A (Brief) Intellectual History of Sovereignty

Although for some scholars the origins of sovereignty can be traced back to the Middle Ages, it was with the emergence of the modern state in the 17th cen­tury that sovereignty was theorized as encompassing unlimited powers and the possibility of legislating ‘on every possible aspect of human life' (Troper 2012, p.

Jean Bodin's Les Six Livres de la Republique, published in 1576, became the ‘classic rationalization' of the unitary, monarchical and strongly centralized state which would dominate European culture (Burgess 2000, p. 2). Bodin called for an absolute and perpetual power as a necessary feature of the modern state, without which anarchy and civil war would be inevitable; consequently, his model (originally intended for France) was necessary for the achievement of order, stability and security in a world that was dangerous and uncertain (Burgess 2000, p. 2). Bodin's ideas deeply influenced some of his contempo­raries such as Hobbes, whose Leviathan can be directly traced to it (Burgess 2000, p. 3). The Leviathan can be explained as an ‘authority with unlimited and indivisible sovereignty' (Palermo and Kossler 2017, p. 85).

For both theorists, this undivided and unlimited sovereignty was the neces­sary solution to the unstable political and socio-economic situation in Europe. The consequence, however, was that absolute monarchs adopted these theo­ries tojustify an unlimited concentration of powers in their hands (Palermo and Kossler 2017, p.

Since Bodin and Hobbes, therefore, saying that the state is sovereign means two things: (1) that the state has an absolute power to decide on every aspect of human life (internal sovereignty); and (2) that the state is independent from external power (external sovereignty) (Troper 2012, p. 354). Regarding inter­nal sovereignty, the absolute power to decide implies that the state possesses and exercises a power that is its own and is unlimited (Troper 2012, p. 354). International sovereignty is part of internal sovereignty, since the ‘capacity to make treaties and be bound by them was thus viewed not as a limitation but as an expression of sovereignty' (Troper 2012, p. 359). Therefore, international relations were (and still are) meant to be among and between sovereign states (Troper 2012, p. 359).

A few centuries later, the French constitutionalist Raymond Carre de Malberg further elaborated on this idea of sovereignty, identifying three mean­ings for the term: (1) the supreme character of the state's power; (2) the range of powers included in the state's authority, being therefore synonymous with that authority; and (3) the position occupied within the state by the highest organ of state's authority, so that sovereignty is the same as the power of that organ (Troper 2012, p. 353). However, while in French (or even Italian), the same term, sovereignty, was used to refer to these three different conceptions, German employed three words: Souveranität (the supreme character of the state on the international and domestic levels); Staatsgewalt (the powers that can be exercised by the state); and Herrschaft (the power of domination by one organ) (Troper 2012, p. 353).

Not everyone agrees on all aspects of sovereignty, so it has been ques­tioned whether sovereignty can be divided (Troper 2012, p.

Although considered the godfather of federalism, Althusius did not elabo­rate a complete federal theory at this time. What was remarkable in his work was a new way of conceiving society as a multi-layered compound built up from the family; and in this new conception of multi-layered society we can see an embryonic federal idea. At the same time, sovereignty was, for Althusius, a principle that could be shared by the different associations composing the commonwealth (Palermo and Kossler 2017, p. 86). In other words, sovereignty was divisible, because his multi-layered society challenged the idea of abso­lute monarchy and undivided sovereignty advocated by Hobbes and Bodin (Palermo and Kossler 2017, p. 86). Nonetheless, Althusius' work was far from being earth-shattering in his own time, and his Politica did not receive the attention it probably deserved; his ideas remained unnoticed until the 19th century, when they were eventually rediscovered by Otto von Gierke (Hueglin 1979, p. 18).

Building on the work of Bodin and Hobbes, the understanding of sover­eignty followed different trajectories in the Anglo-American common law and the Continental European civil law traditions (Palermo and Kossler 2017, p. 87). In the latter, (undivided) sovereignty remains a central tenet to this day, while in the Anglo-American tradition, sovereignty has much less weight (Palermo and Kossler 2017, p. 87), to the point that some scholars have dis­missed Bodin's absolute and undivided conceptualization of sovereignty, thus paving the way to the idea of divided sovereignty, exemplified by the US federal model of 1787 (Palermo and Kossler 2017, p. 88). Hence, in the Anglo- American tradition, scholars have limited interest in sovereignty, contrary to Roman Law tradition.

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