Sovereignty is the ‘boomerang’ concept of Western legal and political thought. For all the best efforts of scholars, politicians, lawyers and citizens to consign it to oblivion, sovereignty always returns, typically with a vengeance. The more its normative and explanatory force and its political valence are challenged, the more ubiquitous the concept of sovereignty seems to become. Unsurprisingly then, despite the recent intensification of supranational and transnational patterns of legal and political authority, once believed to be one more – and perhaps final – nail in sovereignty’s coffin, we stand today at yet another critical juncture, with sovereignty flying back in our faces.

‘The king reigns but does not govern’. This formula, which according to Carl Schmitt was coined by Adolphe Thiers, a French liberal historian and politician, enemy of Bonapartism yet suppressor of the Paris Commune, has become today the most important formula in the study of liberalism. Michel Foucault and Giorgio Agamben both understand this formula as capturing something essential about liberalism as a form of governmentality that guides the conduct of individuals either in the absence, or beyond the reach, of the sovereign power and its legislation through normative and normalizing orders that escape democratic control. Although not discussed as such, this formula also underlies recent attempts by jurists and historians of political ideas such as Martin Loughlin and Richard Tuck to bolster the sovereignty of the state against new forms of governing without the state that emerge in neoliberalism. This chapter proposes a new reading of this formula by situating it on the terrain of constitutionalism, rather than on that of sovereignty. In so doing, it seeks to bring together in a meaningful exchange these two different critical approaches to neoliberalism, and the emerging debates they harbour. One debate is between those who advocate a Foucauldian and biopolitical and those who adopt an Agambenian and politico-theological analysis of neoliberal governmentality. The other is the one between advocates of a republican, constitutional approach to democracy and those who argue for the revival of popular sovereignty on the basis of new ‘democratic’ interpretations of Bodin and Hobbes.

“Sovereignty” was not always there. What is called “sovereignty” today emerged under certain historical conditions at a certain time and in a certain place, and it can disappear or lose its meaning if the conditions change. Some authors assume that this has already happened so that we find ourselves in a post-sovereign era. The best way to ascertain whether they are right seems to be a reconstruction of the conditions under which sovereignty originally emerged, followed by an analysis as to whether the conditions have changed in the meantime, and, if so, how the changes affect sovereignty. Without such a historical assessment it is difficult to understand the present situation.