Hobbes condemns liberty of conscience by stressing its incendiary repercussions on social stability and political sovereignty. Religious dissenters fashion themselves as sovereigns, emboldening them to do whatever they want rather than obey the state. For Hobbes, invocations to conscience are mere assertions of opinion – deeply held and felt, such that individuals insist on acting in accordance with them, but opinions nonetheless. While Hobbes anticipates the danger of liberty of conscience, he also offers a potential solution to this very problem – civic education – and invites us to reflect on how we might cultivate consensus through attempts to shape the conscience of dissenters. The possibility of peaceful co-existence becomes, at some point, about the project of persuasion, for Hobbes, such that invocations of conscience will abate over time and the threat of liberty of conscience to political authority may be tamed.

Chapter 12 discusses the relationship between the principle of sovereignty and the use of force. It examines consensual intervention and the policing of territory against unauthorized entry of military aircraft, warships or military units on State territory and the basis for using force in such situations.

Proponents of the harm principle often appeal to a notion of personal sovereignty in setting out their position. This notion helps to fix the application of the harm principle. Critics of the harm principle seize on this point and argue that, once a principle of sovereignty is introduced, it can do all the work that needs doing. Appeals to harm become otiose. Further, the critics contend, the harm principle cannot explain the impermissibility of certain “harmless” wrongs, such as those involved in harmless trespass. This chapter assesses this sovereignty-centered critique of the harm principle. It argues that neither the harm principle nor the sovereignty principle enjoys priority over the other. The two principles complement each other with neither meriting a privileged position. The chapter then discusses the content and stringency of the sovereignty principle, and its relation to the Volenti Maxim, which holds that a person is not harmed or wronged by that to which they consent. The critical discussion of the Volenti Maxim, in turn, reveals limits to the sovereignty principle.

From 1764 to 1776, there was a political crisis regarding the authority of the British Parliament over America. Yet the British case for parliamentary sovereignty was not particularly clear, and by 1774, most Americans argued that Parliament had no authority over internal affairs in America. Even English politicians and lawyers, such William Pitt the Elder and Lord Camden, argued that Parliament had no ability to tax the American colonies. In 1776, the American colonies declared their independence and a war of independence ensued, that Britain lost. But what could explain this disagreement over sovereignty? This chapter looks to several factors for explanation. These include the fact of Britain’s uncodified Constitution, which rendered it unclear which laws were in any case ‘constitutional’. There was also disagreement as to how the British Constitution applied in the colonies. Many Americans asserted that only a shared monarch connected American colonies legally to Britain and to each other, and that colonial assemblies were comparable to Parliament. There was, however, no acceptance of this in Britain, where the doctrine of undivided and unlimited sovereignty was increasingly employed by those in power.

The concept of federalism, and examples of federalism, are considered. Although, over 100 years ago, British Imperial federalists argued the empire must ‘federate or disintegrate’, the imperial federation movement did not succeed. Nor did its close relation, the ‘Home Rule All Round’ movement. Instead, the UK has become a devolved State, which transfers power from the centre without relinquishing sovereignty. The main obstacles to federalism in the UK appear to be the ‘England problem’ and parliamentary sovereignty. It has long been recognized that the disproportionate size of one federal unit can destabilize federalism by affecting the capacity of other territorial units to influence central government. However, the main obstacle lies with an insistence on preserving absolute parliamentary sovereignty in the UK. Dicey insisted that ‘limited sovereignty’ was a ‘contradiction in terms’ and that federalism was ‘absolutely foreign to the historical and, so to speak, instinctive policy of English constitutionalists.’ But this chapter argues there is no reason why sovereignty must be understood only as unlimited and indivisible. The obstacle is a lack of political will and not legal impossibility.

Unions take a variety of forms and it is not always clear what species of legal entity one is dealing with. They need not require a unitary State and may exist along a spectrum of State connectivity, from an affiliation of separate States, through to their complete fusion. This chapter examines other Unions – either past, for example Austria-Hungary, or present, such as the USA and EU. The UK Union itself only dates from 1707, is voluntary in nature, and (unlike some Constitutions) there is no legislation prohibiting secession by one part of the UK, nor any constitutional provision asserting and mandating constitutional integrity. This chapter argues it is preferable to understand the UK as a ‘Union State’ – that is, a State where the centre does not directly control every part of the territory – rather than unitary in nature, because there are different constitutional arrangements in different parts of the UK. Unions tend to do better if more elastic and less constraining. But current understandings of UK parliamentary sovereignty make such elasticity very difficult for the UK Union. The doctrine of unlimited sovereignty places an almost insurmountable barrier to resolution of issues threatening the Union today, particularly those of devolution.

Developing “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” is one of the purposes of the United Nations Organization, as stated in the founding charter of 1945. The principle of self-determination has even become a right through the Declaration on the Granting of Independence to Colonial Countries and Peoples (December 1960). The Declaration states that: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Self-determination has thus entered international law. Strangely enough, however, nowhere are the bearers of this right defined: who are the peoples entitled to claim self-determination? This omission is not there by chance. Indeed, the definition of peoplehood is far from evident. Should a people be defined on a territorial basis, i.e. include all the population living within a given territory delimited by given boundaries?

There was no legal definition of the British Empire and it possessed no explicit constitutional meaning. The empire was diverse and incoherent and terminology was not very clear. The terms ‘colony’, ‘dominion’, ‘possession’, ‘plantation’, and other expressions were used in different ways at different times. Indeed, an anti-formalist attitude tended to prevail – often eschewing formal law in favour of informal assurances, customs, and conventions. There was no attempt to establish a uniform legal code. And the sovereignty of the Parliament in London was only one of many types of sovereignty that existed. Much of the British Empire lent itself to a more pluralistic type of sovereignty – one that was divided, shared and indeterminate. Indeed, it was likely that power was the only unifying factor underlying the empire, aided by British naval supremacy, and the fact that, in the nineteenth century, global communications were predominantly in British hands. However, that power could not be derived from a unified, coherent account of legal and political sovereignty. And power by itself lacks legitimacy – it must be validated by something else – which is where sovereignty becomes relevant, in providing that grounding. Yet, the claims of sovereignty made by the empire were often mutually self-contradictory.

The legal and constitutional relationship between Ireland and England (and latterly Britain) was unclear for many centuries. Although Ireland enjoyed a good deal of legislative sovereignty under Grattan’s Parliament from 1782, the Acts of Union in 1801 set up direct rule from Westminster. During the nineteenth century, there was a campaign and draft legislation for Irish Home Rule (which Dicey, an ardent unionist, vehemently opposed). This campaign is worth reconsidering in the Brexit/Scottish independence context, given the varied legal and constitutional arrangements that were explored and vigorously debated. However, Home Rule never came about, rendered pointless by subsequent events. Since the Belfast/Good Friday Agreement and devolution in 1998, Northern Ireland has a had a variegated but pragmatic settlement of consociation and compromise quite different from the traditional British constitutional settlement. The EU has played its role in the peace process, providing structures for its continuation. Brexit now presents considerable challenges for Northern Ireland and the Republic.

The union of Scotland and England was the founding act of the UK in 1707, and consensually agreed between two sovereign parties. Scotland was never a colony of England and post-union retained considerable autonomy, including its distinct and separate legal and education systems and Church. As a result of the 1707 union, the UK Parliament (which was not simply the English Parliament enlarged) came into being. The doctrine of unlimited parliamentary sovereignty is not accepted by everyone in Scotland, where there exists an alternative Scottish tradition of popular sovereignty, and the belief that Scotland’s place in the UK Union rests on its consent. Since devolution in 1998, Scotland has developed some progressive constitutional forms, as well as more pro-European inclinations that challenge the unitary constitutional approaches of London. Brexit, however, has placed the UK union under strain, and there have been demands for a second Scottish Independence referendum. Surprisingly, despite the threat of Scottish independence, there has been little debate about what the ‘Union’ or ‘Britain’ is or should be.

This essay probes two questions about popular sovereignty’s status as a philosophical and governing creed in early America. How did an unprecedented collective ‘people’ – a people of citizens who actively participated in governing and who constituted an abstract legitimating power – get fashioned notwithstanding the remarkable national, cultural, religious, and racial heterogeneity of Britain’s North American colonies and the early United States? Why did this remarkable achievement not last, culminating in rivers of blood? I argue that the constellation of ideas and institutions that had fashioned America’s civic people out of raw materials provided by Hobbes, Locke, and Madison was brought to crisis by how President Andrew Jackson and Vice President John C. Calhoun elaborated extensions to the scope of popular sovereignty in the name of democracy – Jackson regarding the movement of free white people westward; Calhoun concerning slavery and its expansion.

Revolutions sprang from a variety of causes rather than simply from Enlightenment. Iberia and Ibero-America absorbed whatever Enlightened ideas or practices responded to political, economic and social necessities. The Spanish and Portuguese governments sought thereby to tighten imperial control. Individual reformers, often independently of government, regarded the new ideas as instruments of amelioration. International conflicts and revolutionary movements in the United States and France, as well as internal tensions, introduced new factors and pressures. These accompanied the strains on both the Spanish and Portuguese governments during the war years between 1793 and 1808. The Portuguese government escaped the political collapse and crisis of legitimacy which befell Spain and its empire, and managed to reconstitute itself in Brazil. The Enlightenment had contributed greatly to the critique of Royal absolutism in both empires and of metropolitan dominance. A range of influential Enlightened figures emerged in each of the component territories of both monarchies. The roots of Iberian Liberalism may be traced to their ideas and actions. A counter-critique attacked Enlightened ideas along with Liberal constitutional forms. The ensuing polemic and its political manifestation, especially after 1814-15, blamed revolutionary activity on the influence of the Enlightenment.

This chapter distinguishes two ways in which the Middle Ages conceived the relationship between human and nonhuman creatures. The first, according to which humans are a unique kind of animal (in the Latin word’s sense of “living being”), is available primarily to the learned, whereas the second, widely attested in lay usage and practice, concerns the difference (or lack of it) between humans and “beasts.” The chapter explores the complication of both relationships in the French and English romances of William of Palermo (late twelfth-/early thirteenth-century and mid-fourteenth-century, respectively), in which one aristocratic protagonist is turned into a werewolf and others disguise themselves in the skins of bear or deer. Human exceptionalism appears to condition the story’s coding of social dysfunction as animalization, but the romances equally show medieval aristocratic and chivalric identity embracing its proximity to “beasts,” for example, in the notion of sovereignty, in the symbolic languages of heraldry and dreams, and in moments of explicit self-identification. The chapter concludes by arguing that the way these romances build their fiction with reference to animals is materialized in the manuscript books that transmit them, made up as they are of parchment pages, that is, of processed animal skins.

The greatest challenge to liberal democracy today comes from the political ascent of movements that, in the name of democratic equality and popular sovereignty, attack the foundations of the liberal constitutional order. Comparing two influential accounts of these tensions, the chapter interrogates the meaning of popular sovereignty to shed light on the vulnerabilities and strengths of liberal democracy. While Schmitt insisted on differentiating liberalism from democracy to attack liberalism, Tocqueville insisted on the same to advance liberal self-understanding and to guard against modern threats to freedom. If for Schmitt, the difference between democracy and liberalism concerns the meaning of equality, for Tocqueville the crucial question is who and how delimits the popular will. While both saw pluralism as a challenge for constitutional democracy, Tocqueville considered it an indispensable aspect of popular sovereignty. Schmitt, by contrast, rejected the possibility and desirability of a pluralistic democracy.

At independence, the institutionalization of popular sovereignty for “We the people” of India had to be achieved for a poor and illiterate society, deeply divided by caste, language, and religion, and while more than 550 sovereign Princely States had yet to be integrated into India. This chapter explores how despite multiple competing sovereignties, and deep pluralities, a unified popular sovereignty consolidated at India’s founding between 1946 and 1950. It suggests that two complementary processes played a key role in fashioning an all-India popular sovereignty by the time India’s constitution came into force in January 1950. First, the making of a unified popular sovereignty in India was driven by efforts to work through the competing visions of popular sovereignty that were asserted at the time. Second, while multiple discussions about unified popular sovereignty were taking place, bureaucrats across the country embarked on the preparation of the first draft electoral roll on the basis of universal adult franchise. I argue that this resulted, in effect, in institutionalizing the edifice for implementing the “rule of the people” on an all-India level.

This chapter examines the role of foreign judges in the international mission to support the fight against corruption and impunity in Honduras ('MACCIH'), as conceived on paper and implemented in practice. It identifies two elements, aside from adjudication, of the role of the foreign judge in the international mission – as a diplomatic interlocutor to promote a new vision of the judiciary, and as an accountability mechanism for the international mission itself. The Honduran mission against corruption, and the use of foreign judges within it, can be understood in light of the receptiveness, in the wider Central American region, to international intervention in order to strengthen democracy, constitutionalism and human rights. However, the recent history of such international interventions raises questions about how the reputation and expertise of foreign judges and other foreign personnel can lend legitimacy to domestic institutions where corruption is rampant and where they face backlash from powerful domestic actors in the name of sovereignty.

Lord Bingham noted that the Common Law was not an isolated island, and that English law had always shown a receptiveness to ‘the experience and learning of others’. Brexit might appear to have set back that optimism. However, British relations with continental Europe are deep and historical. British lawyers played a very strong role in the creation and founding of the European Convention on Human Rights, so ECHR rights (now incorporated in the Human Rights Act) are not alien, foreign devices. Furthermore, Britain was not forced into EEC membership, but joined voluntarily, persisting after its first two applications were rejected by General de Gaulle, because it perceived that it would be socially and economically enriched by such membership – a perception that turned out to be accurate. EU membership also provided an external support system for UK devolution, facilitating common approaches within the UK and conciliation between the UK and Ireland. The EU and ECHR provided external guarantees and entrenchment of human rights, many of which are now at risk post-Brexit.

This chapter explores the constitutional ramifications of the French Revolution’s transformation of the old regime of property. It reinterprets the abolition of feudalism as part of the revolutionaries’ larger attempt to draw a conceptual and legal line of demarcation between property and power. Their double aim was to make property truly private by stripping from it all attributes of public authority and to make power truly public by eliminating its former patrimonial characteristics. The attempt to implement this demarcation in practice was still underway decades after the Revolution had formally ended feudalism. Over time, it largely succeeded. From this distinction between property and power flowed some of the key conceptual binaries – the political and social, state and society, public and private, sovereignty and property – through which we still apprehend the world. The abolition of feudalism was thus much more than simply the eradication of an archaic form of property. Rather, it played an essential role in shaping the conceptual building blocks from which modernity was built.

Ideas of citizenship have changed considerably since the concept was first envisioned in classical antiquity (Greece and Rome). For a long time, it remained an uncertain and undefined area – so that, for instance, Aristotle saw no general agreement on a definition of citizenship.1 The citizenship laws of Athens distinguished between citizens, slaves, and non-slave residents (metics), including prosperous and affluent merchants.2 Eventually, the Citizenship Law introduced by Pericles (451 bce) extended the status of citizen to offspring whose parents were both Athenians.