Pedro Tiago Ferreira

[Versão em português / Portuguese translation]

 

Questioning Sovereignty is the first volume of a quartet titled Law, State and Practical Reason. The other volumes are Rhetoric and the Rule of Law (2005), Institutions of Law (2007) and Practical Reason in Law and Morality (2008). The author of these works, Neil MacCormick, a Scottish and British national, died in 2009. He was a Professor of Law at Edinburgh University whose specialty was Jurisprudence, Legal Theory and Philosophy of Law. His academic functions were suspended between 1999 and 2004, as he was elected Member of the European Parliament for the Scottish National Party. During his tenure as Member of the European Parliament he also served as member of the Convention on the Future of Europe between 2002 and 2003, the body responsible for the Draft Treaty establishing a Constitution for Europe, which did not come into force as it was rejected after referenda held in France and Holland. As international treaties must be ratified by the party in question before they are applicable to it, a Constitution for Europe designed to substitute a full-fledged federal state for what is now known as “European Union” would only be feasible if all its member states were to ratify it. Notwithstanding the positive results obtained in referenda held in Spain and Luxembourg, the rejections in France and Holland halted the process in the remaining member states and induced a “period of reflection” which culminated with the removal, from the text of the Treaty, of all federal references. The result is the Treaty of Lisbon, which entered into force in 2009 and instituted the European Union.

MacCormick’s biography and this piece of the institutional history of the European Union are important to understand the author’s views in the works mentioned above, as they were written before the institution of the current European Union and other more recent events, as the Scottish Independence Referendum held in 2014 and the “Brexit” referendum held in 2016. Some potential readers may therefore think that the books have become dated. This is true regarding the institutional examples occasionally given by MacCormick (e.g. the three pillars of the former European Union, which have been merged into the current European Union, or the allusions to the legislative process, which has been somewhat modified under the Lisbon Treaty); the books, however, are philosophical, and the questions approached are far from being dated. The problems discussed by MacCormick remain, in fact, as open as ever.

Even though the four books are connected under MacCormick’s take of what has become known as the “institutional theory of law,” which take started being developed in earlier works, each of the books presents a different part of the theory of law as an institution as it is understood by MacCormick. For this reason, there is not much to gain in a wholesale analysis of the quartet.

Questioning Sovereignty deals with that part of the institutional theory of law which has to do with understanding whether or not law as an institution is the product of a sovereign entity. The traditional answer is an unambiguous “yes,” as the institutions of law are the product of the state, which is traditionally understood as an entity that holds sovereign power over a given number of people who occupy a territory. The European Union and its predecessors, however, pose an interesting question to the concept of sovereignty. This question is summed up by MacCormick as follows:

 

In Europe today, former understandings of state and nation seem out of date in the face of the development of the European Union. One of the pillars of the Union, the European Community, has its own body of law complete with the European Court of Justice as its most authoritative interpreter. The Court has held that Community law has direct effect in the member states and has supremacy over their domestic law. How far this claim extends, and subject to how much ultimate resistance from supreme courts in member states is a point on which there is no settled agreement. Yet this itself raises doubts about the ‘sovereignty’ of the states within this new legal order, and for some conjures up the spectre of a European ‘super-state’, a sovereign federal union exercising ultimate dominion over all its parts. In this context what becomes of nationalism, and how are we to account for the contemporary politics of identity? (Preface, p. v)

 

Under the Treaty of Lisbon there are no more “pillars,” but the problematic relationship between the concept of “state sovereignty” and the supremacy of European Union law, which is law that does not come from a state, remains. The conundrum can, in fact, be summed up in the following question: how can it be argued that the European Union member states are sovereign states when European Union law becomes, after being enacted, part of the internal legal order of the member states without there being any need to ratify it? At first glance, it seems evident that to join the European Union entails a (at least partial) loss of sovereignty, as member states cannot but to accept law for which their constitutional organs are not responsible. What is more puzzling, however, is that the member states do not transfer (at least part of) their sovereignty to another state, which would be federal, as is the case, for instance, of the United States of America. In Europe, the member states of the European Union transfer, on joining it, part of their sovereignty to a confederacy. For the first time in history, therefore, there is an entity with legal institutions capable of creating and applying law which is sovereign, but is not a state. As a result of this, one can wonder whether the European Union should indeed be classified as a confederacy of sovereign states, and not as a state in its own right.

In trying to answer this and other related questions, MacCormick focusses naturally on the United Kingdom (chapter 4), albeit the bulk of his considerations can be applied to every member state of the European Union. It is impossible to trace here his whole argumentation, but the conclusions he reaches are noteworthy because time has so far proved him right. MacCormick starts by observing, when he summarizes each chapter’s content, that

 

[the United Kingdom’s] highest judicial tribunal can now treat Acts of Parliament as subject to being “disapplied” in any case of conflict with Community law as authoritatively interpreted by the European Court of Justice. This seems to drive a wooden stake through the heart of the old constitution, the doctrine of parliamentary sovereignty.
It is not only in the United Kingdom, however, that concern has arisen about the extent of Community law and the competence of the European Court of Justice – far from it. In that light, Chapter 7 reviews the risks of state-union constitutional conflict, and considers suggestions about how to avoid this. Then Chapter 8 attempts a review of the idea of ‘sovereignty’ as we find it at the heart of all the difficulties covered in the preceding chapters. I believe that the forms of normative pluralism opened up by the institutional theory of law reveal the possibility that the countries and peoples of Europe can succeed in transcending sovereignty, going beyond the sovereign state, without at the same time simply transferring sovereignty from states to the union, as in the ‘super-state’. (p. vi)

 

In other words, sovereignty is overrated. To acknowledge the supremacy of European Union law does not amount to a loss of independence on the part of the member states. Sometimes the law comes from the state’s statutes, other times it comes from the regulations and directives of the European Union, without forgetting that there are other sources of law which are not at all connected with the state, such as custom, which is the basis of English common-law, which is still applied in English speaking countries together with legislated law. Since the state has never had the monopoly of all legal sources throughout history, neither in the common-law family nor in the Roman-law family, the European Union does not bring anything completely original. Its originality has thus not to do with the pluralism of the sources of law, which has always existed, but with the fact that the state is no longer the holder of the power of repealing or recognizing all other sources of law.

MacCormick’s biography and writings clearly indicate that he was someone completely in favour of European integration, regardless of it ultimately leading, or not, to the institution of a federal state. He would therefore have seen with some apprehension the result of the Brexit referendum, but the possibility of the United Kingdom leaving the European Union is fully acknowledged by him in the following passage:

 

(…) while power may be delegated in various directions, it remains and ought to be secured as essentially unitary and central. Economic and other benefits may be gained from delegating powers to the organs of the Economic Community. This may indeed be an agency whose own court of justice claims ‘supremacy’ for its laws. In a British constitutional perspective, however, this would be properly interpreted as explaining the implications of Parliament’s recognition within UK law of ‘enforceable Community rights’ through sections 2 and 4 of the European Communities Act 1972. Such rights are recognized as highest-level legal norms in the UK so long as the Act remains unrepealed. But this highest-level legal validity is conferred under the constitution, by the Parliament that passed the European Communities Act and which retains under the same constitution the power to repeal it. This does not derogate from the constitutional position of Parliament, even if in the meantime the upshot is the possibility of “disapplication” of Acts subsequent to the 1972 Act when these conflict with enforceable community rights as in the last resort interpreted by the European Court. (p. 72, my italics)  

 

According to this position, the United Kingdom, as well as every other member state of the European Union, retains sovereignty because submission to the doctrine of supremacy of European Union law is voluntary and can be revoked at all times. The Brexit referendum outcome will in all likelihood result in the repeal of the European Communities Act, and when that happens the doctrine of supremacy of European Union law will simply vanish from the United Kingdom’s legal order. The Acts of Parliament that were “disapplied” when they conflicted with regulations and directives from the European Union, if still in force, will from then on start to be applied by executive bodies and the courts.

The book’s general tone is one of seeking a balance between the traditional conceptions of sovereignty and the new realities introduced by the European Union. Far from thinking that the United Kingdom would, in the future, decide to leave the European Union, MacCormick analyses the concept of “post-sovereignty” (chapter 8) and its relations with the concepts of “democracy” and “subsidiarity” (chapter 9). As I said earlier, MacCormick was proven right in arguing that the United Kingdom retained sovereignty because it might, if so wished, to leave the European Union and abandon the doctrine of supremacy of European Union law. In reading Questioning Sovereignty, however, one cannot help but feel that its author considered this as an academic possibility, and that the course of events would lead into a deeper political, economic and legal integration between the member states and other states which may, in future, join the Union.

The book focusses in dealing with the several difficulties which such integration pose for democracy and the administration of justice; on this head, MacCormick’s ideas are original and a precious contribution for dealing with the challenges that the European Union will face in the years to come, whose difficulty will probably be enhanced due to the leaving of the United Kingdom. One must, therefore, look beyond the dated institutional examples to appreciate MacCormick’s philosophical contributions, which can also be regarded as part of the history of ideas for the future of the United Kingdom, notwithstanding the fact that it will go in a totally different direction than the one predicted by MacCormick. This book retains therefore its philosophical value if one understands that it is not about the United Kingdom, but that the United Kingdom serves rather as a case study for considerations which are applicable to all member states of the European Union.