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Cyr on Sovereignty & Federalism

By Lawrence Solum

Hugo Cyr (University of Quebec at Montreal) has posted The Unfitness of the Concept of Sovereignty to Understand Federalism on SSRN. Here is the abstract:

Since Jean Bodin, "sovereignty" has been taken as the defining feature of the State. Nonetheless, there always has been dissenting voices challenging the general usefulness of that concept for understanding any political entity to which one might be tempted to apply it. Sovereignty has also been under attack on various normative grounds.

This paper does not aim at making a general argument against the concept of sovereignty but rather attempts to demonstrate that, whatever its usefulness to understand other political entity, the concept of sovereignty is unfit to enter any explanation of the federation. In particular, this paper examines three types of strategies developed in the hope of being able to reconcile the concept of sovereignty and the political and legal phenomenon that we call federalism. The first two types attempt such reconciliation through radical changes in the meaning of one or the other of the terms while the third type of attempts hope to solve the riddle by introducing a third term that would mediate between the unity entailed by the concept of sovereignty and the multiplicity that defines federalism. This paper shows why all such attempts are doomed to fail. Ultimately, this means that we either have to no longer think of federal entities as States ? and option that I reject ? or that we have to reconsider what makes a State a State.

Full post as published by Legal Theory Blog on January 18, 2010 (boomark / email).