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Macau Periodical Index (澳門期刊論文索引)
- Author
- Verhoeven, Sten；Zhai, Xiaobo
- Title
- The idea of sovereignty and the constitutional nature of the eu－ a benthamic perspective
- Journal Name
- Universidade de Macau : Boletim da Faculdade de Direito = 法律學院學報
- Pub. Info
- 2019, No. 46, pp. 45-61
- Abstract
- This article aims to demonstrate how Bentham's theory of sovereignty can be used to improve our understanding of the constitutional nature of the EU. According to Bentham, sovereignty is constituted by people's general obedience. He distinguishes between operative sovereignty and constitutive sovereignty. Whereas the latter is the supreme power by the exercise of which operative sovereignty is created and conferred, operative sovereignty is the supreme power by the exercise of which business is done. Bentham's theory allows him to explain the sovereignty of irregular political entities, in his time, the holy roman empire, the united dutch provinces, and the helvetic confederacy. Although these were constituted by sovereigns, they have their own operative sovereignty because they are habitually obeyed by the subjects. Applied to the EU,this entails that although the member states have constituted the EU, the EU is more than the pooled sovereignty of the member states and has its own operative sovereignty. Finally, the article demonstrates that although the EU is an operative sovereign in its own right, this does not entail that it is unlimited by law. The EU's competence is limited by the foundational treaties, but this does not affect its operational sovereignty. Bentham introduced the distinction between laws in populum, laws directed at the subjects, and laws in principem, laws addressing the powers and competence of the sovereign, which are ultimately enforced by the public opinion. Consequently, operative sovereignty may well be limited by laws in principem. The article concludes that in accordance with Bentham's theory of sovereignty and his distinction between laws in populum and laws in principem, the EU is a legally limited operative sovereign. Paragraph Headings： 1. Bentham's description of a sovereign and the sovereign in the eu 1.1. Bentham's notion of an operative sovereign 1.2. The relative nature of an operative sovereign 1.3. Operative sovereignty and the eu 2. Structure of the operative sovereignty of the eu 3. The eu as a limited operative sovereign 4. Conclusion