The End of Sovereignty and the New Humanism

Stanford Law Review

The End of Sovereignty and the New HumanismAuthor(s): Ian WardSource: Stanford Law Review, Vol. 55, No. 5 (May, 2003), pp. 2091-2112Published by: Stanford Law ReviewStable URL: http://www.jstor.org/stable/1229573 .

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The End of Sovereignty and the New Humanism

Ian Ward*

INTRODUCTION

Lewis Carroll's Alice spied the Cheshire Cat and asked, "Would you tell me, please, which way I ought to go from here?" The Cat replied, "That

depends a good deal on where you want to get to." Alice merely wanted to go "somewhere." Their engagement continued a while, and then Alice noticed that the Cat was, rather annoyingly, disappearing and then appearing again. It was all rather disconcerting, even for someone who was "getting so well used to queer things happening." When she asked it to stop, the Cat acceded to her

request, "and this time it vanished quite slowly, beginning with the end of the tail, and ending with the grin, which remained some time after the rest of it had gone." The idea of a "grin without cat," Alice mused, was "the most curious thing I ever saw in all my life!"1

So there it was: a grinning presence that slowly disappeared, leaving a disorientated Alice wanting to go somewhere, but unsure as to quite where. Curious indeed. And oddly appropriate, as an analogy, for the apparent demise of the classical conception of sovereignty. It seems to be part of the jurisprudential furniture, a maddening indefinable presence, always slipping in and out of reach, but always there, grinning away, comfortable in its elusiveness. And, then, suddenly, it just disappears. Only a strange, eerie, specter remains, of something that once seemed so reassuring, as "cheerful," indeed, as the Cheshire Cat. And we are left to live in a jurisprudential world in which people rarely bother to talk about sovereignty, as least very seriously, except and insofar as it provides an excuse for a certain nostalgic musing on the past.

And yet, not everybody appears to have noticed it go. Even in the new Europe, and perhaps especially in the United Kingdom, that final bastion of the jurisprudentially arcane, people still talk about sovereignty as it if were somehow still here. And in the United States, entire foreign policies can be

* Professor of Law, University of Newcastle upon Tyne. 1. LEWIS CARROLL, THE ANNOTATED ALICE 88-91 (Martin Gardner ed., 1970).

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fashioned around something termed "state sovereignty." Indeed, faltering political careers, and presidencies of dubious constitutional legitimacy, can be seen to flourish under the same enigmatic smile. Nothing more readily enchants the bewildered patriot than the beatific grin of the ephemeral specter of sovereignty. For some, it seems, particularly for millions of Americans, sovereignty still matters. Curiouser and curiouser, as Alice would surely have said.

I. THE END OF SOVEREIGNTY

Of course, there is a reason why sovereignty enjoys such a privileged place in modem jurisprudence. For the last two centuries it has been a centerpiece of western constitutional theory, and most particularly the Anglo-American variant of it. For some, it has, indeed, described the "end," the ultimate expression, of a modem constitution. This was certainly the case for John Austin, whose Province of Jurisprudence Determined was dominated by the thought. Indeed, according to Austin the very idea of "positive law" was founded on the effective presence of a "sovereign person" who issues legitimate "commands."2 It was for this reason that he dismissed the idea of international law as a species of the kind of "muddy speculation" presented by natural lawyers and other juristic dreamers. At best these are rules of "positive morality" rather than "positive law," of the kind that can be aligned with the "customary" laws of fashion and chivalry. And the idea of "composite," or federal, law received similar treatment. A constitution that seeks to prescribe "joint sovereignty" can only lead to jurisprudential "confusion."3

The idea of "unlimited," specifically parliamentary, sovereignty acquired an iconic status in Albert Venn Dicey's Introduction to the Study of the Law of the Constitution, where it was identified as being the "keystone"4 of the English constitution, the "dominant characteristic of our political institutions."5 Whilst he was slightly troubled by the imprecision that he detected in Austin's more theoretical expression, Dicey clearly aligned himself with the Austinian tradition.6 The very first chapter of Dicey's Law of the Constitution was

2. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 21, 29-30, 116-17, 183 (1995).

3. See id. at 20, 205-10, 274. Part of Austin's distrust of "composite" sovereignty was rooted in his classically Benthamite dislike of legal orders that appeared to be born of "compacts."

4. ALBERT VENN DICEY, AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 70 (10th ed. 1959).

5. Id. at 39. 6. For the influence of Austin on Dicey, see RICHARD A. COSGROVE, THE RULE OF

LAW: ALBERT VENN DICEY, VICTORIAN JURIST 23-28, 70-71, 180-88 (1980); see also C. Harlow, Power from the People? Representation and Constitutional Theory, in LAW, LEGITIMACY AND THE CONSTITUTION 70-75 (Patrick McAuslan & John F. McEldowney eds.,

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devoted to countering the heretical notion that there might be "alleged limitations" to sovereignty. Parliament had, Dicey famously declared, the "right to make or unmake any law whatever."7 For historical authority, Dicey unsurprisingly sought recourse to the Act of Settlement and to the pervasive constitutional mythologies that hung about the "great and glorious" revolution of 1688.8 Sovereignty had to be "unlimited," and it was for this reason that Dicey, again following Austin, looked so askance at the very idea of international law, or indeed those legal orders that sought to somehow share sovereignty.9 Although there was much about the United States that he admired, particularly the reverence for the rule of law that seemed to be commonly displayed, Dicey could only conclude that "federal government means weak government." The "supremacy of the constitution," Dicey opined, is quite different from the "sovereignty" of the nation state, whilst the idea of shared "sovereignty" is merely a "political contrivance."10 There is a certain irony in the thought that Dicey feared that Americans did not take the idea of nation-state sovereignty seriously enough. Today, only Americans appear to take it so seriously.

To a certain extent, of course, Dicey had misread the script, imbibing, and not greatly liking, a fair amount of Tocqueville, but seeming to ignore the many debates that surrounded the establishment of the United States Constitution. For example, he clearly failed to appreciate the underlying emphasis on both state and nation-state sovereignty which could be found in The Federalist papers. He thus failed to account for John Jay's repeated emphasis on the importance of preserving the integrity of the nascent American state against the ever-present threat of foreign hostility. In his affirmation that the "law of nations" must be respected, and that the new American state should have "national" government, Jay clearly thought in Westphalian terms.11 The need for strong central government, and to avoid the anarchy that besets collections of "petty republics," provides the underlying thesis behind all the letters published by Hamilton, Jay, and Madison. For Hamilton, indeed, the principle

1985). For Dicey's discussion of Austin, see DICEY, supra note 5, at 72-76. According to Dicey, the imprecision partly resulted from Austin's failure to appreciate the oncoming horrors of popular democracy, something against which the former wrote at some length in his Lectures on the Relation between Law and Public Opinion During the Nineteenth Century (1905).

7. DICEY, supra note 5, at 39-40. 8. See id. at 43-44, 83-85. By the time that Dicey wrote, at least two generations of

Victorians had been brought up on the writings of Lord Macaulay, who trumpeted the "great and glorious revolution" as the foundation of unlimited parliamentary sovereignty. See THOMAS BABINGTON MACAULAY, THE HISTORY OF ENGLAND 287-94 (1986).

9. DICEY, supra note 5, at 62. 10. Dicey discussed the United States Constitution at some length in the third chapter

of his book, concluding that it followed the same "spirit" as the British, except in its denial of"unlimited" sovereignty. See DICEY, supra note 5, at 139-44.

11. THE FEDERALIST NO. 3 (John Jay).

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of "national sovereignty" was vital to the good health of any modem state.12 And all three, moreover, were convinced that matters of foreign policy had to be reserved to the unlimited sovereign authority of federal government.13

The idea of "unlimited" sovereignty was not then quite so parochial as Dicey surmised. But, for the true disciple, Britain remained the only sure and certain champion of unlimited sovereignty. And because Dicey thought this, then so have generations of British lawyers.14 The sudden demise of Diceyan sovereignty during the last quarter of a century has thus been bewildering and not a little painful for the British lawyer. The key event, of course, was the accession of the United Kingdom to the European Community in 1972. At the time, Prime Minister Edward Heath sought to reassure his colleagues that "[j]oining the Community does not entail a loss of national identity or an erosion of essential national sovereignty."15 It was, of course, plain nonsense, as Heath surely knew. For the subsequent thirty years, Britain has wrestled with the word "essential." Domestic politics have been dominated by the European question, governments have fallen, and political parties have destroyed themselves.16 The present Blair administration is terrified by the question, barely daring to breathe its name.17 And running alongside has been a jurisprudential melodrama of equal fascination. The starting point here is section 2.1 of the 1972 European Communities Act, which states:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal

12. THE FEDERALIST Nos. 8-9, 16 (Alexander Hamilton). 13. THE FEDERALIST No. 64 (John Jay), No. 75 (Alexander Hamilton). 14. According to Alan Simpson, Dicey's An Introduction to the Study of the Law of the

Constitution, supra note 5, was the "best written book" on the subject, a fact that "has been so for a long time." In sum, "the oracle spoke, and came to be accepted." Alan Simpson, The Common Law and Legal Theory, in OXFORD ESSAYS IN JURISPRUDENCE 96 (Alan Simpson ed., 1973). For an earlier, but no less influential homage, see Ivor Jennings, In Praise of Dicey, 13 PUBLIC ADMIN. 123-34 (1935).

15. ROY HATTERSLEY, FIFTY YEARS ON: A PREJUDICED HISTORY OF BRITAIN SINCE THE WAR 224 (1997). The statement repeated the assertion given in a 1971 White Paper, that "[t]here is no question of any erosion of essential national sovereignty. What is proposed is a sharing and an enlargement of individual national sovereignties in the general interest." Andrew Duff, Britain and Europe: The Different Relationship, in THE EUROPEAN UNION BEYOND AMSTERDAM: NEW CONCEPTS OF EUROPEAN INTEGRATION 36 (Martin Westlake ed., 1998).

16. The most famous casualty was, of course, the final Thatcher administration, but the same inability to find a common Conservative party line on the European question also destroyed its successor, the Major government.

17. For commentaries on the Blair government's approach to Europe, see A. RAWNSLEY, SERVANTS OF THE PEOPLE: THE INSIDE STORY OF NEW LABOUR 73-75 (2001); HUGO YOUNG, THIS BLESSED PLOT: BRITAIN AND EUROPE FROM CHURCHILL TO BLAIR 490 (1998).

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effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.18

In simple terms, the 1972 Act is an "enabling" act. It is intended to prescribe the future manner of legislative enactment. The burning question, of course, is whether section 2.1 represents an infringement of"essential" sovereignty.

The initial response, most famously articulated by Lord Denning in Macarthy's v. Smith, was that it did not, but that it did not in a rather particular and unusual way. Faced with subsequent legislation that appeared to be inconsistent with the 1972 Act, Denning was insistent that there could be no implied repeal of the former. Short of an express reservation, he opined, British courts must interpret subsequent domestic legislation to be in accord with Community law, no matter how creative they may have to be. The Diceyan idea of "unlimited" and "continuing" sovereignty was crushed. Dicey had explicitly rejected the notion that a Parliament might bind a successor Parliament.19 At the time, however, scrabbling around for some kind of credible means of resuscitating the corpse, jurists alighted on an alternative "self-embracing" form of sovereignty, one which suggested that sovereignty was retained through the presence, and possible repeal, of the 1972 Act.20 As Denning said, the "priority" of European law "is given by our own law." "It is not," he continued, "supplanting English law." Rather, "[i]t is part of our law which overrides any other part which is inconsistent with it."21

And yet, the European Court of Justice had long laid down its central jurisprudential principle, the "supremacy" of Community law.22 In the seminal Costa v. ENEL case, it affirmed that, by "creating a Community of unlimited duration," one which has "powers stemming from a limitation of sovereignty, or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves."23 The arrogation of judicial sovereignty was uncompromising, and has been

18. European Communities Act 1972, ch. 68, ? 2(1) (Eng.). 19. See DICEY, supra note 5, at 64-70. 20. Macarthy's v. Smith, 1981 Q.B. 180. This is some historical authority for the

"self-embracing" idea of sovereignty, the most famous being the Act of Union, which is generally taken to be prescribing the manner and form of subsequent legislation on matters relating to Scotland. The nature of this particular statute was of considerable import during the recent process of devolution.

21. Id. at 200. 22. As one recent commentator has affirmed, the principle of "supremacy" is without

doubt that "most important constitutional issue of the Community legal order." Pavlos Eleftheriadis, Begging the Constitutional Question, 36 J. COMMON MARKET STUD. 257 (1998).

23. Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, 593.

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reinforced on countless occasions, perhaps most famously in Simmenthal in 1978, where the Court of Justice reaffirmed that "[e]very national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule."24 As Neil MacCormick brusquely observes, the principle of supremacy drove "a wooden stake through the heart of the old constitution and the doctrine of parliamentary sovereignty."25 Even Denning's admirers have felt compelled to admit as much.26

The realization, however, took rather longer to register in various U.K. courts. For much of the first two decades after 1972, judges sought succor in Denning's "dualist" constitution, often tortuously trying to distinguish Community law from domestic law.27 It has, at times, been painful to behold. In Stoke, for example, the then-Justice Hoffmann admitted the difficulties entailed in acknowledging that the 1972 Act demanded a "partial surrender of sovereignty," but refused, at the same time, to accept that this meant that British judges were now endowed "with quasi-legislative powers."28 The defense of Denning's dualism reached its apogee in Lord Bridge's mournful elegy in the first Factortame case, decided in 1990:

If the supremacy within the European Community of Community law over the national law of Member States was not always inherent in the EEC Treaty it was certainly well-established in the jurisprudence of the European Court of Justice long before the UK joined the Community. Thus, whatever limitations of its sovereignty Parliament accepted when it enacted the European Communities Act of 1972 it was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a UK court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not

24. Case 106/77, Amminstrazione delle Finanze v. Simmenthal SpA, 1978 E.C.R. 629, 643-44.

25. NEIL MACCORMICK, QUESTIONING SOVEREIGNTY: LAW, STATE AND NATION IN THE EUROPEAN COMMONWEALTH vi (1999).

26. See T.R.S. Allan, Parliamentary Sovereignty: Lord Denning's Dexterous Revolution, 3 OXFORD J. LEGAL STUD. 22 (1983); T.R.S. Allan, The Limits of Parliamentary Sovereignty, 1985 PUBLIC L. 619, 619-23.

27. See, e.g., Litster v. Forth Dry Dock & Eng'g Co., [1990] 1 A.C. 546; Pickstone v. Freemans plc., 1989 A.C. 66; Garland v. British Rail Eng'g Ltd., [1982] 2 All E.R. 402.

28. Stoke-on-Trent City Council v. B & Q plc., [1993] 1 All E.R. 481.

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be inhibited by rules of national law from granting interim relief in appropriate cases.29

It was, Lord Bridge confirmed, a "logical recognition" of the principle of "supremacy" of Community law. Yet even this admission is insufficient. As Dicey would have readily confirmed, a dualist system is, quite simply, an incoherent system. This truth received a clear acknowledgement in both the Court of Appeal and the House of Lords in the famous case M v. Home Office. In the Court of Appeal, Lord Donaldson observed that such a system, bred of a stubborn refusal to admit the demise of sovereignty, was "anomalous, and in my judgment wrong in principle."30 The idea that British citizens might have one set of rights in domestic law, carrying a limited right of action against government, but a rather more "comprehensive" set of rights in Community law, can only lead to serial confusion and to injustice.31 Lord Woolf, in the House of Lords, added his hearty agreement. The obsessive retention of the principle of unlimited sovereignty could only lead to what he termed an "unhappy situation."32 Five years after the Mcase, as the fifth Factortame case finally reached its resolution, Lord Woolf returned to the same subject, arguing that there was an urgent need to "re-examine" the whole constitutional premise that a nostalgic fondness for unlimited sovereignty might somehow be made to fit with the supremacy of Community law.33

Two centuries ago, Tom Paine wrote that all constitutional mythologies must, in time, be brought before the "altar," to make of them "a burnt-offering to Reason."34 Never has the metaphor seemed more appropriate.

II. THE EUROPEAN EXPERIENCE

Such is the fate of Dicey's conception of unlimited, unitary sovereignty. Like the "grin without the cat," there is just an eerie presence, a nostalgic reminder of what once was. Slowly, but inexorably, sovereignty has disappeared, not just from the landscape of British constitutional theory, but from the jurisprudence of the "new" Europe itself.

The vanishing of sovereignty in the new Europe is a fascinating, an instructive, and, for some, a salutary tale. It is important to realize that this

29. Case C-213/89, Regina v. Sec'y of State for Transport ex parte Factortame Ltd. (Factortame 1), 1990 E.C.R. 1-2433.

30. M v. Home Office, [1994] 1 A.C. 377. 31. Id. For a commentary, see Ian Ward, The Story of M: A Cautionary Tale from the

United Kingdom, 6 INT'L J. REFUGEE L. 194 (1994). 32. M, [1994] 1 A.C. at 448. 33. Regina v. Sec'y of State for Transport ex parte Factortame Ltd. (Factortame V),

[1998] 1 C.M.L.R. 1353 (1997). 34. THOMAS PAINE, THE RIGHTS OF MAN 103 (Henry Collins ed., Pelican Classics

1969)(1791).

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story has a dual narrative. The experience of the European Community and the experience of the European Union are very different. The forging of the former has seen the ultimate demise of legal sovereignty across the various member states, whilst the emergence of the latter has done away with political sovereignty in much the same way.

The Community was established by the Treaty of Rome in 1958. Its remit, as was stated in article 2, was to forge a common market, to promote "a harmonious development of economic activities."35 The Treaty further established a range of institutions, a Council, a Commission, a Parliament, and a Court of Justice, thereby providing the foundation, and the necessary impetus, for the development of a genuinely supranational legal and political community. Famously, the real drive came from the Commission and the Court of Justice, with the former zealously pursuing the stated aspirations of the Treaty, and the latter ensuring that the law of the market was uniform and fully effective. The creation of the supremacy principle provided a prime example of this juridical impulse, and a whole series of collateral principles devised by the court, including direct and indirect effect, a common administrative law, and the efficient working of the reference procedure under article 234 EC, provide just as impressive a testimony.36

Deploying these principles over a period of three decades, the court drove the process of European economic and legal integration forward. The political determination to "complete" the "single market project," which emerged during the middle of the 1980s in the wake of the Single European Act, added further impetus. By the end of 1992, the Maastricht Treaty on the European Union could celebrate the "completion" of the market.37 And so, for much of the rest

35. TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, Mar. 25, 1957, art. 2, 298 U.N.T.S. 11 (Treaty of Rome).

36. For further discussion of the Court's development of these fundamental principles and the controversy which it has attracted, see IAN WARD, A CRITICAL INTRODUCTION TO EUROPEAN LAW 100 (1996).

37. Of course, various anomalies remained, including the failure to agree on tax harmonization and the refusal of certain countries, including, needless to say, the United Kingdom, to join the single currency. And then there is the much-debated principle of subsidiarity, and its possible meanings, contained in article 5 EC. In famously opaque terms, article 5 EC states that

[i]n areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

CONSOLIDATED VERSION OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, art. 5, 1997 O.J. (C 340) 3. Interpreted in one way, the principle appears to grant the Community the power to decide competences, a clear infringement of legal and political sovereignty. Of course, this is only one particular meaning. Although the heat has since been taken out of the debate, the process, meaning, and force of article 5 remains less than crystal clear. For an interesting discussion on subsidiarity, and its myriad potential

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of the decade, attention turned to external market competences, the Common Commercial Policy (CCP), as described in title IX of the Community Treaty. The need to enforce the principle of "uniformity" in Community external market competence, as enacted in article 131 EC, had become ever clearer during the confused negotiations surrounding the completion of the Uruguay Round of the GATT. And the Court of Justice, moreover, has likewise striven to ensure that the negotiation of international trade matters should, wherever possible, fall to the competence of the Community, rather than to individual member states.38

Alongside the "completion" of the market, the Maastricht Council of 1992 also celebrated the establishment of a political Union. Once again, the sense that the new Europe should speak with "one voice" in external relations was one of the primary motivators. And so, alongside the Community "pillar," the Union Treaty established two more intergovernmental "pillars," title VI relating to Justice and Home Affairs, and title V relating to Common Foreign and Security Policy (CFSP). The latter provisions, most obviously article 18, which states that the "Presidency shall represent the Union" in those matters falling within the CFSP, were intended to answer Henry Kissinger's famous query; "when I want to speak to Europe, whom do I call?"39

However, whilst the aspiration of these two new "pillars" might have been firmly intergovernmental rather than supranational, the arrogation of political, and indeed legal, sovereignty has continued unassuaged. The translation of title VI of the Treaty of the EU, which contained the heart of the Justice and Home Affairs competence, into the Community Treaty in 1997, represented a significant transfer of sovereignty in a policy area, relating primarily to the control of migration and immigration, which had traditionally been the jealous preserve of the nation state.40 The evolution of the CFSP, particularly in the

meanings, see John Peterson, Subsidiarity: A Definition to Suit Any Vision?, 47 PARLIAMENTARY AFF. 116 (1994).

38. On this latter determination see, for example, Case 61/94, Commission v. Germany, 1996 E.C.R. 1-3989. For a general discussion of the CCP during the last decade, and the various agonies that surrounded the completion of the Uruguay Round and the expedient of "mixed agreements" shared between the Community and member states, see C.W. Herrmann, Common Commercial Policy After Nice: Sisyphus Would Have Done a Better Job, 39 COMMON MARKET. L. REV. 7 (2002).

39. See Gianni Bonvicini, Making European Foreign Policy Work, in THE EUROPEAN UNION BEYOND AMSTERDAM, supra note 15, at 67; Ian J. Manners & Richard G. Whitman, Towards Identifying the International Identity of the European Union. A Framework Analysis of the EU's Network of Relationships, 21 EUR. INTEGRATION 231,236-38 (1998).

40. The competences falling within title VI of the Maastricht Treaty had been previously described in the Schengen Convention, enacted on a more ad hoc basis by a handful of member states during the 1980s. For an overview of these various developments, see Hannah R. Garry, Harmonisation of Asylum Law and Policy Within the European Union: A Human Rights Perspective, 20 NETHERLANDS Q. HUM. RTS. 163 (2002); Elspeth Guild, The Impetus to Harmonise: Asylum Policy in the European Union, in REFUGEE

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area of defense policy, has been no less striking. The immediate context here was the apparent inability of the new Europe to do much about the death of a quarter of a million in the Balkan wars.41 The idea that there should be a stronger, more coherent Union foreign policy became, as Stanley Hoffmann observed, "not only tempting, but necessary."42 The particular need for an "autonomous" European defense policy was acknowledged at the St. Malo summit, then again at the Cologne Council in late 1999, and finally in the drafting of articles 17 and 25 TEU in the Nice Treaty in 2000.43 Again, whilst the existence of an "autonomous" Union defense policy does not diminish the military capacity of each member state, it does make everyone that little bit more interdependent.44 As Commissioner Patten observed, if the Balkan wars have taught Europe anything about external policy, it is that there can be no "neatly separated" competences.45

With each passing year, and perhaps more importantly, each passing treaty, the remnants of member state sovereignty are stripped away from the crumbling edifice of the European nation state. The current determination to devise a more coherent European "constitution," and to reform Union governance, further suggests that the demise of sovereignty will continue apace. Integration only goes one way. The translation of the currently "declaratory" Charter of Rights into justiciable form, along with the prospective completion of the single currency will add further nails to the coffin. Even enlargement, and the possible redefinition of the new Europe into an inner and outer "core" will not arrest the process. Soon there will be 105 million more citizens of the Union. Russian President Putin expresses an interest in placing his country at the heart of a "Greater Europe," whilst former United States Deputy Strobe Talbot revisits President Kennedy's dream of a "broader, deeper transatlantic community."46 The new Europe is changing

RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES 318-22 (Frances Nicholson & Patrick Twomey eds., 1999).

41. As Timothy Garton Ash put it, the new Union had "fiddled in Maastricht while Sarajevo began to bum." T. GARTON ASH, HISTORY OF THE PRESENT: ESSAYS, SKETCHES AND DESPATCHES FROM EUROPE IN THE 1990S, at 327 (2000).

42. Stanley Hoffmann, Towards a Common European Foreign and Security Policy, 38 J. COMMON MARKET STUD. 189, 191 (2000). For a similar sentiment, see Jolyon Howorth, European Defence and the Changing Politics of the European Union: Hanging Together or Hanging Separately?, 39 J. COMMON MARKET STUD. 765 (2001).

43. TREATY ON EUROPEAN UNION, as amended Feb. 26, 2001, arts. 17, 25, O.J. (C 325) 16, 19 (2002). Article 17 TEU provides an overview of the competence of Union foreign and security policy, whilst article 25 TEU establishes a "Political and Security Committee" to "monitor the international situation." Id. art. 25.

44. See John Roper, Two Cheers for Mr Blair?: The Political Realities of European Defence Co-Operation, 38 J. COMMON MARKET STUD. 7, 12 (2000).

45. See Howorth, supra note 42, at 775-77. 46. See Martin Walker, Variable Geography: America's Mental Maps of a Greater

Europe, 76 INT'L AFFAIRS 459, 466-73 (2000); William Wallace, From the Atlantic to the

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shape with a breathtaking rapidity, and it will continue to change. What seems improbable today, may not be so improbable tomorrow. Few in 1958 would have imagined how Europe would look in 2003. Few in the United Kingdom in 1972 seemed to have the faintest idea how things would pan out. Europe is becoming ever more diffuse, unitary expressions of political power ever more elusive. The rhetoric of today's Europe is that of "flexibility." European nation states and their citizens, the Commission urges, will need to be more "flexible" in their understanding of their relationship to the Union.47

Arcane notions of member state sovereignty have no place in what Commission President Romano Prodi has recently termed the "decade of Europe."48 Larry Siedentop puts it bluntly. The future of Europe demands that we all stop worrying about the "location of sovereignty."49 The potentially liberating implications of doing so were fleshed out in Neil MacCormick's influential essay Beyond the Sovereign State, published a decade ago. According to MacCormick, the age of the integral nation state has passed, and, with it, the age of sovereignty-based jurisprudence. No state in western Europe, he asserted, is "any longer" a "sovereign state." And this is a good thing, for "[t]o escape from the idea that all law must originate in a single power source, like a sovereign, is thus to discover the possibility of taking a broader, more diffuse, view of law."50

One of the most strident advocates of such a view is Jiirgen Habermas, who cites the new Europe as an exemplar for a new "post-metaphysical" politics, one that might be understood in terms of interlocking "lifeworlds" and a multiplicity of "public spaces" rather than any identifiable single source of power and authority.51 Significantly, Habermas places great stress here on the role of law, stating in Between Facts and Norms that the law is the "medium through which the structures of mutual recognition already familiar from simple interactions and quasi-natural solidarities can be transmitted, in an

Bug, from the Arctic to the Tigris?: The Transformation of the EU and NATO, 76 INT'L AFF. 477 (2000); Stephen White, Ian McAllister & Margot Light, Enlargement and the New Outsiders, 40 J. COMMON MARKET STUD. 135, 140 (2000).

47. For a discussion of this principle, see Giorgio Gaja, How Flexible Is Flexibility Under the Amsterdam Treaty?, 35 COMMON MARKET L. REV. 855-56 (1998); Joseph Weiler, Amsterdam and the Quest for Constitutional Democracy, in LEGAL ISSUES OF THE AMSTERDAM TREATY 3 (David O'Keeffe & Patrick Twomey eds., 1999).

48. For Prodi's comments and their context, see Ian Ward, A Decade of Europe?: Some Reflections on an Aspiration, 30 J.L. & Soc'Y (forthcoming 2003).

49. LARRY SIEDENTOP, DEMOCRACY IN EUROPE 28 (2000). 50. Neil MacCormick, Beyond the Sovereign State, 56 MOD. L. REV. 1, 5-10, 16

(1993). 51. See JURGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A

DISCOURSE THEORY OF LAW AND DEMOCRACY 25, 44-52, 298 (1996).

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abstract but binding form, to the complex and increasingly anonymous spheres of a functionally differentiated society."52

Famously, Habermas has referred to a "melancholic mood" that pervades turn of the century Europe.53 The agonies of European integration, he suggests, provide a semiotic for the greater global contest between "democracy and capitalism," between the rule of law and the anarchy of the markets. The "technocratic shape" of this Europe, moreover, has intensified a particular "crisis of legitimacy" that should be seen, less in terms of diminished "claims to sovereignty," and rather more in terms of the failure of "democratic processes" that remained trapped within the boundaries of decaying nation states.54 More recently, Habermas has reaffirmed that the future of Europe will be described beyond the imaginary domains of sovereign nation states: "If Europe is to be able to act on the basis of an integrated, multilevel policy, then European citizens, who are initially characterized as such only by their common passports, will have to learn to mutually recognize one another as members of a common political existence beyond national borders ... ."55

And MacCormick and Habermas are certainly not the only commentators to have worked through the implications of a Europe "beyond the sovereign state." Zenon Bankowski and Emilios Christodoulidis, for example, describe an "essentially contested" Europe, one that is defined by a "fluid" politics of "interlocking normative spheres." Such a "system," they advise, must be seen "as a continuous process of negotiation and renegotiation; one that does not have to have one single reference point to make it either a stable state system or one that is approaching that end."56 Talk of"multiplicity" as well as flexibility is common. Kenneth Armstrong deploys an idea of "multi-level governance" as the only sensible way of describing the regulation of the single market. Today's market, he argues, can only be described in terms of myriad "complex, multi-level, interacting governance regimes populated by an array of actors utilizing a reservoir of policy goals, policy ideas, and policy instruments."57 Neil Walker suggests that the new Europe is a testing ground for a new kind of

52. Id. at 318. 53. Id. at xlii. 54. See Jtirgen Habermas, Citizenship and National Identity: Some Reflections on the

Future of Europe, 12 PRAXIS INT'L 1, 8-9 (1992); Jirgen Habermas, The European Nation State. Its Achievements and Its Limitations. On the Past and Future of Sovereignty and Citizenship, 9 RATIO JURIS 135-37 (1996).

55. JURGEN HABERMAS, THE POSTNATIONAL CONSTELLATION 99 (Max Pensky trans., Polity Press 2001) (1998).

56. ZENON BANKOWSKI & EMILIOS CHRISTODOULIDIS, The European Union as an Essentially Contested Project, in THE EUROPEAN UNION AND ITS ORDER: THE LEGAL THEORY OF EUROPEAN INTEGRATION 17, 18 (Zenon Baiikowski & Andrew Scott eds., 2000).

57. Kenneth A. Armstrong, Governance and the Single European Market, in THE EVOLUTION OF EU LAW 745, 746 (Paul Craig & Grainne de Burca eds., 1999).

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"constitutional pluralism."58 And in similar vein, Ingolf Pernice refers to a "multilevel constitutionalism" as a process of integration that can be better seen as a "dynamic process of constitution-making" rather than "a sequence of international treaties which establish and develop an organization of international cooperation."59 In this vision, constitutional integration describes a "divided power system," with governance conducted at various differentiated levels.60

The "end" of sovereignty is commonly equated with the emergence of a distinctively postmodern, as well as postmetaphysical, Europe.61 Those who seek to make sense of European citizenship, enacted in notoriously emaciated form in articles 17-22 EC,62 have made much of the idea that Union citizens might come to identify their political allegiances with a multitude of geopolitical entities.63 Such a view resonates with Joseph Weiler's idea of "multiple demoi," of various sites of civil empowerment scattered throughout the Union, and to which citizens might feel a sense of affinity. Such an idea of multiplicity not only accounts for the reality of a Europe that is becoming ever more multifaceted, but can also promote an ethic of liberality and "tolerance" amongst the various "peoples" of Europe.64

Of course, comprehending life in a world of multiplicity is not easy. As Ulrich Beck has observed, many in Europe find related ideas of multi-layered democracy, and all its satellite notions, disturbing. Like everyone else indeed, Europeans "struggle to make sense of lives" beset by "contradictory transnational and personal identities and risks." It is a life, in short, which forever seems to "escape our grasp."65 But the fact that it is difficult does

58. See Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317 (2002).

59. Ingolf Pemice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?, 36 COMMON MARKET L. REV. 703, 707 (1999).

60. Id. 61. See, e.g., DEIRDRE M. CURTIN, POSTNATIONAL DEMOCRACY: THE EUROPEAN UNION

IN SEARCH OF A POLITICAL PHILOSOPHY 2-7 (1997); Jo Shaw, Process and Constitutional Discourse in the European Union, 27 J.L. & SOC'Y 4, 19-24 (2000).

62. CONSOLIDATED VERSION OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Dec. 24, 2002, arts. 17-22 O.J. (C 325) 44-46 (2002) (describing the extent and nature of Union citizenship).

63. For two compelling critiques of the conception of citizenship found in the Union Treaty, and particularly its exclusive tendencies, see Sionaidh Douglas-Scott, In Search of Union Citizenship, 18 Y.B EUR. L. 29, 30-33 (1998); Carole Lyons, The Politics of Alterity and Exclusion in the European Union, in EUROPE'S OTHER: EUROPEAN LAW BETWEEN MODERNITY AND POSTMODERNITY 157 (Peter Fitzpatrick & James Henry Bergeron eds., 1998).

64. See JOSEPH WEILER, THE CONSTITUTION OF EUROPE 262, 324-27, 343-47 (1999). 65. Ulrich Beck, Living Your Own Life in a Runaway World: Indivdualisation,

Globalisation and Politics, in ON THE EDGE: LIVING WITH GLOBAL CAPITALISM 168-69 (Will Hutton & Anthony Giddens eds., 2000); see also id. at 168-73.

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mean that it is misconceived. The evolution of the new Europe requires a fresh approach to various questions of public philosophy, including the jurisprudential.66 It is worth recalling the words of Albert Camus, written in 1957, at the very dawn of the new Europe:

Unity and diversity, and never one without the other-isn't that the very secret of our Europe? Europe has lived on its contradictions, flourished on its differences, and, constantly transcending itself thereby, has created a civilization on which the whole world depends even when rejecting it.

This is why I do not believe in a Europe unified under the weight of an ideology or of a technocracy that would overlook these differences. Any more than I believe in a Europe left to its differences alone-in other words, left to an anarchy of enemy nationalisms.67

The experience of the following forty-six years has taught us many things. That we should not fear the end of sovereignty, nor indeed the prospect of a world of greater interdependence, is one of the most valuable.

III. REMAPPING THE NEW WORLD ORDER

The new Europe is, of course, only one of the many new things around today. It is, most immediately perhaps, part of the much-vaunted new world order, something which has, in turn, been credited with ending all kinds of things. To Martin Hedeigger's assertion, made in 1969 as the new Europe was born, that philosophy had come to an end,68 must now be added Francis Fukuyama's notorious supposition that history has ended,69 as well as Keniche Ohmae's related suggestion that the age of the nation state has also come to an end. According to Ohmae, "in terms of global economy, nation states have become little more than bit actors."70 New things and the end of things commonly come together.

The end of the old world order, however, is certainly not an unalloyed source of celebration. For George Soros, for example, the new world order

66. For this view, see Baiikowski & Christodoulidis, supra note 56. I have also explored the possibility in Ian Ward, Beyond Constitutionalism: The Search for a European Political Imagination, 7 EUR. L.J. 24 (2001) [hereinafter Ward, Beyond Constitutionalism]; Ian Ward, An Ever Closer Union?: The Continuing Travails of the Peoples of Europe, 15 TEMP. INT'L & COMP. L.J. 247 (2001).

67. ALBERT CAMUS, RESISTANCE, REBELLION AND DEATH 234-35 (1974). 68. See MARTIN HEIDEGGER, The End of Philosophy and the Task of Thinking, in ON

TIME AND BEING 55 (John Stamburgh trans., 1972), reprinted in BASIC WRITINGS 373 (1977). 69. See F. FUKUYAMA, THE END OF HISTORY AND THE LAST MAN, at xi-ii, 13-18, 31

(1992). 70. KENICHI OHMAE, THE END OF THE NATION STATE: THE RISE OF REGIONAL

ECONOMIES 12 (1995).

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merely threatens a new totalitarianism.71 Jacques Derrida similarly invokes specters of "violence, inequality, exclusion, famine" which, he suggests, are the inevitable result of untrained globalization.72 The same metaphor was famously deployed by Benjamin Barber in 1992, when he talked of the "specters" of"retribalization" and "bloodshed" that would come along with the world of "fast music, fast computers, and fast food."73 "The planet," he advised, "is falling precipitantly apart and coming reluctantly together at the very same moment."74 Less apocalyptically, Boaventura Santos advises that a measure of disequilibrium is bound to attach to a process that disrupts our senses of time and space. The world is suddenly a lot smaller, a lot more interdependent, and, as a result, a lot less familiar.75

The solution, it is often suggested, is to devise some form of credible global goverance, to recognize that global forces govern our lives, at least as much if not more than national or regional institutions, and that these forces should be rendered accountable. John Gray, arguing that the "era" of "hallucinatory vistas" and imagined "new world orders" is over,76 urges that we acknowledge that a new "regime of global governance is needed in which world markets are managed so as to promote the cohesion of societies and the integrity of states."77 The future of humanity depends upon such a construction, for "only a framework of global regulation" can "enable the creativity of the world economy to be harnessed in the service of human needs."78 The humanitarian impulse is compelling.

The jurisprudential implications of this global revolution are as stark as the govermental ones. As Upendra Baxi has suggested, the dynamics of globalization have crushed the pretences of classical public international law.79 Harold Koh has readily acknowledged that there has been an "epochal transformation of international law,"80 with the emergence of a "transnational legal process" that locates "reasons for compliance" at a "transactional level,"81 one of "interaction, interpretation, and interalization of international norms

71. See GEORGE SOROS, OPEN SOCIETY: REFORMING GLOBAL CAPITALISM 167-68 (2000).

72. JACQUES DERRIDA, SPECTERS OF MARX 85 (Peggy Kamuftrans., 1994). 73. Benjamin R. Barber, Jihad vs. McWorld, ATLANTIC MONTHLY, Mar. 1992, at 53. 74. Id. 75. See BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW COMMON SENSE: LAW,

SCIENCE AND POLITICS IN THE PARADIGMATIC TRANSITION 262 (1995). 76. JOHN GRAY, FALSE DAWN: THE DELUSIONS OF GLOBAL CAPITALISM 205 (1998). 77. Id. at 199. 78. Id. 79. See Upendra Baxi, Voices of Suffering and the Future of Human Rights, 8

TRANSNAT'L L. & CONTEMP. PROBS. 125, 163-64 (1998). 80. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J.

2599, 2604 (1997). 81. Id. at 2649.

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into domestic legal systems."82 Perhaps the most compelling account of a such a "process" is captured in William Twining's suggestion that there must be a "remapping" of law. What we need, according to Twining, is a map that properly "emphasizes the complexities and elusiveness of reality, the difficulties of grasping it, and the value of imagination and multiple perspectives in facing these difficulties." In the place of tired notions of state sovereignty, the new world order must embrace once again the idea of a ius humanitatis, a conception of law and justice that is able to "transcend jurisdictions and cultures, so far as that is feasible and appropriate, and which can address issues about law from a global and transnational perspective."83

To a certain extent sketches for such a remapping already exist. There are, for example, the various bodies set up to ease transnational trade, such as the WTO and NAFTA. And there is the United Nations, and its satellite institutions. But each of these institutions is to some extent cast in the Westphalian mold. And the same stigma attaches to the International Court of Justice established under the auspices of the United Nations, and to the ad hoc International Criminal Tribunals for Rwanda and the former Yugoslavia. And this leads inexorably to a deeper, if rather more prosaic, problem: the unwillingness of the world's most effective police force to recognize the criminal jurisdiction under which it is operating. The refusal of the United States to approve the text of a treaty creating a permanent International Criminal Court gives the impression that the one remaining superpower is singularly disinclined to engage the idea of a new world order. Indeed, following the Nicaragua case in 1986, the United States revealed a still deeper distrust, notoriously blocking a U.N. Security Council resolution calling for, among other things, all states to observe international law.84 As Secretary of State Albright informed the Security Council, the United States will "behave, with others, multilaterally when we can and unilaterally when we must."85

In this context, it can be fairly suggested that the new Europe offers itself as the only really credible example of a genuinely transnational political community. Writing a decade ago, Philip Allott argued that Europe must embrace a particular responsibility, to take the lead in the "reconstituting" of global "society," and with it "the international society of the whole human race, the society of all societies."86 Though rather less exuberant, a similar sentiment can be found more recently in Antony Giddens's suggestion that the

82. Id. at 2603. 83. WILLIAM TWINING, GLOBALIZATION AND LEGAL THEORY 49, 243 (2000); see also

id. at 140, 152, 172-74, 198. 84. United Nations Security Council: Excerpts from Verbatim Records Discussing I.C.J. Judgment in Nicaragua v. United States, 25 I.L.M. 1337, 1352 (1986). 85. NOAM CHOMSKY, PROFIT OVER PEOPLE 76 (1999). 86. Philip Allott, Reconstituting Humanity-New International Law, 3 EUR. J. INT'L L.

223 (1992).

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European Union "is the most important and promising experiment in transnational governance going on," an inspiring example of the kind of "cosmopolitan democracy" which might ultimately emerge at a global level, one that can encourage us to think "about possible forms of transnational democracy."87 And more recently still, and more stridently, Will Hutton suggests that, in a world that "needs an order that is more subtle and more sophisticated," Europe, where notions of equality, democracy and fairness are "more deeply embedded" than in the United States or elsewhere, presents itself as the only credible champion of democratic transnational governance.88 "If America championed a liberal order in the twentieth century," Hutton suggests, "Europe will have to sustain that vision in the twenty-first."89 For unlike the United States, Europe has actually embraced the new world order and all its various collateral implications. In providing the "exemplar of what a peaceful multilateral system of governance can achieve," the new Europe is "trail- blazing for the globe."90 The ability to reinvent itself, to redefine the meaning of social justice, is, Hutton concludes, the "golden thread" of European "civilization."91

The claims are bold, of course. And yet, the new Europe has indeed set about remapping law and governance. It has certainly made mistakes, and it remains riven by tensions, consumed indeed by self-doubt. But such tensions and such doubts are the lot of pioneers. If a new world order is to establish itself as a genuinely liberal and democratic and humane one, then the European experience should be compelling. As Vaclav Havel has suggested, the very "idea of humanity" defines Europe, as well as prescribing its destiny.92 And so, accordingly, if the idea of humanity and human dignity cannot succeed in a Europe that is becoming, not merely the wealthiest, but also the most liberal political community in the world, then it cannot be expected to succeed anywhere. As George Soros has suggested, along with the future of Europe lies the validity of the concept of open society.93 This latter suggestion opens into a rather wider argument. For not only does the new Europe reinforce the credibility of a post-Westphalian order, but so too does it represent the possibilities of a reinvigorated transnational humanism.

In making these assertions, the likes of Soros and Havel are reaching back to a particular tradition in European public philosophy, one that found its most

87. A. Giddens & W. Hutton, "In Conversation" and "Fighting Back," in ON THE EDGE: LIVING WITH GLOBAL CAPITALISM, supra note 58, at 51, 218, 222-23.

88. See WILLIAM HUTTON, THE WORLD WE'RE IN 11, 52 (2002). 89. Id. at 48. 90. See id. at 312, 365. 91. See id. at 49-54. 92. See VACLAV HAVEL, THE ART OF THE IMPOSSIBLE: POLITICS As MORALITY IN

PRACTICE 147-48 (1998). 93. See SOROS, supra note 71, at 329.

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compelling expression during the eighteenth century. One of its greatest prophets was Immanuel Kant, whose 1795 essay Perpetual Peace argued that:

The peoples of the earth have thus entered in varying degrees into a universal community, and it has developed to the point where a violation of rights in one part of the world is felt everywhere. The idea of a cosmopolitan right is therefore not fantastic and overstrained; it is a necessary complement to the unwritten code of political and international right, transforming it into a universal right of humanity. Only under this condition can we flatter ourselves that we are continually advancing towards a perpetual peace.94

History was to make something of a mockery of the aspiration. But it remains a noble one. Kant did not dismiss the role of sovereignty. The intellectual context within which he wrote was that which shaped the ideas of Austin and the authors of The Federalist papers. But he refused to let the idea of unlimited sovereignty blind him to the higher ideals of cosmopolitan "hospitality" and "universal" rights. The Kantian idea of cosmopolitan order has found a more recent echo in John Rawls's idea of an "overlapping consensus," as something that can describe not merely a consensus between people, but between peoples.95 The same is true of Habermas's advocacy of a "future cosmopolitan order sensitive both to difference and to social equality."96 And it finds a compelling resonance in Robert Falk's assertion that:

Only by reconstructing intimate relations on a humane basis can the world move toward the wider public and collective realities of human community. This reconstruction, starting in the home, is a critical precondition for the emergence of the sort of global polity that could inspire trust and have a reasonable prospect of providing humane governance for a democratically constituted global civil society.97 There is, then, a very obvious affinity between the ideas of

cosmopolitanism and humanity. Jacques Derrida takes it further, heralding an emergent philosophy of "political friendship."98 "Hospitality," he asserts in his essay On Cosmopolitanism, "is culture itself and not simply one ethic amongst others."99 In doing so, he echoes Richard Rorty's suggestion that a truly "liberal society is one whose ideals can be fulfilled by persuasion rather than

94. IMMANUEL KANT, Perpetual Peace: A Philosophical Sketch, in POLITICAL WRITINGS 93, 107-08 (Hans Reiss ed., H.B. Nisbet trans., 1991).

95. See JOHN RAWLS, POLITICAL LIBERALISM 133-72 (1993); John Rawls, The Law of Peoples, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 42 (Stephen Shute & Susan Surley eds., 1993).

96. HABERMAS, supra note 55, at xix. 97. RICHARD FALK, ON HUMANE GOVERNANCE: TOWARD A NEW GLOBAL POLITICS 69

(1995). 98. JACQUES DERRIDA, THE POLITICS OF FRIENDSHIP 200 (George Collins trans., 1997). 99. JACQUES DERRIDA, ON COSMOPOLITANISM AND FORGIVENESS 16 (Mark Dooley and

Michael Hughes trans., 2001).

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force."100 Such a liberalism, Rorty has affirmed, is one characterized by "feelings" as well as "ideas." It is a politics of "compassion" which, whilst it makes no claims to metaphysical universalism, does offer itself as a politics for all humanity. It is, Rorty concludes, a philosophy of"romantic hope."'01 The romantic allusion is important. The defense of humanity may not be an exclusively European sentiment. But the intellectual tradition from which it is drawn found its most striking expression in late European romanticism.

In 1840 one of Dicey's great intellectual heroes, John Stuart Mill, published an essay on Samuel Taylor Coleridge. It was intended to complement one on Jeremy Bentham, which he had published two years earlier. There was, he suggested, "hardly to be found in England an individual of any importance in the world of mind," who "did not first learn to think from one of these two."102 They represented the two great impulses of the Enlightenment, sense and sensibility. Contrasting the two, Mill concluded that, whilst Bentham should be rightly praised for expelling "mysticism from the philosophy of law," he was obsessed with "interminable classification."103 Worse still, he was "altogether cut off' from the "most natural and strongest feelings of human nature." He lacked the essential capacity of the emotionally literate, the "power by which one human being enters into the mind and circumstances of another."104 Coleridge, in comparison, though no scientist, "saw so much farther into the complexities of the human intellect and feelings,"105 and it was for this reason that he recognized that political communities were emotional, as well as political, artifacts, and expressions of a "strong and active principle of cohesion."106

Coleridge, as Mill realized, represented a very different Enlightenment, one that sought to elevate humanity, rather than merely utilize it. It was an aspiration that had found an early expression in Gottfried Wilhelm Leibniz's suggestion that the European res publica defined itself in terms of a "universal benevolence," a "habit of loving" that equips the "wise man" to pursue the

100. RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY 60-61 (1989). 101. See RICHARD RORTY, ACHIEVING OUR COUNTRY: LEFTIST THOUGHT IN

TWENTIETH-CENTURY AMERICA 86-87, 93-100, 122, 212, 263, 270-77 (1999). 102. J.S. Mill, Bentham, in J.S. MILL & JEREMY BENTHAM, UTILITARIANISM AND

OTHER ESSAYS 132, 132 (Alan Ryan ed., 1987). 103. See id. at 138-39. 104. Id. at 148. 105. J.S. MILL, Coleridge, in MILL & BENTHAM, supra note 102, at 177, 178. 106. Id. at 95. The conclusion clearly had an impact on Mill, whose brand of

utilitarianism constantly emphasized the need to account for an essential humanity, rather than mere instrumentality. As he suggested in his essay Utilitarianism, the politics of "corroborative associations" is founded on the "smallest germs of feeling" and then "nourished by the contagion of sympathy." See J.S. Mill, Utilitarianism, in MILL & BENTHAM, supra note 102, at 305, 334-38.

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"greatest good."107 It had also gained the adherence of earlier utilitarians such as Adam Smith, who readily appreciated that "[h]umanity does not desire to be great, but to be beloved."108 Above all, however, it had come to obsess Jean- Jacques Rousseau and his disciples. In Emile, Rousseau urged a common education in "sensibility," one that could nurture a "natural" democracy.109 The foundation of a progressive politics lies in "knowing the human heart." For it is "our passions," our sense of "friendship" and "compassion," that are the ultimate "instrument of our preservation" and our "freedom." Engagement in a compassionate politics "brings the love of humanity to the depths of one's heart." Civic virtue finds its ultimate expression in the "love of mankind," which in turn "is nothing other than the love of justice."110 It was this simple humanity that Rousseau famously found amongst the Savoyard villagers, and recounted in his Confessions. 11 Justice for the Savoyard was not enshrined in any institutions or instruments, or any pretended jurisprudential conceptions such as unlimited sovereignty. Rather, it was found, as Rousseau reaffirmed in his Discourse on Inequality, not in the "fraudulent" pretensions of "positive law," but in the human heart, and in the "cause of humanity."112

Amongst Rousseau's most fervent disciples was the English philosopher William Godwin, whose Enquiry Concerning Political Justice was likewise founded on the radical affinity between liberty, democracy, and the "cause of humanity." According to Godwin:

Democracy restores to man a consciousness of his value, teaches him, by the removal of authority and oppression, to listen only to the suggestions of reason, gives him confidence to treat all other men with frankness and simplicity, and induces him to regard them no longer as enemies against whom to be upon his guard, but as brethren whom it becomes him to assist.113 Radical England was fascinated by the suggestion that a common "love of

humanity" might replace the "Shibboleths" of "positive law and political institution."114 A generation later, Godwin's estranged son-in-law, Percy

107. I have explored this possibility, in the particular context of Leibnizian political thought, in Ward, Beyond Constitutionalism, supra note 66.

108. ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 166 (D.D. Raphael & A.L. Macfie eds., Oxford Univ. Press 1976) (1759).

109. See JEAN-JACQUES ROUSSEAU, EMILE 42, 214 (Penguin 1991) (1762). So subversive was the novel perceived to be that it was publicly burnt in Rousseau's own city, Geneva, something which gave Rousseau huge satisfaction. Kant thought that its publication was as important as the French revolution itself.

110. See id. at 212, 219-22, 250-52. 1ll. See JEAN-JACQUES ROUSSEAU, THE CONFESSIONS 231-33, 263, 427 (J. M. Cohen

trans., Penguin Books 1953) (1781). 112. See JEAN-JACQUES ROUSSEAU, A DISCOURSE ON INEQUALITY 77, 89, 137 (Maurice

Cranston trans., Penguin Books 1984) (1755). 113. WILLIAM GODWIN, AN ENQUIRY CONCERNING POLITICAL JUSTICE AND ITS

INFLUENCE ON MODERN MORALS AND HAPPINESS 490 (Penguin Books 1985) (1793). 114. See id at 70, 87.

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Shelley, would compose his Revolt of Islam in order to remind Europe of what the principles of 1789 had offered, a "virtuous enthusiasm for those doctrines of liberty and justice, that faith and hope in something good, which neither violence nor misrepresentation nor prejudice can ever totally extinguish among mankind."115 Ultimately, the Revolt was intended to reinvigorate a belief in the "love of mankind."116 As Shelley's Hermit advises, the politics of "sympathy" finds its expression when peoples learn to "grow together."117

Another of Rousseau's disciples, at least for a while, was William Wordsworth. As he testifies in his autobiographical Prelude, Wordsworth was hugely taken with the ideals of liberty, equality, and fraternity, even if later in life he was just as hugely embarrassed by them. But like so many of his contemporaries, Wordsworth was horrified by what happened in France during 1793, and turned against the very notion of ideology. The future of humanity, he resolved, lay with poetry not politics. In the spring of 1795, a rather confused Wordsworth sat on a hill overlooking Tinter Abbey in Monmouthshire. As he contemplated the past and the future, the rival claims of sense and sensibility, science and humanity, Wordsworth recalled a very different politics, one of "little, nameless, unremembered, acts / Of kindness and of love."118 It was here, in the politics of a "warmer love," he concluded, that we might hear once again "[t]he still, sad music of humanity / Nor harsh nor grating, though of ample power / To chasten and subdue."119

Amongst Wordsworth's many later admirers was, perhaps rather incongruously, Albert Venn Dicey. Just as Mill had his Coleridge, so Dicey had his Wordsworth. But Dicey cherished a rather different Wordsworth, the aging Wordsworth who abjured his earlier flirtation with democracy, and whose laborious Sonnets on "liberty" and "national independence" were intended to laud Britain's defiance of the Napoleonic menace. It was, as Dicey admitted in his essay The Statesmanship of Wordsworth, the patriotic poet that he wanted to celebrate, not the ethical one.120 Unsurprisingly, there is no reference in Dicey's essay to the man who composed the haunting Lines Composed Above Tintern Abbey. There was no real place for a warmer love in

115. Percy Bysshe Shelley, Laon and Cynthia [The Revolt of Islam], 2 COMPLETE POETICAL WORKS OF PERCY BYSSHE SHELLEY 99, 100 (Neville Rogers ed., 1975).

116. Id. 117. See id. at 11. 2686-88, 3541-42. For a commentary, see RICHARD HOLMES,

SHELLEY: THE PURSUIT 401-02 (1995). 118. William Wordsworth, Lines Composed a Few Miles Above Tintern Abbey, in

COMPLETE POETICAL WORKS OF WORDSWORTH 91 (Andrew J. George ed., 1932), at 11. 34-35. 119. Id. at 11. 91-93. 120. See A.V. DICEY, THE STATESMANSHIP OF WORDSWORTH 2-3, 71-93 (1917). The

fact that Dicey's essay was composed in 1917 is, of course, significant. Dicey felt that, in writing the essay, he was contributing to the war effort in much the same way as Wordsworth had with his Sonnets.

2111 May 2003]



121. Id. at 117.

2112 STANFORD LA W REVIEW [Vol. 55:2091

Dicey's confessed "judicial habit of mind."121 And it is reasonable to believe that the older Wordsworth might have been just as troubled as Dicey by the sudden demise of sovereignty. But, it is altogether more comforting to suppose that the younger Wordsworth, the one who strained to hear the "still, sad music of humanity," would have rather welcomed the thought. For at the "end" of sovereignty, and the emaciated legalism which it has sought to legitimize for much of the last three centuries, lies the hope of a resurrected sense of justice and humanity.



The End of Sovereignty and the New Humanism

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