This chapter discusses the conceptual benefits and drawbacks of the notion of the material constitution from the standpoint of a sympathetic critic. It proceeds by identifying three separate but overlapping registers in which the concept is invoked; as an ideologically inflected and often politically charged rhetorical contrast with the formal legal constitution, as the theoretical fulcrum of a particular explanatory scheme and as a general methodological orientation towards generous consideration of the bearing of non-legal factors upon constitutional outcomes. The rhetorical roots and the narrower theoretical understandings of the concept can leave it mired in disagreement and even confusion over the fluid terms and implications of the binary opposition typically drawn with the non-material dimension of the constitution. As a general methodological framework it holds much more promise, although questions remain over whether broader adjectival concerns with the various dimensions of material constitutionality might provide a more flexible methodological opening than a focus on the ‘material constitution’ as a discrete polity-specific object.

Patrick Glenn’s final writings on the idea and practice of the ‘cosmopolitan state’ might seem as something of a departure for the world-famous comparativist, but they are in fact strongly continuous with his earlier work, and all the more fascinating for that. For Glenn, comparative law was always a subject in part defined against itself. For it was as much an examination of what connects and integrates different legal doctrinal streams and systems as of what distinguishes and divides them. And so it was quite natural that he should finally come to study systematically the ever more powerful web of transnational and global connections and commonalities that make the contemporary state – in his words – ‘cosmopolitan’ rather than ‘national’. His investigation paints a powerful picture of a global cosmopolitan practice that, against the vision of stronger versions of cosmopolitanism, is not itself globally located; rather it is rooted in different state subsoils, linked together through a matrix of legal, institutional, and cultural factors. Yet the question arises how robust his confident defence of state-centred cosmopolitan attachments would be in the face of the very recent upsurge in a nativist populism for whom ‘cosmopolitanism’ is the pejorative label of choice.

The word ‘crisis’ has two different shades of meaning, both central to the topic of this chapter. A crisis can refer to an unstable situation in political or social affairs that persists and intensifies over the relatively long term. Modeled on the original Greek meaning of krisis, denoting the turning point in a disease, a crisis can also refer to a traumatic episode or condition whose resolution remains unclear and replete with danger. The crisis of democratic leadership is a crisis of the first sort – a slow burn tending toward meltdown. The coronavirus pandemic is a crisis of the second sort – a traumatic event spiraling into an uncertain and perilous future. My argument is that the crisis of the first sort – the crisis in democratic leadership – is currently feeding into and feeding off the crisis of the second sort – the “real world” crisis posed by COVID-19. Indeed, compared to many other potential real world crises, COVID-19 is especially revealing of the problems of democratic governance.

Richard Tuck’s recent book-length study of Thomas Hobbes’ depiction of the ‘Sleeping Sovereign’ offers an eloquent reminder of the contribution of the great seventeenth-century English philosopher to the political imaginary within which our modern conception of constitutional democracy has emerged. Central to that imaginary is the retention of an evolved conception of sovereignty as the organizing device of political society, and, as one key facet of that evolution, the establishment of a fundamental distinction between sovereignty and government. Hobbes would not be the first to draw such a distinction – that prize belongs to Jean Bodin, writing in the previous century. Yet it was Hobbes who developed this idea in ways that were to alter radically our understanding of the condition of the modern polity, and which still resonate today. As I will argue in this chapter, the theoretical lens and accompanying metaphorical language of Hobbes, suitably extended to cover the stirring of new forms of sovereigntist consciousness and practice, continues to offer a powerful perspective through which we can appreciate both the strengths and the limitations of a sovereignty-centred approach to the contemporary global political condition.

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.