The term “sovereignty” is ambiguous, and can lead to some confusion (as explained by Adrian Vermeule). Vermeule argues that one must distinguish between “sovereignty as fact and as theory, de re and de dicto.” This is an important clarification, because it is useful to speak about sovereignty, and the confusion can be avoided simply by using different terms.
Vermeule defines “sovereignty as fact” relying on John Austin, who stated that “if a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience from the bulk of a given society, that determinate human superior is the sovereign.”
One need not accept Austin’s precise formulation to understand the kind of thing he is doing. His definition can be understood to belong to what Carl Schmitt called the field of “sociology,” as distinguished from “jurisprudence.” It is not a juridical notion, since it involves no claim about what ought to be, but is merely a description of the way political order actually functions from the point of view of the actors’ behavior. A factual pattern of obedience in society to such a “superior” indicates the factual existence of a “sovereign.”
Although Austin’s positivism confuses the issue a bit, the point seems to be that he is seeking a universally applicable formula to distinguish political from non-political order as a mtter of fact (to the extent that such a purely descriptive definition is possible in practical philosophy). In fact, he goes on to say that whenever a “sovereign” in his sense exists in a society, then “that society (including the superior) is a society political and independent.”
And who can deny that Austin is right? A “determinate human superior” undoubtedly must exist in any political community. But we don’t have to call it “sovereign” if we wish to avoid confusion. The medieval jurists called it the summa potestas, a power supreme in its order (i.e., which admits no appeal in that order) – the supreme power. Admittedly, this is not exactly the same as Austin’s definition, since it is a juridical notion in Schmitt’s sense. But it is also a factual, “sociological” one that maps onto Austin’s notion precisely. The supreme power is that “determinate human superior, not in the habit of obedience to a like superior,” which “receives habitual obedience from the bulk of a given society.”
The confusion between “sovereignty de re and de dicto” Vermeule speaks of is therefore a confusion between a number of theories of political power and the apparently factual description of the supreme power, which Austin annoyingly called the “sovereign.” And Vermeule is right that those condemning “modern sovereignty” should be careful not to confuse it with the supreme power, and conclude wrongly that supreme power also is somehow bad, false, or a novelty.
Having clarified this, what about sovereignty?
I take “sovereignty” to refer to a maxim of modern public law, which states that the power of the political community is in principle absolute, in the sense that it lacks any limitation. This can be taken in two ways, procedural and substantive: that there is no power superior to it which could impose or enforce any limit (i.e., it is a summa potestas) and that there is no source or norm that could even in principle ground any such limitation. That is, there is no way, either theoretical or practical, to devise or impose any limit on what this power can do. Perhaps the only end that informs the action of a sovereign thus understood is its own self-preservation. It is coeval with law, and its preservation is the supreme law.
Many reasons – practical, philosophical, and theological – have been given to defend this idea. But the political principle at issue remains the same: “sovereign” is the supreme power that can do no evil. (Notice that this is properly a juridical concept, in Schmitt’s terms.)
This notion is both absurd and heretical.
It’s absurd because no such power can even be coherently conceived, much less exist in reality. If nothing else, the basic principles of nature and reality must limit its scope of action – it cannot make men immortal or change stones into bread. (The fact that it now tries to make men into women, and to have its subjects believe and decalre that it has done so, only shows how deep the infection of this error goes, not to mention its malignancy.) And if these limitations, or at least some of them, are admitted, then many other limitations can be admitted also. Procedrually, the enforcer of these limitations must in the end be “nature and nature’s God”, but of course others can and do exist; substantively, all such limitations ultimately will have the form of law.
It’s also heretical because it denies the essential dependence of political order on the authority of God, as manifested both in the reality of the natural law and in the authority of the Church as keeper and supreme interpreter of both the natural and the supernatural laws. The Christian dispensation requires that political power be limited not only in principle or substantively (by God through the natural and supernatural laws and also by the law of nations) but also in authority or procedurally, by subordination to the Church (and, one might add, to the Empire).
In fact, the authority of the Church herself (and of the Empire) is also limited in a similar way. That is, not even the Pope is “sovereign” in the modern sense, since he is bound to the law of Revelation, the final enforcer of which is, of course, God Himself.
The modern state undoubtedly wields the supreme power – how can it not? – but its claim to sovereignty is a lie and a fountain of many of its crimes and outrages.