distinguishes 'constitutional and effective sovereignty1. The former defines a national government's ability to use
instruments o f policy at its own discretion and independently of other countries. The latter relates to the powero f government to independently determine the value of significant target variables in the economy. A
government may have little effective sovereignty even though its constitutional sovereignty is unquestioned. See
Llewellyn, International Financial Integration (1980), p. 198. See also Robert H. Jackson's distinction between'the constitutive rules o f the sovereignty game' which include 'civil international relations' like legal equality o fstates, and 'the instrumental part o f the sovereignty game' employed by statesmen in pursuing their interests.
Jackson, 'Quasi-States, Dual Regimes, and Neoclassical Theory' (1987), p. 522. See also Robert Keohane's
distinction between 'formal sovereignty' and 'operational sovereignty', in Keohane, ‘Sovereignty,
Interdependence, and International Institutions' (1993), p. 91.
'* James, op. cit., pp. 33-34.

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are political struggles for sovereignty. However, he is not interested in this notion ofsovereignty, as it cannot provide the 'basis of international society'. Interestingly, heargues that the member states in the European Community are still sovereign in his
sense; otherwise, although it is unlikely, the Community itself becomes a sovereignstate, reducing the number of sovereign states in one area of the world.19
Why is the basis of international society so important? The answer may be found in
the argument of Geoffrey L. Goodwin. He reinforces the Manning-James definition ofsovereignty as constitutional separateness. But he also distinguishes between external
and internal sovereignty as equality and supremacy: the status of and the capacity to
exercise sovereignty. This implies that the debate on the 'erosion' of sovereignty may
be to some extent applicable in the sphere of internal sovereignty and the capacity to
exercise it. But as far as the external aspect and the status of sovereignty*** concerned,
there is no evidence of its imminent demise. Rather, peace through the reconciliationof sovereignty with international order is achieved in line with the 'rationalist' and'realist' schools. According to Goodwin, the rationalist holds that:a system of international order analogous to that to be found in domestic society canbe achieved without setting up some kind of common authority with power to enforce
edicts on the rest of mankind . . . . There is here the Lockean assumption that, as indomestic society, the majority can be counted upon to act together to maintain apeaceful and relatively just order because of the majority's sense of obligation to thecommunity of nations as a whole.20
The rationalist's perception of international society is 'a quasi Gemeinschaft. To therealist, international society is a Gesellschaft.21
If international society is founded upon the 'Lockean assumption', there must be
something corresponding to natural rights of the individual: something existing prior to
the establishment of political power. Sovereignty is the vital right in a society of states.
The Lockean premise is that individuals protect their rights according to reason without
conflicts. English School theorists think that were it not the case that sovereignty was

19 See ibid., pp. 30-31.
20 Goodwin, 'The Erosion of External Sovereignty' (1974), pp. 101-102, 116.
21 Ibid, p. 102.

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as important as natural rights, international society would lack its constitutive principle
and become theoretically groundless.
Among English School scholars a certain domestic analogy was still valid. However,they no longer aspired after an international constitutional law or deplored its absence.
Their strong belief in international society paved the way for the recognition ofinternational rules that were not simply reduced to positive international law.
Sovereignty for them was not a natural attribute of living nations. It was a constitutive
principle of international society, which has its own constitutional structure distinct fromdomestic.

Sovereignty and the Antithesis between Order and Justice

Hedley Bull stands in a slightly different position from that of other scholars of the
English School. While he shares the basic ideas of international society with others, hisnotion of sovereignty is not as formalistic as James's. Bull also refers to multiple
perspectives on sovereignty within international society that reflect the conflict of ideas
in international society.
According to Bull, the state is an independent political community, which 'possesses
a government and asserts sovereignty in relation to a particular portion of the earth's
surface and a particular segment of the human population'. Bull then defines 'internalsovereignty' as 'supremacy over all other authorities within that territory and population.''External sovereignty' is 'not supremacy but independence of outside authorities.' He
adds that sovereignty of states may be said to exist at a normative as well as a factuallevel.22 This inter-authority definition of the sovereign state as a political community
makes a contrast with the more legalistic description of sovereignty by Manning andJames. This leads Bull to contain political dynamism within the notion of sovereignty.
On the one hand, Bull respects the principle of sovereignty as the very foundation ofinternational society. Bull stipulates that international society exists 'when a group ofstates, conscious of certain common interests and common values, form a society in thesense that they conceive themselves to be bound by a common set of rules in their

22 Bull, The Anarchical Society (1977), p. 8.

241relations with one another, and share in the working of common institutions.' Then Bull
searches for international order defined as a pattern of activity that sustains theelementary or primary goals of international society.23 There exists 'a common set ofrules' that sustains international order. The study of order thus seeks to identify 'thefundamental or constitutional normative principles', 'the rules of coexistence' and othercomplex rules. Indeed, because the domestic analogy derived from Hobbes does not
apply perfectly to international society, Bull chooses 'Locke's conception of the state ofnature as a society without government'24 State sovereignty is, of course, one of themost 'fundamental or constitutional' principles in Lockean international society.
On the other hand, Bull conceives of sovereignty in a way that reflects the dynamic
or conflicting nature of international politics; Bull differentiates the ideas of sovereignty
according to his famous antithesis of order and justice. Bull notes that the antithesis of
the two values is 'the clash between the preoccupation of the rich industrial states withorder (or rather with a form of order that embodies their preferred values) and thepreoccupation of poor and non-industrial states with just change.'25
Given Bull's emphasis on the conflict between order and justice, it is hardly
surprising that he identifies sovereignty as a major conceptual battlefield between these
two norms. On the one hand, one of the elementary, primary or universal goals ofinternational order is to sustain sovereignty. The goal of stability in international society
is reflected by the compact of mutual recognition of sovereignty. This is the value ofsovereignty for 'the rich industrial states'.26 On the other hand, the right of states tosovereign independence exemplifies 'arithmetical justice'. Bull means by 'international
or interstate justice' moral rules like the idea that all states are equally entitled to therights of sovereignty. A moral right to sovereignty constitutes 'substantive justice'.
'Poor and non-industrial states' would cherish this aspect of sovereignty.27 It may beclaimed that this antithesis reflected decolonised international politics in the late 1970s.
Bull eventually takes sides with order by saying that justice 'is realisable only in a

23 Ibid., p. 13.
24 Ibid., pp. 67-71,48.
25 Ibid., p. xii.
26 Ibid., pp. 17-19.
27 Ibid., pp. 80-82.

242context of order.'28 This implies that Third World demands for justice should besatisfied only after 'the rich industrial states' have secured the maintenance ofinternational order. It should be recalled that according to Locke the supreme power ofthe people was permitted to be exerted only when a revolution was justifiable as a resultof tyranny. Dicey designated political sovereignty, de facto popular sovereignty, but
excluded it from the sphere of the rule of law. Nineteenth century British international
lawyers used to distinguish between sovereign and semi- or non-sovereign states inorder to construct international order, as Schwarzenberger still drew on the ranks ofsovereign states in the twentieth century.
However, the tradition of English constitutionalism is also characterised by an
instinct of the rationalist principle of 'the golden mean'. In fact, Bull notes that ordershould not be taken to be a commanding value.29 It is noteworthy, therefore, that in aseries of lectures delivered in 1984 Bull is more inclined to the 'golden mean' position.
This optimistic prospect for the possibility of'the golden mean' represents a revival of
the unequivocal reaffirmation of Western values in the 1980s. He observes that theunderstanding of'limits of growth', the oil price rise and growing recession in the early
1970s made the idea of cooperation between developed and developing countries go into
retreat. As a result, 'the assertion by Third World states of their rights of sovereignty,
and their tendency to define the rights in absolute and uncompromising terms, stand in
conflict with the view prevailing in Western countries that the rights of sovereign states
today are qualified by their obligations to the international community.60 In spite of thedemands of Third World states, Bull emphasises, as a concept of justice 'we' should
embrace, that 'The rights of sovereign states, and of sovereign peoples or nations, derivefrom the rules of the international community or society and are limited by them.' The
doctrine of the natural or inherent rights of absolute sovereignty over natural resources
cannot be acceptable 'now', whatever case might have been made out at earlier periods.
The idea of sovereign rights existing apart from the rules of international society has tobe rejected.31
28 Ibid., p. 86.
29 Ibid., p. 98.
30 Bull, Justice in International Relations (1984), pp. 4, 6.
31 Ibid., p. 11-12.

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It is striking that Bull became willing to invoke the agenda of Western values in thedecade in which self-confident neo-conservative statesmen seized power in GreatBritain and the United States. Bull also modifies the contrast between the North and theSouth in relation to order and justice, which he himself accepted several years ago. On
the one hand, Third World states have a stake not only in just change but also ininternational order. On the other hand, the Western states should pursue not only order
but also justice in their own values. Bull proclaims that 'The world society of individual
human beings entitled to human rights as we understand them exists only as an ideal,
not as a reality; but if it is our ideal, this must help to shape our policy.132
According to Bull, the conservative argues that order should be given priority andthat demands for just change may place international order in jeopardy.

The

revolutionary considers that justice should be preferred even at the price of order. But'The inclination of the liberal in this situation is to seek a third course' and seek for waysof reconciling the one with the other. Although the liberal position cannot always beachieved, 'There is political wisdom as well as generosity in the liberal impulse toreconcile these two goals, and the attempt is sometimes successful.'33 This may seemto signal Bull's conversion from a theorist of order to a theorist of liberal justice. But
it should be recalled that from the beginning Bull searched for a set of rules ofinternational society. Thus his liberal position in the 1980s is no more than an extensionof his earlier position.34
Bull as well as other English School theorists illustrated the end of an era in which
intellectuals deplored the lack of a constitution in international society. They all strove
to prove that constitutional rules, different from those in domestic society, were in
existence in international society. They were not exceedingly illuminating from theview of traditional constitutionalism. They were not exempt from realist 'statism'.
However, they still pursued and identified the constitutional elements in international

32 Ibid., p. 13.
33 Ibid., p. 18.
34 A similar method o f analysing international society by means of the two concepts of sovereignty isdeveloped by James Mayall in his argument of'prescriptive sovereignty' and 'popular sovereignty'. The'development of the first truly global international society that the world has known' is the result o f anaccommodation between 'the prescriptive principle o f sovereignty and the popular principle of national selfdetermination.' See Mayall, Nationalism and International Society (1990), p. 35.

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society.

Sovereignty in Structures and Regimes
The 1970s was the age of a relative decline in the US power and its moral authority;
but it was also the age of the relative success of Kissinger's realpolitik. The topic of'sovereignty at bay' was still discussed after the enthusiastic observance of the expansionof multinational enterprises in the 1960s.35 But 'sovereignty at bay' was not tantamountto the advocation of the limitation of sovereignty in the past. The 'limitation' wasregarded as unrealistic and idealistic in the context of the Cold War. But the authors ofthe discourses of 'sovereignty at bay' or 'complex interdependence' claimed to beobservers of reality.
For the neorealist, who appeared in the late 1970s and early 1980s, reality was nolonger founded on the dogma of Morgenthau. Instead, the glory of neoclassicaleconomics that reflected doubts on Keynesian remedies for recession, unemployment,
and inflation became an attractive source of intellectual imagination. Post-Morgenthau
realists still believed that state sovereignty would not disappear; but they no longer
engaged in the philosophy of national sovereignty. They seldom focus on the problem
of sovereignty. It is a given fact, or an abstract nuisance. Even if sovereignty was not
at bay, it was insignificant in the world of neorealists.
Werner Levi explains the situation in which the discrepancy between formal andinformal political systems is disclosed. On the one hand, the inextricable entanglements
of modem international relations make 'a narrowly conceived sovereignty' illusory. The
informal system dispels the outmoded system of sovereign states. On the other hand,'sovereignty remains formally the foundation for all international activity', although it
tends to be interpreted restrictively in favor of broadening the bailiwick of international
discussion. Sovereignty is now only 'a socially organizing principle.' The growing

35 Raymond Vernon's argument is devoted to the analysis of multinational enterprises, rather than the concepto f sovereignty. He only mentions that the concept of'national sovereignty' appears 'curiously drained ofmeaning.' But he does not explain what he means by 'national sovereignty' and the sense in which it appears tohave lost meaning. See Vernon, Sovereignty at Bay (1971), p. 3. See also Vemon, 'Sovereignty at Bay ten years
later' (1981).

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informal political system 'has little to do with sovereignty and dominates rather thanserves the formal system.' Sovereignty has survived; but its substance has eroded.36
The synthesis of the discrepancy between the formal and informal systems ininternational relations appeared in the form of'structural realism'. When Kenneth Waltz
enunciated his 'neorealism' at the end of the 1970s, he never seriously explored themeaning of sovereignty. It is 'a bothersome concept'.37 The structure of international
politics is defined only in terms of the major states, especially, the two superpowers.
However, as long as the structure comprises numerous small units as minor actors, thestructural importance of the superpowers does not exclude the roles of minor states. It
is certain that the sovereignty of states does not mean their ability to do as they wish.
But sovereign units certainly exist and construct a structure of international politics.
Therefore, according to Waltz, 'To say that a state is sovereign means that it decides foritself how it will cope with its internal and external problems, including whether or not
to seek assistance from others and in doing so to limit its freedom by making
commitments to them.' States are by no means supreme or independent; but develop
their own strategies and by so doing contribute to the making of a structure ofinternational politics. He remarks that 'It is no more contradictory to say that sovereignstates are always constrained and often tightly so than it is to say that free individuals
often make decisions under the heavy pressure of events.' In the end, 'The onlyinteresting question is whether the category that classifies objects according to theircommon qualities is useful.'38
It is striking that 'structural realism' is no longer committed to Morgenthau's
conception of struggle for power among sovereign states. It is more to do with cultural
anthropology and neoclassical economics. It is the doctrine of order, not of anarchy,
based on the logic of social structures or free market economy. Just as 'free individuals'
make decisions according to the distribution of power or resources to them, states makedecision according to their power. Just as 'free individuals' determine a structure ofpolitical society, states determine a structure of international society. What neorealism

36 Levi, International Politics (1974), pp. 72-75.
37 Waltz, Theory o f International Politics (1979), p. 95.
38 Ibid., pp. 95-96.

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needs is just a unit, which Waltz calls the sovereign state.
The rise of the discourses on international 'regimes' in the 1970s and 1980s can beunderstood in this historical context.39 There are degrees of 'statism' among regime
theorists. Those who can be called 'modified realists' like Robert Keohane represent therealist end of the theory of international regimes.40 The theories of Donald J. Puchala,
Raymond F. Hopkins and Oran R. Young are characterised by Stephen D. Krasner as'Grotian perspectives'41 Like Hedley Bull, who oscillated between the necessity ofrealism and his preference for rationalism, the theory of regimes has two faces: neo­
realism and neo-liberalism. But the realist and the liberal ends of the theory of regimes
do not make significant differences in our historical study. The emphasis upon 'sets of
implicit or explicit principles, norms, rules, and decision-making procedures'42 in thedefinition of regimes indicates the perception of invisible bonds of international society.
Unlike their counterparts in the English School, regime theorists were strongly
influenced by the achievements of neoclassical economics that became a status quo
ideology after the relative decline of American power.

Lacking the multiple

perspectives of Bull's formula, regime theorists were predominantly concerned about themaintenance of the 'order' that the US had established since 1945. Nevertheless, regime
theorists, like English School scholars, identify sovereignty as 'the most diffuse
principle' or 'the constitutive principle of the present international system'.43 The'constitutive principle' is the authoritative characterisation of sovereignty followed bymany international relations scholars.44
39 The differences and similarities between regime theory and the English School are fully discussed in Tony
Evans and Peter Wilson, ‘Regime Theory and the English School of International Relations: a Comparison’(1992).
40 Robert O. Keohane writes that 'Sovereignty and self-help mean that the principles and rules o f international
regimes will necessarily be weaker than in domestic society. . . . Yet even if the principles o f sovereignty andself-help limit the degree o f confidence to be placed in international agreements, they do not render cooperation
impossible.' Keohane, After Hegemony (1984), p. 62.
41 See Stephen D. Krasner, 'Structural Causes and Regime Consequences' (1983), p. 20.
42 See ibid., p. 2.
43 See ibid., p.. 17-18. Jock A. Finlayson and Mark W. Zacher contrast 'sovereignty norms' with'interdependence norms' and identify the coexistence of the two sets of norms in the GATT regime. See
Finlayson and Zacher, 'The GATT and the Regulation of Trade Barriers' (1983), pp. 276, 306-309.
44 For instance, international regimes should be comprehended chiefly 'as components o f systems in whichsovereignty remains a constitutive principle.' Keohane, op. cit., p. 63; sovereign statehood is 'the constitutive
principle o f international society', Robert H. Jackson, op. cit., p. 519; 'in our view sovereignty is a "constitutive
principle" rather than an "institution"', Alexander Wendt and Raymond Duvall, 'Institutions and International
Order1(1989), p. 69; 'state sovereignty is the primary constitutive principle o f modem political life.' R. B. J.

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Krasner argues that the incapability of sovereign political units to cope with global
issues has had no impact on 'the constitutive principle of the present international
system', for the cost of abandoning 'the regime of sovereignty' without a substitute forit will be high. In addition, especially for many weak, poor and small states, abandoning
the principle of sovereignty would undermine their independence and push them into
subservient relationships with more powerful actors.45 It might be said in this sense thateven Waltz shares the formal notion of sovereignty which is a 'constitutive' principle ofthe international structure.46
Sovereignty is an indispensable principle of international relations. To conceive ofa world constitution or a super-state is a 'utopian' and 'idealistic' dream in the later
periods of the Cold War. However, international society has more or less been stable
for some decades, in spite of frequent regional conflicts. There must be 'rules' or'regimes' or 'institutions' or at least 'structures' that constitute the society of sovereignstates. Without an international constitution or a super-state, sovereignty constitutes andis embedded in international society.

The Demarcation o f the Sovereign Sphere

One may argue that the scholars I have examined so far in this chapter are in the end'statists'.

Their image of international society is mainly composed of territorial

sovereign states, if not only of them. To a certain extent this assertion is true.
Nevertheless, we should not conclude that international society is illusory, or thecomplex development of international law since 1945 is deceitful, because sovereignstates remain. International rules, which I characterise as 'constitutional', may exist,

Walker, 'Sovereignty. Identity, Community' (1990), p. 157.
45 See Krasner, op. cit., pp. 366-367. In 1989 Krasner together with Janice E. Thomson insists that 'thecommonplace notion that there is an inherent conflict between sovereignty and economic transaction isfundamentally misplaced. The consolidation o f sovereignty - that is, the establishment o f a set o f institutions
exercising final authority over a defined territory - was a necessary condition for more international economictransactions.' Krasner and Thomson, 'Global Transactions and the Consolidation o f Sovereignty' (1989), p. 198.
46 It is a matter taken for granted by international relations scholars that as Norman Cousins writes, 'there are
two kinds o f sovereignty. One is absolute. The other is relative. . . . In a world without absolute nationalsovereignty, the world organization can underwrite national independence and relative sovereignty.' Cousins,
The Pathology o f Power (1987), p. 196.

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whether states survive or wither away.
Constitutional notions of sovereignty we have focused on in this chapter may not be'constitutional' enough. More 'constitutional' or liberal international society lies in the
tenacity of rules regarding the sphere of wow-sovereignty. What marks 'constitutional'
elements is not the existence of a central government; nor is it the demise of states.
What is more important is the distinction between the public and the private spheres, i.e.
the premise that sovereignty exists only within the public sphere defined by certain
rules.
When looked at from this perspective, other discourses on sovereignty in the 1970s
and the 1980s that seem irrelevant to the English School or regime theory neverthelessappear to reinforce 'constitutional' elements of the notion of sovereignty. One such
example is the process of redefining the principle of'sovereign immunity', which took
place in the late 1970s. The restrictive theory of sovereign immunity implemented by
the UK and the US attacked the doctrine of absolute national sovereignty. I select thisexample because the redefinition of sovereign immunity was intended to impose the ruleof the protection of private interests upon governments. It illustrates the AngloAmerican understanding of sovereignty in the 1970s which marks a clear contrast to thedoctrine of permanent sovereignty over natural resources. In order to highlight theprocess of the demarcation of the sphere of sovereignty, I shall deal with the discourses
on human rights as well.

The Restrictive Theory o f Sovereign Immunity

In practice the sovereign immunity of representatives of foreign states in the national
courts of Great Britain and the United States were not simple. In the nineteenth century
they were among the leading observers of the doctrine of sovereign immunity. The first
relevant case appeared i n l 8 1 2 i n t h e U S Supreme Court.47 However, it is usuallyemphasised by commentators that the case involved only military ships; the Court was

47 In the case o f The Schooner Exchange v. McFaddon the Court stipulated: 'This full and absolute territorial
jurisdiction being alike the attribute of every sovereign, and being incapable o f conferring extra-territorial power,
would not seem to contemplate foreign sovereigns, nor their sovereign rights, as its objects.' See Bums H.
Weston, Richard Falk and Anthony A. D'Amato, International Law and World Order (1980), p. 809. See also
Sompong Sucharitkul, 'Immunities of Foreign States before National Authorities' (1976), pp. 117-119.

249

not concerned with the commercial activities of the state. It did not ignore thedistinction between commercial and public acts of the state. It was not until 1926 that
the US Supreme Court regarded 'the maintenance and advancement of the economic
welfare of a people in time of peace as any less a public purpose than the maintenanceand training of a naval force.' Britain was also a strict observer of the doctrine.48 But
this does not mean that British jurists were unanimously in favour of the absolute theoryof sovereign immunity. It can also be claimed that the common law tradition until theeighteenth century embraced the restrictive theory of sovereign immunity and the
tradition never died away even throughout the nineteenth and twentieth centuries. It issaid that the move towards an absolutist approach to sovereignty began as late as 1879.49
In what way did the two countries oscillate between the absolute and the restrictive
theories of sovereign immunity? H. Lauterpacht wrote in 1951 that there were fivearguments in support of the doctrine of sovereign immunity. Two majlor arguments
among them were the principled of independence, equality and dignity, and theimpossibility of the definition and application of the distinction between acts juregestionis and jure imperii, namely, private and public acts. Both arguments areconnected with traditional Anglo-American policies and constitutional principles.
Respect for the independence of other states was an indispensable element of theprinciple of non-interference. It should be added that the spread of the laissez-faireeconomic doctrine resulted in a low-ebb of trading of governments in the middle of thenineteenth century. Furthermore, in the traditional British constitutional system the state(government) is the public realm, while individuals are in the private domain. It isdifficult upon this premise to distinguish between the public and private activities of thestate.50
The doctrine of sovereign immunity was rooted far deeper in classicalconstitutionalism in the United States. In the domestic context, the spirit of the Eleventh

48 See Sucharitkul, op. cit., pp. 126-182.
49 See Lakshman Marasinghe, 'The Modem Law o f Sovereign Immunity' (1991), pp. 664-684.
50 The issue in the late seventies was how to deal with the state having engaged in activities in the private
sphere, i.e. 'a sovereign, having gone into the marketplace'. Rosalyn Higgins, 'Recent Development in the Law ofSovereign Immunity in the United Kingdom' (1977), pp. 433-434. The point is not whether the state has private
and public faces or not, but whether priority should be given to the public nature of the state or the logic o f themarketplace.

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Amendment of the US Constitution that prohibited a suit against a State of the UnitedStates by citizens of another State was conducive to mutual respect for non-interferencewith other States. That is interpreted by the US Supreme Court as the constitutional
basis of State sovereign immunity barring suits against the State even by its own citizens
without the State's consent.51 In the international context as well, the rigid Americaninterpretation of the separation of powers prohibited judicial power from interfering withthe matters of the president and Congress which possessed the power to decide how todeal with foreign states.52 In addition, of course, the negative principle of the Monroe
doctrine which was aimed at mutual respect for sovereignty perfectly accorded with therigid adoption of sovereign immunity.
The difficulty of dealing with the issue of sovereign immunity lies in the janus-faced
character of the doctrine. Absolute sovereign immunity may derive from the notion ofabsolute sovereignty. But absolute territorial sovereignty demands the abnegation ofsovereign immunity. In order to identify the conceptual conflicts, therefore, we must
look into the political contexts of the discourses on sovereign immunity. It is probably
safe to say that in the nineteenth century the principle of non-intervention andconstitutionalism prevented the Anglo-American countries from restricting the doctrineof sovereign immunity. However, this trend was gradually reversed in the twentiethcentury as the economic activities of states increased.
In the domestic sphere, the constitutional relationship of'non-interference' between
the government and citizens was modified after the Second World War. Sovereign
immunity over certain claims in tort against the United States was renounced by theFederal Tort Claims Act of 1946, even though it was not a total abandonment. It wassoon followed by the Crown Proceedings Act of 1947 in Britain that made the crowndirectly suable. The restriction of sovereign immunity of the national government wasa necessary consequence of the expansion of governmental activities. Indeed, it was not
until the twentieth century, especially after Franklin D. Roosevelt's New Deal, that theview of sovereign immunity began to change. After the Second World War 'the51 See Phillip J. Cooper, 'The Supreme Court on Governmental Liability1(1984), p. 272.
52 See Sucharitkul, op. cit., p. 120. See also J. Gillis Wetter's explanation o f the 'act of state' doctrine incontrast with the prohibition of sovereign immunity in international arbitration. Wetter, 'Pleas o f Sovereign
Immunity and Act o f Sovereignty before International Arbitral Tribunals' (1985), p. 16.

251dramatic mid-twentieth century surge of cases against officials and government units'began.53
But the sovereign immunity of foreign states developed in a different historicalcontext. In 1976 the US Supreme Court in the case of Alfred Dunhill o f London v.
Republic o f Cuba proclaimed that it adopted a 'restrictive' (as distinct from 'absolutist')
theory of sovereign immunity. Justice White acknowledged that since 1952 the US
Department of State had 'adhered to the position that the commercial and private
activities of foreign states do not give rise to sovereign immunity' and as a result of thelower courts' practices for twenty years the 'restrictive theory' of sovereign immunity
appeared to be generally accepted. What he actually did was to distinguish between the'commercial' activities of Cuba and an act of state by Cuba. However, there was apractical difficulty in discerning the 'precise scope' of a 'commercial act', as JusticeMarshall pointed out criticising the opinion of Justice White.54
The doctrine of the distinction between acts jure gestionis and jure imperii wassomehow acknowledged in the 1926 Brussels Convention for the Unification of Certain
Rules relating to the Immunity of State Owned Vessels and the 1972 European
Convention on State Immunity. But the United States became the first country tounequivocally declare that it was no longer prepared to accord immunity to foreign
government agencies which were engaged in commercial activities. The US Congressenacted the Foreign Sovereign Immunities Act (FSIA) in 1976 to legislate the doctrine.
Following it, the British Parliament passed the State Immunity Act 1978 to the same
effect.55 It should be noted that unlike treaties which are binding only upon signatories
who have ratified them, these Acts have global effects as they apply to any state in theworld.
Not surprisingly, international lawyers in socialist countries criticised this doctrine
and asserted that 'it was employed by bourgeois courts against the Soviet state and

53 See Leon Hurwitz, The State as Defendant (1981), pp. 20-22; Cooper, op. cit., p. 269.
54 See Weston, Falk and D'Amato, op. cit., p. 810-812.
ss The effect o f the FSIA and the State Immunity Act 1978 upon 'the financial community' is discussed in
Georges R. Delaume, 'Public Debt and Sovereign Immunity' (1977), and F. A. Mann, 'The State Immunity Act
1978' (1979). Delaume also analyses the State Immunity Act in comparison with the FSIA in 'The State
Immunity Act o f the United Kingdom' (1979). See also Charles N. Brower, F. Walter Bistline, Jr. and George W.
Loomis, Jr., 'The Foreign Sovereign Immunities Act of 1976 in Practice' (1979).

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against other socialist states.'56 The change in the policy of the US State Department
certainly accorded with the difficulty it had with the broad range of state organs ofsocialist states or even its ideological hostility to them.57 Moreover, the culmination of
the 'restrictive' theory in the 1970s had as much to do with the confrontation between
North and South in its implications. It can be argued that the FSIA of 1976 was a defacto counterattack upon the principle of permanent sovereignty over natural resources.
The Act stipulates that a foreign state is not immune from jurisdiction when its action
is based upon 'commercial activities' or upon an act in connection with commercial
activities in the United States or outside the territory of the US where that act causes a
direct effect in the US. The gist of the British Act is also non-immunity of the state
relating to a 'commercial transaction'.
In 1979, not surprisingly, it had to be decided in a court of California whether theactivities of OPEC in controlling the production of oil and joining to set oil prices were'commercial activities' or not. Judge Hauk decided 'to keep our courts away from thoseareas that touch very closely upon the sensitive nerves of foreign countries' and held thatthe 'control over a nation's natural resources stems from the nature of sovereignty'.58
Although this statement was based on common sense, it missed the point of the FSIA.
Richard Fine of the California Bar said that the testimony elicited at the trial had been
uniform and against the findings of the court in that the evidence adduced at trial did
show a direct effect between OPEC activities and the price of gasoline in the Central
District of California, and that moreover the activities of the OPEC nations werecommercial. Fine speculated that if the case involved a commodity that had not beerr
as politically significant as oil, the court would have not had any difficulty in findingthat the same activities were commercial in nature.59 From the perspective of our study,
it is worth noting that this was nothing but an example of a conflict of the Third World
56 M. Boguslavskij, Staatliche Immunitat 40-44 (Rathfelder trans. 1965), quoted in Weston, Falk, andD'Amato, op. cit., p. 814.
57 'For the Soviets there is no jurisdictional immunity, except by treaty. The Soviet Union, in claiming
immunity for itself, its property, and its agents, appeals neither to Soviet law nor to international law, but toforeign law. . . . This series of unembellished and pre-emptory doctrines has certain obvious realistic advantages, over the more historically and jurisprudentially limited doctrine o f such countries as the United States and GreatBritain.' Bernard Fenserwald, 'Sovereign Immunity and Soviet State Trading' (1950), p. 633-634.
58 See Weston, Falk and D'Amato, op. cit., pp. 814-815.
59 See Richard I. Fine's remarks in American Society o f International Law, 'Sovereignty Immunity, Act ofState, OPEC' (1980), p. 77.

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doctrine of national sovereignty over natural resources and the Western doctrine of therestrictive theory of sovereign immunity (the restriction of sovereignty in favour ofprivate activities). It may be argued in this sense that the FSIA was a proclamation ofa liberal and constitutional principle and an ideological challenge to the notion ofnational sovereignty in the Second and Third Worlds.60
What the FSIA implies is that sovereignty must not override the private sphere. The
fact that the supremacy of national sovereignty in the Second and Third worlds was notreconciled with the restrictive theory of sovereign immunity in the West indicates a newconceptual map of the notion of sovereignty. What changed in the new theory ofsovereign immunity is the way the private and the public spheres are demarcated. The
traditional approach presupposes that the existence of the state proves public nature; theabsence of the state means private acts. However, the premise of new international
constitutionalism demarcated the two spheres differently. Regardless of the engagementof the state, the private sphere is defined according to certain conceptual rules. The
distinction between the private and the public spheres is no longer a matter of theengagement of the state; it is a matter of the rules of international society (cultivated by
the US and the UK). The process of redefinition of sovereign immunity by AngloAmerican states is an example of sovereignty strictly demarcated by constitutional rules
and principles.

Human Rights

Behind the scene of international realpolitik in the 1970s, several importantdeclarations on human rights were enacted. Two Covenants on Human Rights, namely,
the International Covenant on Economic, Social and Cultural Rights, and theInternational Covenant on Civil and Political Rights, adopted by the UN General
Assembly in 1966, entered into force in 1976 with one hundred and twenty-seven, andone hundred and twenty-five parties respectively. The latter Covenant established the
Human Rights Committee. The two Covenants are most important in the safeguarding

60 The ideological assertion o f the distinction between the private and the public spheres sometimes appeared
to contradict the policies of the US government. In the case of the 1979 Iran Hostages Crisis and the US freezingo f assets, the US government did not hesitate to trespass upon its own liberal restraint..

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of human rights and constitute what international lawyers call 'an international Bill of
Rights'.61 Numerous other global human rights conventions he^eralso appeared
including the International Convention on the Elimination of All Forms of Racial
Discrimination of 1965, the Convention for the Elimination of All Forms ofDiscrimination Against Women of 1979, the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment 1984. In addition, there are anumber of regional agreements including the European Convention of Human Rights
of 1950, the Final Act of the CSCE conference in 1975 known as the Helsinki Accord,
the American Convention of Human Rights of 1969, and the African Charter on Humanand People's Rights of 1981.62
All these conventions inevitably have great impact upon traditional
anthropomorphism, because the very notion of individual human rights goes beyond thesimple analogy of natural and state persons. As far as basic civil and political rights areconcerned, the rules of human rights demand the protection of the private sphere fromsovereign power abuse. Furthermore, from our genealogical perspective it can beargued that the interest in human rights derives from traditional Westernconstitutionalism. The issue of human rights entails the conceptual struggles ofinternational politics. For instance, as Richard Falk explains, while the sceptic of humanrights 'overdoes statism', those who are innocent implicitly assume that 'humanitarian
intervention is something that only happens to "others". The targets are always foreignsocieties.'63

Perceiving the power of the nonaligned movement as 'a creative

reconciliation of the demands of sovereignty with a form of internationalism appropriate
for Third World countries', Falk does not support the view that 'weakening the doctrineof sovereignty is tantamount to restricting the operative discretion of states.164 Indeed,
it can be claimed that the interest in human rights arose mainly in the form of concern
by Anglo-American publicists about the abuse of human rights by 'others'.

61 See Louis Henkin, The International Bill o f Rights (1981).
62 The last African example is different from Western counterparts in that it stipulates duties o f individuals tothe state.
63 Richard Falk, Human Rights and State Sovereignty (1981), pp. 3-4. As regards the different interpretationso f human rights by American and Soviet lawyers, see Jennifer Noe Pahre, 'The Fine Line between the
Enforcement of Human Rights Agreements and the Violation of National Sovereignty1(1984).
64 Falk, Reviving the World Court (1986), pp. 3-4.

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In 1987 when it had already become safe, or not necessarily politically incorrect, toattack the Third World, one of the leading American international lawyers, Anthony
D'Amato, developed the argument which would explain the political connotation of the'restrictive' theory and of human rights in relation to the doctrine of sovereignty overnatural resources. He warned that the industrialised nations should not feel any guilt
over the charge that they had exploited the natural resources of Third World nations.
He illustrates a psychological change in the issue of sovereignty after the resurgence ofWestern values by asking:why should we assign to any person or group of persons the vast wealth that by anaccident of nature happens to be located within the physical territory that they claim
is a nation? From a human rights standpoint, it would be far more defensible toallocate all underground mineral wealth to every human being regardless of thelocation of that wealth. . . . Yet we await in vain any statement by a mineral-rich
third-world nation that its underground wealth should be distributed to poor persons
in foreign countries. Instead, we receive rhetoric that subtly blends human rights withnational sovereignty claims of right. . . . I would contend that a universal system of
human rights would tend toward the dissolution of all national claims to special rights
or privileges of the citizenry. For a nation, upon analysis, is a collectivity. Its
boundaries are artificial, for the purposes of universal human rights. To the extent thathuman rights makes any inroad at all into national sovereignty claims, the effect will
be to protect international business against expropriation or confiscation. In thisrespect, there is a fundamental affinity between the goals of multinational businessenterprise and the goals of human rights.65
This statement succinctly illustrates what happened in the 1970s and the 1980s. In
the face of national sovereignty as claimed by the Third World, the West led by AngloAmerican states became more assertive in its efforts to implement international
constitutionalism.

Neither strong international organisations nor written world

constitutions were needed. Power still resided in states; Western states still retained
relative superiority in terms of power distribution. Power is the source of internationalrules, which are derived from Western values and conducive to Western interests. The
implementation of Western rules does not mean that Western states dominate the world.

65 Anthony D'Amato, International Law: Process and Prospect (1987), pp. 159-160. D'Amato also argues
that sovereign immunity was only a rule for nineteenth century positivists. The Alien Tort Claims Act of 1789
proved that there was no general concept o f sovereign immunity in the law o f nations at that time. In addition,
sovereign immunity does not mean that sovereignty is not subject to international law. See ibid, pp. 199-204.

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However, they will lead 'others' in creating the rules and principles of internationalsociety. Sovereignty is observed and strictly demarcated in the process.

In the early 1970s international society experienced a decline of American politicaland economic power. The Nixon administration constructed a Kissingerian balance ofpower with the USSR and China. Accordingly, the Soviet Union and even Chinachanged their ideological positions.66 International power politics reached a relatively
stable stage. The end of the Breton-Woods system early in the 1970s did not lead to acomplete collapse of the liberal market economy, despite the defiance of Third World
states.

The efforts to maintain liberal economic rules continued among theindustrialised countries. Under these political and economic conditions, it was natural
to suppose that while sovereignty was persistent, it was not meant to be absolute. In
fact, the development of international law in the field of the law of the sea, human rights
and state responsibility in the 1970s and 1980s provided a complex set of internationalrules that went beyond the simple domestic analogy. What became crucial in this new
era was to identify and develop international rules that in reality constituted internationalsociety. Sovereignty did not destroy, but constituted international rules and principles.
It was in this context that there emerged a new international constitutionalism that
focussed on a set of rules and principles in international society. We have also seen thatthe international implementation of a constitutional premise of the protection of theprivate from the public domain developed in various forms. This was the gist ofWestern international constitutionalism which was aimed at establishing a standard setof rules in international society.

66 In the post-Stalin era there appeared numerous textbooks and statements by practitioners that emphasised
the compatibility o f sovereignty and international law. See Grzybowski, op. cit., p. 34. See also Bernard A.
Ramundo, Peaceful Coexistence (1967), pp. 91-92; Richard J. Erickson, International Law and the
Revolutionary State (1972), pp. 50-52; Allan Gotlieb, Disarmament and International Law (1965), pp. 33-38.
As regards the constitutional provision of popular sovereignty and the gradual change in its unitary characterfrom the end of the sixties, see Ott6 Bihari, The Constitutional Models o f Socialist State Organization (1979),
pp. 111-128. An example of praise of the 1977 Constitution o f the USSR is V. T. Kabyshev, 'SocialPsychological Aspects o f Popular Sovereignty in the USSR' (1981). As an example o f the reformulation o fsovereignty in the eighties, see B. Kurashvili, 'Toward Sovereignty o f the Soviets' (1988). Kurashvili makessome proposals to restore sovereignty of the Soviets referring to the principle of the 'separation o f powers'. The
attitude o f Chinese international lawyers also changed in accordance with political changes. See Ogden, op. cit.,
p. 30-31.

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Conclusions
Our study of the notion of sovereignty has reached the present decade. I shall now
summarise what we have examined and found in a history of notions of sovereignty.
We started with identifying concepts of sovereignty in reference to the episteme ofmodem knowledge. The modem mode of episteme formulated by Foucault wascharacterised by the emergence of man. Interestingly, we found that it correspondedwith the emergence of the nation in political discourses in almost the same age. The
modem quest for something natural, original and real turned the attention of intellectuals
to the problem of man and the nation that were conceived to exist beyond artificial
reasoning. The characteristic of the modem theory of sovereignty after the French
Revolution rested upon the nation as a living entity. This was called our diachronic
perspective.
The other starting point of our research was the recognition of two conflicting
traditions of the notion of sovereignty. Drawing on Nietzsche's ideas of two morals, weformulated two major tendencies of thought in the concept of sovereignty: constitutionaland national. The two traditions highlighted the impact of the two significant politicalschools of thought - constitutionalism and nationalism - upon the notion of sovereignty.
This was called our synchronic perspective.
As we found from our diachronic perspective, national sovereignty characterised themodem age. The nation as an organic person obtained the supreme status of thesovereign.

The theory of sovereignty above law passed from royal to nationalsovereignty. We have claimed at the same time that constitutional sovereignty has neverdisappeared despite the culmination of the theory of national sovereignty in the modem
age. With the spread of constitutionalism, the idea of sovereignty within constitutional
mles was also put into practice in many countries.

Theories of national andconstitutional sovereignty have been engaged in a history of conceptual struggles ofsovereignty.
Our two perspectives were exemplified by traditional Anglo-American models of
constitutional sovereignty in Chapter 1. The constitutional foundation of Great Britain258

in the seventeenth and eighteenth centuries was a classic example of the notion of
constitutional sovereignty. Constitutional monarchy, mixed government and more
importantly, individual rights composed a harmony with the idea of sovereignty. In the
United States, federalism as well as the protection of individual liberties and a moderateapplication of popular sovereignty highlighted historical evidence of concepts ofconstitutional sovereignty. The innovative theory of divided sovereignty illustrated thenature of the idea of sovereignty within constitutional rules.
In Chapter 2 we traced the development of the theory of national sovereignty inContinental countries. In the fervour of the French Revolution, the sovereignty of thenation was loftily proclaimed. Despite reactionary movements in the post-Revolution
time, the ideal of national sovereignty led to the supremacy of the state as the solepossessor of national sovereignty. Among German philosophers and jurists in thenineteenth century we found the most unequivocal development of the theory of nationalsovereignty.
In Chapters 3 and 4, we traced the development of notions of sovereignty innineteenth century Britain and America. The Austinian theory marked a transition
period in the direction of national sovereignty in Britain. As laissez faire liberalism
declined and international politics entered the age of imperialism, the notion ofsovereignty came to be highly absolute. In spite of the Lockean system of political andlegal sovereignty, Dicey perfected the doctrine of parliamentary sovereignty. In the
United States the experience of the Civil War resulted in even more serious
modifications to the notion of sovereignty. The strong tendency at the end of thenineteenth century pointed in the direction of the supremacy of national sovereignty thatwould justify the emergence of the US as one of the imperial powers in international
politics.
The victory of Britain and the United States over Germany in the First World War
generated a new atmosphere among practitioners and publicists. As we saw in Chapter
5, the then popular comparison of the Anglo-American with the German idea ofsovereignty corresponded with constitutional and national sovereignty. Although the
movement of what I call international constitutionalism was based on international
anthropomorphism - a product of modem nationalism - the attempt to apply259

constitutional rules in the international field symbolised the dominance of conceptionsof constitutional sovereignty in the decade after the First World War.

But thedocuments we examined in Chapter 6 showed a dramatic decline in this tendency in the
1930s.
Despite a short revival of international constitutionalism after the Second World
War, the memory of the failure of international constitutionalism combined with the
new reality of the Cold War provided fertile ground for Morgenthau's importation ofCarl Schmitt's theory of sovereignty to Anglo-American soil. In Chapter 7 we also
identified the formalisation of the concept of sovereignty. Although realism dominatedinternational studies in the post-1945 era, it was soon contradicted by the decolonised
world composed of a handful of powerful, and a great number of small, poor, weakstates. Politicians and publicists in socialist and Third World countries were, as we
observed in Chapter 8, the vigorous advocates of national sovereignty.

Formalsovereignty was a necessity in order to satisfy two conditions: the acceptance of theuniversal principle of sovereign equality; and power politics in the age of the Cold War.
In Chapter 9 we noticed that mainstream Anglo-American theorists in the 1970s tied theconcept of formal sovereignty to international rules and principles. We also exploredthe constitutional premises which emerged after the decline of anthropomorphic
constitutionalism.
In this history of concepts of sovereignty, our diachronic perspective has identified
the modem development of concepts of national sovereignty. The modem age wascharacterised by the rise of nationalism. Nations were conceived to be natural, originaland real creatures, and sovereignty was understood as an expression of the will of theomnipotent nation. Sovereignty as the theory of supremacy of the king could notsurvive after his sovereign head was cut off by the French revolutionaries. Supremacy,
implied in the word, sovereignty, then found its highest expression in the theory of thenation-state. Nineteenth century nationalism functioned to reinforce the supremacy ofimperial powers that enjoyed their privileged global status. It was in the period of highimperialism that the reification of sovereignty occurred.

Vigorous imperialism

associated with the sense of European supremacy was followed by the challenge of Nazi
Germany to the norms of international society in the 1930s.

260Even in the interwar period in which we have found a rise of Anglo-Americaninternational constitutionalism, the impact of national sovereignty was considerable.
The projects of international constitutionalism in the interwar period was more or lessbased on the anthropomorphism of nations. In other words, the separate sovereignty ofnation-states was a given fact, even though it was conceived to be susceptible tolimitations. The direct application of Anglo-American domestic constitutional systems
founded upon the anthropomorphism of nations was the typical method of international
constitutionalism in this age.
Nationalism manifested in the process of decolonisation had a normative dimension.
Formerly, the power of states determined the degree of sovereignty; full sovereign states
were only the European imperial powers. In the post-1945 era the recognition of status
as a nation necessarily involved the demand for sovereignty; nations ought to besovereign. In the latter half of the twentieth century the principle of sovereign equality
worked to sacrifice supremacy for national independence.

Modem nationalism

eventually subdued the sovereignty of imperial powers. It is no wonder that many of the
newly independent states are now called 'quasi-states'.1 To put it differently, 'for theThird World, sovereignty is neither irrelevant nor a malevolent force, but an unrealized
goal.'2
We may also draw some hypothetical conclusions from our synchronic perspective.
We have traced the relationship between the constitutional and national conceptions ofsovereignty reflecting political, economic and social circumstances. Great Britain andthe United States established their own domestic constitutional systems before theFrench Revolution.

Their international attitudes were politically negative andeconomically positive embodied in their respect for non-intervention and free trade. But
the double standard was a product of the supremacy of British worldwide power andAmerican regional power. The unification and growth of the national military andeconomic power of Germany forced democratised Britain to retreat from its classic
foreign policy. In the United States the quest for national unity after the Civil War led

1 See Robert H. Jackson, Quasi-States (1990).
2 Naeem Inayatullah and David L. Blaney, 'Realizing Sovereignty' (1995), p. 4. Michael Barnett argues thatafter the end o f the Cold War a renewed belief of international society is empirical (internal) sovereignty which
underpins juridical (external) sovereignty. Barnett, 'The New United Nations Politics of Peace' (1995), p. 83.

261

to the emergence of the US as one of the imperial powers at the end of the nineteenth
century. The process of nationalisation of sovereignty was a concomitant of power
politics in the age of imperialism on the sides of both the defending superpower and therising new power.

However, the disappearance of challenging powers in theinternational field after the First World War led the majority of Anglo-American
intellectuals to pursue a constitutional structure of international society. What theywanted was not a counterattack against the other imperial nations or a demand forrecognition of their power, but the preservation of the stability of international society
in which they had obtained paramount status. By contrast, a defeated Germany resorted
to the ideology of national sovereignty and in the process constituted the most vigorous
challenge to mainstream international society.
The threat of the communist bloc in the Cold War era generated new necessities in
Anglo-American countries. What should be protected was not merely the status quo,
but the containment of potential threats. Moreover, it became morally and politicallynecessary in the post-1945 era to grant sovereignty to formerly colonised peoples.
Interwar international constitutionalism became obsolete, although order was still
desperately needed in the international system established under the leadership of theAnglo-American powers.

This historical need resulted in the formalisation ofsovereignty and a pursuit of new international constitutionalism.
In short, the strong advocation of national sovereignty generally emerged withincentives to challenge the status quo. It tends to be accompanied by a sense of
dissatisfaction with, or that of crisis in, the international status of a nation. It is arevolutionary concept, whether associated with Right or Left.

Constitutionalsovereignty was an intellectually progressive, but politically conservative doctrine. The
stabilisation of international society within a certain constitutional framework is areasonable objective for people who are not seriously dissatisfied with the existing
international order.
Finally, having drawn these conclusions, I would like to examine the implication ofthis observation for contemporary international relations. Sovereignty in the 1990s is
a fashionable object of investigation in a lot of efforts to conceptualise something new262

going on in the current world.3 Looking into this trend in the light of the hypotheticalconclusions we have just drawn, we may assume that the end of the Cold War, namely,
the disappearance of the threat of the communist bloc, is a great incentive for AngloAmerican intellectuals to develop further existing aspects of international
constitutionalism.

A brief look at the contemporary trend of the discourses onsovereignty would suggest the validity of the assumption of the decline of theories ofnational sovereignty and the advance of constitutional notions of sovereignty. I shallbriefly examine the relevance of our historical studies to the post-Cold War world byassessing philosophical, economic, institutional, ethical and legal issues.
First of all, there has emerged a new kind of philosophical (often described as'postmodern' or 'poststructural') interrogations of sovereignty.4 It can be noted that
contemporary philosophical critics of sovereignty are in general hostile to theconventional theory of international relations, 'realism', whose characteristic is the very
formal acceptance of the principle of sovereignty.5 The critique of'statism' developed
by 'postmodern' International Relations scholars provides insight into the artificiality offormal sovereignty in neorealist thinking.6 It reveals that mainstream international
relations theorists ignore the dynamism which the notion of sovereignty necessarily
involves. Resonating with the perspective in this thesis, R. B. J. Walker, for instance,emphasises 'continuing tensions between power and authority and between sovereignstate and sovereign people, tensions that have come to be resolved either through binary

3 Even journalists do not hesitate to say that 'National sovereignty is an anachronism' and Nationalsovereignty be dammed.' Flora Lewis, 'Shifting Standards for Sovereignty', The New York Times, June 20,
1988, quoted in Louis L. Snyder, Encyclopedia o f Nationalism (1990), p. 373; Economist, N ew Ways to Run theWorld', (1991), p. 11.
4 For instance, see Richard K. Ashley and R. B. J. Walker, 'Conclusion: Reading Dissidence/ Writing theDiscipline' (1990).
5 David Campbell insists that 'we have to ask whether or not the realist's commitment to the principle ofsovereignty is (ironically) an instance o f idealism in our postmodern world, where the rigid defense o f sovereigncommunities located in a radically interdependent economy of violence could exacerbate many o f the perils fromwhich we seek to be secure.' Campbell, Politics without Principle (1993), p. 82. Timothy W. Luke writes:'Political realism, sovereign territoriality, Cold War: the meanings o f all these terms are unstable, variable andunfixed. . . . Old in-stated forms of govemmentality, sovereignty and monotoriality after the Cold War arereconstituted in the un-stated spaces of contragovemmentality, sovrantee and multitorialities in a New World
Disorder.' Luke, 'Govemmentality and Contragovemmentality' (1996), p. 506.
6 'One asks how we have so easily forgotten about the concrete struggles . . . This question is concerned withhow the formalization o f state sovereignty as the primary constitutive principle of modem political life reifies thepractices of state sovereignty'. R. B. J. Walker, 'Sovereignty, Identity, Community1(1990), pp. 159-160.

263

distinction between state and civil society or through unitary claims to national identity.'7
But Walker and other philosophical critics of sovereignty do not fully analyse notionsof sovereignty.

Instead, they aim at 'thinking beyond state sovereignty'.8 In

consequence, although contemporary philosophical interrogations start with criticising
the formalistic character of sovereignty, they end up fighting the most dreadful imageof the Hegel-Treitschke tradition of state sovereignty.9 To challenge the omnipotent
sovereignty of the state in order to think 'beyond state sovereignty' is not new. As thecritics of pluralism in the interwar period said, the criticism of absolute sovereignty
many a time misses the divergent theories of sovereignty of past thinkers.10
Those who are inclined to view sovereignty in respect of 'modernity' criticise it inconnection with the problem of the sovereign 'Man' or 'self.11 This meaning of thesovereign state is normally understood not as state institutions contrasted with civilsociety, but as the 'nation-state', i.e. the 'fatherland' of the modem people. This aspectof philosophical interrogations leads to scepticism of the Hegelian nation-state, which
is a rather orthodox position in Anglo-American thinking. As a result, while disclosing
the fiction of the nation-state, it is often the case that philosophical inquiries examine
and refine (but do not abandon) the relationship between state and civil society; the gistof the premises of constitutional sovereignty. While they do not have their own theories
of sovereignty, the dynamism hidden behind the idea of sovereignty that philosophical

7 Walker, Inside/Outside (1993), p. 170.
®Michael J. Shapiro, 'Moral Geographies and the Ethics o f Post-Sovereignty' (1994), p. 480.
9 'The construction o f sovereignty allows us to make more sense o f the will-to-sacrifice'. 'But we can try totame and limit the demands of sovereignty; we can, perhaps, move toward what I am tempted to call a
postsovereign politics. I have in mind a politics that shifts the focus o f political loyalty and identity fromsacrifice (actual or in situ) to responsibility.' Jean Bethke Elshtain, 'Sovereignty, Identity, Sacrifice' (1991), pp.
402, 403.
10 For instance, see some remarks on sovereignty by practitioners. Sir Geoffrey Howe states that 'the British
have always adopted a pragmatic attitude towards constitutional changes and assumed the simple principle ofsovereignty as a "good servant, but bad master". According to Howe, sovereignty is something like 'bundle ofsticks, and the subject of a never-ending series of transactions between nation-states, handing over some things
and taking back others.' In relation to the British relationship with the European Community in particular, Howe
adopts the notion of sovereignty as 'a nation's practical capacity to maximize its influence in the world.' Howe,'Sovereignty and Interdependence' (1990), pp. 678-680. Former US Secretary of State George Shultz states that
'The model o f divided sovereignty - part o f the fabric of our own country since its birth - has become applicableon the international scene at large.' Quoted in ibid., p. 681.
11 'Viewed as products o f modernity, the sovereign individual and the sovereign state can be seen as mutually
reinforcing constructs, a relationship captured in the dual meaning o f the word, "subject."' Tom Porter,'Postmodern Political Realism and International Relations Theory's Third Debate' (1994), p. 113. See also
Joseph Dunne, 'Beyond Sovereignty and Deconstruction: the Storied Self (1995).

264inquiries aim to reveal emerges in most cases to the detriment of national sovereignty.12
It is worth noting in this context that some scholars put 'poststructuralist theories' into
the category of'constructivism' together with 'neo-Gramscian theories, the world-society
paradigm' and even 'the Grotian tradition' or 'the English School of Hedley Bull'.13 Thisreveals that 'poststructuralist theories' in International Relations have emerged as anantithesis to the 'statism' of both realism and liberalism, and 'material' structuralism.
Within 'social structure' which non-statist theories articulate, sovereignty appears as'only one of many identities that a state actor can have'.14 Sovereignty is not an
unproblematically given fact, but cannot be ignored either. It is never lost, while theboundaries of'inside and outside' of the sovereign state can be questioned. There areother norms, principles and beliefs that transcend 'sovereign' national boundaries. If thisinsight is developed in a more positive way, the notion of sovereignty in poststructuralist
theories will furthermore resonate with the English-School type of international
constitutionalism.
Second, it has been said that sovereignty has been eroded by a global economy. Itshould be emphasised, however, that the 'sovereign state' in this economic aspect usuallymeans the state as the government. What private economic activities erode is thecontrol of the central government. The state in international law remains untouched.
Moreover, the autonomy and growth of private economic activities are, despite thedevelopment of high technology and the scale of economy, a premise of classicalconstitutionalism.15 It is historically taken for granted that laissez faire doctrines
declined only at the end of the nineteenth century. A national economy perfectly
controlled by a national government is a myth of the twentieth century. In other words,
what a global ecpnomy erodes is national sovereignty, but not constitutional
12 Cynthia Weber concludes her historical study by saying that 'Investigating state sovereignty, then, requires
investigating how states are simulated.' Weber, Simulating Sovereignty, p. 129. This statement challenges thenationalist assumption^ the autonomy of nation-states. However, once we assume that there might be a set o fcodes that determines simulations of states in a more or less coherent way, we are permitted to call it a system o f
constitutional rules.
13 Alexander Wendt and Daniel Friedman, 'Hierarchy under Anarchy: Informal Empire and the East German
State' (1996) in Biersteker and Weber, op. cit., pp. 272,246. See also Ronal L. Jepperson, Alexander Wendt,
and Peter J. Katzenstein, 'Norms, Identity, and Culture in National Security' (1996).
14 Ibid.
15 This suggests the political nature of'globalization'. Saskia Sassen argues that globalization that threatens
sovereignty 'has become in the most recent period a form o f Americanization'. See Sassen, Losing Control?:Sovereignty in an Age o f Globalization (1996), pp. 16-20.

265

sovereignty.16 The very abstract word, erosion, only invokes the conceptual demarcationof the sovereign and non-sovereign spheres under constitutional premises.17
Third, many argue that international institutions have rapidly expanded theiractivities since 1945, and since the end of the Cold War in particular. However, theantithesis of'sovereignty versus international institutions' risks over-abstraction. The
authorities of international institutions derive from state sovereignty, whatever degreeof power state governments retain. 'International institutions' that are said to be fighting
sovereignty contain the principle of sovereignty within themselves. Indeed, fighting
international institutions cannot be said to bring about the death of sovereignty.
Sovereignty constitutes and is constituted by international institutions. Both are sointerwoven with each other that neither of them can be a master or a slave of the other.
The European Union, defined as a 'transnational organisation', draws the greatest
attention from publicists. A commentator celebrates European integration as the 'post­
modern sea-change'.18 But this 'post-modern' character does not change the fact thatwhile many are perplexed by the development of the European Union, they still havelittle doubt about the sovereignty of its member states.19 At the other extreme, another

16 It is striking that Joseph A. Camilleri and Jim Falk use the expression, 'popular sovereignty', as an antonymo f state sovereignty in the context o f the erosion o f sovereignty. Consciously or unconsciously, their standpoints
disregard the premise of'national sovereignty' by distinguishing between 'state sovereignty' and 'popularsovereignty'. In spite o f their analyses of the impact o f advanced technology and a global economy, they see
competition between the sovereignty of the state and the community. State sovereignty in this context means
nothing other than 'government' sovereignty, which even nineteenth century scholars knew was far fromomnipotent. In consequence, they seem to believe that the enumeration of non-state phenomena is tantamount tothe analysis o f the erosion o f sovereignty. Camilleri and Falk, The End o f Sovereignty? (1992), pp. 114,120.
Among the examples o f the same antithesis o f state and popular sovereignty is Gotlieb, Nation against State(1993), pp. 21-22.
17 This point is illustrated even by the standpoint of'historical materialism'. Justin Rosenberg argues that 'thesovereignty o f the state does depend on both a kind o f abstraction from production and the reconstitution o f thestate-political sphere as external to civil society. . . . if we define sovereignty as the social form o f the state in asociety where political power is divided between public and private spheres, it becomes apparent that at least
some o f the confusion over whether modem state power is strong or weak, autonomous or determined, sovereign
or constrained has been unnecessary. For under capitalism, these are not necessarily dichotomies.' Rosenberg,
The Empire o f Civil Society (1994), pp. 128-129.
18 See Thomas Christiansen, European Integration between Political Science and International Relations
Theory (1994). Shirley Williams examines 'the loss o f sovereign national power1to the European Community.
Williams, 'Sovereignty and Accountability in the European Community' (1990), pp. 299-317. But Ian Harden
argues that British sovereignty is compatible with European monetary union. Harden, 'Sovereignty and theEurofed1(1990), pp. 402-414. Stephan Leibfried of University of Bremen Germany discusses the threats to 'thesovereignty o f the classical welfare state', while observing that EU reality is still mirrored by the model of'negative joint sovereignty'. Leibfried 'The Social Dimension of the European Union' (1994), pp. 240-252.
19 For instance, see Paul Taylor, 'British Sovereignty and the European Community1(1991). Gavin Smith,'Why Sovereignty Matters' (1992). An example of the defence of national sovereignty is Kenneth Minogue, 'Is
National Sovereignty a Bad Wolf?' (1990).

266

publicist accuses politicians of not using the word, sovereignty, as 'constitutional
independence'.20 The very orthodox answer to the problem of sovereignty in theEuropean Union may be Eli Lauterpacht's: 'There was no fall-back to the general notionof national sovereignty. It was rightly deemed irrelevant.'21
It would be possible to say from the perspective of our study that by creating a new
constitutional framework for sovereign states and a supemational institution, theEuropean Union is paving the way for new concepts of constitutional sovereignty.
Indeed, multiple constitutions can coexist in the same area; that has held true since1788.22 In addition, a constitution of a geographically larger range is not always superior
to that of a smaller. The European people can create a European constitutional system
as European citizens, whether they attribute the sovereign status to national
constitutional systems or the supemational one or something like a combination of both.
There are many who emphasise the growth of the activities of 'non-governmental'
international organisations that exist outside the sphere of sovereignty. However, they
are said to challenge only the 'exclusivity' of sovereign states. The important point isthat in most cases sovereignty-related organisations and others respect a common set ofrules in international society. The decline of sovereignty is also mentioned as the reason
that sovereign states are not appropriate units to solve certain types of problems. Global
issues like environmental protection are obviously beyond the jurisdiction of a sovereignstate. But another fact is that no one seriously proposes establishing a strong authority
to impose the necessary measures upon states. Ken Conca explains that the current
emphasis on 'global change' together with 'sustainable development' carries with it an

20 Noel Malcolm, strongly supporting the definition of sovereignty as 'constitutional independence', deplores
the lack o f clarity in the usage of the word, sovereignty, among politicians. See Malcolm, Sense on Sovereignty(1991).
21 Lauterpacht, 'Sovereignty - Myth or Reality?' (1997), p. 147. He argues that 'So far as sovereignty within
the British legal system is concerned it is a reality. . . . With regard to sovereignty on the international plane, thatmust be seen largely as myth - except when it is used as a word to describe a state's title to territory. . . . States
have increasingly used their power to limit their power. . . . But such limitations do not affect the quality o f thestate as such. The state remains a sovereign state in international law and continues to be able to guide its future
destiny within the limits that it has itself accepted.' Ibid., p. 149. Michael Newman distinguishes between several
meanings o f sovereignty and concludes in the context of the European Union that 'the concept of sovereignty is
so ambiguous and distorted that it is now a barrier to analysis.' Newman, Democracy, Sovereignty and theEuropean Union (1996), pp. 14-15.
22 For instance, Sanford Lakoff argues that 'sovereignty is unlikely to disappear, but it will have to coexist
with new forms of government in which mechanisms of federalism will provide for more limited forms of selfdetermination by states and subordinate entities.' Lakoff, 'Between Either/Or and More or Less' (1994), p. 76.

267

implicit endorsement of sovereignty as part of the solution to global problems. He
observes that 'in their most common form, emerging international environmental norms
embrace the principle of sovereignty as the foundation for international policy
responses, even as they complicate the exercise of specific sovereign rights.'23
Fourth, the ethical issues surrounding the principle of sovereignty need to bementioned. There have been two conflicting standpoints on this topic. On the one hand,the proponents of moral justification of sovereignty value the maintenance of collective
goods that the sovereign state is bound to guarantee. On the other hand, the advocatesof human rights many a time mention the word, sovereignty, as a serious obstacle toimplement their aims.24 It is striking that while the Western world is understood torepresent concern about human rights, it is widely believed that non-Westem countries
stress community values. But what is at stake is not so much the issue of culture as thatof the accusation of Western hypocrisy and the balance of the two sets of values inunderdeveloped countries.25 'Cosmopolitan' criticism is either a search for a goodbalance between the two sets of values or an attack upon the absolute theory of nationalsovereignty, to which few people are unequivocally committed nowadays.26
It should be noted, of course, that ethical issues are not merely problems of theantithesis of community and individual. One of the crucial questions in the post­
23 Ken Conca, 'Environmental Protection, International Norms, and State Sovereignty' (1995), p. 153.
24 For instance, Ali Khan advocates the conception 'Free State' which 'is rooted in the global forces of
economic interdependence and human rights' in opposition to the concept o f the sovereign nation-state. Khan,'The Extinction of Nation-States' (1992), p. 234,
25 Deng Xiaoping told Richard Nixon in the fall o f 1989 that 'after years o f subservience to foreigners, China
was now united and independent and that the Chinese people would never forgive their leaders for apologizing toanother nation.' Quoted in Richard Nixon, Beyond Peace (1994), p. 132. The Bangkok Declaration thatreflected Asia's official views affirmed the principle of'respect for national sovereignty' together with 'the non­use of human rights as an instrument of political pressure.' The head o f the Chinese delegation at the United
Nations World Conference on Human Rights in Vienna stated: 'To wantonly accuse another country o f abuse ofhuman rights and impose the human rights criteria o f one's own country or region on other countries or regions
are tantamount to an infringement upon the sovereignty of other countries and interference in the latter's internalaffairs, which could result in political instability and social unrest in other countries.. . . State sovereignty is thebasis for the realization o f citizens' human rights. If the sovereignty o f a state is not safeguarded, the humanrights o f its citizens are out of the question, like a castle in the air.' Quoted in Michael C. Davis, 'Chinese
Perspectives on Human Rights' (1995), p. 17.
26 The Under Secretary-General for Humanitarian Affairs, Jan Eliasson, contends that 'sovereignty is nolonger a principle we can recognise as absolute'. Quoted in James Ingram, 'The International Response to
Humanitarian Emergencies' (1994), p. 185. James N. Rosenau finds that far from absolute, states are conceived
to be 'sovereignty bound actors' due to 'responsibilities and obligations', while non-state actors are 'sovereigntyfree'. Rosenau, Turbulence in World Politics (1990), pp. 36-40. In a similar vein, the writers for the Brookings
Institution contend that 'sovereignty carries with it certain responsibilities for which governments must be held
accountable.' Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild and I. William Zartman,
Sovereignty as Responsibility (1996), p. 1.

268

colonial era is the complexity of the issue of the community. It has become apparent tocontemporary publicists that nations are not identical with states. It is contended thatthe myth of national sovereignty is falling to the ground, for in many places sovereign'nation-states' appear to be fictional.27 In practice, constitutional settlements are almost
the only measure the international community can implement for conflicting 'nations'or ethnic groups in disrupted states.28
Finally, the legal aspect of international society also seems to be gaining attention.
Former UN Secretary General, Perez de Cuellar, represents the standpoint of 'theinternational rule of law'. He argues that 'sovereignty and international responsibility
are different sides of the same coin.' Drawing on the Lockean distinction between 'Eachsovereign government' and 'The sovereignty that resides in the people', he declares that
'The nexus between sovereignty and humanitarianism introduces us to the notions of theinternational rule of law.. . . Sovereignty and international responsibility thus lead us
back to the international rule of law.'29 Along the same line, many scholars work within
the standpoint of 'the international rule of law'.30

Even the phrase, 'global

27 It is noteworthy that the defect o f the sovereign nation-state in the Third World is not claimed by people in
the Third World, but the critics of'statism' in Western societies. For instance, see Mark E. Denham and Mark
Owen Lombardi (eds.), Perspectives on Third-World Sovereignty (1996).
28 For instance, Jeff J. Comtassel and Tomos Hopkins Primeau insist that indigenous groups should 'refrainfrom using phrases such as "self-determination" and "sovereignty" and instead focus upon gaining state
guarantees o f the maintenance of cultural integrity', and 'pursue these collective rights through existing humanrights declarations and treaties'. Comtassel ancLPrimeau, 'Indigenous "Sovereignty" and International Law'
(1995), p. 362. See almost the arguments along similar lines in Mortimer Sellers (ed.), The New World Order(1996).
29 De Cudllar, 'P6rez de Cuellar Discusses Sovereignty and International Responsibility' (1991), pp. 24, 26,27.
30 Abram Chayes and Antonia Handler Chayes contend: 'Sovereignty, in the end, is status - the vindication of
the state's existence as a member o f the international system. In today's setting, the only way most states canrealize and express their sovereignty is through participation in the various regimes that regulate and order theinternational system.' Chayes and Chayes, The New Sovereignty (1995), p. 27. Alec Stone claims that 'the
distinction between international regimes and domestic constitutional forms is relative not absolute.' Stone,'What is a Supranational Constitution?' (1994), p. 474. Tom J. Farer observes that 'at least in Europe and theWestern Hemisphere, the concept of sovereignty evolved from a jurisdictional authority perceived in earlymodem times as supreme, absolute, and boundless to an authority bounded by international law and based on thewill o f its subjects.' Farer, 'Collectively Defending Democracy in a World o f Sovereign States' (1993), p. 721.
Ruth Lapidoth also discusses the 'erosion' of sovereignty by certain rules o f modem constitutional andinternational law. Lapidoth, 'Sovereignty in Transition' (1992), pp. 325-346. Michael Ross Fowler and Julie
Marie Bunck's insistence that 'it is ultimately the international community that determines whether a particularpolitical entity qualifies as a sovereign state' seems to point in the same direction. Fowler and Bunck, 'What
constitutes the Sovereign State?'(1996). They also distinguish between 'sovereigntyism' which stresses the justand legal sanctity of the state and nationalism which ignores the current order. Fowler and Bunck, Law, Power,
and the Sovereign State, pp. 156-157. The phrase, 'constitutional sovereignty', is used by some scholars. For
instance, Philip Allot argues that in the process of'the theoretical evolution o f the idea o f democracy' into thedisappearance of sovereignty in 'self-willed order', the sovereign nation evolves into 'constitutional sovereignty(functional limits on sovereignty)' and then into 'limited sovereignty (constitutionalism - generic principles of the269

constitutionalism', is gaining currency.31 It is argued that nobody in international society
can pretend to act without regard to complex webs of international rules. But neither
a worldwide constitution nor a world state emerges.32 Publicists know that theinternational constitutional system differs from any national constitutions. It has its own
peculiar constitutional order.
This point reinforces the argument in this study. In both the domestic as well asinternational contexts state sovereignty as the most fundamental public authority is
expected to observe and sustain a set of international rules. It should be emphasised thatinternational society establishes its own constitutional system beyond domestic
analogies, all the more because it adopts the same constitutional rules that have been
implemented in many domestic societies. What is shared by national societies andinternational society is not the shape of their constitutional structures, but the core
constitutional values. We have already seen that the current debates on economic andnormative issues are developing along the premises of Western constitutionalism. The
core value is the protection of the private sphere from the abuse of public power. The
growth of the activities of international institutions also strengthens a standard set ofinternational rules in line with constitutional premises: a free market economy regulated
by common rules, the protection of rights of individuals as well as of minority groups,
the implementation of democratic elections, and intervention i.e. 'Appeal to Heaven' in
the case of serious abuse of public power.33 It is widely understood that the end of theCold War has more or less brought about the convergence of ideological conflicts on thesame value system. International constitutionalism lacking a coercive central authority
necessarily needs a consensus on core values in international society. In our 'globalised'world, international society need, not adopt a new constitution based onanthropomorphism imitating domestic society. Instead, it needs to implement the same
constitution)'. Allot, Eunomia (1990), pp. 207-218. Colin Warbrick uses the phrase, 'formal constitutionalsovereignty', denoting the legal essence of sovereignty. Warbrick, 'The Principle o f Sovereign Equality' (1994),
p. 206.
31 See Richard Falk, Robert C. Johansen, and Samuel S. Kim, 'Global Constitutionalism and World Order'(1993), Richard Falk, 'The Pathways of Global Constitutionalism' (1993). See also Luigi Ferrajoli of the
University o f Camerino, 'Beyond Sovereignty and Citizenship: A Global Constitutionalism' (1996).
32 Almost the only exception is Stanley W. Johnson who argues that the United Nations appears to be a worldstate. See, Johnson, Realising the Public World Order (1993).
33 Intervention interpreted as a means to implement 'appeal to heaven' accords with the Lockean classic
constitutionalism.

270

core values of constitutionalism that are expected to be applied in both international anddomestic society.
Certainly, all the contemporary issues I have examined indicate the circumscriptionof the sphere of sovereignty. But none of these extinguishes the notion of sovereignty
as the most fundamental public authority. To be sure, sovereignty has lost its mythicalsupremacy and independence. Nevertheless, it still retains circumscribed supremacy andindependence. Whether or not 'circumscribed supremacy and independence' is anappropriate expression is a question of logic.34 But as long as our actual world needs theconcept that involves the meanings associated with sovereignty, it can claim to remain
the most fundamental public authority.
What we should bear in mind would be the nature of the tendency of constitutionalsovereignty and its relation with the theory of national sovereignty. If the sphere ofsovereignty continues to be circumscribed, we need to ask how it ought to be so.
Probably, we are now experiencing a historical process of the constitutionalisation of
the notion of sovereignty. Needless to say, this phenomenon is a reflection of current
conditions in the post-Cold War world. We have yet to obtain a proof that the struggle
between conflicting ideas of sovereignty has ended. What we need to do now is neither
attack nor defend sovereignty; but to carefully contemplate a healthy development of theconstitutional rules of international society.

34 Thomas G. Weiss and Jarat Chopra argue that political scientists and international relations theorists haveformulated 'a corruption of sovereignty' by admitting degrees of sovereignty. According to them, sovereignty
either exists or does not exist in international law; therefore, 'it is becoming a dead letter*. Weiss and Chopra,'Sovereignty under Siege' (1995), pp. 99-100. But international lawyers know that without sovereignty there is
no 'international' law. They know that sovereignty has not been always absolute, while international law has notbeen always absolute either. The most orthodox and widely acknowledged view o f sovereignty in the 1990s is
still the well-cited statement by an ex-intemational lawyer, Boutros Boutros-Ghali. According to the former UN
General Secretary, 'Respect for fundamental sovereignty and integrity are crucial to any common international
progress. The time of absolute and exclusive sovereignty, however, has passed.' Ghali, An Agenda fo r Peace(1992), p. 44. Ghali also writes: 'While respect for the fundamental sovereignty and integrity o f the state remains
central, it is undeniable that the centuries-old doctrine o f absolute and exclusive sovereignty no longer stands,
and was in fact never so absolute as it was conceived to be in theory. A major intellectual requirement o f ourtime is to rethink the question o f sovereignty - not to weaken its essence, which is crucial to international security
and cooperation, but to recognize that it may take more than one form and perform more than one function.'
Ghali, 'Empowering the United Nations' (1992/93), pp. 98-99.

271

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