On Misunderstanding States: The Transnational Constitution in the National Constitution

This article outlines a theory of statehood which rejects the commonplace notion, strongly influenced by Carl Schmitt, that sovereign statehood is in a process of decline, owing largely to the growing power of international norm setters. It argues that this view results from a simplified construction of statehood, which misinterprets both the historical and the functional formation of state institutions. As an alternative, it explains how modern society is marked by a dramatic growth in the power of states, and that most contemporary states possess greater effective sovereignty than their historical predecessors. It argues that, paradoxically, the rising sovereignty of states is attributable to factors that are usually seen as restricting the power of states; in particular, national states factually presuppose international norms for their effective exercise of sovereign power.