Are We Beyond Sovereignty? The Sovereignty of Processes and the Democratic Legitimacy of the European Union
Tanja Hitzel-Cassagnes considers the extent to which MacCormick succeeds in constructing a synthetic theory of law and politics capable of accounting for the various transformations of law as a means of social integration in a “pluralistic” context without renouncing any of the key normative categories of political philosophy inherited from the Enlightenment. MacCormick claims that there has always been a pluralistic potential cloaked behind, so to speak, the apparently monistic political and legal language of modernity; and what had served to conceal this potential was the historical, political and legal pre-eminence of state law, its characterisation as the unique form of institutional normative order. But while we cannot but share MacCormick’s “pragmatic” concern, and while there is much to be learnt from his actual theory, Hitzel-Cassagnes rightly points out that it is simply not the case that the universalistic drive of law is a side-effect of the pre-dominance of the “nation-state” paradigm, but that it is actually the constitutive character of law as a means of social integration; this implies not only a “structural” universalistic proclivity of law, but also a “normative” universalistic proclivity. As a consequence, norms governing the relationships between legal orders should also be legal norms underpinned by a universalistic drive. The powerful insights behind MacCormick’s democratic celebration of social pluralism are, according to Hitzel-Cassagnes, more fittingly brought to fruition through Kant’s vision of law as a reflexive and provisional structure.