European Restatements of Sovereignty

Abstract

European Union debates have led to a change in how sovereignty is deployed. Its presence now has to be justified through its relationship to the claims of EU law: be it as a rival to the latter’s authority or as something that infuses it. This need to justify has led to sovereignty being understood in terms of the wider value it brings to political systems and their citizens. To find this value, recourse has been had to older traditions which see sovereignty as a counterpart to government, with EU law being understood as a government order. This has cast sovereignty in three ways. The first sees sovereignty as a series of activities which go to making up a domestic human order, be this order called a people, nation, public or society. This order transcends and constrains government as it goes to the identity and mission of the domestic political system. These activities are to be protected from EU law insofar as it is a governmental order. The second sees sovereignty as something which ordains EU law, granting it authority, and, consequently, retaining the prerogative to patrol the democratic quality of EU law. The third argues that if EU government involves these bodies seen as most capable of expressing the will of this sovereign human order in its decision-making, it can enjoy sovereignty. The value of sovereignty has, however, always lain in the distinction between it and government. This allows limits to be placed on the reach of government and external controls placed on its activities. This union of sovereignty and government reaches into the darker traditions of sovereignty. It grants the Union governmental machinery a largely unfettered power of rule to realise the governmental objectives it sets itself. As a sovereign, it can free itself not merely from external constraints but even those instituted by EU law. Its powers can be intrusive, unaccountable and extensive. And, indeed, this is what is happening as Union measures unfold during the Euro area crisis.