About the Impossibility of Absolute State Sovereignty. The Modern Era and the Early Legal Positivist Claim

Nunez, Jorge ORCID: https://orcid.org/0000-0002-2112-100X (2019) About the Impossibility of Absolute State Sovereignty. The Modern Era and the Early Legal Positivist Claim. In: Legal Positivism in a Global and Transnational Age. Springer Nature, pp. 47-64. ISBN 3030247058

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Abstract

State sovereignty is often thought to be and seen as absolute, unlimited. However, there is no such a thing as absolute state sovereignty. Indeed, absolute or unlimited sovereignty is impossible because all sovereignty is necessarily underpinned by its conditions of possibility. The present chapter consists of two main parts. Firstly, and in order to show more clearly how sovereignty is limited, two kinds of agents are introduced: (a) individuals; and (b) states. The aim is to demonstrate how different sorts of constraints or limitations operate in relation to individuals and states without diminishing their respective sovereignties. Secondly, the chapter identifies specific theorists that take sovereignty to be absolute in the modern era, focusing in particular on two bodies of literature that constitute the roots for current legal positivism—i.e. Jean Bodin and Thomas Hobbes—and argues that in both cases they introduce conceptual, substantial, and contextual limitations. I argue that the modern era starts with a relative essence of sovereignty that has its origin in the working logic of fragmented regulatory governance. With this early and disjointed background of a national and transnational plurality of sources both Bodin and Hobbes aim to bring together these heterogeneous elements under the contextualisation of the paradox of sovereignty. The implications of understanding state sovereignty as limited rather than absolute are several, both directly and indirectly. A main immediate consequence is that sovereign states can cooperate together, limit their sovereignty and still be considered sovereign.