general overview, owing to the vast attention it has received in literature.
11
According to the Encyclopaedia Britannica, sovereignty is ‘the ultimate overseer,
or authority, in the decision-making process of the state and in the maintenance
of order . . . [and] is closely related to the difficult concepts of state and
government and of independence and democracy’.
12 Since the eighteenth century, constitutional theory has mostly considered sovereignty and state power to
be entwined, as both of them boil down to the monopoly on violence.
13 In the
context of this study it is not possible or even worthwhile to describe in detail the
changes that have taken place in the concept of sovereignty or in the surrounding
society, its subsystems of law, politics or economics, since the eighteenth century.
After the French and American revolutions in the eighteenth century, sovereignty
was sometimes considered to flow from the people, in the tradition of popular
sovereignty. Whereas this perception can nowadays be interpreted in accordance
with the principle of democracy, back in the eighteenth century sovereignty was
linked with absolutism. As is often the case with such idealised principles,
sovereignty can be dressed up to serve multiple and even contrasting objectives.
14
This fluidity and ambiguity of this idea may very well be the reason sovereignty
and the nation-state have proved such long-lived fundamental concepts in constitutional and international law, as Mutanen suggests.
15
The concept of sovereignty, as it is a link between the legal and the political,
engages in the discourses of power and violence, the concept itself being the
product of these discursive practices, as Foucault demonstrates.
16 Although a
comprehensive study of sovereignty is beyond the scope of this book, a short
description of its philosophical roots is needed.
5.1.3 Deconstructing the origins of state monopoly
The concept of sovereignty was formally introduced by the French political philosopher Jean Bodin in his Les Six livres de la République in 1576. To Bodin, sovereignty
was ‘an absolute and perpetual power of the republic’,
17 to include all legislative
powers indivisibly. However, Bodin’s sovereignty referred to the highest unified
power, the top of the pyramid of authority, as has been pointed out by professor
Stéphane Beaulac. The concept was originally intended to describe the necessity of
the king’s central authority, i.e. in internal matters within a nation. Later on, the
perspective of externality was added to the concept, as Beaulac describes.
18 Concurrently with the addition of external effects, the concept has expanded beyond the
borders of sovereign states to the context of law of the nations.
Bodin’s sovereignty played a role in the power transfer from feudal lords to the
king, to a more centralised system of governance that signified the transformation
from feudalism to early nationalism.
19 After Bodin’s preliminary theorisation,
the principle of sovereignty became attached to the concept of the state in the
aftermath of Westphalian Peace Treaty that ended the thirty years’ war. The
Westphalian concept of sovereignty was pronouncedly the origin of the territorial
state, through which secular rulers reasserted dominion over their own territory.
Hence, the birth of the territorial state took place in the shadow of the power
112 Three quests for justification
11
According to the Encyclopaedia Britannica, sovereignty is ‘the ultimate overseer,
or authority, in the decision-making process of the state and in the maintenance
of order . . . [and] is closely related to the difficult concepts of state and
government and of independence and democracy’.
12 Since the eighteenth century, constitutional theory has mostly considered sovereignty and state power to
be entwined, as both of them boil down to the monopoly on violence.
13 In the
context of this study it is not possible or even worthwhile to describe in detail the
changes that have taken place in the concept of sovereignty or in the surrounding
society, its subsystems of law, politics or economics, since the eighteenth century.
After the French and American revolutions in the eighteenth century, sovereignty
was sometimes considered to flow from the people, in the tradition of popular
sovereignty. Whereas this perception can nowadays be interpreted in accordance
with the principle of democracy, back in the eighteenth century sovereignty was
linked with absolutism. As is often the case with such idealised principles,
sovereignty can be dressed up to serve multiple and even contrasting objectives.
14
This fluidity and ambiguity of this idea may very well be the reason sovereignty
and the nation-state have proved such long-lived fundamental concepts in constitutional and international law, as Mutanen suggests.
15
The concept of sovereignty, as it is a link between the legal and the political,
engages in the discourses of power and violence, the concept itself being the
product of these discursive practices, as Foucault demonstrates.
16 Although a
comprehensive study of sovereignty is beyond the scope of this book, a short
description of its philosophical roots is needed.
5.1.3 Deconstructing the origins of state monopoly
The concept of sovereignty was formally introduced by the French political philosopher Jean Bodin in his Les Six livres de la République in 1576. To Bodin, sovereignty
was ‘an absolute and perpetual power of the republic’,
17 to include all legislative
powers indivisibly. However, Bodin’s sovereignty referred to the highest unified
power, the top of the pyramid of authority, as has been pointed out by professor
Stéphane Beaulac. The concept was originally intended to describe the necessity of
the king’s central authority, i.e. in internal matters within a nation. Later on, the
perspective of externality was added to the concept, as Beaulac describes.
18 Concurrently with the addition of external effects, the concept has expanded beyond the
borders of sovereign states to the context of law of the nations.
Bodin’s sovereignty played a role in the power transfer from feudal lords to the
king, to a more centralised system of governance that signified the transformation
from feudalism to early nationalism.
19 After Bodin’s preliminary theorisation,
the principle of sovereignty became attached to the concept of the state in the
aftermath of Westphalian Peace Treaty that ended the thirty years’ war. The
Westphalian concept of sovereignty was pronouncedly the origin of the territorial
state, through which secular rulers reasserted dominion over their own territory.
Hence, the birth of the territorial state took place in the shadow of the power
112 Three quests for justification