Law and the Limits of Sovereign Power

Abstract

Barber’s recent book The Principles of Constitutionalism argues that state sovereignty is not subject to legal limits, from either domestic or supranational law. It further suggests that state sovereignty is not subject to moral limits either. This paper argues that this is an unsound view of state sovereignty and that Barber’s work contains valuable resources for developing an alternative, sounder view. A sound account of state sovereignty will consider the legitimate scope of a state’s authority, over and above the authority the state claims. It will explain the foundations of state authority in terms of rules, rather than the mere say-so of someone mighty. And it will be continuous with influential legal accounts of state sovereignty that historically accompanied the very emergence of the state.