Unpopular Sovereignty?

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to constitute, control and dismantle governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democracy, have taken leave of this tradition. They have severed the connection between sovereignty and action. What remains of popular sovereignty is fundamental rights and values, or dispersed networks of deliberation. This is based on the the idea that the place of power is ‘empty’ and legitimised on the principle of including ‘All-Affected-Interests’. The very concept of sovereignty thus becomes unpopular. This contribution aims to re-establish the link between popular sovereignty and action by examining sovereignty's emancipatory telos, its majoritarian mode of operation and its dependence on political citizenship.     

Sovereignty as Autonomy

Many philosophers, past and present, have attempted to eradicate the notion of sovereignty. The most interesting and most ambitious attempt to do so, comes from those philosophers who claim that sovereignty is in principle incompatible with the rule of law. The purpose of this paper is to repel this latter attack. In order to do so, I investigate the analogy between sovereignty and individual autonomy. The resulting conception of sovereignty, ‘sovereignty as autonomy’, shows that sovereignty and the rule of law are utterly compatible. At the same time, this conception conserves what I believe to be the normative core of our modern notion of sovereignty: when speaking of sovereignty, we invoke the perspective from which a political community can consciously understand itself as an autonomous agent.     

Ignorance of the Criminal Law,and Duties to Avoid it

‘Ignorance of the law is no defence,’ so we are told from an early stage in our legal studies. Or, to be more accurate, ‘ignorance of the criminal law is no defence to a criminal charge.’ That appears to be the rule in this country, apart from a couple of well‐established exceptions and another possible one. I will argue that it is a preposterous doctrine, resting on insecure foundations within the criminal law and on questionable propositions about the political obligations of individuals and of the State. In developing these arguments, I will draw attention to the differing problems of ignorance of the criminal law in three broad areas – regulatory offences, serious crime, and offences of omission – with a view to suggesting that there is a great deal more that the State needs to do if the issue of ignorance of the criminal law is to be dealt with adequately and fairly. I begin by scrutinising the relevant rule of English criminal law and the justifications offered for it. I then go on to situate the ‘ignorance‐of‐law’ doctrine in the context of the principle of legality and the rule of law, those bastions of liberal criminal law theory. Part three then explores the three broad areas of the criminal law, and parts four and five carry the debate into the political obligations of individuals and of the State in these matters.     

‘Fear’ and ‘Hope’ in Graphic Fiction: The Schismatic Role of Law in an Australian Dystopian Comic

The rise in popularity in recent times of dystopian fiction (particularly among young adults) is reflective of contemporary anxieties about law: the inhumanity of judicial-coercive machinery; the influence of corporate power; the lack of democratic imagination despite the desperate need for political reform; and the threat of order imposed through violence and victimisation. These dystopian texts often tell fear-inducing stories of law’s failure to protect; or of law’s unsuccessful struggle against unbridled power; or even sometimes of law’s ‘bastardised’ reconstruction. Indeed comics, with their visual and narrative intricacies, thrive on dystopia as a key vehicle for contributing to collective notions of fear and trembling about the future. Yet, at the same time, these texts also contain within them the blueprints for hope—the idea that with transformation, heroic intervention, and/or faith in ‘justice’, the law will ultimately prevail. Law’s ability to be transformed is thus simultaneously portrayed as society’s downfall (when manipulated and disrupted), AND as the key to enlivening humanity (when redeemed and restored). This article attempts to understand this schismatic role of law as presented in the recent dystopian comic book series From Above by Australian creator Craig Bruyn. In this series set in futuristic Melbourne, where law has given way to an unaccountable corporate rule, the social divide is made manifest by the absence of ‘order’, ‘law’ and ‘justice’ in certain segments of society, and yet hope in law’s return is ever-present. The paper will interrogate expectations of law and justice that is mediated through the complex interaction of fear and hope, and contextualise this within current contemporary anxieties.     

Human Rights and Popular Sovereignty: The Liberal and Republican Versions*

Abstract
Popular sovereignty and human rights are the modern pillars of legal legitimacy and political power. Liberal and republican thought, however, tend to interpret the two notions from different perspectives: either as moral principles, emphasizing the self-legislation and autonomy of individuals, or as ethical values, stressing the self-realization of the political community. Adhering to his theory of communicative action, the author brings the two principles together in a non-competitive relation. Here the connection between popular sovereignty and human rights is given by the procedures of a discursive process of opinion- and will-formation. Theoretically, the institutionalization of this process through law leads to a normative model of contemporary democracy, which is based on the substance of human rights as a formal condition for deliberative politics.**     

Las fuentes de conocimiento de lo jurídico*

The basic concept of law which was built on that of the state’s sovereignty has been transformed in such a way that can be no longer recognised as operable in the reality of politics. a great number of social changes have contributed to such a transformation; such as politic and internal social pluralism, the latter contradicts the idea of sovereignty and cohesion; the establishment of alternative centres of power which coexist with the state; the institutionalisation of contexts integrate their branches of power beyond those of the state –and consequently, they are becoming unavailable both for individual states-; and for individuals to claim their rights before international jurisdictions. This paperwork analyses formal legal sources from this perspective.     

Theological-Political Ruins: Walter Benjamin, Sovereignty, and the Politics of Skeletal Eschatology

Drawing on the work of Walter Benjamin, this essay argues—largely against Carl Schmitt—that political theology as a critical analytic should examine the ‘afterlife’ of theological tropes with respect to the sense of time and history that they compel. Benjamin’s The Origin of German Tragic Drama argues that sovereignty as a political concept gains prominence as a response in the wake of the erosion of the concept of salvation history in the Baroque. The consequence of this rise of sovereignty as a political key concept is a philosophy of history based on the permanently impending catastrophic end of the world. This continuously urgent situation is not only one that leaves little room for political critique and action, but also a perplexing one in its perpetuation, since the end of the world never actually arrives. To answer why political urgency can be perpetuated seemingly infinitely and why sovereigns can fail without eroding the ongoing desire for sovereignty, Benjamin’s work suggests that we must broaden our view of political theology to consider the survival of further theological concepts to include original sin as a master trope of philosophical anthropology.     

About the Impossibility of Absolute State Sovereignty

State sovereignty is often thought to be absolute, unlimited. This paper argues that there is no such a thing as absolute State sovereignty. Indeed, absolute sovereignty is impossible because all sovereignty is necessarily underpinned by its conditions of possibility—i.e. limited sovereignty is the norm, though the nature of the limitations varies. The article consists of two main sections: (a) the concept of sovereignty: this section is focused on some of the limitations the concept of sovereignty itself presents; and (b) a historical account of the notion of sovereignty as it was used in the Ancient Times. The particular focus on early notions of a modern concept such as sovereignty has to do with the fact that this early notion has been anthropomorphised with societal evolution. Therein, the current concept of State sovereignty embraces the same limitations it had in its ancient form as a non-fully developed conceptual idea. The implications of understanding State sovereignty as limited rather than absolute are several, both directly and indirectly. A main immediate consequence is that sovereign States can cooperate together, limit their sovereignty and still be considered sovereign.     

From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing

Since the 2009 CJEU decision in L'Oréal v. Bellure, the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top‐down ‘brand performance’ perspective, but, rather, through the prisms of ‘anthropological marketing’ and ‘consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.     

COVID,crisis, and unordinary order: A critical analysis of Australia’s JobKeeper wage subsidy scheme as an exceptional measure

Carl Schmitt’s famous articulation of the relation between sovereignty and the exception emphasises not simply the basis for a suspension of the law in a state of emergency, but the role of the sovereign in deciding upon the existence of the ‘normal situation’, the ‘everyday frame of life’ which the law requires to function. Our pandemic times have included extreme biopolitical measures deployed to manage the health crisis, but also unprecedented political responses to regularise or stabilise the economic order. One example is Australia’s historic JobKeeper wage subsidy scheme. As law, it was given life by an executive power predicated on nationhood and enlivened by crisis. As policy, it was intended to help businesses retain workers through targeted, proportionate support. In reality, it also provided significant protections and even windfalls to corporations and their investors, leading to critiques of the scheme as corporate welfare. However, rather than highlighting deficiencies of the JobKeeper programme, these outcomes underscore its ultimate function. This article analyses the relationship between norm, exception, and order in the context of Australia’s flagship economic-policy response to the pandemic. First, by analysing the mutually constitutive relationship between norm and exception, employing the theories of Carl Schmitt and Giorgio Agamben. Second, by critically examining the legislative basis for JobKeeper, its political narrative and practical outcomes. Third, by demonstrating that the scheme, though an extraordinary departure from policy, can be understood as fundamentally a different and exceptional method to secure and reproduce our neoliberal corporate order in a state of exception.

     

Mastery Over the Time of the Other: The Death Penalty and Life in Prison Without Parole

Derrida’s seminar on the death penalty is a deconstructive reading of the debate over the abolition of the death penalty beginning in eighteenth century Europe. The main imperative of the reading is to address the limits of abolitionist discourses, which historically have been based on natural law conceptions of the right to life. Derrida’s interest in undertaking such a reading is to develop an abolitionist argument that would hold up in principle against the death penalty. However, in this paper I take Derrida’s insights into the meaning of the death penalty to explore what they reveal about political sovereignty, and in particular its relation to violence. The paper begins by addressing several relevant moments in Derrida’s reading of texts on both sides of the death penalty debate and shows how the arguments are each limited by some ‘unavowed’ interest that conditions the fundamental principles upon which they are based (Derrida, in Death penalty, Volume I. University of Chicago Press, Chicago, p. 142; 2014). These unavowed interests relate to what Derrida describes as the ‘compromise’ on the question of cruelty in the context of the death penalty. Based on these readings, the paper develops a concept of the death penalty defined as a relation to time, specifically, a relation of mastery over the time of the life of the other. It then connects this concept to Derrida’s analysis of political sovereignty found in Rogues (2005) and ‘Force of Law’ (2002) to make two arguments. First, the conception of the death penalty as a relation to time redefines so-called ‘death penalty alternatives’, such as life imprisonment without the possibility of parole as manifestations of the death penalty through other means; and, second, changes in the appearance of the death penalty reflect changes in the institution of political sovereignty, and in turn the status of the state.     

European Integration: Popular Sovereignty and a Politics of Boundaries

The problem raised by popular sovereignty in the framework of the EU is not whether it is relevant to European integration; it is. The problem is another, namely the identity and, thus, the boundary of a democratic polity. The very idea of ‘European’ integration suggests that integration is only imaginable by reference to the closure provided by an identity, a boundary that is normative rather than merely geographical. In this minimal sense, a European people is the necessary presupposition of integration, not merely its telos. Bluntly, there is no integration without inclusion and, also, no integration without exclusion. This, then, is the real problem raised by popular sovereignty in a European context: if there is no such thing as non‐exclusionary integration, how can a reflection on the boundedness of European integration be more than a rationalisation of exclusion?     

Plurinational democracies in Europe: the quest for a profane constitutionalism

How should we understand the claims on the right to decide on status made within plurinational member states of the European Union by actors and institutions seeking to protect the self-government of sub-state nations or peoples, or at least their right to consent to their ascribed status? Peaceful solutions to conflicts involving contested claims over territory, citizenship, and national sovereignty (authority) can be found when a conceptual or cultural transformation takes place towards a pluralist and bottom-up or federal concept of plurinational democracy, recovering the centrality of self-determination as the self-assertion of a political community. Constitutional law based on the popular sovereignty of a majority nation within plurinational democracies often neglects the question of the definition of the demos as the prefigured constituency, and the existence of national or territorial minorities. If constitutions are interpreted as precluding any claim to self-determination by a constituency, and any debate about that claim, then an undemocratic, sacralized model of militant constitutionalism may emerge. That model is not so much about protecting democracy as it is about imposing a national mould, a pre-defined demos. This article revisits the claims of sovereignty made by national territorial minorities in Spain, against the background of the constitutional doctrine of the Spanish judiciary that precludes these constituencies from engaging in political debates on the right to decide. The resulting sacralization of the Constitution leads to a new version of the model of ‘militant democracy’, a militant nationalist constitutionalism, which can be countered by an alternative, secular, even profane approach to the Constitution.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

From Fear to Anxiety: An Exploration into a New Socio-Political Temporality

Modern political reality is increasingly permeated with testimonies and representations of social and personal anxieties. Most often these narratives are accompanied with a desire to identify and implement a ‘cure’ that will either heal or eradicate the source of discomfort. In the political everyday such a ‘cure’ is disguised as a policy or a new law. Thus it comes as a little surprise that the term anxiety is increasingly used by politicians, policy-makers, legal and medical experts as well as scholars to explain an allegedly new social phenomenon. Relying on psychoanalysis and critical theory the contributions in this special issue tackle modern anxieties in the realms of politics and law, and in particular look into how anxiety is manifested in relation to resistance, immigration, nationalism and austerity measures. This introduction firstly, unpacks the idea of anxiety conceptually and offers different ways in which anxiety can be read politically, legally as well as theoretically; and secondly introduces the arguments put forward in individual contributions.     

The Limits of Critique and the Forces of Law

Three recent publications evidence a growing interest in critical jurisprudence with materiality, technology, affect and atmosphere. These approaches pose fundamental challenges to existing traditions within legal critique, spurning a focus on the ideology of legal reasoning and exploring instead the unique practices through which the law binds subjects through material, affective and atmospheric manipulations. Through either Andreas Philippopoulos-Mihalopoulos’s ‘lawscape’ or Kyle McGee’s ‘jurimorphs’ these innovative theoretical projects pluralise the ‘forces’ which account for the law’s normativity, disavowing the notion that such forces can be reduced either to a transcendental form (like sovereignty) or to notions of structural or symbolic violence. These approaches address a ‘democratic deficit’ in legal philosophy that has generally excluded the realm of the material in its theorising and allows us to attend to the multiple forms that allow for the passage of law.     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

The ‘Commons’ Solution to Troubled Waters

The global commons are traditionally connected to ‘those parts of the planet that fall outside national jurisdictions and to which all nations have access’ such as the high seas, outer space, and the deep seabed. However, there is a trend to expand the reach of commons beyond the traditional perception to cover the environment and natural resources that are of common interest to the well-being of the community of nations, regardless of the sovereignty status over such environment and resources. In this context, this article aims to explore the interlinkage between the concept of (global) commons and disputed marine areas from the perspective of international law, which hitherto has been little explored in literature. In particular, this article discusses the applicability of the concept of commons to disputed marine areas by examining the changing relationship between commons and sovereignty over time. Through a comparative analysis of various legal regimes associated with the well-accepted commons in international law (i.e. the high seas, outer space, the deep seabed, Antarctica) as well as the climate system and biological diversity, the article concludes that a certain space or resource, irrespective of its sovereignty status, including a disputed marine area, can be protected as commons in view of the interdependence of ecological systems. It further analyzes the added values that the concept of commons can bring in addition to the existing regulatory framework governing disputed marine areas.

     

Mural Sovereignty: From the Twin Towers to the Twin Walls

After the demolition of the Berlin Wall (1989), the construction of the Palestinian Wall from 2002 and the passing of The Secure Fence Act of 2006 (governing the US–Mexico border) enact a return to mural forms of sovereignty: walls are both without and within law, ‘old solutions’ to problems newly-made. While the Berlin Wall is considered a Cold War monument, both the Palestinian Wall and the ‘Secure Fence’ concretize the paradoxical reappearance of ancient territorializing strategies in a post-Cold War New World Order. These paradoxes are related to the coincidence of intensive and extensive forms of contemporary sovereignty: the contraction of a narrowed sovereign border accompanied by the projection of an extended sovereign power. These mural structures are considered in the context of the renovation of Ground Zero, Franz Kafka’s story ‘The Great Wall of China’, and Dan Perjovschi’s mural ‘What Happened to US?’ (Museum of Modern Art 2007).