Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth.

Oxford:  Oxford University Press.  2002. 
210pp. inc. index.  Soft cover.
ISBN:  0-19-925330-7  Price £27.95 / $67.50

Reviewed by Juliette C. Gonsalves

Law Graduate, University of California, Davis - King Hall School of Law.

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This work is an in-depth politico-legal theory inquiry into the evolved nature, meaning, and popular understanding of sovereignty.  Using the unique history and current political composition of the United Kingdom, both inter se and within the European Community, as a case study, the author is able to explore the evolution of the traditional conception of sovereignty, and, further, to illuminate the decidedly untraditional political possibilities which this evolution allows for.  The book concludes with the author’s proposal for a state division which, initially on its face, would appear to be somewhat radical.  The author appreciates its polemical nature and so takes care not to reveal his ultimate proposal before scrupulously laying-out the appropriate theoretical groundwork.  

The first beam in this theoretical foundation is the author’s theory of law as an institutional normative order which detaches ‘law’ from ‘state’.  Beginning at the basest level of human political cognition, the author observes that normative judgments are manifested in two forms:  autonomous and institutionalized.  Normative judgments, in turn, are organized into normative orders.  Of the myriad possible types of normative orders, the state is the “coercively predominant” form.  In highlighting the distinctions between law and politics and law and morality, the author is able to characterize law as an institutional normative order.

Examining the German concept of Rechtsstaat, or a state under the rule of law, brings into focus the relationship between law and state.  In Chapter 3, the concept of ‘interests of the state’ as it is implicated in the Ponting Case and the UK Official Secrets Act of 1911 reveals a personification of legal order under which the public consciousness associates the state’s interests with the acts of the executive. 

Further, in questioning the constitutional order of the UK, the author focuses the lens on a new type of sovereignty – post-sovereignty – which is characteristic of the UK’s membership in the European Union confederal commonwealth.  Analysis of Benthamite philosophy and legal positivism is presented.  For his part, the author asserts that the state needs a constitutional order and takes the view that the constitutional makeup of the UK is democratic quasi-federalism.  By reference to H.L.A. Hart’s primary and secondary rules, he demonstrates that the British Parliament’s seemingly revolutionary act in its 1972 accession to the EU was merely the use of the rule of change to legitimately exceed its own constitutional limitations. 

Under the author’s pluralistic view of law as an institutional normative order, this self-referentiality of the British Parliament is perfectly acceptable.  Also acceptable is the way in which the ECJ, through its decisions, declares Community law to be ‘the new legal order sui generis’.  Indeed, there has been a democratic endorsement of Community law overriding domestic law for certain purposes.

So what has become of sovereignty in this context?  Alluding to Hegel’s philosophical characterization of property, the author adopts the perspective that sovereignty is like virginity – it can be lost without another’s gaining it.  There is no absolute or unitary sovereignty in the European Community’s legal and political setting.  Instead, what we see is a divided sovereignty.  This new understanding of sovereignty opens the door for different avenues to and manifestations of legitimate power.

Before revealing his proposal, the author addresses one of the stickier points in his theoretical groundwork.  Given that ‘the people’ are the ultimate source of legitimacy in any democratic philosophy, the author envisions a ‘liberal nationalism’, containing both individualistic and universalistic ideals, which contains itself within liberal principles.  The challenge, not resolved in the book, is to develop an institutional framework by which to cultivate this form of nationalism.

The author concludes with his proposal:  the component parts of the UK should become mutually independent states within the British Isles and in the EU.  With national self-government and a partnership towards peace and prosperity as principle aims, Scotland should separate itself from the British nationhood.  The proposal, which includes a detailed procedural plan of how it would be realized by an ‘independence referendum’, is nearly airtight.  The notion that the international community would support Scotland in this endeavor perhaps overstates the matter.  (However, the author does emphasize that he well-appreciates that his vision of ‘liberal nationalism’ defies the more limited notion of self-determination accepted at international law.)  Also unconvincing are the stated motivations of English decency and a sense of fair play to explain England’s countenance of this effort.  Perhaps the author draws too much optimism from the fact that the current union between England and Scotland has been achieved through peace and negotiation.  In any case, given the Scottish National Party’s recent success in the May 2007 elections in gaining the greatest number of seats in the Scottish Parliament, the time is now ripe to see whether political reality will emulate the author’s ambitious plan for state division.