W(h)ither Sovereignty?


Harbingers of the demise of sovereignty are not new. At least since Karl Marx prophesized the withering away of the state, the heralding of the end of sovereignty has been an almost recurrent theme in political theory. In recent times, however, these prophecies have become increasingly insistent and have, perhaps for the first time, emanated predominately from the field of public law. In the European context, the debate about whether and to what extent EU membership compromises state sovereignty has been a central preoccupation of scholars of European integration for a generation, a debate which has intensified in the aftermath of the Euro crisis. In the U.K., a host of developments, both European and domestic, continue to fuel the discussion as to whether Parliament is indeed still sovereign, a notable recent catalyst being the ECtHR’s role in clipping Parliament’s wings over issues such as immigration and prisoner voting.

The concept of sovereignty, including its institutional expression in parliament in the UK constitution, provides part of the deep grammar of public law. Thus for public lawyers, the question of the fate of sovereignty is of central concern to our discipline. However, if it is a commonplace that sovereignty is somehow affected by recent political developments, what is less clear, is how. Logically speaking there are three possible answers to this question: sovereignty hasn’t changed, is undergoing a slow and steady demise or is evolving and adapting to new realities. Holders of the no-change position have disputed that sovereignty has changed at all. They rely on Schmittian scenarios of unilateral Member state withdrawal from the EU, or repeal of the various ‘constitutional statutes’ of which a substantial part of the UK constitution is apparently made, if for no other reason than to allow Parliament to flex its sovereign muscle, to argue their case ...

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