25 June 2013

Conservation of Sovereignty

Nick Land wants us to get to the bottom of the Moldbuggian precept, “Sovereignty is conserved”.

The response has been a lot of wrangling about definitions. But it doesn’t look like being resolved, so I’d rather bypass it and get to specifics.

There are two things that Moldbug might mean. The first is that someone is always supreme: that if you attempt to limit the sovereignty of the nominal sovereign, someone else becomes sovereign in his place. (The second is that sovereignty can be divided but still “add up” — I will not address that here).

When he talks of the “Council of Nine”, the first meaning is what he appears to intend. The president is not sovereign: he is subject to law. Who decides what the law is? — The Supreme Court. Do they have untrammelled sovereignty? — in theory not, since they also are subject to law. But they decide what the limitations are on their own power, not only on the President’s. Therefore, in reality, they are sovereign.

Does this sovereignty mean they are all-powerful? Clearly not. Their power can only be exercised through the bureaucracy, the police, the army, and there are instructions they could issue that would not be obeyed.

Then again, that is true of every sovereign, up to the most absolute of monarchs.

Nevertheless there is a difference, in that an instruction of the Supreme Court might be defied because its subjects believe it has exceeded its legal role. A truly absolute monarch might be defied for other reasons, but not for that reason.

It is not clear to what extent historical monarchs were considered truly absolute in that sense. The question of whether a monarch was in theory subject to some law, though there was no formal body that could impose it on him, seems to have been an open one through British history, with arguments made on both sides. My impression is that the less absolute view generally had the upper hand, at least from Magna Carta on.

Note this is the position in favour of “sovereignty is conserved” — the conclusion is that the sovereignty that the US Supreme Court has is the same as the sovereignty that Henry VIII had. Not perfect or complete, but supreme over any formal rival.

At the same time, it makes the conservation of sovereignty less interesting. It means that a ruler still has practical limitations on his power, in spite of his sovereignty. The nature and scope of those limitations are matters of great interest, but are excluded from the question of sovereignty.

The question that follows is: what is the effect of denying legal sovereignty to the role of "leader". On one hand, it might be nothing: whoever has the legal sovereign is the leader, and a purported leader without sovereignty is an empty figurehead. On the other hand, it might be significant — the practical limitations on a sovereign who is supposed to be a judge rather than a leader are different from the case where the sovereign and the leader are the same person.

1 comment:

A Nonny Mouse said...

I recently read the biography of Richard III which led to the dig which uncovered him. Edward V had the misfortune to inherit the throne in childhood, which is always a fatal experience. His uncle, Richard of Fotheringhay (subsequently, the III), very kindly assumed the regency, and consigned Edward V to the Tower for safe keeping. Once in office he found that he rather enjoyed being Regent and cast around for some legal means of upgrading the office to the permanent one of King. A clever lawyer, together with a bent judge, can remove any obstacle. Richard was directed to one Stillington, Bishop of Bath and Wells, who was prepared to swear that the late king, Edward IV, had been previously contracted to Eleanor Talbot, and therefore his marriage to the Queen was invalid, and his children bastards. As Eleanor and Edward were both dead, neither could deny this, though as both must have sworn to a lack of impediments when marrying other parties, I would have thought their oaths trumped that of a mere bishop.

What is remarkable is that the present day author actually believes this crap. Stillington’s reliability is demonstrated by his subsequent joining the rebellion of Lambert Simnel, a dishwasher who claimed to be the younger of the Princes in the Tower, or possibly their cousin, or both. Stillington was a Yorkist politician and rebel: he would swear to any falsehood if it was likely to advance him to Canterbury.

So it follows that even in the unlikely event of the restoration of absolute monarchy, there will always be two (at least) parties. Any benefit to be derived from an elimination of party politics is thus lost. However, all the befits of party politics are lost, with the argumentation moving to a sphere which is extremely silly and of no benefit to the public whatsoever. See under “arguments” in https://en.wikipedia.org/wiki/Line_of_succession_to_the_Russian_throne